N2039

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 52 of 2000

THE STATE

-V-

RAPHAEL KIMBA AKI

LAE: KANDAKASI, J.
2001: 22, 23 and 26 JANUARY

CRIMINAL LAW - Particular offence - Murder - Intention to cause grievous bodily harm - Defence of alibi raised but no evidence produced - Identification by recognisance not rebutted by any evidence - Guilty verdict returned - Criminal Code (Ch No 262), s 300(1)(a).

CRIMINAL LAW - Evidence - Identification by recognisance - Murder committed in the dark – Need to warn dangers of mistaken identification - Admission of evidence by consent - Treatment of statement from the dock - Less weight to same 

Cases cited:
The State v Warun [1988-89] PNGLR 327
The State v. Bill White (No.1) [1996] PNGLR 262
Davinga v State [1995] PNGLR 263
The State v. Raima [1993] PNGLR 230
John Beng v. The State [1977] PNGLR 115
David Kandakason v. The State (1998) SC558.
The State v. Amoko-Amoko [1981] PNGLR 373
The State v. John Kasaipwalova (1976) N80
The State v. Kindung [1996] PNGLR 355

Counsel:
J. Pambel for the State 
A. Raymond (Mrs.) for the Accused

DECISION ON VERDICT

24 January, 2001

KANDAKASI, J: On the 22nd of January 2001, the accused pleaded not guilty to one count of murder under s. 300(1)(a) of the Criminal Code Act (Chp. 262) (hereinafter "the Code"). That followed the State presenting an indictment against him on the same day alleging inter alia that the accused killed one Mika Gelong at the Bundi camp settlement here in Lae at a bout 3:00am on the 9th of October 1998.

Preliminary Issue

At the commencement of the trial, both Counsels informed the court that the State would call about three witnesses and tender other evidence by consent. I raised with both Counsels the appropriateness of evidence by consent and asked Counsel to look up the law on it and call evidence in accordance with that. I am grateful to both Counsels who have been able to do that.

From a quick perusal of some of the relevant cases on point, the following position becomes apparent:

1.	An accused person is presumed innocent until proven guilty according to law (s. 37(4) of the Constitution) and he is entitled to a "fair hearing" (s. 37 (3) of the Constitution) and is therefore entitle to a full protection of the law (s.37(1) of the Constitution). That means a criminal trial must confirm to relevant statutory provisions and the underlying law of criminal procedure where the State always has the burden to prove the case against an accused person in conformity with the rules of evidence: see The State v Warun [1988-89] PNGLR 327 at page 328-332.

2.	The best way to prove a case against an accused person which accords well with the right to a "fair hearing" within the meaning of s. 37(3) of Constitution is to call witnesses to give evidence under oath and be subjected to cross-examination by the accused person. Admitting into evidence written statements or affidavits by consent may leave unanswered or not clarified questions or points in the evidence. See The State v Warun (supra) at page 333 and The State v. Bill White (No.1) [1996] PNGLR 262 at page 267. This eliminates the risk of the statement or affidavit not necessarily containing what its deponent or author is really saying and may be one that may not stand up under cross-examination. It also accords well with the fundament principle that "the best evidence must be given of which the nature of the court case permits": See The State v. Bill White (No.1) (supra) at page 267.

3.	There is however, nothing preventing the admission into evidence affidavits or statements pursuant to statutory provisions such as s. 102 of the District Courts Act (Chp.40) or under ss.34, 35, and 36 of the Evidence Act (Chp.48) which permits that to be done (The State v Warun (supra) at page 333 and The State v. Bill White (No.1) (supra) at page 267) and or with the consent of the parties: see Davinga v State [1995] PNGLR 263 (a decision of the Supreme Court) at page 266.

4.	Admission of statements or affidavits by consent is permissible provided there is no doubt or a challenge to the facts in them; the facts of the case are uncontroverted; they are relevant (Davinga v State (supra) at page 266) and are admissible in form (The State v. Raima [1993] PNGLR 230 at pages 235- 238) and their admission will not prejudice the accused and thus amount to an unfair trial (The State v. Raima (supra) and (Davinga v State (supra) at page 266).

5.	If the deponents or the authors are readily available and can easily be called without causing substantial hardship and costs to the parties and a delay in a prompt disposal of the matter, they should be called instead of admitting their affidavits or statements to avoid infringing the "best evidence rule" and to accord the accused person his right to a "fair hearing". See The State v. Bill White (No.1) (supra) at page 269 and also The State v. Raima (supra) at pages 234-244, especially in relation to allowing admission of statements where it was difficult to get the witness to testify in the court because of fear for the witness’ life.

