N2461

PAPUA NEW GUINEA

[In the National Court of Justice]

CR 300 of 2003

THE STATE

-v-

KEPAK LANGA

Wabag	:	Jalina J
2003		:	3, 5,8, 11, 12, 15 & 23rd September

Criminal Law – Wilful murder - Evidence – Identification – Accused from same village as deceased and State witnesses – Accused raising defence of alibi – Presence of accused at scene was more of recognition of someone known than identification of a stranger.

Criminal Law – Wilful murder – Evidence – Identification – Evidence in witness’ statement implicating accused tendered by state prosecutor by consent of defence counsel – Such evidence may be sufficient to find accused as perpetrator of the crime.

Case cited:
John Beng –v- The State [1977] PNGLR 115

Counsel:
S. Kesno for the State
P. N’dranoh for the Accused

23rd September 2003

JALINA J:	The accused Kepak Langa has pleaded not guilty to a charge that he on 18th November 2002 at Imi in Papua New Guinea wilfully murdered one John Daniel. 

The State has alleged that at about 10 am on 18th November 2002, the deceased John Daniel was in company of his father, brother and sister and two (2) others and were returning from Wei Village to Wabag Town. They followed a road which went through Imi village. While they were on their way, they were ambushed by the accused and six others who were armed with guns and bushknives. The accused and members of his group fired shots at the group the deceased was in and then rushed out and attacked them. The accused chopped the deceased on his forehead with a bushknife followed by the other members of his group who also chopped the deceased in the facial area. It was alleged that the accused and his accomplices intended to kill the deceased.

The accused has raised a defence of alibi through Notice of Alibi which was filed in this court by his lawyer the Public Solicitor on 2nd June 2003. In that Notice of Alibi the accused has asserted that at the time of the alleged offence he was at Sangurap Village, Wabag with his older brother Ikio Langa and Village Court Magistrate Wasaka Napali. So the issue that came to trial before me was one of identification.

The law on identification was settled by the Supreme Court in the oft-cited case of John Beng –v- The State [1977] PNGLR 115 where it was held that:

"In proceedings where evidence of identification is relevant, the Court should be mindful of all the inherent dangers, the need for caution before convicting in reliance on the correctness of identification, the possibility that a mistaken witness could be a convincing one and that any number of such witnesses could all be mistaken; the Court should examine closely all the circumstances in which the identification by each witness came to be made bearing in mind that recognition may be more reliable than identification of a stranger, but that even where the witness is purporting to recognize someone he knows mistakes can be made.

When the quality of the identification evidence is good the matter should proceed to a verdict, when the quality of identification evidence is poor, unless there is other evidence which goes to support the correctness of the identification, an acquittal should be entered."

I therefore note as well as warn myself of the inherent dangers and the need for caution when considering identification evidence.

The evidence adduced before me for the prosecution consisted of evidence tendered by consent of defence counsel and oral evidence. Evidence tendered by consent consisted of statements from police investigator Iarana Tovo and his corroborator Lance Iravea as well as the Record of Interview with the accused. Other evidence which were tendered by consent were the Medical Report of Dr. Jeffrey Tore and the Statement of Diana Daniel who was with the deceased and others at the time of the attack. Sworn oral evidence were given by Pastor Daniel Napu, Lasson Daniel, Neresakali Wapen and Waralyn Tuingi. The evidence of the first state witness Pastor Daniel Napu, in summary, was that on the day in question he left Wei Village with his children Lasson Daniel, John Daniel, Diana Daniel and two others namely Neresakali Wapen and Waralyn Tuingi after attending a funeral. They were on their way to Imi Village along the main highway to board a vehicle to Wabag. To get to Imi Village they had to follow a road in an area which was destroyed in a tribal fight between the Kandaunkin and Tindlapin clans on the one hand and Deopin clan on the other in about September 2001 following the death of the accused’s brother Tonde Langa. As they were walking along the road he saw one Wanpis Neo from the Deopin tribe aim a home made shot gun at him but it did not discharge. He then raised an alarm that they were being attacked but before he retreated to Wei Village he saw the accused chop the deceased once in the facial area with a bushknife. The accused he said came from the same village as himself and that he was related to him.

On cross examination he denied that he had falsely brought this charge against the accused based on some ulterior motive including the accused’s refusal to continue the fight against the Deopin tribe after the fight spread to the Akom area.

The evidence of the second state witness Lasson Daniel was that Waralyn was walking in front of him followed by the deceased John Daniel followed by their sister Diana Daniel, then Neresakali and then Pastor Daniel Napu. They were following a road that was sometimes used by motor vehicles. Before they reached the main road at Imi Village however, his father Pastor Daniel Napu shouted that they were being attacked. 

As he turned to look after his father Pastor Daniel Napu sounded the alarm, he was shot by the accused on his shoulder with a home made gun. The accused then jumped down from the hill on the side of the road he was standing on and chopped the deceased once on the forehead with a bushknife. Soon thereafter other men who were hiding on both sides of the road rushed out and chopped the deceased with bushknives. The other members of his group escaped in different directions. The accused was wearing a coat, a green cap with hole on the top and a one-sided pair of glasses, which covered one of his eyes which was bad. The accused however did not cover his face neither did he paint his face or wear some other things to conceal his identity. The accused and members of Lasson’s family all came from Wei Village and were also related to each other.

