N3118

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 957 OF 2004

STATE

v

MAS JUDAH BINAS

Kimbe: Cannings J

2006: 9-11 October,
2007: 9 February

VERDICT

CRIMINAL LAW – indictable offences – Criminal Code, Division V.3, homicide etc – Section 300, murder – trial – elements of murder under Section 300(1)(a) – killing a person in circumstances where the offender intended to do grievous bodily harm to the person killed or to some other person.

CRIMINAL LAW – defences – accident – Criminal Code, Section 24 (intention: motive) – burden of proof – prosecution has burden of disproving the defence, provided that sufficient evidence is adduced.

CRIMINAL LAW – alternative conviction of manslaughter upon a charge of murder – Criminal Code, Section 539 (charge of murder or manslaughter) – Section 298 (unlawful homicide) – Section 302 (manslaughter).

A man was indicted for the murder of his cousin-brother allegedly committed on an oil palm settlement near Kimbe. It was the State’s case that the accused stabbed the deceased with a kitchen knife, intending to cause him grievous bodily harm. The State tendered three exhibits by consent (a record of interview, a post-mortem report and the alleged murder weapon) and called four witnesses, one of whom claimed to be an eyewitness to the stabbing. The accused gave sworn evidence that he was present at the scene but did not stab the deceased. It was somebody else, he claimed. There were two other defence witnesses, people who live in the vicinity of the scene who gave evidence about what they heard and saw before and after the incident but who were not present at the time. It was undisputed that the deceased was stabbed at the time and in the general vicinity alleged and that the accused was present. The principal questions of fact were whether the accused stabbed the deceased and if he did whether he did so deliberately. Defence counsel raised the defence of accident.

Held:

(1)	The key State witness gave generally credible evidence of seeing the accused stab the deceased, which was corroborated by the evidence of a police officer who the accused spoke to the morning after the incident.

(2)	The accused was not a convincing witness as there was evidence of his giving three different versions of events: when he first turned himself into the police; in his record of interview; and in his sworn oral testimony. Moreover, his demeanour in the witness box was not convincing.

(3)	The other defence witnesses gave the appearance of being coached.

(4)	There was insufficient evidence that the death of the deceased was accidental.

(5)	The court was satisfied beyond reasonable doubt that the accused killed the deceased but not satisfied that the accused intended to do him grievous bodily harm.

(6)	The accused was convicted of the alternative offence of manslaughter, as his killing of the deceased was not justified or excused by law.

Cases cited:

The following cases are cited in the judgment:

Browne v Dunn (1893) The Reports 67
R v Johnson (1951) No 26
The State v Albert Gias (2005) N2812
The State v Raphael Kuanande [1994] PNGLR 512
Thick v Hoeter [1963] PNGLR 87

TRIAL

This was the trial of an accused charged with murder.

Counsel

F Popeu, for the State
S Lupalrea, for the accused

1. CANNINGS J: Introduction: This is a decision on verdict of a man who pleaded not guilty to the charge of murder. The trial was held in October 2006 and the verdict has been on hold since then due to the unavailability of the accused’s lawyer.

BACKGROUND

2. The incident giving rise to the charge took place at Sarakolok oil palm settlement near Kimbe, West New Britain, in March 2004. The allegation is that the accused murdered his cousin by stabbing him in the chest. The accused faced the following indictment:

Mas Judah Binas of Kamanokor, Maprik, East Sepik Province, stands charged that he … on the 2nd day of March 2004 at Section 3 Sarakolok, in Papua New Guinea murdered Obed Iso.

3. The indictment was presented under Section 300(1)(a) of the Criminal Code.

4. The accused was present throughout the trial.

GLOSSARY

5. The following glossary lists the names of individuals and places referred to in the evidence.

Individuals
Amos Joseph – doctor who prepared the post-mortem report
Anuke Jack – defence witness No 2, resident of Section 3
Binas Kondou – father of the accused
Chris Jim – defence witness No 3, resident of Section 3
Fred Billy – State witness No 3, eyewitness
Jennifer – a person who allegedly came to the scene soon after the stabbing
Jennyster Iso – State witness No 2, elder sister of Titus Iso and the deceased
Jonathan Sapau – a cousin to both the accused and the deceased, allegedly present at the crime scene; the person who the accused alleged stabbed the deceased
Kenson Binas – a man who went with the accused, the deceased and the others to Section 7
Mas Judah Binas – the accused, defence witness No 1
Obed Iso – the deceased, cousin of the accused
Petha Yakoyagi – Constable, CID, Kimbe Police Station
Samuel Saule – Senior Constable, OIC Sarakolok Rural Police Station
Tau Archie – Constable, corroborator in the record of interview of the accused
Timothy Binas – a man at the crime scene according to the third State witness
Titus Iso – State witness No 1, brother of the deceased

Places
Gaongo VOP – a village oil palm settlement near Kimbe
Haella – oil palm plantation, near Kimbe
Kamanakor – accused’s and deceased’s village in Maprik, ESP
Kapiura – oil palm plantation, between Kimbe and Bialla
Kimbe – provincial centre of West New Britain
Morobe – a province in the Mamose region
Mosa – a village near Kimbe; also the name of the place of NBPOL headquarters
Sarakolok – oil palm settlement 16 km from Kimbe
Section 3, Sarakolok – place where the incident occurred
Section 7, Sarakolok – place of residence of the accused
The Community – social and administrative centre of Sarakolok

THE STATE’S CASE

Outline

6. The State tendered three exhibits by consent and called four witnesses to give oral evidence.

The exhibits

7. Column 1 of the table below gives the exhibit number, column 2 describes the exhibit and column 3 summarises its evidentiary content.

