N3302

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1365 OF 2006

THE STATE

V

MOSES NASRES

Kimbe: Cannings J
2007: 5, 6 December
2008: 25 March

VERDICT

CRIMINAL LAW – trial – wilful murder – Criminal Code, Section 299 – identification evidence – alibi – whether the accused intended to kill the deceased – assessment of the accused’s state of mind.

The accused was indicted for the wilful murder of a 30-year-old man. It was undisputed that the deceased was killed when someone pushed an iron rod through his head. He was attacked several hours after he and others watched a State of Origin match on television. The State produced an eyewitness, the deceased’s sister, who said she was with the deceased shortly before and when he was attacked. She identified the accused as the attacker. The accused gave sworn evidence that he was at his house asleep at the time of the incident.

Held:

(1)	The deceased’s sister was a credible witness. Her demeanour was sound and she was not shown to have a motive to lie. After the court warned itself of the inherent danger of convicting on the strength of only one identification witness and taking into account that it was dark, her identification evidence was considered sound.

(2)	The other evidence supported the State’s case and there were no significant gaps in the State’s case.

(3)	The accused was not an impressive witness and his alibi was vague, uncorroborated and not believable.

(4)	There was sufficient evidence to conclude beyond reasonable doubt that the accused was the person who attacked the deceased with the iron rod, thereby killing him.

(5)	There were no defences available to the accused so the killing was unlawful.

(6)	An intention to kill was inferred given the nature and force of the attack and evidence of a motive to kill.

(7)	The accused was accordingly convicted of wilful murder.

Cases cited:

Biwa Geta v The State [1988-89] PNGLR 153
John Beng v The State [1977] PNGLR 115
John Jaminan v The State (No 2) [1983] PNGLR 318
The State v David Yakuye Daniel (2005) N2869
The State v Paul Gambu Laore & 11 Others CR Nos 914-925/2005, 11.12.07

TRIAL

This was the trial of an accused charged with wilful murder.

Counsel
C Sambua, for the State
B Tanewan, for the accused

25 March, 2008

1	CANNINGS J: On the night of Wednesday 14 June 2006, the Queensland Maroons played the New South Wales Blues in the second match of the annual State of Origin Rugby League series. The Maroons won the match. Saina Balos, a 30-year-old man from Enga Province, was a Maroons supporter. He watched the match on television with a number of his relatives and friends at a squatter settlement called Wabag City, home to people mainly from Enga Province, on the edge of the suburb of Section 21 in Kimbe.

2	A fight broke out soon after the match ended, at around 10.00 pm. Things then settled down but within a few hours Saina Balos was dead. Someone pushed an iron rod through his head. The State says that the accused, Moses Nasres, a young Engan man who also watched the match that night at Wabag City, is the killer. He has been charged with wilful murder. The State relies on the evidence of the deceased’s sister who says she was with her brother when he was killed, she saw what happened and she saw that it was the accused who did it.

3	The accused denies involvement. He gave sworn evidence that he was at his house asleep when the incident happened.

4	It is undisputed that Saina Balos was killed in the early hours of 15 June 2006 and that the cause of his death was an iron rod being pushed through his head. What is in issue is whether the identification evidence of the deceased’s sister is good enough to convict the accused and whether the accused’s alibi evidence provides him with a good defence.

THE OFFENCE

5	Section 299 of the Criminal Code states:

(1)	Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2)	A person who commits wilful murder shall be liable to be sentenced to death.

6	The prosecution has the onus of proving beyond reasonable doubt that:

•	the accused killed the deceased;
•	the killing was unlawful; and
•	the accused intended to cause the death of the deceased.

7	They are the three elements of the offence. If the court is not satisfied as to the third element – intention – an alternative verdict of murder or manslaughter (the maximum penalty for which is life imprisonment) can be entered.

THE EVIDENCE

8	The State’s case was based on the following evidence:

•	the oral testimony of the deceased’s sister;
•	six exhibits, five documents plus the iron rod.

9	For the defence, the accused gave sworn evidence.

ORAL TESTIMONY OF THE DECEASED’S SISTER

10	Epa Balos described her occupation as a housewife. She lives at Wabag City and she is from Enga. On the night of Wednesday 14 June 2006, she watched the State of Origin at James Karapus’s house at Wabag City. She is a Blues supporter and her big brother, Saina, was a Maroons supporter.