6.	Ultimately, the Court still has the power to even refuse accepting into evidence statements or affidavits if it considers it is not in the best interest of justice having regard to the above principles and order the witnesses to be called to give the evidence in question. See The State v. Bill White (No.1) (supra) at pages 269-270.

I have been guided by these principles in the case before me in relation to the admission into evidence by consent the record of interview (two versions) and the affidavit of Dr. Patil sworn on the 23rd of January 2001. I found this evidence relevant and admissible. I also found them not being contested. Admitting them into evidence in my view would not amount to injustice and or a unfair trial when the main issue at trial was one of identity only. The documents formed part of the committal proceedings and copies of them have been with the accused well and long before the trial and he has not taken any issue on them. In any event, the State called two eyewitnesses on the issue for trial as well as the whole case. Those witnesses were cross-examined. Further the record of interview was admitted through its author, the interviewing officer, which was in line with the "best evidence" principles. 

The State’s Evidence

The State called three witnesses. The first was Mete Mika. She is the widow of the deceased. Her testimony is that, in the early hours of the 9th of October 1998 she was asleep in her family house at the Bundi camp settlement here in Lae with her children, other relatives and the deceased prior to the incident. It rained heavily that night and they were fast asleep. Shouts or screams as if someone was holding her, coming from Sima Yanam, the deceased’s cousin sister from the next room woke her up. She then opened her room door and got out to investigate. Her small son cried and followed her. By then, the deceased had woken up and got to where the witness was and pushed her and the child back, opened the main door of the house to go out and investigate. As soon as the deceased was out of the house, he turned a corner and the intruder stabbed him with a knife.

She said she saw at first a man running away after the stabbing but could not tell who that person was until that person fell down on his side with his face up and she could clearly recognise and tell that it was "Raphael Aki", the accused. The distance between her and the accused was about three meters. She said there was enough electrical lights coming from her parent’s house and a Hagen man’s house. That made it easy for her to clearly recognise the accused. Her parent’s house was about 12 meters away from her house and was on higher posts with the source of the light from that house being the security light shining into her yard. The Hagen man’s house from where the other light came was about 13 meters away. There was nothing obstructing her view of the accused. She also stated that the heavy raining had stopped at the time of the unfortunate incident.

The accused then fled from the scene and the deceased was subsequently taken to the Hospital and was pronounce dead.

Prior to the incident, this witness testified that for about two months the accused always turned up at her house and argued with the deceased because he wanted the deceased’s sister. The witness said the accused comes from Sina Sina in the highlands and at the time of the incident, Wormald Security Services employed him. He also had a relative close to her house and she used to see him come and go from there. All of these, the witness says, made it possible from her to come to know the accused and she was not mistaken in her identification of the accused. In court when she was asked to identify the person she named as "Raphael Aki" as the offender, she pointed directly at the accused in the dock and said that was him.

She further testified that, on the Tuesday before the murder, the accused had sent a threatening letter. Neither details of that letter were given nor a copy or the original of it was produced in court. Thus the court does not know what the precise terms of the letter were. Then on the Thursday he had gone to the deceased and argued with him for a return of K170.00 he had given to the deceased’s sister. The murder was committed in the early hours on the Friday. 

A number of questions were put to the witness in cross-examination, especially on the identification of the accused but the witness remained unshaken and or broken in her testimony. The questions in cross-examination were built on the premises that there was insufficient lighting and there was a drizzle after the heavy rain which could have made it difficult for the witness to identify the accused as the person who caused her husband’s death. The witness maintained her testimony on the basis that she had known the accused well enough prior to the murder, there was sufficient light, and the distance between her and the accused was only three meters. She therefore maintained that she made no mistake in her identification of the accused.

The second witness, Mr. Yanam Gelong is a brother of the deceased. He is the one that went with the police and picked up the accused from the PTB compound opposite Dunlop, here in Lae.

At the time of the murder, this witness lived in his own house also in the Bundi camp settlement. His house was just 2 meters away from that of the deceased. He too was fast asleep and was woken up by noises coming from his brother’s house. He came to the scene after the deceased was stabbed and just in time to see the offender fall with his face up and then get up and continue his running away from the scene. He identified the offender as by name as "Raphael Aki" and later identified him has the person in the dock. This witness testified that, he knew the accused over a period of two years. He had personally come face to face with the accused four times. He too said the accused had argued with the deceased for about two months over the deceased’s and his sister and had issued a threatening letter. He thus corroborated the first witness. 