TABLE 1: SUMMARY OF EXHIBITS
TENDERED BY THE STATE

Exhibit	Description	Content 
	
A1,
A2 	Record of interview: 
Mas Judah Binas, 
the accused
18.03.04	Denies he meant to stab the deceased, Obed Iso – lives at Sec 7, Sarakolok, on his own block – Obed was his first cousin – he (the accused) was on his way back from Sec 7 with Jonathan – they met Kenson and Obed near Sarakolok Community – four of them walked back together towards Sec 3 – Obed wanted to start trouble – he (the accused) pulled the knife away from Obed – as he was walking away Obed ran up to him and started throwing punches and he put up his hands to block – he didn’t know if he had stabbed Obed – Jonathan called out that he had stabbed Obed – he went back and later took Obed to the hospital.
	
B	Post-mortem report re Obed Iso,
Dr Joseph Amos, medical Officer, KGH,
undated	States: time of death: 8.00 pm, 02.03.04 – cause of death: hypovolaemic shock from stab wound direct to left upper lobe of lung – evidence of stab wound located at the anterior axillary line between the third and fourth interspaces – stab wound: 2 cm diameter, 14 cm depth – oval shaped – during course of measurement of the depth of injury, air escaped from the lung – both lungs were otherwise normal – evidence of injury to left upper lobe of the lung – no evidence of penetration to the other side – lung tissue diameter: 2cm – left lower lobe, normal, no injury – pronounced dead on arrival at KGH.
	
C	Knife	Alleged murder weapon: kitchen knife, 31 cm long, black handle, 22 cm blade.

Oral evidence

8. Table 2 lists and describes the State witnesses in the order that they were called and indicates the days and dates of the trial on which they gave evidence.

TABLE 2: WITNESSES CALLED BY THE STATE

No	Name	Description	Day	Date (2006)	
1	Titus Iso	Deceased’s brother	1	9 Oct	
2	Jennyster Iso	Deceased’s sister	1	9 Oct	
3	Fred Billy	Eyewitness	1	9 Oct	
4	Samuel Saule	Senior Constable, Sarakolok Rural Police	1	9 Oct	

9. The first witness for the prosecution was Titus Iso. In examination-in-chief, he stated that he is from East Sepik Province. He is a brother of the deceased, Obed Iso. He lives at Healla Plantation and was living there in 2004 when his brother lost his life.

10. In 1999 he went back to the village, Kamanakor, in the Maprik district of East Sepik Province, and the accused was there. The witness explained that his mother and the accused’s father are sister and brother, thus the accused is his first cousin. In their customary marriage arrangements, the accused’s father, Binas, had given away one of his (Titus’) sisters to his wife’s family in exchange for Mas Binas’ mother and had not given, in return, a female relative to Titus Iso and his lain. For that reason Obed Iso, the deceased, "locked" customary land from Binas and his immediate family. An argument ensued between the accused and the deceased over the land. Their cousin, Jonathan Sapau [a person allegedly at the crime scene] fought with the deceased. Jonathan was on the accused’s side. The witness says he was there and heard the accused say, "em peles yu stap, Kimbe em mi stap".

11. The accused came back to Kimbe in 2000. The witness, Titus, came to Kimbe in 2001, then got a job and lived at Healla Plantation where he is employed as a harvester.

12. In 2003, Obed came to Kimbe, went to Rabaul, then came back to Kimbe and stayed at Gaongo VOP with some relatives. Obed later moved to Sarakolok because of the death of one of their sisters. He died about two weeks later.

13. In cross-examination, Titus Iso said that Mas Binas was born and raised in Kimbe and does not really have an active interest in village affairs. But he does have land in the village.

14. During the argument in the village, the accused said he was not concerned about land in the village because he had land in Kimbe. Jonathan supported the accused and fought with Obed.

15. He does not know if Obed and Mas were still in conflict when Obed came to Kimbe. He only knows that Obed died shortly after moving to Sarakolok.

16. That ended Titus Iso’s evidence. There was no re-examination.

17. The second witness for the prosecution was Jennyster Iso. She is the deceased’s sister. She is from Kamanakor village and is currently living with her brother Titus Iso at Healla Plantation.

18. In examination-in-chief she stated that she moved to Sarakolok from Kavieng in 2002 and lived with her uncle.

19. On the afternoon of 2 March 2004, the deceased went with the accused and others to the river and had their wash. Later they went to the Community and then to one of their blocks at Section 7.

20. Obed’s death happened on the road. At about 8.00 pm Jonathan Sapau ran to the house and called out to Kenson to go and get a vehicle from Elcom saying that Mas had already killed Obed. Jonathan’s clothes were covered with blood.

21. That ended her evidence. There was no cross-examination of Jennyster Iso.

22. The third witness for the prosecution was Fred Billy. In examination-in-chief he stated that he works as a security guard with NBPOL at Kapiura.

23. On the night in question he was living at Sarakolok, Section 3, Block No 827. Between 7.00 and 8.00 pm he heard Mas Binas and others drinking and making noises, going towards the Community. They returned from the Community still making noises. He came outside, stood near the road and saw Mas walking first.

24. The other brother – who Mas stabbed – said something, ran towards Mas and tried to hit him. Mas moved backwards, trying to avoid him. Then Mas got a hibiscus branch, tried to hit him, tackled him and he fell down. Then Mas pulled out a knife and stabbed him.

