N2253

PAPUA NEW GUINEA

[In the National Court of Justice]

CR No. 1156 of 1999

THE STATE

V

BEN NOEL, PHILIP NOEL
AND RICHARD EREKUE

GOROKA: KANDAKASI, J
2001: 19, 20, 21 & 22 March
2001: 28 & 31 May

CRIMINAL LAW - PRACTICE & PROCEDURE - State dropping charge against a an accomplice in exchange for his evidence against accomplices - Unsafe to rely on such evidence - Defence counsel acting for co-accused becoming witness who allegedly admitted to committing offence - Improper to use information obtained in lawyer/client situation for cross-examination and discrediting of witnesses - Defence raising alibi – Notice of alibi not given in accordance with practice rules - Improper conduct to raise allegations in cross-examination by defence without any evidentiary basis - Failure to call possible witnesses – Such failure having effect of a failure to establish case beyond any reasonable doubt.

CRIMINAL LAW – Particular offence – Murder - Group attack - Elements of charge considered – Serious inconsistencies in evidence of the Prosecution - Totality of evidence failing to establish case beyond reasonable doubt - Verdict of not guilty returned and Defendants acquitted. 

EVIDENCE - Credibility and weight to be given to evidence of co-accused called as prosecution witness in exchange for a nolle prosequi of charge against him - Friend and relation of deceased not independent witnesses - Inconsistencies in oral testimonies and written statements of witnesses amounts to tailoring of evidence - Such evidence unreliable - Witnesses giving evidence inconsistent with each other amounts to failure to establish case beyond reasonable doubt.

LAWYERS - Defence counsel previously acting for co-accused turning witness against co-accused - Improper for counsel to use in cross-examination information given to him as lawyer for witness - Statement of witness given to counsel in his capacity as lawyer is protected by lawyer/client privilege - Need for counsel to disqualify - Counsel failing to see to conclusion of case after no case submission and failing to adequately brief replacement counsel amounts to improper conduct - Breach of Provisional Conduct Rules counsel caution and warned against such conduct - Client not liable to pay costs unnecessarily force on him by counsels conduct.. 

Papua New Guinea Cases Cited:
SCR No. 1 OF 1980: Re s. 22A (b) of the Police Offences Act (Papua) [1981] PNGLR 28.
Regina v. Nantisantjaba [1963] PNGLR 148.
John Wanamba v. The State SC551.
Regina v. Simbene Dandemb [1969-70] PNGLR 207.
The State v. Nataemo Wanu [1977] 152.
Paulus Pawa v. The State [1981] PNGLR 498.

Other Cases cited:
Booth (1983) 1 VR 39 at 52.
Jones v. Dunkel (1959) 101 CLR 298.
Browne v. Dunn (1894) 6 R. 67.

Counsel:
Mr K. Umpake for the State
Mr J. Bray for the Defendants

31st May 2001

KANDAKASI, J.: The Defendants stand jointly charged with one count of murder of one Nelson Onopiso (the deceased) on the 25th July 1999, here in Goroka. They denied the charge and the State called five witnesses in a bid to prove the charge. At the close of the State's case, the defence made a written "no case submission", which I rejected in my written short ruling on the 28th of May 2001. 

The Defendants decided not to go into evidence. Instead they argue that the State has failed to establish the charge against them on the required standard of, proof beyond any reasonable doubt. The State argues that the evidence it has called establishes the charge against them beyond any reasonable doubt. The main issue therefore, is whether the State has established the charge against the Defendants beyond any reasonable doubt?

The Offence

The offence with which the Defendants have been charge is prescribed by s. 300(1)(a) in these terms:

"(1)	Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:—
(a)	if the offender intended to do grievous bodily harm to the person killed or to some other person."

The law requires in every criminal case for the prosecution to establish each of the elements constituting an offence beyond any reasonable doubt to secure a guilty verdict and conviction. The Supreme Court, per Greville Smith J, expressed that position in these terms in SCR No. 1 OF 1980: Re s. 22A (b) of the Police Offences Act (Papua) [1981] PNGLR 28 at page 34:

The general rule is that in criminal cases it is for the prosecution to prove, and to prove beyond reasonable doubt, every element of the alleged offence (Woolmington v. Director of Public Prosecutions 12). The rule applies equally to negative elements as well as, for instance, absence of consent in cases of rape. Accordingly, the Crown must prove every fact, whether affirmative or negative, which forms an ingredient of the offence

The essential elements in the present case are (1), a person (the offender) (2), with intent to do grievous bodily harm to another person (3), causes by such conduct the death of (4), another person (the victim). These are the elements that must be proven beyond any reasonable doubt. That is to say, there must be a death of a person caused by the person(s) charged which must have been caused by an intention on the part of the person(s) charged to cause grievous bodily harm to the dead person or another person.

Speaking in relation an intention to cause grievous bodily harm (second element here), Smithers J in Regina v. Nantisantjaba [1963] PNGLR 148 said at page 150:

"It is true that in cases where murder is alleged an assault is commonly the cause of death. But all the elements of the offence of murder will be present in many cases where there is no assault. On the other hand, where death is caused by an assault, proof of the assault is merely proof of a fact from which by itself, or in conjunction with other facts, the inference may be drawn that one of the elements, such as intent, cause, or unlawfulness, is present."