Later some people went to the scene of the attack and brought the deceased’s body to the main road but he died on the way to Wabag Hospital. The day was fine and clear.

He also denied on cross – examination that the accused was falsely implicated based on some ulterior motives including the refusal by the accused and his brothers to continue the fight into the Akom area.

The third state witness, Neresakali Wapen was among those walking in Pastor Daniel Napu’s group and were attacked. The rest of his evidence are similar to that of Pastor Daniel Napu and Lasson Daniel. He also gave evidence of seeing Wanpis Neo shoot at Pastor Daniel Napu but the gun failing to discharge as well as the accused firing at Lasson Daniel. He was walking in the middle of the group at the time and the accused standing about 3 – 5 metres away when he fired at Lasson Daniel and then jumped on to the main road and cut the deceased on the forehead once with a bushknife. The accused was wearing a coat similar to that worn by the Defence Force. He also saw Timothy Teo and Wanpis Neo among those who came out from the bushes on both sides of the road and attack the deceased. He only saw the accused, Wanpis Neo and Timothy Teo among the attackers before he ran away in fear of his life.

He also denied in cross-examination that the case against the accused was brought from some ulterior motive as well as other matters put to him by defence counsel.

The last witness called by the state was Waralyn Tuingi. He was from the Waimala tribe and came from Wanama Village near Double Bridge. He was walking with members of Pastor Daniel Napu’s group at the time of the attack or ambush.

His evidence again in so far as the ambush or attack taking place was concerned, was similar to Pastor Daniel Napu, Lasson Daniel, and Neresakali Wapen except that he did not run away quickly but stood and watched for a while because he was from a different tribe and he did not think that he would be attacked. Prior to the attack on the deceased, he saw Wanpis Neo pointing a gun at Pastor Daniel Napu and pull the trigger but the gun failed to discharge. When he turned he saw the accused shoot at Lasson and then jump down and chop the deceased on the forehead.

The others he saw were Wanpis Neo, Maliso Yakon, Timothy Teo, Ere Kombeap, Tandapal Kainakale who were from the Deopin tribe. The accused and Bos Kenk were from the Kandaunkin tribe. While he was watching Maliso Yakon told him to leave so he left.

The clothes he said the accused was wearing was a cap like defence cap, with hole on the top and a green coloured jumper.

The accused was also wearing eye glasses. An actual glass was on the side of the eye that was bad with no glass on the eye that was good. The attackers were armed with guns and bushknives.

He also denied the motives and other aspects put to him in cross-examination by defence counsel.

The accused denied being involved in the killing when questioned by police in the record of interview. In question and answer Nos. 10-12 he told police that on the morning of 18th November 2002, the day of the offence, he was at Sangurap and at around 9 – 10 am he was at the main market. He also admitted knowing the deceased and that they were related and that they came from the same Kandaunkin tribe.

With regard to his failure to attend the deceased’s funeral, he said in his answer to Q 27 that he did not attend because he was implicated.

Diana Daniel’s statement was tendered into evidence by consent of defence counsel as I have indicated earlier. Since she mentions the accused and others as some of those involved in the attack or ambush, I quote a major part of her statement:

"It was on Monday 18th November 2002, when we decided to come to Wabag where we reside because my father Daniel Napu is a pastor at Keas SDA Church. We left Wei Village at around 10: am and at around 10:30am we reached Imi Village.

Upon reaching Imi Village, we came into a group of about 7 men appeared to be armed with home-made shot guns, bush knives and axes, hiding at both sides of the road.

When we came to the middle of the ambush, I heard my dad shouting from the back saying Wanpis was attacking us. When I turned back to see my dad, I noticed that we were in the middle of the suspects. The suspects were both in front and at the back of us.

At the same time, I hear a gun shot. And at that time, I was carrying a kaukau bag and I found it very hard to escape as the bag I was carrying was so heavy. The other guys whom I was with ran pass me and ran towards the main high-way. I followed them to the highway still the bag at my back.

While running away, we left behind my elder brother John Daniel (Deceased)

I then stood a little while to see John and dad to make sue they were alright, but I did not see my dad. I only saw John and next to him was Kepak Langa holding a long bush knife who ran towards John and chopped him in his face.

I know that they were going to kill him so I decided to clearly identify the attackers. Then John (deceased) ran towards the creek after been chopped in the face as he was in a shock state. When I looked further on, I saw Timothy Teo jumped down from the high ground and in his hand was an axe who followed John (deceased) towards the creek.

I knew that he was killed together with my dad so I proceeded on towards the highway not far from where I was. There, the other suspect appeared to be disguised threatened me in a sense that I will not identify the suspects I ran towards the highway for help. Then luckily, I met a police vehicle so I was and told them of what happened. The policemen then checked the scene but suspects all flee their way."