11	People had been betting on the match. When the match ended Saina and other Maroons supporters went to the snooker table and distributed their winnings. Then a fight broke out between two drunkards, Johnny and her younger brother Moses (not the accused). It was not a really serious fight and people separated them. Things quietened down and she was watching people playing cards.

12	Then Paul Mark, who runs a trade store at Wabag City, came on to the scene, complaining about someone breaking his light bulb. He said there were too many drunkards around and one of them must have smashed his light. Someone mentioned that her husband, Larson, and her brother, Saina, were the ones responsible. Paul Mark said to those present to go and kill one of them and he would pay compensation of K2,500.00.

13	She got worried when she heard that as Saina and a young fellow, Wanpis Jim, were playing snooker nearby. She told them what Paul Mark had said and told them to go with her to her house.

14	They did not go all the way, however. They sat in front of her store, telling stories. By this time, it was around 12 midnight and they were discussing the game. Saina was saying that the Maroons would go on and win the last test while she was saying that the Blues would win. They stayed at the store for about 30 minutes then Saina and Wanpis said that they were hungry so she accompanied them towards her house.

15	Wanpis was walking first followed by Saina and she was at the back. Her house is only 15 or 20 metres away from the store. On the way to the house the accused came out from where he had been hiding amongst the flowers. She knew it was the accused, Moses Nasres, as she knows him well and he had been staying at Wabag City. He is a tall person. He stood up and attacked Saina. Though it was the middle of the night and dark, there was light coming from a double florescent light at her store and from the veranda of her house. There were also lights on in her kitchen house and underneath her house, which is on posts. The accused was wearing the same clothes he had been wearing during the day, a light blue, collared shirt and long black trousers, the ones he always wears.

16	The flowers were about 1.2 metres tall, not hibiscus but of the thick sort that is commonly used for hedges. The accused was only about one metre from her when he came out from the flowers.

17	When he stood up he was holding a rod, which has since been given to the police. He lifted the rod and stabbed Saina on the right-hand side of his head behind his eye. He pushed it hard with both hands and it penetrated Saina’s head and came out the other side. It was stuck in his head. Then the accused went to Wanpis and held his hand and took him away.

18	She cried and ran for her life but when she realised that the accused had taken Wanpis up the hill she ran back and pulled the rod out of Saina’s head. People heard her crying and came to the scene. They included Saina’s wife and Ene Kimbun and James Karapus.

19	She identified exhibit H, an iron rod, 1.8 metres long and 1 cm in diameter, tendered by consent, as the weapon which the accused used to spear her brother.

20	Her relatives took Saina to the hospital but by the time she pulled the rod out of his head he was dead. He was put into the morgue. Later that day she told the police that it was Moses Nasres who killed her brother. He admitted it, surrendered himself to the police and was kept in the police cell.
21	In cross-examination Epa Balos said there were a lot of drunkards present that night but Saina was not one of them. When Paul Mark was talking about his broken light he was very angry.

22	She did not see the accused when she was watching the match and did not see him immediately after the match. When she approached Wanpis Jim and Saina to tell them about what Paul Mark had said she told them to come to her house to eat some bananas. By that time not a lot of people were playing cards. There were only about three games going on and she was watching one of them. There were some non-Engan people present that night, some were from Arowe.

23	She was only one metre away from Saina when the accused attacked him. Wanpis was also one metre away from Saina. Wanpis is a young man married without children. He is much younger than Saina was. Saina and Wanpis were good friends. Wanpis also saw Saina being speared. Wanpis could do nothing to assist as the accused put a knife to his neck and led him away. The accused was by himself.

THE EXHIBITS

24	Exhibit A is the accused’s record of interview conducted on 10 July 2006 by Det Sgt Thomas Ombul. The accused said he is married to a lady called Janet who lives in the village, Lelam, in Enga. He came to Kimbe in November 2005 and was living at Wabag City with his cousin-brother, Paul Mark. He was not supporting either the Blues or the Maroons on the night of the incident. There was a brawl that night involving drunkards. Paul Mark’s trade store was damaged and his fluorescent lights were broken. But he (the accused) was at his house when the light was broken. He believes that there were three people responsible for breaking the light: Saina, Saina’s brother Moses and Larson.