This witness was asked the same sort of questions in cross-examination as those that were put to the first witness. Like the first witness, he also maintained his story both unshaken and unbroken. 

The third and final witness was the police-investigating officer. He was called to identify and admit into evidence the relevant record of interview in both Pidgin and English versions. He did just that, and the record of interview in the two versions were admitted into evidence as exhibit "A1" and "A2" respectively.

The final evidence for the State was in the form of an affidavit sworn by Dr. Patil sworn on the 23rd of January 2001. That affidavit was admitted into evidence as exhibit "B", with the consent of the accused’s counsel. The affidavit annexes as annexure "A" a post mortem report confirming the death. In its summary of findings the report states:

This unfortunate victim had penetrating incision wounding across the (Lt) side of the lower chest in upward and posterior direction involving the spleen, (Lt) dome of the diaphram and (Lt) lung in association with collapse of the (Lt) lung and internal bleeding alone 2700ml.

The Accused’s Evidence

The accused called no evidence and he only gave a statement from the dock. That was after the court had explained to him the options and the consequence for each of them that were open to him in terms of remaining silent, or giving evidence on oath and call any other evidence he may have and or give a statement from the dock. 

In his statement, the accused said at about the time of the alleged offence he was living at the PTB compound, opposite Dunlop here in Lae. He said on the day before the offence he was at that compound. On the day of the offence around 12:00 midnight he was at the Mobil Depot, where his then employer, Wormald Security, posted him as a security guard. The police who were led there by the second witness picked him up from there.

The accused admitted to having a relation with the deceased’s sister, which was breaking up before the date of the offence. He also admitted to writing a letter to the deceased’s sister. He however, denied threatening the deceased or his sister of any harm from him. He was warning the deceased sister of the accused’s first wife causing some harm to the deceased’s sister.

Assessment of the Evidence

This was a trial mainly on the issue of identity. Mrs. Raymond of Counsel for the accused referred me to the case of John Beng v. The State [1977] PNGLR 115, for the relevant principles on the issue of identification and argued that his client was not identified as the perpetrator beyond any reasonable doubt. She submitted that, that was because the alleged offence was committed in the early morning hours of the 9th of October 1998 when it was still dark after a heavy rain had reduce to just drizzles. She also argued that there was poor lighting in the area, which could have led the witnesses to be mistaken in their identification.

As Mrs. Raymond ably submitted, the case of John Beng v. The State (supra) a decision of the Supreme Court, sets out the principles and or factors a court must take into account on the issue of identity before reaching a verdict. In that case the issue before the trial judge and before the Supreme Court was also one of identity. The Court at page 122- 123 said these:

It has long been recognized that there are dangers inherent in eye-witness identification evidence. The Court was referred to a number of authorities, the latest of them being a decision of the House of Lords in Raymond Turnbull & Ors. 18. In that case guidelines were laid down as to the manner in which identification evidence should be treated. The following points (as set out in the headnote to the report) were made:

‘Whenever the case against an accused person depends wholly or substantially on the correctness of one or more identifications of the accused which the defence allege to be mistaken, the trial judge should warn the jury of the special need for caution before convicting in reliance on the correctness of the identification. He should make some reference to the possibility that a mistaken witness could be a convincing one and that a number of such witnesses could all be mistaken. Provided such a warning is given, no particular form of words need be used.

Further, the trial judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made ....

Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made. All these matters go to the quality of the identification evidence. When the quality is good, the jury can be safely left to assess the value of the identifying evidence even though there is no other evidence to support: Provided always, however, that an adequate warning has been given about the special need for caution.

When the quality of the identifying evidence is poor — i.e. a fleeting glance or a longer observation made in difficult conditions — the judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification.

The trial judge should identify to the jury the evidence which he adjudges is capable of supporting the evidence of identification. If there is any evidence or circumstances which the jury might think was supporting when it did not have this quality, the judge should say so.
(underlining mine)

These principles have been consistently recognised as correct and as been applied in many cases since the decision was published. A recent example of that is David Kandakason v. The State (1998) SC558, a decision of the Supreme Court.

In line with the above principles, I warn myself that there may be mistakes as to the identification of the accused even though he was identified by recognition. Consequently, it may be unsafe to find the accused guilty and proceed to convict him. I do so in view of the circumstances Mrs. Raymond has highlighted in her submissions. This raises the question of whether there was room for any mistake to be made by the State’s first and second witness?