25. Mas’s brother, Timothy, came and said: ‘Yu mama ya, you’ve stabbed him with a knife’.

26. Then a Mosa vehicle came along and they pushed a wheelbarrow to the vehicle and took the injured person to the hospital.

27. The moonlight was bright.

28. The deceased was a new person there and he (Fred) did not know his name. Mas stabbed the deceased about seven metres from where he was standing. There was nothing obstructing his view. The incident happened on the road. He did not go and see the knife but estimated it to be about 30 cm long. He knows Mas well, he lives at Sarakolok.

29. In cross-examination Fred Billy said he knows where Mas’s block is but does not know the number. Mas’s block is about one kilometre from his own block.

30. He knows Mas, whose father is Binas. They are all from Maprik but not from the same village and do not speak the same language.

31. The moon was bright and full between 7.00 and 8.00 pm that night. He was standing on the road, outside his house. There were no oil palms there. He saw Mas trying to hit the deceased with the hibiscus branch and when he (the deceased) fell down Mas kicked him and stabbed him.

32. Mr Lupalrea put to him that it was Obed who ran up to Mas and ran into the knife. The witness replied ‘He stabbed him, I saw it with my own eyes’. There was no one else on the roadside. After the deceased had fallen down, a person called Jennifer brought some water and tried to wash the blood away. Anuke came to the scene after Jennifer.

33. The witness could hear the deceased breathing like a pig. He knew the deceased was going to die. He took off as he did not want to get into any trouble.

34. The witness said he knows Chris Jim, his neighbour, but did not see him there. What he saw was as clear as what he could have seen during the day.

35. He did not know Titus Iso. He did not know the deceased’s name. He only came to know who Titus and the deceased were on the day after the incident. The deceased was a new person who had come from the village and he only knew him by face.

36. He did not make a deal with Titus Iso to give false evidence in this case. The police came later to get his statement.

37. Mr Lupalrea asked the witness if the deceased’s relatives had told him he would get a share of K80,000.00 compensation if he gave false evidence against Mas. The witness replied that they must have said that amongst themselves. He only told them what he saw. He is only in court to tell what he saw. He cannot lie to the court.

38. When asked in re-examination, Fred Billy demonstrated how the accused stabbed the deceased. He was trying to hit him with the hibiscus branch, the deceased was moving backwards, the deceased fell down and was lying on the ground. The accused pulled out a knife from his side, bent down a bit then stabbed the deceased in the left chest, in the ribs.

39. That ended Fred Billy’s evidence.

40. Senior Constable Samuel Saule of Sarakolok Rural Police Station was the last witness for the prosecution. In examination-in-chief he stated that he has been with the Police Force for 34 years. He is OIC of Sarakolok Rural Police Station and has been there for 13 years.

41. On 3 March 2004 the accused and some of his relatives came to his office at about 9.00 am. The accused told him he had killed his brother and wanted to give up the knife and turn himself in.

42. The accused showed him the knife and he (the witness) asked how he came to do such a thing. The accused said: ‘We fought and to defend myself I used this knife’.

43. The accused stayed there with him and he called some policemen to come and get the accused.

44. The accused was quiet and looked worried. The witness told him: ‘You are a good person and could not have done what you say you have just done’. He left him with Constable Petha Yakoyagi. That was when the witness finished dealing with the accused’s case.

45. The witness identified exhibit C as the knife given to him that morning by the accused.

46. In cross-examination Snr Const Saule reiterated that when the accused went to see him, he was quiet and looked worried. He said that he had fought with and killed his brother.

47. The accused did not say that the deceased fell into the knife. The accused said he was defending himself.

48. There was no re-examination.

49. That ended Snr Const Saule’s evidence and the State’s case was closed.

VISIT TO PLACE OF THE INCIDENT

50. When the trial resumed on the morning of its second day, 10 October 2006, the court visited the place of the incident referred to in the evidence. This was done under Section 574 of the Criminal Code, which provides that the court may in any case view any place or thing that it thinks desirable that it should see.

51. In the court party were: the presiding judge; the lawyers; court interpreter and attendant; the accused; State witness, Fred Billy; and a Police escort.

52. The court travelled to the Sarakolok Community, 16 km from Kimbe, and then another kilometre to Sarakolok, Section 3, the place of the incident.

53. The scene of the incident was a gravel road. Fred Billy showed where his block is: between the Community and the accused’s parents’ block. He indicated the point, four metres from the edge of the road, from which, he said, he viewed the altercation between the deceased and the accused. The roadside was a little higher than the road surface. A small market place on the side of the road was not there on the date of the incident, in 2004. He said he had an uninterrupted view of events. The moonlight was bright. The accused and the deceased and the others were walking from left to right in front of him, ie they were coming from the Community and heading in the direction of the accused’s parents’ block. He repeated that he saw the accused stab the deceased. The altercation took place 12 to 15 metres from the point where he was standing.

54. The accused indicated that he did not agree with Fred Billy’s description of where the incident took place. The accused said it was about 30 metres along the road, away from the Community, towards his parents’ block – not in front of Fred Billy’s block.

THE DEFENCE CASE

Outline

55. The defence called three witnesses, including the accused, to give oral evidence. No exhibits were adduced.

Oral evidence

56. Table 3 lists and describes the defence witnesses in the order that they were called and indicates the days and dates of the trial on which they gave evidence.