The Evidence

Of the five witnesses called by the State, three of them are supposedly eyewitnesses, while the fourth one was the police investigating and arresting officer. The fifth witness was a medical doctor who carried out an autopsy on the deceased and provided a medical certificate of death. 

(a)	First Witness: Ken Kara

The first and key State witness was Ken Kara. He was earlier charged for the same offence but was later dropped in exchange for his evidence against the Defendants. He was a security guard on duty employed by Dom Securities, which was contracted by the Phantom club (the Club) here in Goroka at the junction of the Okuk Highway and the road to North Goroka next to the Goroka cemetery. That was from 6:00pm on the 24th July 1999 to 6:00am the next day, 25th July 1999. The Club is owned by Ben Noel (Ben), one of the Defendants in this case.

At about 4:00am, the witness was inside the clubhouse where people were drinking and dancing. A man amongst those inside, identified as Nelson Onopiso (the deceased), smashed a beer bottle and shortly one more on the cement floor. He thought of stopping and sending the deceased out but because he was a bigger man, he was afraid. So, he went to Ben, who was with the Provincial Police Commander - Eastern Highlands Province (PPC) and reported the matter to him.

Ben walked to the deceased, pulled him by his shirt collar, took him to the door, started to punch and pulled him out with Richard Erekue (Richard) and Philip Noel (Philip) joining in. The three of them kicked and punched the deceased repeatedly. The witness picked up a small piece of broken cement, threw and landed it on the deceased back, close to his buttock. Other securities employed by Ben also joined in. Philip executed further kicks with his leg on the right side of the deceased below his ribs and close to the stomach before he was pulled to the main gate. Whilst at the main gate, Ben hit the deceased again and he fell down on his back into a cemented side drain. Before leaving the deceased, Ben executed two further kicks. Some people tried to stop them but on seeing Ben, they stopped because they were afraid of Ben.

He saw some people whom he failed to identify or specify lifting stones and hitting the deceased with them.

While all these were taking place, the witness went and closed the main gate. About 2 minutes later, the Defendants returned and sounded the small gate so he went and opened and closed it after them. He does not know what happened next. 

This witness says he knew all of the Defendants well, before the incident and identified all of them in Court. Ben had two houses, one in West Goroka and another one at Mt. Kiss. Originally, the Defendants come from Tabare village in the Sinasina District of the Simbu Province. 

He says, he clearly saw what happened. There was good lighting, a fluorescent tube light in the bar area with a number of disco lights in the dancing area. On the outside, there were two spotlights one shining in towards the club and another shining in the opposite direction. The distance between him and where the attack on the deceased took place was about 10 - 12 meters. He watched the incident for about 3 minutes. Yet, he is unable to identify and give the names of the other assailants because he says, he did not know them and could not recognize them. He was certain none of his fellow employees were involved as they were at the back guarding the customer's vehicles.

He admits being charged with the same offence but dropped in exchange for his evidence against the Defendants. Mr. Bray cross- examined the witness on a line of questioning based on a statement he had obtained from the witness, in which the witness allegedly confessed to being the only person committing the offence. That statement was obtained when Mr. Bray was the witness' lawyer and before he changed lawyers. Until much later, counsel for the State and the Court were not aware of this. I refused to admit into evidence the statement when Mr. Bray sought its admission. At that time, I raised the possibility of Mr Bray breaching the Provisional Conduct Rules (PCR) and raised some impropriety in the way in which the trial was being conducted especially with the need to extend fairness and courtesy to the witness and to avoid a trial by ambush. I indicated that, I will take this point further at the time of formal judgment and asked counsel to assist. I will get back to this later on but for now, let me complete the evidence.

During cross-examination on his statement, the witness said Ben and his accomplices had earlier told him to confess to the murder without implicating them. Ben threatened to take his life and if the case got complicated he would kill Sergeant Kafare and Christina (police officers). So when Mr. Bray went to interview him, he admitted as he was told to do by the Defendants. 

The witness gave a statement to police, which was first taken in handwriting and later typewritten. He signed it after it was read and explained to him for he is an illiterate. The statement is evidence for the defence as Exhibit D1. In there the witness states what he has told the court but with a number of variations. First, the first people he saw when he arrived for work were the Manager of the club, Ben who was with the PPC and some girls who were dancing with music. Then at about 3 am on 25th July 1999, a man (deceased) believed to be from Massey village and under the influence of liquor smashed a beer bottle. Next, when he got to the gate following the deceased, who was pulled out by Ben, he picked up a stone and hit him at the back. Earlier on Friday 23rd July 1999 about 6:00pm Ben showed him and others a small brown pistol and said he can shoot anybody without notice. Ben used to carry a black handled pistol since he (witness) started working with him but that was smaller than the brown one. Finally, on Monday 26th July 1999, he heard about the death of the deceased and the police came and took him to the police station.

A more recent statement dated 13th March 2001, was also admitted into evidence for the defence as exhibit D2. In that statement, the witness repeats most of what he already said in his oral testimony and his first statement but with some variance. Firstly, he changes the time from 3:00am in the first statement to 5:00am. Secondly, he changes from not doing anything to the deceased after he had smashed the first bottle to ordering the deceased out. He then introduces a number of new things. Firstly, he says the deceased blocked off punches thrown at him by the Defendants. Secondly, he says after pulling the deceased out of the drain where he had fallen, Ben punched him twice on the jaw area. Thirdly, he says Philip at that time had a stone in his hand. The fourth and main variation is a provision of the details of the allegation of the Defendant's threats. This includes his reporting of the threat to police, the Court, him being transferred to the Bundaira CIS from where he escaped and informed the police of his whereabouts. 