To determine that question I note that, the accused and the witnesses were known to each other well, over a period of time. The first witness knew the accused for about two years. The second witness came to know the accused through the accused coming to her family home and arguing with the deceased prior to his demise, for about two months over the deceased’s sister. The accused admitted this in his record of interview (exhibit "A1" and "A2"). Clearly therefore, the identification was not that of a stranger where the risks of making a mistake could be higher.

I also note that the first witness says she saw the accused about three meters away from where she was when the offender fell in the process of trying to run away from the scene of the crime and getting up and running again. The second witness was also not far either given his house being only two meters away from that of the deceased. This was not in my view, a "fleeting glance". There was sufficient opportunity for the witnesses to see and identify the offender as the accused. Further, there was nothing obstructing the view of the offender for both witnesses. Furthermore, there was, according to these witnesses, enough light for them to have a clear view and identify the accused as the offender. The lights came from the nearby houses with one identified as coming from a security light from the deceased’s parents-in-law’s house. That light shone directly at the scene and the particular spot at which the accused was identified.

In addition to the above, I note that the States first two witnesses spoke very clearly and confidently. They did not look for words, which usually happens in situations where a witness has been couched and or was making up. They also showed no sign of having lost their memory of the events and circumstances surrounding the death of their husband and brother respectively. No questions aimed at discrediting these witnesses and their evidence was asked in cross-examination. Most, if not all of the questions put to the witnesses in cross-examination were in relation to the issue of identification only. Even those questions failed to create any hole in their evidence. I got the clear impression that the witnesses were both truthful and credible. Consequently, I accept their evidence as out lined above. 

The first two witnesses’ evidence is corroborated by the post mortem report attached to the affidavit of Dr. Patil sworn on the 23rd of January 2001. That report, as noted above, confirms the deceased having sustained a 

penetrating incision wounding across the (Lt) side of the lower chest in upward and posterior direction involving the spleen, (Lt) dome of the diaphragm and (Lt) lung in association with collapse of the (Lt) lung and internal bleeding alone 2700ml.

It then concludes that the deceased died from an "Haemorrhagic shock in association with collapse of the (Lt) lung". From this it is clear that the decease died from the knife wound he sustained from his attacker as describe by the first State witness.

The first and Second State witnesses evidence is also supported by the record of interview, especially in relation to the accused being known to the witnesses and there being problems with the accused and the deceased’s sister.

The accused, both in his statement from the dock and record of interview, which was admitted into evidence by consent, raised an alibi. He did not call any evidence to establish or substantiate that. He did not call any evidence to rebut the prosecution evidence. He was also not prepared to be tested on his evidence by choosing not to give his evidence on oath.

The law is clear, when an accused person gives an unsworn statement from the dock that statement should be considered but less weight has to be attached to it. In The State v. Amoko-Amoko [1981] PNGLR 373, Pratt J., did just that and expressed it in these terms:

He [the accused] has not given evidence in this Court but has made a statement from the dock denying any complicity in the break and enter and any complicity in the burying of the items on the following day. That of course is not on oath and therefore does not carry a great deal of weight. Nevertheless, it is material, which I must take into account when I assess and weigh all the evidence.

A similar treatment was given to an unsworn statement in The State v. John Kasaipwalova (1976) N80. This practice is now well entrenched as demonstrate by the number of case that follow it. An example of that is The State v. Kindung [1996] PNGLR 355 at pages 360 –361, per Jalina J. 

In line with that, I place little weight on the accused’s unsworn statement from the dock. This is because it was not subjected to the test of cross-examination. It would thus, be unfair to the State for this court to give any more weight than that, given that the State’s witnesses were subjected to cross-examination and the accused was not cross-examined.

This means I must and I do give more weight to the State’s evidence, which is as I have indicated above, both truthful and credible. I find that, that evidence stands firm both on the issue of identity and the whole case generally. On the basis of all of the above, I find there was no mistake in the witnesses’ identification of the accused as the offender. I am also satisfied that all the other elements of the offence, such intention to cause grievous bodily harm and death of the deceased arising therefrom also being proven on the facts presented. That finding is also supported by the fact that the defence did not take issue on those, except only for the identity issue. There is no room for doubt in respect of the elements of the offence with which the accused as been charge and the issue of identity which was the issue for trial.

I am therefore satisfied that State has proven its case on the required standard of prove, beyond any reasonable doubt. I consequently find the accused guilty on the charge of murder. A verdict of guilty is therefore returned against the accused and he is accordingly, convicted on the charge of murder under s. 300(1)(a) of the Code.
__________________________________________________

Lawyer for the State: 		Public Prosecutor
Lawyer for the Accused:	The Public Solicitor