The accused gave sworn oral evidence in his own defence and called two other witnesses namely his elder brother Ikio Langa and Village Court Magistrate Wasaka Napali to support his alibi.

The accused’s evidence in summary was that he was not one of those involved in the killing on 18th November 2002 at Imi Village but was at Sangurap Village, Wabag, with his elder brother Ikio Langa and Village Court Magistrte Wasaka Napali.

He was arrested for being in possession of a bushknife and was only told of being implicated in the murder of the deceased while he was in police custody. He said that he left Wei Village and came to Sangurap because he was tired of fighting.

He admitted however in cross-examination by the State Prosecutor that he knew the deceased and that they came from the same Wei Village and were related but denied involvement in the killing.

In their evidence both Ikio Langa and Village Magistrate Wasaka Napali mentioned that the accused was with them at Sangurap market on the morning of the 18th November 2002 thus supporting the accused’s evidence.

They also stated that they only knew of the accused being arrested by police for being in possession of a bushknife but did not hear of him being implicated in the killing until the time they were requested by defence counsel to give evidence in this court.

Whilst they admitted that the deceased and them came from the same village of Wei, and that they were related, they also denied that the accused was involved in the killing.

So the evidence from both sides seem to be in direct conflict as to the accused being one of those involved in the attack on Pastor Daniel Napu’s group and the subsequent killing of John Daniel.

This case therefore depends on whether it is the prosecution or the defence evidence that I should accept. It depends also on the credibility of witnesses from both sides.

In determining the issue of whether or not the accused was one of those involved in the attack on Pastor Daniel Napu’s group and the subsequent killing of the deceased, I have taken into account the evidence adduced by the prosecution and the defence the crux of which I have summarized. I have also taken into account the submissions put to me by both counsel. 

I must say at the outset that I am not impressed by the evidence given by the accused and his two witnesses. The variance between the accused’s oral evidence that he never left Sangurap Village on the day of the attack and his answer to the police in the record of interview that he was at Sangurap in the morning and then went to the market between 9 – 10 am casts doubt in my mind about his credibility and truthfulness. Also his oral evidence that he was arrested for being in possession of a bushknife and never knew about (him) being implicated until told by police in the cells when considered against his telling the police in the record of interview that he did not go to the deceased’s funeral because he was implicated, adds weight to his lack of credibility. How could someone who came from the same village as a deceased person and who lived near the provincial capital where many people from different villages go, fail to hear anything about the death of his fellow villager and relative and the means by which that person died?

The accused’s two witnesses namely Ikio Langa and Wasaka Napali were also at variance in their own oral evidence with the accused’s evidence as contained in his reply to police in the record of interview that he was at the market between 9 – 10 am. They said that the accused was always with them on the day in question at Sangurap market. They cannot be right.

Even their evidence that they never knew about the accused being implicated in the killing of the deceased until they were required by defence counsel to appear in this court cannot be true. As I said earlier, it would be surprising for a villager who lived in the provincial capital which is not too far from his village to fail to hear of the death of his fellow villager and the cause of such death. 

So to my mind the accused’s two witnesses evidence lacks credibility. I am of the view that the accused and his brother Ikio Langa and Wasaka Napali being related, have discussed their evidence and came up with their incredible story. I am therefore of the opinion that the accused has raised a false alibi.

I however accept the evidence of the witnesses of the State. They are related to the accused and they have no reason to bring a serious charge against him for nothing. They are no stranger to the accused and their seeing him at the scene of the crime was to my mind more of a recognition of someone known to them than a fleeting glance at a stranger. The scene of the crime was clear. There was nothing to obstruct their view. It was during mid-morning and the weather was fine. The accused and his colleagues did not wear any masks or other things to conceal their recognition or detection.

The unchallenged evidence of Diana Daniel which I have quoted earlier shows the accused right in the middle of the attackers. From her evidence as contained in her statement, it can be seen that the accused was not a mere observer but an active participant. He was the first one to chop the deceased on the forehead with a bushknife followed by others. So the question as who may have inflicted the fatal blow is of no consequence in view of the provision of s. 7 and 8 of the Criminal Code.

In my view the accused had a motive to attack Pastor Daniel Napu’s group because they came from his own Kandaunkin tribe which had refused to co-operate with him to stop fighting thus resulting in him, his brother Ikio and others withdrawing to Sangurap near Wabag Town.

His intention, in my view, was to openly attack and kill a Kandaunkin tribesman in company of men from the Deopin tribe and thereby bring the fight back to Wei Village from Akom and destabilize the Kandaunkin tribe.

Even if the evidence of the other state witnesses were not sufficient, the uncontested evidence of Diana Daniel would have been sufficient for me to find the accused as one of those attackers or perpetrators of the crime.

I am therefore satisfied beyond reasonable doubt that the accused Kepak Langa was one of those who attacked and killed the deceased and in doing so he intended to cause his death.

I accordingly find him guilty of wilful murder.
___________________________________________________________________________
Lawyer for the State		:	Public Prosecutor
Lawyer for the Prisoner	:	Public Solicitor