When asked in cross-examination as to which of the versions of his evidence was correct, he said all of them were. At the same time, he said it was a long time ago so he was bound to make some mistake or omit some evidence.

(b)	Second Witness: Orabo Ayorepe

Mr Orabo Ayorepe was the second State witness. He comes from Oradato village, Okapa, Eastern Highlands Province. At the time of the trial, he was living at Busu Coffee here in Goroka. He is a friend of the deceased and his family through the deceased's brother. According to this witness, the deceased father is a well respected man from Mase village just outside Goroka and was the headmaster of the North Goroka Primary School where the witness did his grade six in 1993.

At about 4:00am on the 25th July 1999, he went to the Club for the first time, hoping to get a free admission. He walked by foot and got to the club about 2 - 5 minutes before 5:00am, with Sili Aire. When they got there, they found that it was not possible for them to get a free admission so they stayed outside. Whilst outside, he saw a young man coming out with a number of other people following him. That person went to the side of the public bar. Those who were following him, then started hitting him. The Defendants were part of the people following the young man. He could not recognise the other people, as he did not know them. 

Although, he did not see who threw it, he saw a stone flying and hitting the young man at the back. The young man fell down with his face down. At that time, he saw one of the other assailants lifting up a stone to throw at the young man but someone amongst them stopped them from doing that. Thereafter, he saw the assailants lifting up the deceased and making him to stand. As there were many people he did not see whom in particular lifted up the deceased. He then saw the young man walking, though not properly, and that is when he recognised that person to be the deceased so he called out, "hay o", its Nelson and he ran to him with Sili following him. Him and Sili tried to help the deceased but other boys at the scene swore at them and said "yu stupid pipia mangi kaikai kan na go" (you dirty kid, eat vagina and go). This made him and Sili to leave the deceased alone at the junction of the Okuk highway and the road leading to North Goroka and they went home.

He was about 12 meters away from the clubhouse and where the deceased was being assaulted. There was sufficient lighting including a spotlight. He was able to recognise the Defendants because Ben is a popular figure and he had previously met Richard and Philip. He said all of the Defendants live at Mt. Kiss.

He said he went to police sometime later because the boys from Massey asked him to. That was after he had volunteered to give evidence when he met with some of the Massey people whom he knew and told them that he would give evidence. 

Sergeant Peter Kafare of Goroka Police took his statement first in handwriting and later had it typed and read to him and he signed it. A copy of that is exhibit "D3" for the defence. It is consistent in most parts with his oral testimony but defers in a number of respects. Firstly, the people who pursued the deceased numbered about 10 men. Secondly, during the time of the attack on the deceased, he saw one of them pick up a stone and hit the deceased at the back of his head. Thirdly, he saw that the deceased was seriously attacked and could not get out so he rushed to him and pulled him up and took him away. Fourthly, He saw the deceased bleeding from his face, mouth and nose and was very weak to walk. Fifthly, he and Sili Aire tried to help the deceased but they were chased away by Ben and his security guards so he left the deceased at the main road near the cemetery to go home and he went away to his own home.

In extensive cross-examination on the variances, he said two things. First, his reference to one man picking up a stone and hitting the deceased at his back was incorrect. Secondly, the reference to security guards coming with Ben was only an assumption on his part.

(c)	Third Witness: Norry Bebes

Norry Bebes was the third State witness. He is the deceased’s brother in law. The deceased was married to his big sister, Lily Bebes and he was a good brother in law to the witness.

He was with the deceased at the club about 1:00am. The deceased had gone there ahead of him and he joined him later. He confirmed that the deceased was drunk and had broken a beer bottle, which attracted Ben who came and held the deceased by his shirt collar and took him out to the gate. Two of Ben’s security guards followed him out and they started to hit the deceased and take him to the main gate. The securities at the main gate closed the gate.

He knows Ben and he identified him in court. However, he neither knows nor could he identify the two persons who acted in concert with Ben to assault the deceased.

He too gave a statement to police, which is dated 28th July 1999. A copy of that is in evidence as exhibit "D4" for the Defendants. The statement confirms in most parts his oral testimony and also defers in a number of respects. First he states, when he arrived at the club he saw some boys and girls from the deceased village (Massey) and the deceased were already inside the club dancing so he joined them. Then around 5:00am he saw a security guard approach the deceased and held him by his shoulder and told him that the boss wanted him. The deceased refused to go so the security went and returned with Ben. Ben took the deceased out of the clubhouse. After the deceased was taken out of the clubhouse he did not know what happened to the deceased.

Next, he states that, he stayed inside the clubhouse until 6:45 am when he left the club and went to his house at Faniyufa. On arrival, he discovered that the deceased got home and was sleeping inside the house. When his sister and the deceased’s wife, Lily Bebes, wanted to take the deceased to the hospital for treatment she discovered that he had died. They therefore, rushed him to the Goroka Base Hospital on a vehicle and was confirmed dead by doctors on duty. They then left the deceased’s body in the hospital morgue and went and reported the death to Goroka police. 