TABLE 3: WITNESSES CALLED BY THE DEFENCE

No	Name 	Description	Day	Date (2006)	
1	Mas Judah Binas	The accused
	2	10 Oct	
2	Anuke Jack	Woman from Morobe, came to the scene after the stabbing
	3	11 Oct	
3	Chris Jim	Brother to Anuke, they live opposite to State witness Fred Billy
	3	11 Oct	

57. The first defence witness was the accused, Mas Judah Binas. In examination-in-chief he stated that he lives at Sarakolok, Section 7, Block No 833. He is an oil palm grower. He is aged 33. He was raised in Kimbe. His parents are from Kamanakor, Maprik, East Sepik Province.

58. He has only been to the village once, in 1999, when there was a lot of talk about the Y2K bug. There were no arguments about land in the village but his uncles from his mother’s side said they were going to have a general discussion with his father’s people.

59. He knew the deceased Obed Iso. He was his first cousin. Obed was not at the village at that time. He was in the bush. Obed came back the next day and was told of what has been talked about. Obed did not argue with him then.

60. The accused said he knows Titus Iso. He is Obed’s brother. The accused denied arguing with Obed in the village about land. He said that he told Obed that he is from Kimbe and was not concerned about land in the village. They could have it, he said. He did not make any threats to Obed in the village.

61. It is true that Jonathan and Obed fought. But that was in 2000. The fight was not about land but about Jonathan allegedly having an affair with Obed’s wife.

62. The accused said he came back to Kimbe in February 2000. Obed came to Kimbe in 2003 but went straight to Rabaul. He came back later and lived at Gaongo VOP. Obed used to visit the accused’s parents’ block at Section 3. Then Obed moved to Sarakolok.

63. The accused said that on 2 March 2004 he went to Section 3. His mother had killed a pig. He went with his wife and children to get their share. He met Obed there. Obed asked him to help him go back to the village at Maprik. Obed made that request as one of their sisters had died at Gaongo and Obed was a suspect. Obed had asked the accused’s parents but they were unable to help, so he (the accused) told him he would help with a ship fare.

64. The pig was not ready so he went back to Section 7 to get his wife’s and children’s clothes. Obed, Jonathan and Timothy went with him. The three of them were drinking. The accused said he was not drinking in that period as he was the Secretary to their church, SSEC, at the time.

65. They used a short-cut to get to Section 7 and did not go to the Community. They left between about 4.30 and 5.00 pm. Obed was drunk and talking a lot, so he (the accused) and Jonathan went ahead to his block to collect his wife’s and children’s clothes. It was almost dusk when they arrived. It is two to three kilometres from Section 3 to Section 7.

66. When they were on their way back they met Obed on the road and he went back with them. By that time it was already dark so they followed the main road. It was the first week of the month and the moon was not full. They all walked back together: the accused, Obed, Jonathan, Timothy and Kenson. The others were drinking hard-stuff: Negrita. They were not really drunk but were making a lot of noise.

67. The accused said that he knows Fred Billy but not well. Fred lives at Section 3 and the accused lives at Section 7. Fred does not always stay on his block. The accused did not see Fred near the roadside that night.

68. He believes Fred is giving evidence against him because of some agreement between Fred and Titus. He believes that Titus will give some money to Fred if they get the K80,000.00 compensation they are seeking and if he (the accused) goes to jail.

69. The accused said that Fred’s evidence of seeing him stab Obed was not true. The accused said he was somewhere else when Jonathan called him back to see what was happening. It was after that, that Jonathan called out to others.

70. The accused said he was not carrying a knife that night. He took the knife from Obed when he tried to kill two other people on the road. Then he (the accused) walked away from Obed.

71. The accused conceded that there was a struggle between him and Obed but not at the place identified by Fred Billy. It was further up the road. Obed said; ‘You mama, why are you taking this knife away from me? You are from the village’.

72. It is also not true that he cut a hibiscus branch and used it to hit Obed. It could have been Jonathan who Fred saw doing those things. There was no hibiscus at the place where Obed came and met him. Obed was cross with him about the knife. He told Obed he was getting sick of looking after him and Jonathan.

73. In cross-examination the accused said he is not related to State witness Fred Billy. Fred comes from another part of Maprik where they speak a different language.

74. If Fred had said that he saw Jonathan stab Obed, that would be correct. But Fred’s evidence was not correct as he (the accused) was much further up the road when the incident happened.

75. The accused said that Obed argued with him when he was further up the road. Obed came to him, argued with him, then he sent him back. So, it was Jonathan who stabbed Obed.

76. The prosecutor, Mr Popeu, pointed out to the accused that when he went to Sarakolok Police Station the next day he said nothing about Jonathan doing it. The accused replied that it was true that he (the accused) was holding a knife, as he had taken it off Obed. Then he replied that he could not see what happened.

77. The accused was unable to say whether Fred Billy knows him well.

78. Jonathan is his first-cousin. He is the son of his mother’s brother. The accused does not know where Jonathan is now. After the accused’s father died Jonathan took off.

79. In re-examination the accused said Obed came up to him some distance away from the site that the court visited (outside Fred Billy’s block). Obed threw punches at him. He only blocked his punches and told him to go back to his drinking friends. He still had Obed’s knife then. But he did not stab him. He told Obed he had no arguments with him and to just go back to his friends so he could go to the block.

80. If Obed had run into the knife he (the accused) would have felt it. But that did not happen.

81. The next morning the accused went to Sarakolok Police Station on his parents’ instructions. He told them that he did not do it. But they told him to wait in custody and a spirit – a seer – would come from the village and find out who did it.

82. He told Snr Const Saule that an incident had occurred and that his parents had told him to turn himself in so that the police could keep him safe.