25	He does not know Wanpis Jim. Nor does he know Larson Karapus’s wife. He did not hear Paul Mark telling anybody to kill the people responsible for breaking his light. He denied being in possession of an iron bar. He denied killing Saina Balos and he denied taking Wanpis Jim away against his will. He does not know who killed Saina Balos as he was at his house at the time. Maybe it was Paul Mark’s brothers who got drunk and killed him but he does not know as he was at the house. He was not drunk that night. He was normal.

26	Exhibit B is a statement by Lucas Magea, a correctional officer at Lakiemata Jail. He was the corroborator of the accused’s police interview. The accused was afforded his constitutional rights and not intimidated during the course of the interview.

27	Exhibit C is a witness statement by Det Sgt Ombul. He left his residence at about 9.50 pm on Wednesday 14 June 2006 and came to the CID office at Kimbe police station to do some work. He fell asleep at the office but was woken at about 2.30 am by some police officers who alerted him to a murder incident at Wabag City. He went to the crime scene and was told by one of the residents, Ene Kimbun, that the prime suspect was Moses Nasres. Epa Balos told him where the incident had happened and handed to him the iron bar which she said had been used to spear her brother. He observed a trail of fresh blood and she showed him the place where the accused had stood. By that stage the suspect (the accused) and Paul Mark (who was alleged to have given the request for Saina Balos to be killed) had decamped. He worked through to 6.00 am, returned to the CID office and did a major incident brief, then went home to rest. The situation remained tense until Friday 16 June when Moses Nasres surrendered himself and he was put into the cell. Another suspect, Johnny Kepa, was also placed in the cell. He charged them with wilful murder that Friday afternoon. The charge against Johnny Kepa was withdrawn on Monday the 19th as there was no evidence that he was involved.

28	He conducted the accused’s interview on Monday 10 July 2006. The accused was afforded his constitutional rights and was not subject to any intimidation.

29	Exhibit D is a post-mortem report prepared by Dr Stephen Topaleku of Kimbe General Hospital. The post-mortem was conducted on 21 June 2006. The report stated that the cause of death was "penetrating trauma to head".

30	Significant, abnormal findings were:

Depressed skull fracture to right-side of head. Entry wound about 7 cm above the eye through the skull and exiting on the left side of the head. Exit wound about 3 cm above the left ear. The deceased was wearing a long sleeve maroon shirt and grey trousers. His height was 160 cm and he weighed 70 kg. Brain mater was exposed from the skull.

31	Exhibit E is a witness statement by Benjamin Joseph, a nine-year-old child who lives at Wabag City. He says that he heard Paul Mark say to his supporters:

You guys go and kill Larson and Saina. I have K2,500.00 to pay compensation. You guys go and kill them.

32	He saw Paul Mark’s supporters get their spears and bush knives and go off to hunt Larson and Saina. Later he heard his aunty Epa crying from the distance. He ran towards her and saw that his uncle, Saina Balos, had been murdered.

33	Exhibit F is a statement by Ene Kimbun, 40 years of age, a cleaner at the Kimbe District Court. He is a Blues supporter and was watching the match on the night of Wednesday 14 June 2006 at Wabag City. There was about K200.00 bet on the match and when the Maroons won he gave the cash to Saina who distributed it amongst the Maroons supporters. At about 11.30 pm a fight broke out between Johnny Kepa and Moses Balos. Paul Mark’s people were supporting Johnny. Then the Engan leaders at the settlement intervened and stopped the fight. Things quietened down and normal operations resumed. By that stage it was about 1.30 am on 15 June. He heard Paul Mark ask who smashed his florescent light. He heard someone tell Paul that Larson and Saina had smashed it. Then he heard Paul say:

I now possess K2,500.00 to pay compensation as under the West New Britain law, it is a piece of cake, you guys go and kill Larson and Saina, and I will be responsible for the compensation.

34	He thought it was only a joke but about 10 minutes later he heard a woman’s voice crying. He ran towards where the voice was coming from. Then he saw people carrying a body towards him and he saw that it was Saina Balos. He realised that what Paul Mark had been saying had come true and that Paul Mark’s boys had performed the task given to them.