In cross-examination, he said his time estimates were only estimates, as he did not have a watch. In relation to the number of bottles broken, he said when he got to the clubhouse he saw only one bottle being broken. On the security personnel approaching the deceased first, the witness said he gave his statement about two years ago and therefore it was possible for him to leave out some details. This is despite seeing his statement before coming into court. Regarding not seeing what happened to the deceased, the witness answered it was correct that he could not see what happened to the deceased outside the gate. However in answer to a question in terms of him not seeing anyone assault, the deceased before the gate closed, he answered in the negative. He also answered in the negative a suggestion by Mr Bray that, he and the police-investigating officer, Mr Peter Kafare were framing up Ben for nothing as Ben had political interest and out of jealousy for his business success.

(d)	Fourth Witness: Sergeant Peter Kafare 

Sergeant Peter Kafare was the fourth state witness. He was the police investigating, arresting and charging officer. He is an officer of the Police Force with 27 years of service. Twenty-three of that have been with the criminal investigations division. He has been in Goroka for 7 years now. Prior to that, he served in the Morobe and Western Highlands Provinces. He comes from Bena area of this Province and is married to a wife from his own area. 

The officer in charge of the criminal investigations division assigned him, to investigate into the incident leading to the death of the deceased. This started in the afternoon of 25th July 1999, at about 3 o’clock, when he received a report of the death of deceased as a result of serious injuries he received from the club. The deceased body was at the Goroka Base Hospital morgue so he went there and saw the body and confirmed the death.

He then commenced his investigations. He interviewed and obtained statements from witnesses. Then based on the information he gathered he was satisfied that there was enough material to arrest and charge the Defendants and he did.

He also found out that, without his knowledge, a Ken Kara was charged for the murder of the deceased. Ken Kara was charged on the basis of his own admission of being involvement in the commission of the offence in his record of interview and a confessional statement he gave. Later however, the charge against Ken Kara was dropped in exchange for his evidence against the Defendants. This witness then confirms Mr. Kara's evidence on the threats, transferring Mr. Kara out of Bihute CIS to Bundaira CIS and his escape from there.

Mr. Bray in cross examination tried without success to get the witness to admit that the charge against the Defendants were fabricated or framed up because of Ben’s political interests and business successes. Mr. Bray also, tried without success to get an admission from this witness that police did not investigated the matter properly because they failed to investigate properly and eliminated the possibility of the deceased dying from an intervening cause. The witness became protective of his investigations and said it was not necessary to investigation into such possibilities because there was no suggestion to that effect.

Mr. Bray suggested to this witness that the Defendants were not at the scene at the relevant time and therefore raised an alibi. I upheld objections to this line of questions because Mr. Bray failed to give any notice of any alibi contrary to the relevant practice rules. 

Mr. Bray tried to discredit this witness by suggesting to him that he was married to a woman from the deceased’s village and that he had framed up the charge against his clients. The witness responded by saying, he is married to a woman from his own area, Bena and if counsel wished, he could go and ask his wife who was at the barracks at the time of his evidence. 

(e)	Fifth Witness: Dr. Toke Inina

The final State witness was Dr. Toke Inina. He carried out the autopsy on the deceased body, which was identified by the relatives. Based on his autopsy, he issued a certificate of death and deposed to an affidavit on the 20th of March 2001, annexing his certificate. He certified that a blunt blow (from close range) to the deceased’s head caused the death. He confirmed that there was evidence of assaults on the deceased.

Mr. Bray cross-examined Dr. Inina at length. Those questions however failed to cause any substantial change to the doctor's evidence in chief. Mr. Bray's questions were in effect a whole lot of possible causes of death but they did not go far enough to make the doctor change his findings and conclusion. 

Assessment of the Evidence 

I have some difficulty with the State witnesses and their evidence. First, except for the last two witnesses, the first three eyewitnesses are not independent witnesses. Mr. Ken Kara initially, a co-accused was required by the State to testify against the Defendants in exchange for his freedom or the charge against him being dropped. Orabo Ayorepe and Norry Bebes were a friend of the deceased and his family and brother in law respectively. They were therefore, in my view, inclined to give evidence against the Defendants who were allegedly responsible for the death respectively of their friend and brother in law.

Speaking generally of relation of witnesses to victims of an offence, the Supreme Court in John Wanamba v. The State SC551 commented in the context of the identity of two State witnesses not being clearly established:

"But to rely on their evidence it was necessary for the trial judge to know just who these two witnesses were - their relationship to the appellant, the crowd of people and their purpose for being there in the first place. We have no idea as to what their qualifications are, if any, so far as their knowledge or familiarity with the handling of firearms is concerned. The State failed to establish the identity of these two witnesses and for all we know they could even be relatives of the deceased."
						(Underlining mine)

Implied in that comment is the fact that, a relative or a friend of a victim of an offence may be inclined toward giving evidence favourable to the prosecution. In the case before the Supreme Court, the Court upheld the appeal against conviction because of fears that the witness may not have been independent and therefore unreliable.

In relation to a co-accused or an accomplice’s evidence, the law is well settled. As O'Loghlen AJ said in Regina v. Simbene Dandemb [1969-70] PNGLR 207 at page 212:

"The general rule of law is that an accused person is not a competent witness for the prosecution in any criminal case and there is a further rule that one co-prisoner cannot be called by the prosecution to give evidence against another."