83. When Jonathan went to the house covered in blood he said ‘Mas stabbed Obed’.

84. Asked if he was shifting the blame to Jonathan, the accused replied: "it was Jonathan".

85. Asked about his police interview, when he told the police that he did not know whether he stabbed Obed or not, the accused replied that he was, at that time, confused.

86. That ended the accused’s evidence.
 
87. The second defence witness was Anuke Jack. In examination-in-chief she said she is from Morobe and lives at Sarakolok Section 3, Block No 888, opposite Fred Billy’s block.

88. She knew the deceased, Obed Iso. She knows the accused, Mas Binas, as they live together in the same area.

89. She remembers the night of 2 March 2004. She was home between 7.00 and 8.00 pm. It was dark, the moon was not full and it was going down. If someone was walking on the road she would not have recognised them.

90. When she saw Obed he was already dead. He was with Jonathan. She did not see Fred Billy. But she did see Mas.

91. The other boy was calling "Mas, Mas," and that boy gave Obed to Mas and ran off.

92. There was no sign of Fred Billy. He was not on the road.

93. In cross-examination Anuke Jack explained that her husband is from Urat, Maprik, but not from the same village as the accused or Fred Billy.

94. There is a big mango tree and hibiscus edges and it would be dark in their block even if the moon were up. But it was a half moon and it had gone down. It was dark. She was asked what made her remember what the moon was like that particular night. She replied that she heard someone calling out so she ran out onto the road to see what was happening. She did not see anyone, only that person lying there. It would be hard for her to recognise anyone if she were in her block. When she saw someone on the ground she went back to the house and got a lamp. It was some minutes later that other people came. She did not see Fred Billy at any time.

95. The stabbing had already taken place when she came out to the road. She heard someone calling ‘Mas, Mas’. That is when she came out. The accused and the others were coming from the Community and walking towards Ru. They were making noises and the deceased wanted to fight with anyone he met on the road. They were drunk.

96. Obed had only been staying in the area for a few weeks or months. She did not know him well but he used to come to her house to buy cigarettes. He had come to buy cigarettes earlier that day, without causing any trouble. She knows the accused well, as they grew up together at Sarakolok and went to the same school.

97. In re-examination Anuke Jack reiterated that the place was dark and when she went to see Obed with the lamp she did not see Fred Billy.

98. The third witness for the defence was Chris Jim. He is Anuke Jack’s brother and they live together on Block No 888 at Section 3. In examination-in-chief he said he did not see what happened. He was at the block between 7.00 and 8.00 pm. The moon had already set.

99. When he came outside it was dark, people were shouting. That is why he came out, with Anuke. He could see someone holding another person and sitting under the flower edges. It was Jonathan and someone lying on the ground. They had come out with a lamp. There was no one else there when they came out. He did not see Fred Billy.

100. In cross-examination he said he went to the same school as Mas but was not in the same grade.

101. He heard Jonathan calling, ‘Mas, Obed has got a cut’.

102. Jonathan was the only person he heard shouting. Before that, he heard them coming from the direction of the Community. But they did not sound drunk. They sounded normal. He did not hear them fighting.

103. He and Anuke only came outside when they heard Jonathan shouting.

104. The shouting could also have attracted Fred Billy but he was not at his house at that time.

105. In re-examination Chris Jim repeated that he did not see Fred Billy there.

106. That ended Chris Jim’s evidence and the defence case was closed.

SUBMISSIONS BY DEFENCE COUNSEL

107. Mr Lupalrea submitted that the State had failed to prove that the accused intended to cause grievous bodily harm and in doing so caused the death of the deceased.

108. The witnesses Titus and Jennyster Iso are related to the deceased and their evidence is unreliable. Titus’s evidence was intended to establish a motive: that there was an argument between the accused and the deceased in the village in 1999, about land. The deceased came to Kimbe in 2003 and went to Rabaul. When he came back he lived at Gaongo and later lived at Sarakolok until meeting his death on 2 March 2004. There was no motive, Mr Lupalrea suggested. The accused denied having an argument with the deceased; and anyway it was a long time ago.

109. The main witness for the State, Fred Billy, was also unreliable. He lives at Sarakolok Section 3 and says he knows the accused and on the night in question he says there was a full moon. But there was no other evidence that Fred Billy was there. On the other hand, witnesses for the defence say it was not a full moon, it had already set, the place was dark and Fred Billy was nowhere to be seen. Fred Billy was not telling the truth, Mr Lupalrea submitted, and he had a motive to lie as it is very likely that he had struck a deal with Titus Iso to give false evidence. If Fred had really seen what happened it is reasonable to expect that he would have stayed around to identify the person responsible for the stabbing. An eyewitness would say who did it and not disappear when everyone gathered around.

110. There is therefore a lot of doubt about what happened, especially because of the poor visibility. Everything points to Fred Billy giving false evidence – just making up stories – and he should not be believed. The accused should be acquitted, Mr Lupalrea submitted.

111. Mr Lupalrea also raised the defence of accident under Section 24(1)(b) of the Criminal Code. He submitted that the accused had raised this defence in the beginning and he is still raising it.

SUBMISSIONS BY THE STATE

112. Mr Popeu agreed that the deceased had been living at Block No 833 with Binas Kondou. Binas was the accused’s father and the deceased’s uncle.

113. On the afternoon of 2 March 2004 the accused and the deceased went for a walk. Between 7.00 and 8.00 pm they were returning to Binas’s block when the deceased met his death.

114. The question for the court to decide is: who stabbed the deceased? There is only one eyewitness: Fred Billy. He testified that the moon was bright. He saw what happened. He was an independent witness. He is not related to any party and was not shown to have a reason to lie. His evidence as to where the deceased was stabbed is consistent with the post-mortem report.

