N3547 

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1253 OF 2006
(NO. 1)

THE STATE

V

AMOS YOUNG Of KEWANSASAP, TUFI, ORO PROVINCE
Accused

Alotau: Davani .J
2008: 5th, 8th, 9th May

CRIMINAL LAW – Murder – mob fight – death followed – s.300(1)(a) of Criminal Code Act

CRIMINAL LAW – Trial - accused is the only witness – several witnesses for the State - whom to believe – demeanour and credibility at issue

Facts

Around midnight, the accused awoke to the sound of a lot of noise by a group of men, then decided to challenge the revellers. In so doing, he got into a fight with the deceased. His version of the evidence is different from all the State witnesses who say they saw him stab the deceased. He did not have a legal Defence, only generally denying that he committed the offence.

Issue

Whom should the Court believe?

Held

The test to be applied is to assess the demeanour and credibility of the evidence by all the parties, more particularly, credibility. This is done by weighing all the evidence. The accused, being the only witness in his case, could not be believed as not only did he not put up a legal Defence, but also contradicted his own evidence. He was found guilty of murder.

Cases

Leadership Tribunal appointed for the Honourable Andrew Kumbakor, Member for Nuku (2003) N 2363
Philip Kunnga v The Independent State of Papua New Guinea (2005) N2864 
The State v Jacob Dugura Roy (2007) N3137
The State v Richard Liri (2007) Cr 1142 and 1153 of 2003

Counsel:

P. Kaluwin, for the State
R. Yayabu, for the Accused

VERDICT

9 May, 2008

1.	DAVANI .J: The accused pleaded not guilty to one count of murder, charge laid under s.300(1)(a) of the Criminal Code Act ('CCA') and the matter proceeded to trail. Section 300(1)(a) reads;

"300. Murder

(1)	Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder.

(a)	If the offender intended to do grievous bodily harm to the person killed or to some other person; or

 …

Penalty: Subject to section 19, imprisonment for life.

…".

State's allegations

2.	The State alleges that on 10th March, 2006 at Boda Village, Waema, here in Alotau, the accused stabbed Simon Charlie ('deceased') who subsequently died from the injury sustained.

Accussed's Defence

3.	The accused basically denies having committed the offence. His evidence is that somebody else could have inflicted the fatal wound upon the deceased.

4.	He elected to give sworn evidence, being the only witness in his case.

Analysis of evidence and the law

5.	The State called two witnesses to prove its case, being Anne Nedi and Philip Clement.

6.	Anne Nedi ('Anne') said that on the night of 10th March, 2006, her husband and she went to Boda Village to a Mrs Meliaki's house where she sold betelnut and sausages. Mrs Meliaki's house is the third one in the row of houses.

7.	She said about 11 to 12 midnight, she heard male voices from the highway, screaming and yelling obscenities. She decided to go and investigate. It was a moonlit night. On her way to the highway, she walked past the second house and the first house. There were about 8 people sitting outside the first house, telling stories.

8.	On the highway or main road, she met the men who had been screaming. They were Philip Clement, the witness' husband and her sister's son, Charlie Levy, the witness' husband's natural son and Simon Charles, the witness' natural brother.

9.	Anne enquired as to who was screaming the obscenities and Simon Charles told her that it was her son, Dennis Warren. She asked them where they were going and they told her that they were going to play cards. She said as they were entering the compound, the accused ran out and swung his hand at Philip Clement. He hit him in the back. Philip Clement fell. When Philip Clement turned, he hit him again.

10.	This is where the accused's story differs from Anne Nedi and Philip Clement's stories and evidence.

11.	The accused said he heard a lot of noise coming from the road so he walked out to investigate. At that time, he was in his sister's house, sleeping. He said when he got up and walked out the door, he asked the boys who were sitting there namely Dick Tasi, Dick Linus and Jerry Patterson who these boys were, who were making a lot of noise and why none of the boys he was talking to, had made any attempts to stop the revellers. This was when Jerry Patterson and Dick Tasi told him that they would follow him.

12.	He told the Court that he walked up to the men on the road then asked Philip Clement why they were making a lot of noise, to which Philip verbally challenged him by saying "What will you do to me?". The accused said that was when he held Philip Clement on the chest and pushed him whereupon Philip Clement fell to the ground. Simon Charles, the deceased, then threw a beer bottle at him which he avoided.