The position at common law is that caution must be exercised before acting on the evidence of a co-accused or accomplice. This because as Frost CJ said in The State v. Nataemo Wanu [1977] 152 at page 157:

"The usual justification for the requirement of caution in such a case is the "danger that the accomplice will minimize his role in the crime and exaggerate that of the accused." Cross on Evidence (Australian ed.), p. 211. The learned author also refers to McNee v. Kay 3 … in which Sholl J. of the Victorian Supreme Court refers, in such cases, to the "temptation to exaggerate or make false accusations". An accomplice may do so in order to curry favour with the prosecution. … I should add that because the rule goes much further and requires proof of corroboration, it goes beyond the caution with which a legal tribunal regards the testimony of a witness who has been convicted of or confesses implication in a serious crime."

This is why, s. 14(1) of the Evidence Act (Ch.48) and the general rule as noted above, prohibits the calling of a co-accused or a person charged with the same offence as a witness in the trial of an other person for the same offence. 

In the present case, the key State witness, Mr. Ken Kara was charge with the same offence as the Defendants on his own admission. There is no evidence of the police investigating and verifying his claim of being threatened by the Defendants to admit. Further, whilst awaiting his trial, this witness escaped from prison. He claims to have notified the police of his whereabouts after the escape but there is no police confirmation of that being done. Despite all these, the State decided not to proceed with the charge against him in exchange for him testifying against the Defendants. It seems to me that the prosecution was very desperate to call him as a witness so much so that, they overlooked his own admission or confession to having committed the offence coupled with his escape from lawful custody. 

I fail to see why the prosecution became so desperate, when the evidence (per Ken Kara) suggests the PPC was present and was a witness to the incident. He was the best possible witness for the State. However, for reasons only known to the State, he was not called and the State was instead prepared to allow a confessed murderer go free on the condition that he testifies against the Defendants (I will get back to this later on in the judgement). In these circumstances, I am of the view that this witness was obliged to testify against the Defendants in exchange for his freedom. I distinguish his case from cases in which a convicted or an accomplice of the same offence awaiting trial is called to give evidence, where a caution is required before accepting there evidence. In my view, where a co-accused is set free in exchange for his evidence, the Court should be very slow to accept such evidence if not reject it as unreliable.

I observed the demeanour of this witness very carefully and I got the distinct impression that he was ready to testify against the Defendants. He spoke clearly and confidently and although he admitted assaulting the deceased once, he downplayed his role. He gave inconsistent evidence when compared to his own oral testimony and the statements he gave to the police as noted above. In my view, he was changing and tailoring his evidence for the prosecution. His evidence is also in contrast to that of Orabo and Norry the details of which I will separately cover in this judgement. 

In these circumstances, I do not find Ken Kara and his evidence credible and reliable. I therefore reject his evidence.

As for Orabo and Norry, I also observed their demeanour and performance in the witness box very carefully. I also got the distinct impression that these witnesses were either withholding evidence or were not telling the truth. Orabo, was not confidently giving his evidence. Despite a number of reminders he continuously failed to speak up as if he was not too sure or frightened to say what he was saying. He too gave a statement to police the contents of which contrast parts of his oral evidence as noted above. I am of the view that these inconsistencies exist because the witness was changing and tailoring his story for the prosecution.

If indeed he was a friend of the deceased as he claims in his evidence, then it is hard to understand why he failed to do things a friend would do for a friend in a similar situation. For example, he failed to report the attack on his friend (deceased) to the deceased parents and his best friend and brother of the deceased or immediately report the matter to police for appropriate action against the offenders and or check on the condition of the deceased. He did not even go to his friend’s aid in any meaningful way because he says he was sworn at. There was no threat to his life or that the attackers were intent on killing as opposed to assaulting him and that they did not want him to interfere. There is no good explanation for his failures.

Further I fail to see how this witness could have known that he got out of bed and out of his house at 4:00am and arrived at the club about 2 - 5 minutes before 5:00am when he did not have a watch. There is also no evidence of him being used to telling time because of say, having had a watch or clock for sometime. Besides, I do not accept that it could have taken up to 45 - 58 minutes to walk from Busu Coffee to the club. Further, in the absence of any good reason I do not easily accept that he woke up so early in the morning at a time when sleep is sweeter only to see if he could get a free admission at a club. Further more, there are inconsistencies in his evidence and that of Ken and Norry as will be enumerated later.

For these reasons I do not find this witness and his evidence credible. I therefore reject his evidence too.

The same can be said for Norry, especially in relation to his demeanour, what he failed to do, given his relationship to the deceased and the inconsistencies in his evidence and that of Ken’s and Orabo’s. As with Orabo, this witness neither had a watch nor was he used to a watch or a clock. So how does he know that he left his house and was at the club at 1:00am? How was he able to keep awake up to that time? How did he know that the time was 5:00am when the incident happened?

Further, if the deceased was a good brother in law, as he claims, why did he not show the slightest concern when the deceased was pulled out? Why didn't he show any concern when the deceased did not return for a long time? Furthermore, if indeed, there were some boys from the deceased's village, what caused them not to go to the aid of their man or fellow villager?

In my view, what this witness did could be reflective of a bad relationship either between himself and the deceased or the deceased and the witness’ sister. May be the sister was not happy with her husband staying away the whole night drinking and dancing away with other girls or women? She may therefore have sent the brother to check out on her husband? And when the deceased reached home, the wife could have attacked him? This may have resulted in the death of the deceased? The police investigations did not consider and eliminate these questions and the possibility they suggest.