115. Fred Billy identified the spot on the road where the stabbing occurred but after he gave his evidence the accused said it was a bit further up the road. This was not put to the State witnesses and it opens the rule in Browne v Dunn (1893) The Reports 67, argued Mr Popeu.

116. The accused said in evidence that it was Jonathan who stabbed the deceased, which is not consistent with either his police interview or what he said to Snr Const Saule. In fact the accused has given three different versions of events: in his story to Snr Const Saule, in his record of interview and in his oral evidence.

117. The two other defence witnesses gave inconsistent evidence. Anuke Jack said that she heard Obed shouting, drunk and trying to fight people. On the other hand, Chris Jim said that Obed and the others sounded normal before he heard the shouting that attracted him to the road.

118. Chris’s evidence that Fred was not at his house was not put to Fred, further contravening the rule in Browne v Dunn.

REPLY BY DEFENCE COUNSEL

119. Mr Lupalrea submitted that Anuke and Chris are from Morobe, they are not related to the accused or the deceased and must be treated as independent witnesses. They have no motive to lie.

120. The accused says he does not really know what happened, it may have been Jonathan. There is not much difference between his record of interview, his story to the police at Sarakolok and his oral evidence. Mr Lupalrea also submitted that there was little difference between Anuke’s and Chris’s evidence and that they appear to be truthful witnesses.

THE LAW: ELEMENTS OF THE OFFENCE

121. The accused has been charged with murder under Section 300(1)(a) of the Criminal Code, which states:

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.

122. It is the State’s case that the accused intended to do grievous bodily harm to the deceased. It therefore has the onus of proving beyond reasonable doubt that:

•	the accused killed the deceased; and

•	the accused intended to do grievous bodily harm to the deceased.

123. They are the two elements of the offence. They are subject to two things. First, the defence of accident under Section 24(1)(b) of the Criminal Code. If it succeeds it would negate the second element and relieve the accused of criminal responsibility for the death of the deceased. Secondly, if the defence of accident does not succeed but the court is not satisfied as to the second element, intention, an alternative verdict of manslaughter might be entered under Section 539(2) of the Criminal Code.

ASSESSMENT OF EVIDENCE

124. The following approach will be taken:

1	I will comment on the submissions of both counsel, indicating in general terms whether their approach to assessment of the evidence and identification of the key issues is accepted.

2	I will address the standard of proof.

3	The non-contentious facts will be laid out.

4	I will assess the credibility of the different pieces of evidence that have been adduced.

5	I will examine the death of the deceased and determine whether the accused was involved; and if so, how he was involved.

6	I will decide whether the defence of accident succeeds.

7	If the defence of accident does not succeed, I will determine the charge of murder.

8	If the prosecution fails to prove murder, I will consider the alternative verdict of manslaughter.

COMMENTS ON SUBMISSIONS

125. Both counsel rightly agreed that the key State witness is Fred Billy. He was put forward as an eyewitness. He said he witnessed what happened. Though it was night-time he said the moon was full, it was a clear night and visibility was good. An assessment of his credibility is central to the outcome of this trial.

126. Mr Lupalrea submitted that he was making up stories and had a motive to lie as it was likely that there had been some sort of agreement for him to give false evidence against the accused. This was a flaccid submission with no evidence to support it.

127. Another submission by defence counsel I found unimpressive related to the defence of accident. Mr Lupalrea seemed to put it forward as an alternative to the central proposition that it was not the accused who stabbed the deceased, but Jonathan. But the accused’s evidence was an outright denial that he stabbed the deceased, intentionally or by accident. Therefore, I have great difficulty with this defence, and I will elaborate on this later.

128. Besides Fred Billy the only other witness who was in the immediate vicinity of the stabbing was the accused. An assessment of his credibility as a witness is also important.

129. Mr Popeu submitted that Mr Lupalrea breached the rule in Browne v Dunn on a couple of occasions. This rule requires that accused’s principal defences be put to the prosecution witnesses in cross-examination. Mr Popeu’s complaint was that it was not put to Fred Billy that (a) the incident happened further up the road from the spot he pointed out and (b) he was not in or near his house when the incident happened. I agree that these matters were not expressly put to the witness, so there were breaches of the rule in Browne v Dunn. But I regard the breaches as insignificant. Fred Billy was subject to cross-examination and it was very clear that his credibility as a witness was being tested. There was no material unfairness in the trial resulting from the defence counsel’s failure to expressly allege that he was lying.

STANDARD OF PROOF

130. This is a criminal trial for murder and in reaching a verdict it is not a simple matter of deciding which witness to believe. The accused cannot be convicted of murder or any other offence only on the basis of suspicion or belief on the part of the tribunal of fact (the court) that the accused killed the deceased.

131. The court’s task is, rather, to determine, having weighed all the evidence and considered whether there are reasonable grounds for believing that the accused stabbed the deceased and whose evidence is to be believed, whether it is satisfied to the required criminal standard of proof – beyond reasonable doubt – that each element of the offence exists. If there is a reasonable doubt as to the existence of either or both of the elements, the court is obliged to acquit the accused of murder. If that decision is made and consideration is given to the alternative verdict of manslaughter such a verdict can only be entered if the elements of that offence have been proven beyond reasonable doubt.

132. So the question to ask in the first instance is whether the prosecution has discharged the onus of proving beyond reasonable doubt that the accused killed the deceased in circumstances where he intended to cause him grievous bodily harm.