35	Exhibit G is a sketch plan of the scene of the incident prepared by Det Sgt Ombul.

36	Exhibit H is the alleged murder weapon, an iron rod, 1.78 metres long and 1 cm in diameter. It is slightly discoloured by corrosion and has an irregular bend between the centre and one end.

THE DEFENCE CASE: THE ACCUSED’S SWORN EVIDENCE

37	The accused said he was at Wabag City on the night of 14 June 2006. He watched the State of Origin and after it finished he went home to sleep. There were plenty of other family members there.

38	The next day he heard people saying that someone had died during the night. He does not know the details of what happened. He just heard people saying that there were a lot of drunkards around that night and that they had killed a man. He stayed at his house until 12 midday and that was when the relatives of the deceased approached him. He was scared for his life as he knows that in Enga people kill over this sort of thing. The deceased’s relatives were chasing him so he had to surrender to the law in order to save his life.

39	He did not know the deceased. There had been no conflict between him and the deceased’s relatives. He was staying at the house of his cousin-brother, Paul Mark. He does not know Epa Balos and does not know why the deceased’s relatives blamed him for the death.

40	In cross-examination, Mr Sambua asked him why he was so scared of the deceased’s relatives. He replied that they had charged up to him and in the way of the Wabags they will kill in these circumstances.

41	‘But if you did not kill anybody they would not attack you would they?’, Mr Sambua asked. The accused replied that because they suspected him of committing the murder he had to surrender.

42	Epa Balos was not a truthful witness. She was lying when she said that she saw him spearing her brother. She did not see him with her own eyes. He had only been in Kimbe about two or three weeks when this thing happened. 

43	He was wearing a yellow T-shirt and blue six-pocket shorts on the night of the incident.

44	As soon as the game finished he went straight to the house. He does not know about any drunken brawl that might have happened as he had gone home to sleep. As for the broken light at Paul Mark’s store, he only saw it the next morning.

45	Mr Sambua questioned the accused over an alleged inconsistency between his evidence to the court and what he told the police. Mr Sambua suggested that he did not tell the police that he was sleeping when the incident happened. The accused replied that he was asleep and he did tell the police that he had gone to sleep. The evidence that he is telling is true.

46	He denied arming himself with an iron rod or being instructed by Paul Mark to go out and kill the people who had been responsible for damaging his light. He said he was not making up stories. He had sworn on the Bible to tell the truth and the evidence that he is giving to the court is true.

THE ISSUES IN DETAIL

47	The nature of the evidence and submissions of counsel give rise to these issues:

•	Was the deceased’s sister a credible witness?
•	Was the identification evidence sound?
•	Does the other evidence support the State’s case?
•	Are there gaps in the evidence that give rise to doubt about acceptance of the identification evidence?
•	Was the accused a credible witness?
•	Was the alibi evidence sound?

48	In light of the answers to those questions, I will address the three elements of the offence of wilful murder set out at the beginning of this judgment:

•	Did the accused kill the deceased?
•	Are there any defences available?
•	If no defences are available, is this a case of wilful murder or should an alternative verdict be entered?

WAS THE DECEASED’S SISTER A CREDIBLE WITNESS?

49	Epa Balos gave consistent and credible evidence. Her demeanour was sound. Her answers to questions were short and to the point. She says that she was present when her brother was speared with an iron rod. She saw who did it. She knew who did it. She did not flinch under cross-examination.

50	Mr Tanewan attacked her evidence as being vague, short on detail and one-sided. However, she adequately described how the assailant who had been hiding in the flowers stood up and attacked her brother. The evidence she gave as to the manner of the attack was consistent with the post-mortem report.

51	The fact that she was the deceased’s sister does not make her an unreliable witness. On the contrary her interest would lie in seeing justice done, and that means seeing that the person who killed her brother was convicted.

WAS THE IDENTIFICATION EVIDENCE SOUND?