In these circumstances, I do not find this witness and his evidence credible. I therefore reject his evidence as well.

Now as for the fourth witness, I found him to be a confident witness. However, I have some difficulty in accepting his evidence particularly when considering what he failed to do as the relevant investigating and arresting officer.

This witness is a policeman of 27 years experience with 23 of them with the criminal investigations division. He has carried out a large number of investigations into murder cases and this was one of the many. It was therefore, reasonable to expect that, he would do a good job by covering all the angles or possibilities before settling on one that appeared to be the most likely cause of the deceased death and those responsible.

As noted earlier, the evidence from the key State witness, Mr. Kara is that the PPC at the time, was present when the incident occurred. Logically therefore, the investigations would have started with either a statement or report from him. But that is not what happened, the witness said the PPC was busy and he did not want to bother him. I find this hard to accept when it was the PPC’s duty to know and be concerned with all law and order related problems in the Province.

This witness did not interview the deceased wife to ascertain a number of things. First, how the deceased got home; secondly, why the matter was not reported to police while on the deceased'’ way home; or thirdly, why the deceased did not go to the hospital first; and finally, whether the deceased told her any thing about the cause of his death? This witness did not concern himself with the possibility of an intervening cause, such as the deceased’s wife hitting the deceased for staying out the whole night drinking and dancing away with other women. Instead he appears to have proceeded on the basis that the deceased died from the injuries he received at the club notwithstanding some of the questions raised above. 

When the Defence suggested in cross-examination that he did not carry out a detailed and proper investigation he became protective about his investigations. He clearly impressed upon me that, he did not allow himself to have an open mind as to what could have cause the death of the decease. Instead, as I indicated, he proceeded on the assumption that the deceased died from the injuries he allegedly received from the club. He therefore looked for evidence to build a case on that footing. In these circumstances, I find this witness also unreliable.

Finally, the fifth witness impressed me as a truthful witness. He answered questions put to him confidentially and was not evasive. He carried out an autopsy and based on his findings, he concluded as to the cause of death. There is no suggestion that, he is related in any way to the deceased. He maintained his evidence in chief per his affidavit evidence. I find no reason to doubt him and his evidence.

In the end result, after having found the evidence of the first to the fourth witnesses unreliable, the evidence of the fifth witness is of no consequence. At the same time, I find these witnesses’ evidence does not support the other State witnesses claim of the deceased being hit on the head by a flying stone (Orabo's evidence) and falling with his face down on a cemented drain. This could have resulted in a fracture to his head. The evidence of the doctor suggests that the deceased was hit at a close range with a blunt object on his head as with someone holding a smooth stone and hitting him. 

The other problem is that there are number of inconsistencies in the evidence adduced by the State. These are:

1.	Norry says only one bottle was broken before the deceased was pulled on his shirt collar but Ken speaks of two bottles being broken with the second one shortly after the first.

2.	Norry says, before Ben took the deceased out he was spoken to by a security, (see Exhibit "D4") but Ken, who was the security, says nothing about this.

3.	Ken says Ben pulled the deceased on his shirt collar and took him out kicking and punching with Philip and Richard joining in but Norry says the deceased was pulled out by his shirt collar without the mention of any kicking and punching until at the main gate.

4.	Ken says the deceased was pulled out by his shirt collar by Ben kicking and punching with Philip and Richard joining in but Orabo says, the deceased came out of the clubhouse first with a group of men numbering about 10 pursuing him and later they kicked and punched him.

5.	Ken says there were two spotlights, one shining toward the club and the other outwards but Orabo speaks of only one spotlight.

6.	Ken says Ben did most of the kicking and punching with two of the last kicks before leaving the deceased but Orabo or Norry do not confirm this.

7.	Ken says when the deceased fell into a side drain, Ben and the other assailants left the deceased but Orabo says one of the assailants lifted the decease up and made him to stand before leaving.

There are other areas of inconsistencies such as the medical evidence’s determination of the cause of death not matching the description of the kind of injuries the deceased received, but the above list is sufficient to illustrate that there are in consistencies in the prosecution’s evidence. They raise a number of questions. Are the witnesses talking about the same incident? If so, why do these inconsistencies exist? Did all of the witnessed really witness the incident? Are the inconsistencies significant and sufficient to cast a doubt on the prosecution’s case?

If the witnesses a speaking about the one and the same incident there should really be no such inconsistencies. There is no real explanation from the prosecution for the inconsistencies. In the absence of any good explanation, I am entitled to infer either that the incident did not happen at all or there was an attack of the deceased by Ken Kara consistent with his earlier confession. Ken Kara was responsible for security and the deceased broke the bottle before him. He could therefore, have reacted against the deceased. There is the other possibility that the deceased’s wife could have attacked him for staying out the whole night drinking and dancing with other women. This is a possibility in my view because, there is no evidence of what really happened between the club and the deceased home where he was found dead. Added to that is, first the lack of any evidence of the deceased having gone to the hospital which was closer than is house or report the attack on him to the police, which was on the way to his house from the club. Secondly is the fact that the medical evidence does not corroborate the other evidence. There is a further possibility that the deceased may have been further criminally attacked between the club and his home.