NON-CONTENTIOUS FACTS

133. Obed Iso, a young East Sepik man staying with relatives at Sarakolok near Kimbe, was stabbed in the early evening of Tuesday 2 March 2004. He had been drinking with some friends and relatives, young Sepik men about his age, for a short time. He and a few others were walking along the road at Section 3, Sarakolok. They were headed to a block belonging to the accused’s parents, also in Section 3. They were walking from the direction of the Sarakolok Community.

134. The deceased was stabbed on the road, in the vicinity of block No 827 (Fred Billy’s block) and block No 888 (where Anuke Jack and Chris Jim live). Shortly afterwards he was taken to Kimbe General Hospital. He was dead on arrival. A post-mortem report shows that he died from hypovolemic shock (decreased volume of blood circulating in the body) due to a stab wound to the left upper lobe of the lungs.

CREDIBILITY OF EVIDENCE

Documentary and other non-oral evidence for the State

135. Both documentary exhibits were admitted into evidence by consent: the record of interview (exhibit A) and the post-mortem report (exhibit B). The remaining exhibit was the alleged murder weapon, the kitchen knife (exhibit C). It was also admitted into evidence by consent.

136. The record of interview is significant as it shows that when he was interviewed 16 days after the incident the accused did not deny stabbing the deceased. He said that he did not know if he had stabbed him. The post-mortem report shows that the deceased died due to being stabbed. The knife was identified by Snr Const Saule as being the knife the accused handed to him and which he took into police custody on the morning after the stabbing, 3 March 2004.

Oral evidence for the State

137. State witness No 1 was Titus Iso. I thought he was a generally credible witness, though his evidence was of little value, for these reasons:

•	his demeanour was not of someone who was obviously lying;
•	he is the deceased’s brother and the purpose of his giving evidence was apparently to show that there was some underlying bad blood between the accused and the deceased;
•	however, he was not in the vicinity of the stabbing when it happened;
•	there was no other evidence to corroborate the possible motive for the accused stabbing the deceased, the accused denied having any grudge against the deceased and the events that Titus gave evidence about happened five years beforehand.

138. State witness No 2 was Jennyster Iso. I thought she was a generally credible witness, for these reasons:

•	her demeanour was not of someone who was obviously lying;
•	her evidence was brief and specific – she heard Jonathan say that Mas had killed Obed – and she did not attempt to embellish the story.

139. State witness No 3 was Fred Billy. I thought he was a generally credible witness, for these reasons:

•	his demeanour was not of someone who was obviously lying;
•	his evidence was not vague and he did not change his story;
•	the credibility of his evidence and its believability were not unduly damaged by cross-examination;
•	the attempt by defence counsel to challenge the reliability of his evidence by suggesting that he had entered into a deal with the deceased’s brother, Titus Iso, to give false evidence, was unsuccessful;
•	the explanation he gave to the court when it visited the scene of the incident was consistent with his oral testimony in the witness box;
•	his evidence about the moon being full and visibility good was believable;
•	he knew the accused as they were both living in Sarakolok;
•	he did not materially contradict himself when giving evidence.

140. State witness No 4 was Snr Const Samuel Saule. I thought he was a generally credible witness, for these reasons:

•	his demeanour was that of a person giving an honest account of what he observed;
•	his evidence was not vague and he did not change his story;
•	the credibility of his evidence and its believability were entirely unaffected by cross-examination;
•	his evidence was short and to the point: the accused told him that he had killed his brother, he wanted to give up the knife and turn himself in;
•	the accused was well known to this witness who expressed surprise that the accused would have killed somebody.

Oral evidence for the defence

141. Defence witness No 1 was the accused, Mas Judah Binas. I thought he was not clearly a reliable witness, for these reasons:

•	though his demeanour was not of someone who was obviously lying, his demeanour was not of someone who was obviously telling the truth;
•	as Mr Popeu pointed out, his version of events has changed significantly: when he went to the police station he gave himself up and told Snr Const Saule he had killed someone, whereas in his police interview he did not know whether he had stabbed the deceased and did not take the opportunity to deny stabbing him or to say that it was Jonathan who stabbed him, but then at the trial, he said that it was Jonathan;
•	in his oral testimony, it took some time before he clearly stated that it was Jonathan who did it, thus giving the impression that he was still convincing himself, slowly, that he did not do it himself;
•	he did not have any convincing explanation why he had not earlier (a) denied stabbing the deceased or (b) put the blame on Jonathan.

142. Defence witness No 2 was Anuke Jack. I thought she was not clearly a reliable witness, for these reasons:

•	though her demeanour was not of someone who was obviously lying, her demeanour was not of someone who was telling the truth;
•	she gave the impression of being a coached witness, being careful to say that it was dark and visibility was poor and that Fred Billy was nowhere to be seen;
•	her evidence about hearing the deceased and the others making noise, the deceased wanting to fight with anyone he met on the road and being drunk, gave the appearance of being coached, to make it consistent with the accused’s evidence – but it was unconvincing as it conflicted with the evidence of her brother, Chris Jim, who said that those on the road were not drunk and everything seemed normal until they heard Jonathan shouting.

143. Defence witness No 3 was Chris Jim. I thought he was not clearly a reliable witness, for these reasons:

•	though his demeanour was not of someone who was obviously lying, his demeanour was not of someone who was telling the truth;

•	as was the case with his sister, Anuke Jack, he gave the impression that he was a coached witness, being careful to say that it was dark and visibility poor and that Fred Billy was nowhere to be seen;

•	his evidence about everything appearing normal until they heard Jonathan shouting was in direct contradiction of his sister’s evidence and this created the impression that though they had both been coached, they had not been told what to say in response to some questions.