52	In assessing the identification evidence provided by Epa Balos, I will apply the principles set out by the Supreme Court in John Beng v The State [1977] PNGLR 115 and Biwa Geta v The State [1988-89] PNGLR 153. I have considered the inherent dangers of relying on the correctness of identification to support a conviction and caution myself, as the tribunal of fact, accordingly. I acknowledge that it is dangerous to rely on the correctness of identification where there is only one witness. I note that there was no identification parade in this case but it is not necessary to have one. I am conscious of the possibility that an honest witness might be mistaken as to who they saw.

53	I have taken into account, as Mr Tanewan emphasised, that it was the middle of night around 1.00 or 2.00 am and it was dark. Against that, however, is the witness’s evidence that there was light emanating from both her house and store. Also, she was identifying someone she knew. The accused said in his evidence that he did not know the deceased or her sister but I do not believe that. The impression given to the court was that Wabag City is a tight-knit community inhabited by people mainly from the Enga Province. All the people involved in this case are from Enga. It is reasonably to be expected that they would know each other. Therefore I have no difficultly accepting the witness’s evidence that she knew the accused. She described the clothes he was wearing and said that they were familiar to her. She said that he was only a metre away from her when he attacked her brother. She was in very close proximity and this makes the quality of her identification evidence sound. She was not shown to have any motive to lie about who it was that she saw that night.

54	I am satisfied therefore that the quality of her identification evidence is sound.

DOES THE OTHER EVIDENCE SUPPORT THE STATE’S CASE?

55	The witness statements by Det Sgt Ombul (exhibit C), Benjamin Joseph (exhibit E) and Ene Kimbun (exhibit F) support the State’s case.

56	Det Sgt Ombul’s statement shows that the accused was identified as the prime suspect in the hours immediately after the incident.

57	The statement by Benjamin Joseph (though he is a young boy) is also useful in that he heard Paul Mark inciting others to go and kill the deceased and Larson Karapus. Benjamin’s statement was admitted into evidence without objection and I accept it as a truthful account of what the child heard Paul Mark say.

58	Ene Kimbun’s statement is also relevant as he heard Paul Mark say the same thing.
59	All these statements are evidence of a motive to kill. The accused is the cousin-brother of Paul Mark and he was staying at Paul Mark’s residence. He had a close connection with Paul Mark who was very angry with the deceased and issued a request to others to kill him.

60	The post-mortem report is consistent with the State’s version of events. In any event the cause of death was not disputed.

ARE THERE GAPS IN THE EVIDENCE?

61	Mr Tanewan submitted that the State’s case was deficient as only one witness had been presented. Wanpis Jim, the other alleged eyewitness, was conspicuous by his absence and this suggests that the version of events presented by the key State witness, Epa Balos, is not truthful. The State’s case was lacking an independent witness, Mr Tanewan submitted.

62	I agree with Mr Tanewan that it would have been preferable for Wanpis Jim to be called. It would also have been useful for other people to give evidence of the events before and after the estimated time of the attack on the deceased.

63	No explanation was proffered by Mr Sambua as to why Wanpis Jim did not give evidence. However, it is of little use to speculate as to the cause of his absence. In light of my assessment of the evidence of Epa Balos, Wanpis Jim’s absence did not create a significant gap in the State’s case.

64	As to the lack of other witnesses, this is also not fatal to the State’s case especially as two of the people who might have been called to give oral evidence (Benjamin Joseph and Ene Kimbun) gave written statements that were admitted into evidence by consent and support the State’s case.

WAS THE ACCUSED A CREDIBLE WITNESS?

65	His explanation for surrendering to the police was, I thought, plausible. He said that he feared for his life as he was a suspect in the killing. No adverse inference should be drawn against him for surrendering to the police.
66	However, I did not think he was a very impressive witness. He did not give the impression of someone who was telling the truth. His demeanour was not sound. His evidence was vague and limited to his saying that he was somewhere else at the time, asleep.

67	He said in his sworn evidence that he only arrived in Kimbe two or three weeks before the incident but in his police interview he said that he had arrived in November 2005, seven months beforehand.

68	There are two aspects of his evidence that I thought were particularly unbelievable. First, he said that straight after the match finished he went home to sleep. This is despite the fact that it was obviously a big occasion in the settlement. The game had attracted a lot of interest and people stayed around talking about it, drinking, distributing the proceeds of gambling on the result and playing cards and then a fight broke out, which had to be broken up and a light was broken and Paul Mark got angry. There were still a lot of things happening. So the prospect of one person walking away and going home to sleep in those circumstances is remote.