This leads me to the other problem in the State’s case. The onus was on the police to eliminate these possibilities but they did not. Instead the investigating officer, a man with years of criminal investigation experience, failed to inquire or even consider these possibilities. He conducted his investigations on the premise that the deceased died from injuries received at the club and he only had to look for evidence to build a case on that basis. In so doing, he failed to interview and arrange for the calling of witnesses, I believe were material, namely the PPC who was present at the club at the relevant time and the deceased’s wife.

What consequence should follow from this failure as a matter of law is not clear. But the position is clear and settled where a defendant in a criminal case fails to call a witness (s).

The relevant principles are set out in Booth (1983) 1 VR 39 at 52. These principles have their roots back to the case of Jones v. Dunkel (1959) 101 CLR 298, hence known as "the rule in Jones v. Dunkel." The principles have been expressed in these terms by way of an address to a jury by a judge: 

"In making evaluation of the accused's evidence, you may consider whether there were witness who might have been called to support his version, although you cannot speculate upon what they might have said. To use the failure to call witness against the accused in this trial, you would have to be satisfied, first, that there was a witness who heard and saw some of the events of which the accused has spoken, secondly, that that witness is available, in the sense that his absence has not been satisfactorily explained. If you were satisfied about those two matters, you may infer that the witness's evidence would not have helped the accused. This in turn may lead you to attach less weight than you otherwise would have to the evidence of the accused. Even if you were satisfied about the availability of the witness and the lack of explanation for his absence, you are not bound to draw any inference adverse to the accused, although it is open to you to do so. It is really a matter of forming commonsense judgement about the matter."
							(My underlining)

These principles were accepted into our jurisdiction by the Supreme Court in Paulus Pawa v. The State [1981] PNGLR 498. In that case the Court was concerned, amongst others, with a case in which the trial judge said, where a party fails to call a witness it opens the door to an inference that the witness will not support that party. The Court, per Kapi J (as he then was) after noting the finding of the trial judge said these:

"These findings were made on the material before the court without any reference to the question of any inference to be drawn by failure of the appellant to call a witness to support his story. … He then referred to R. v. Gallagher [(1974) 59 Cr.App.R. 239] as authority for commenting on the accused’s failure to call the witness. After discussing the availability of this witness, his Honour said: ‘I was surprised that he was not called. The failure to call him is open to the inference, which I draw, that he would not have supported the accused’s story.’"

In my view, these principles equally apply with appropriate modifications to the prosecution because of the requirement that it must prove its case beyond any reasonable doubt. A failure to call a material witness may support an inference that such a witness was not going to support the case for the prosecution if the two matters spoken of in Booth (supra) are met. This may in turn create a doubt on the credibility of the prosecution's case and therefore fail to meet the required standard of, proof beyond reasonable doubt.

In the present case, as noted already, the PPC was present when the alleged serious assault on the deceased took place at the club. The only explanation offered in the context of him not being interviewed by Sergeant Kafare is that, he is an important man and was too busy. I have already expressed my view that, this is unacceptable because, of all people, he would be the first person to enforce law and order and bring offenders to justice. We have no evidence of what he did about the incident and why he could not be called to give evidence. This raises a number of import questions, which are covered in my treatment of the Sergeant’s evidence. The failure to call him means those questions remain unanswered and that he was not going to support the prosecutions cases. This in turn casts a doubt as to the credibility of the whole case against the Defendants.

Similarly, the failure to call the deceased’s wife leaves a number of important questions unanswered particularly in relation to the possible causes of the deceased’s death. The only explanation given by the Sergeant is that the time was not right to interview her because she was in mourning. There is no evidence of this continuing even after the passage of almost two years after the death of the deceased. Thus, the explanation is a very poor one. The prosecution’s failure to call that witness denied the Court from getting any answers to these questions. This in turn leaves much doubt as to whether it was the alleged assault of the Defendants that caused the deceased death or something else. That is so, given the passage of time and the distance between the club and the deceased’s home and the time of the incident at the club and his death as well as the medical evidence. 

Given the evidence of Ken Kara, Orabo Ayorepe, Norry Bebes and the Dr. Toke Inina, with the various inconsistencies as noted as well as the various unanswered questions, I find that the PPC and the deceased wife were material and available witnesses having in possession relevant evidence. However, for reasons only known to prosecution they were not called. That failure operates against the prosecution.

Now returning to the inconsistencies, quite independent from the States failure to call material witness, I find they are significant enough to cast serious doubts on the case against the Defendants overall. For these and the other reasons already given, I find that the state has failed to allegations against the Defendants on the require standard of proof beyond any reasonable doubt. I therefore return a verdict of not guilty for all of the Defendants and acquit them all of the charge against them. 

Lawyer's Conduct

Finally in passing, I feel strongly that I should comment on the conduct of the defence counsel Mr. John Bray, who is a senior practitioner and partner of the firm of Pryke & Bray, in a number of respects.

Firstly, before the trial commenced on the 19th of March 2001, Mr. Bray requested me to conduct a voir dire on the issue of identification. Before my appointment to the bench, most practitioners knew that my practice was predominantly civil. I believed Mr. Bray was also aware of that and may be, he tried to test me out or take advantage of that or something of that nature and made the request. Fortunately, I asked him to refer me to an authority, which allows for a voir dire to be conducted on the issue raise.

Mr. Bray was not able to refer me to any authority and I refused his request. On reflection, I note that counsel was engaging in conduct that was unfair and running contrary to his duty under the PCR, to always be ready to assist the court and refraining from misleading the Court: See section 15 of the PCR. 