13.	He said he then ran to the residential area whereupon all the gamblers from the third house then ran to the main road and a fight broke out. He then returned to the second house which is his sister's house, then stood there and watched the fight.

14.	Anne Nedi's evidence is that when the accused hit Philip Clement, the deceased and Charles Neddy then went to hit the accused but Anne grabbed hold of their t-shirts. At the same time, the accused ran out to the yard and stood between the first and the second house. Anne could not continue to hold onto the two men resulting in Charles Neddy breaking free and run off. However, he was held by the boys at the first house. Anne continued to hold onto the deceased but he also broke free by taking off his t-shirt. The deceased then ran directly at the accused. Anne was about 1m away from them when she saw the accused use a double edged knife to stab the deceased.

15.	Philip Clement said the accused hit him firstly on the back, then at his side. He said he did not see what the accused used but he felt the pain when he was stabbed. The medical report by Dr Westin Seta of the Alotau General Hospital dated 15th June, 2006, states that there were two knife wounds to Philip Clement's body, one each to the right and left chest cage. Later examination confirmed the wounds to be superficial.

16.	Philip Clement said he had no trouble recognizing the accused because it was a clear moonlit night and the accused is a good family friend.

17.	The accussed's evidence and the State witness' evidence all confirm that there was an altercation between the deceased and an assailant, resulting in his death. So who is this assailant? 

18.	There, I agree with Mr Kaluwin that it is now a case of whom the Court should believe. This is where the credibility of the witnesses must be assessed and determined. In assessing the credibility of these witnesses, the Court must determine the demeanour and the reliability of these witnesses. (see Re Leadership Tribunal appointed for the Honourable Andrew Kumbakor, Member for Nuku (2003) N 2363). This is a process adopted by the Courts in this jurisdiction, more particularly where sometimes, two diametrically different versions of events are given (see Philip Kunnga v The Independent State of Papua New Guinea (2005) N 2864) or a witnesses' evidence is very contradictory in many respects (see The State v Jacob Dugura Roy (2007) N 3137) or that the credibility and integrity of the witness is questionable (The State v Richard Liri (2007) Cr 1142 and 1153 of 2003).

19.	These categories are many and varied but of course falling within the realm of whom the Court should believe.

20.	In this case, the accused is the only one who claims to be a bystander whereas two (2) witnesses for the State have come forward to say he was the person who wielded the knife and who stabbed both the deceased and the witness. These are people who have lived with the accused all their lives and practically grew up with him. Why would they give evidence against somebody who is like a brother to them? The accused has not given evidence of any motive or reason why the State witnesses would make up such a story.

21.	As to whether the State witnesses have lied, the accused has not brought any independent evidence to contradict the State's version of the evidence. Neither has Defence in its cross-examination of the State witnesses, established any flaws in the State's case.

22.	As for the accused, there are several factors which feature prominently against him. These are;

i.	The accused has not given explanation as to why people who know him very well would make these very serous allegations against him.

ii.	Where the accused said he talked to a policeman early in the morning the next day, about a death when there was no death until about 3pm that same day. He did that only because he knew he had stabbed two people.

iii.	When asked by his lawyer what he came out of the house with, he said he came out empty-handed, that he did not have a 'weapon' in his hands. But at that stage, he was still in the beginning of examination in chief. He was not asked if he had a weapon in his hands. Why did he say that so early in his evidence unless it was said after having heard the State's evidence that he had used a double edged knife to stab the deceased?

iv.	Philip Clement was not asked by Defence Counsel if he made the comment 'what will you do to me' after the accused told Philip Clement and the boys not to make a lot of noise.

Conclusion

23.	The evidence against the accused generally denying that he did not stab the deceased, without putting up a legal Defence, has resulted in the Court finding on the evidence that he could not deny that he was not involved when his own close friends witnessed the incident and gave evidence against him.

24.	Although, the accused maintains that it was somebody else who stabbed the accused, why is it that the Police have not unearthed this evidence? The incident occurred in a close knit community. If somebody other than the accused had done this, this evidence would have come to light. But it has not.

25.	The accused clearly is not telling the truth. I do not see any flaw in the State's case that would persuade me to believe the accused.

26.	The evidence itself is not complicated but is fraught with the dangers of believing a witness, whose evidence on the face of it, appears to be genuine, until after a closer examination, reveals its propensity to mislead then eventually, misleading the Court.

27.	I find that the State has proven beyond reasonable doubt the charge of murder against the accused. I find the accused guilty as charged.

___________________________

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