Summary

•	The documentary evidence is reliable.
•	The key State witness, Fred Billy, gave credible evidence, which was generally corroborated by the evidence of the second State witness, Jennyster Iso, and specifically corroborated by that of the fourth State witness, Snr Const Saule. There were no material inconsistencies between the evidence of each of the witnesses.
•	The defence witnesses were not reliable.

THE DEATH OF OBED ISO: WAS THE ACCUSED INVOLVED?

144. The evidence against him is:

•	Fred Billy gave generally credible evidence that he was an eyewitness and he saw the accused stab the deceased.

•	Jennyster Iso gave generally credible evidence that Jonathan said that the accused had killed the deceased.

•	Snr Const Saule gave clear and convincing evidence that the accused, in effect, confessed to the killing on the morning after the incident.

•	In his record of interview he did not deny stabbing the deceased or blame Jonathan for what happened.

•	The post-mortem report was consistent with Fred Billy’s evidence.

145. Therefore there is a reasonable body of evidence on which to conclude that the accused stabbed the deceased.

146. I remind myself, again, that the prosecution has to prove its case beyond reasonable doubt. Much depends on the assessment of Fred Billy’s evidence – which I have found to be credible – and that of Snr Const Saule’s evidence, which I consider significant.

THE DEFENCE OF ACCIDENT

147. I have already flagged my concern about this defence. It was only raised by the defence counsel, Mr Lupalrea, as an alternative proposition to the major foundation of the defence case: the outright denial of stabbing the deceased.

148. Accident is a defence under Section 24(1)(b) of the Criminal Code, which states:

Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for … an event that occurs by accident.

149. Once the accused puts evidence of accident the onus rests on the prosecution to disprove the defence, in the same way that defences such as self-defence and provocation operate (R v Johnson (1951) No 26; Thick v Hoeter [1963] PNGLR 87; The State v Albert Gias (2005) N2812).

150. However, the onus of proof is not cast upon the prosecution until there is sufficient evidence before the court for the accused to legitimately raise it as a defence. This is where the defence breaks down. Though Mr Lupalrea tried to argue that the accused had maintained all along that it might have been an accident, that is not the case. When he gave himself up the morning after the incident, it was not an accident. His record of interview only alludes to it being an accident. When he gave evidence in the trial, the accused testified, eventually, that he did not stab the deceased, that the deceased did not run into the knife and that it was Jonathan who stabbed the deceased. The accident line was abandoned.

155. I therefore find that there is insufficient evidence to validly raise accident as a defence.

156. If I am wrong on that point, and the prosecution was required to prove that the stabbing was no accident, I would decide that that onus has been discharged beyond reasonable doubt.

157. The defence of accident does not apply.

DETERMINATION OF THE CHARGE

158. I reiterate that the offence of murder has, for the purposes of the present case, two elements:

1	the accused killed the deceased; and

2	the accused intended to do grievous bodily harm to the deceased.

159. I am satisfied beyond reasonable doubt as to element No 1 for the following reasons:

•	the prosecution presented enough evidence to prove that it was the accused who stabbed the deceased;

•	evidence adduced for the defence did not cast sufficient doubt on the State’s case to warrant any other finding.

160. However, I am not satisfied beyond reasonable doubt as to the second element of the offence. I have applied the principles set out by Injia AJ, as he then was, in the National Court in The State v Raphael Kuanande [1994] PNGLR 512:

Intention is a matter which goes to the state of mind of the accused at the time he acted. It may be proven by direct evidence of the accused’s expression of intention followed by the act itself or by circumstantial evidence. In either situation, it is necessary to examine the course of conduct of the accused prior to, at the time and subsequent to the act constituting the offence. [Emphasis added]

161. I do not think the prosecution has provided enough evidence to prove that the accused intended to inflict grievous bodily harm. Fred Billy’s evidence is that the deceased approached the accused first; and the inference to be drawn from this is that the accused responded angrily. There is no evidence that the knife belonged to the accused; and if the accused’s evidence is to be believed, it was actually the deceased’s own knife that he was stabbed with. I am not satisfied beyond reasonable doubt that the accused intended to inflict grievous bodily harm.

162. I therefore find the accused not guilty of murder.

CONSIDERATION OF ALTERNATIVE VERDICT

163. I now consider whether an alternative verdict should be entered and I address that issue by applying three provisions of the Criminal Code.

Section 539(2) (charge of murder or manslaughter) states:

On an indictment charging a person with the crime of murder, he may be convicted of the crime of manslaughter but not, except as is expressly provided in this Code of any other offence other than that with which he is charged.

Section 298 (unlawful homicide) states:

A person who unlawfully kills another is guilty of the crime of wilful murder, murder, infanticide or manslaughter, according to the circumstances of the case.

Section 302 (manslaughter) states:

A person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder or infanticide is guilty of manslaughter.

164. I am satisfied that the prosecution has proven beyond reasonable doubt, given all the circumstances of this case, that the killing of the deceased by the accused was not justified or excused by law in any way. It was an unlawful killing in circumstances that did not constitute wilful murder, murder or infanticide.

165. This means due to the combined effect of Sections 298, 302 and 539(2) of the Criminal Code that the accused is guilty of manslaughter.

VERDICT

166. I find that the accused, Mas Judah Binas, is:

1	not guilty of the murder of Obed Iso; but
 
2	guilty of the manslaughter of Obed Iso and convict him accordingly.

Verdict accordingly.
____________________________

Public Prosecutor: Lawyer for the State
Lupalrea Lawyers: Lawyers for the accused