Secondly, as noted in this judgement, Mr. Bray after having obtained certain information and a statement from the witness Ken Kara at a time when he was acting for the witness, he used those information and statement to cross-examine his former client in an attempt to discredit him. Mr. Bray argues that, the witness announced a change of lawyers shortly after that so he was at liberty to use them against him. In so arguing, he fails to note that the information and the statement were given to him before the change took place. This was clearly unfair to the witness because he was not warned and did not know that his own information would be used against him. It was also unfair to the State as it was not given any prior notice, that counsel was going to do what he had done.

The conduct was contrary to and in breach of s. 9 of the PCR in addition to the well-accepted principle that all communication between a lawyer and his client is privileged and can not be divulged without the client's consent. This includes even former clients.

In this case Mr. Bray not only used the information against his former client, but he also become more irritated or angry with clear expressions of that against the witness when he did not get the answer he wanted. I had to step in to prevent that worsening. This is improper conduct in my view because counsel should always respect witnesses and treat them with courtesy and refrain from showing any uncalled for emotion if we are to expect witnesses to come to court without any fear or favour and give evidence. 

Thirdly, Mr. Bray put a number of propositions and allegations to the witnesses. The serious one in my view, was that, the State witnesses apart from Dr. Inina, were framing the case against his client because of Ben’s political interest and his business success. I expected him to back that up with appropriate evidence but he did not. This failure in my view amounts to an unfair and improper conduct as against the witnesses concerned who were accused of something without any evidentiary bases. Indeed s. 15 (6)(7) and (8) of the PCR prohibit such conduct. Also, the rule in Browne v. Dunn (1894) 6 R. 67, is clear to the extent that it provides authority for the proposition that counsel can only make allegations of matters his client will later go into evidence for. 

Finally, Mr. Bray decided to pass the further conduct of his client’s case to a junior counsel without a full and proper brief to allow for a continuation of that case without unnecessary delay after he had made a no case submission and before a decision on it. At the time of adjourning for Mr. Bray to make his no case submission, I made it clear in Court that, in the event of a decision against his submission, he should be ready to proceed with the rest of the case from the date of the decision. 

On the 10th of May 2001, my associate informed Mr. Bray's office of my travelling to Goroka to continue with this case from the 28th of May to the 1st of June 2001. By letter dated 16th May 2001, his office informed that he would be unavailable but will brief a lawyer from his office to attend. He did not state why he will not be available and more importantly that if the decision was to go against his clients, the Defendants will not be ready to proceed with the case.

On the 28th May 2001, I ruled against the no case submission. Straight after that, Mr. Mukuwesipu who was briefed to appear for the Defendants said he had no instructions other than to only receive the ruling on the no case submission. I then asked where was Mr. Bray and when did he leave Goroka and Mr. Mukuwesipu answered, Mr. Bray was in Australia attending to a Collins and Leah matter and he had left on the 25th of May 2001, without leaving any other instruction for this matter. In view of that, I directed Mr. Mukuwesipu to contact Mr. Bray and tell him that the Court requires him back in Goroka to continue with the case and I adjourned the matter to the next day.

By a letter dated 28th May 2001, to my associate Mr. Bray's office informed that he was undergoing medical examination and made no mention of the earlier reason given by Mr. Mukuwesipu and asked that the matter be adjourned. The next day I adjourned the matter to the 30th of May 2001. I then directed the parties to make submissions on the adjourned date and in particular Mr. Mukuwesipu to contact Mr. Bray and get his clients submissions in by that date as there was no certainty in when I would get a circuit back to Goroka to deal with this case. I was did not accept the change and more importantly the reasons for Mr. Bray’s absence.

Early on the 30th of May 2001, Mr. Bray's office sent another letter asking yet again for the matter to be adjourned. Attached to that letter was a letter from the Defendant’s to Pryke & Bray Lawyers, with an indication that only Mr. Bray should continue to represent them and make submissions on their behalf and that they do not wish Mr. Mukuwesipu to continue to appear for them. This changed suddenly, when the Court resumed with Mr. Mukuwesipu announcing that he was continuing to appear for the Defendants and that he will make submissions on their behalf. 

Mr. Bray’s and that of his firm’s conduct unnecessarily delayed this matter coming to a conclusion promptly. There was misleading information coming from him and his office as to the real reasons for his absence. No explanation whatsoever was given as to why Mr. Mukuwesipu was not fully and properly briefed to continue with the case. He disappointed is clients and those who wanted to see this case coming to a conclusion without unnecessary delay. I consider this conduct most improper and unacceptable. It is amounts to a breach of s. 15 (4) (a) (b) of the PCR which provide inter alia that, "a lawyer shall (a) act with due courtesy to the Court before which he is appearing; and (b) use his best endeavours to avoid unnecessary expenses and waste of the Court's time." This is also in my view a breach of the duty he owes to the client under s. 8 of the PCR.

I consider these misconducts very serious and unbecoming of a senior practitioner and partner of a law firm. The question then is how do I deal with them? Since these are happening for the first time at least before me, I will only strongly caution and warn Mr. Bray and his firm. The next time any of these conducts or any other misconduct takes place before me, either by Mr. Bray or his firm, I will not hesitate to have it met out with appropriate penalties.
_____________________________________________________________________
Lawyers for the State:			Public Prosecutor
Lawyers for the Defendants:		Pryke & Bray