69	Secondly the accused said that he did not know the deceased or his sister. As I indicated previously the impression to be gained from the evidence is that Wabag City is a tight-knit community, the sort of place where everybody knows everybody. Most of the people living there come from the same province. It can reasonably be inferred from the evidence that the accused would know the deceased and that he would know the deceased’s sister.

WAS THE ALIBI EVIDENCE SOUND?

70	Mr Tanewan submitted that this is not a case that would turn on alibi evidence as it is undisputed that the accused was in the vicinity of the incident at the time. Rather, it is a case that will turn on identification evidence.

71	I have trouble with that submission because, though clearly it is a case that depends a lot on the strength or otherwise of the identification evidence, the accused has put forward, through his sworn evidence, an alibi. He says he was somewhere else at the time. He was at home, asleep. That is an alibi.

72	Therefore I have to assess the strength or otherwise of the alibi and that means I have to apply the principles from the leading case of John Jaminan v The State (No 2) [1983] PNGLR 318. It is not up to the accused to prove that his alibi is sound. The burden of proof never shifts from the prosecution. However, unlike the defences of self-defence and provocation, there is no rule of law that says that once an alibi is raised it is up to the prosecution to disprove it.

73	Despite what Mr Sambua suggested in his cross-examination of the accused, the alibi is not a recent invention as the story the accused told the Court is the same story he told the police in his interview (exhibit A).

74	I have, however, concluded that it is a very weak alibi, because:

•	No notice was given to the State under Order 4, Rule 4 of the Criminal Practice Rules of the accused’s intention to rely on it.

•	There is no evidence to corroborate it (the accused said that when he went to his house there were a number of people there, but none of them have come forward to give evidence of the accused’s presence at the house).

•	The accused was not a credible witness and his story about going home to sleep straight after the match finished is not believable (for the reasons outlined earlier).

75	I now move to a consideration of the three elements of the offence.

DID THE ACCUSED KILL THE DECEASED?

76	I am satisfied beyond reasonable doubt that the answer is yes. The identification evidence by the deceased’s sister is sound. It is supported by the other evidence presented by the State which establishes that the accused had a motive to kill the deceased. The accused’s alibi is very weak and his evidence failed to put any significant dent in the State’s case.

ARE THERE ANY DEFENCES AVAILABLE?

77	As the defence case is based on an outright denial, supported by an alibi, the defences of self-defence and provocation are not available to the accused. There is no conclusion to draw other than that the killing of the deceased was unlawful.

WHAT IS THE APPROPRIATE VERDICT?

78	I now have to consider whether an alternative verdict should be entered in light of Section 539(1) (charge of murder or manslaughter) of the Criminal Code, which states:

On an indictment charging a person with the crime of wilful murder, he may be convicted of the crime of murder or 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.

79	It is at this point of a wilful murder trial that the Court is required to consider the accused’s state of mind:

•	Did he intend to kill the deceased? If yes, the third element of wilful murder is proven and the accused will be guilty, as charged.

•	Did he intend to inflict grievous bodily harm? Or did one of the other circumstances prescribed by Section 300(1) of the Criminal Code apply? If yes, the accused would be convicted of murder, not wilful murder (eg, The State v David Yakuye Daniel (2005) N2869). If no, the accused would be guilty of manslaughter, not wilful murder or murder (eg, The State v Paul Gambu Laore & 11 Others CR Nos 914-925/2005, 11.12.07).

80	The accused speared the deceased in the head with a lethal instrument. The force of the blow saw the iron rod penetrate the deceased’s head from the right-hand side and come out the other side. The chances of a person surviving that sort of attack are remote. The accused must have known that. There is no suggestion that he was mentally impaired at the time of the incident or otherwise not conscious of and unable to control his actions. There is also evidence of a motive to kill in view of the remarks made by his cousin-brother shortly before the attack.

81	I am therefore satisfied beyond reasonable doubt that the accused intended to kill the deceased. The third element of the offence of wilful murder has been proven.

VERDICT

82	The accused is found guilty of wilful murder, as charged.

Verdict accordingly.
____________________________

Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Accused