N4721 

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 1322 OF 2010

THE STATE

v

YAKO KAIPAS

Wabag: Gauli, AJ
2012: 6, 7, 8, 12, 15, 18. 19 June

CRIMINAL LAW – Trial – Wilful murder, Criminal Code Act s. 299(1) – Used offensive weapon – Identification – Of a known person – Identification at close proximity under sufficient light – Identification was good - Defence of alibi – Alibi evidence from the wife of the accused unreliable due to close relationship – Verdict of guilty entered. 

A man killed another man using a long bush knife at night. The deceased was inside a small trade store and as he stepped outside he was attacked by a man armed with a long bush knife. He first swung the bush knife and cut the deceased on the head. Deceased moved forward to grab the bush knife and they struggled. In the course of struggling the deceased fell to the ground face down. The man then cut the deceased across the back of his head while laying face down and he died instantly. 

Cases Cited: 

Papua New Guinea Cases

SCR No.1 of 1980, Re S.22 of the Police Force Act [1981] PNGLR 28
SCR No.2 of 1980, Re S.14 of the Summary Offences Act [1981] PNGLR 50
John Jaminan v The State (No.2) [1983] PNGLR 318
The State v Paul Dimon Asilip (2011) N4197
The State v Gabriel N. Berger (2010) N3989
The State v Richard Wasabo Yandu (2009) N3798
The State v Abua Ato (2004) N2748
The State v Robert Wer [1988-89] PNGLR 444
The State v Mathew Balu & 2 Ors (2011) N4350

Overseas Cases

R v Brown & Dunn (1893) 6 R67 (HL)

Counsel: 

Public Prosecutor, for the State
Paraka Lawyers, for the Accused 

JUDGEMENT ON VERDICT

19 June, 2012 

1.	GAULI, AJ: The accused Yako Kaipas stands trial on one count of wilful murder charged under section 299(1) of the Criminal Code Act. The State alleged that the accused wilfully murdered one Daniel Mutikali on the night of the 3rd of June 2009 at Sangurap, Wabag, Enga Province of Papua New Guinea. 

The Law:

299 Wilful murder

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

The Elements: 

2.	The elements of the charge of wilful murder are: 

i.	Identification of a person, the murderer. 
ii.	A person was killed.
iii.	The killing was unlawful.
iv.	A person has the intention to cause the death of that person or that of another person. 

Undisputed Facts: 

3.	There is no dispute that the deceased Daniel Mutikali was killed on the night of the 3rd of June 2009. And that the killing was unlawful. 

Disputed Facts: 

4.	 That accused killed the deceased. The accused raised the defence of alibi. He claims that he was in his house with his family at the time of the murder.

Burden of Proof

5.	It is a well established law that the onus of a criminal burden of proof always rests entirely on the prosecution from the beginning to the end and the prosecution must prove every elements of the charge beyond reasonable doubt and disprove any defence or explanations the defence raises: see SCR No.1 of 1980, Re s.22 of the Police Offences Act [1981] PNGLR 28; SCR No.2 of 1980, Re S.14 of the Summary Offences Act [1981] PNGLR 50. 

6.	The law is well settled in our jurisdiction in John Jaminan –v- The State (No.2) [1983] PNGLR 318, that when a defence of alibi is raised, the burden of proof never shifts from the prosecution. The onus remains on the prosecution to disprove the alibi. But the accused must lead some evidence in support of the alibi that must be sufficiently convincing to create a reasonable doubt in the mind of the tribunal of fact: see The State –v- Paul Dimon Asilip (2011) N4197, at paragraph 68. 

Evidence for the State: 

7.	The State call two eye witnesses namely Joseph Toma and Michael Ango and tendered the other documents by consent of the defence, namely – the Record of Interview (R.O.I) (marked Exhibit "A-1" and Exhibits "A-2" both Pidgin and English translations); the Medical Report, dated 01/06/2009 by Dr. William Waro Pyakali (Exhibit "B") and the Sketch Plan of the Scene (Exhibit "C").
 
8.	In the R.O.I. the accused denied killing the deceased. However in his answers to Questions 20 – 23, he said that the deceased was his brother and they have some differences between each other because the deceased and others assaulted him and they burnt down his (accused) house. He did not say when that incident had occurred. 

9.	The Medical Report (Exhibit "B"), showed that the deceased sustained the following injuries: 

•	Deep laceration to the left aspect of the scalp – 5cm long.
•	Another incision wound to the left supra-orbital region – 6cm long.
•	The chin had a gaping wound.
•	Left ear was cut off and a huge bush knife wound at the left parietooccipital region. The skull was exposed. 
•	A huge gaping wound at the occiput measuring 9cm long. All the brain tissues were noted to be absent. 
•	The deceased died from severe blood loss and severe nervous system shut down as a result of the multiple bush knife wounds. 

10.	The medical report was tendered by consent of the defence. I am satisfied that the deceased has sustained the injuries as stated in the medical report. It shows that the deceased sustained severe multiple injuries. 

11.	The first eye witness Joseph Toma gave sworn evidence that he is from Teremanda village. On the night of the 3rd of June 2009, he was watching the State of Origin game between Queensland and NSW at the old service station owned by Kevin Yange near Sangurap village. When it was half time, he went to a nearby store to buy food as he was feeling hungry. When he was just outside the front of the trade store, he saw two drunkards inside the store. One of them was Daniel Mutikali, (the deceased) who said:

"Yako Kaipas assaulted me but he did not kill me. So if I see him somewhere I will fight him". 

12.	After saying that, Daniel made his way to come out of the store. And Mr. Joseph Toma stepped aside and gave way for Daniel to come outside as he (Joseph) did not want to talk to a drunkard. As Daniel was stepping out of the store, the accused Yako Kaipas, came out from nowhere behind the store, armed with a long bush knife. The accused swung the bush knife and cut Daniel on his face. The accused swung the bush knife the second time but Daniel moved forward to grab the bush knife. Both struggled and Daniel fell to the ground face down. While he was lying face down, the accused swung the bush knife the third time and he cut him across the back of his head killing him instantly.

13.	The accused then walked into the store with a bush knife in his hand and said to a drunken man who was inside the store: "Leave your beer, we have to go home". He held him by the hand and they both left the store. 

14.	The store keeper came out of the store holding his lighted Coleman lamp. Joseph Tamo shouted saying "Yako Kaipas killed Daniel". He was so scared and he was shouting as he ran all the way to Sangurap saying: "Yakop Kaipas killed Daniel". On his way he met Newman from Kopen. Joseph proceeded to Wabag Police Station but there was no one so he walked back to the crime scene. On his way back he saw a 10 seater Land Cruiser with many people on board crying and he thought they were taking the deceased to the hospital. He 
then went back to his house. The store did not have electricity light except the lighted Coleman lamp hanging above the counter at the time. However, there was sufficient light coming from Water supply area and from Martin Lakari's house. And it was bright moon light night. 

15.	The second witness Michael Ango, gave sworn evidence, that on the evening of the 3rd of June 2009, he opened up his store located at Sangurap. The store is located near Wabag/Pogera highway. He was inside the store. Between 8.00pm and 9.00pm, Daniel Mutikali came to the store with K2.00 to buy food. He saw Daniel's face was swollen and bleeding all over his face. And Daniel said: "He fought with me, but he did not kill me. He should have killed me instead". He did not mention the name of the parson who fought him. After saying that, Daniel bought a smoke (cigarette) and he went out. There was no one in the store. It was a State of Origin game that night. People came, bought what they wanted and left. He had his lighted Coleman hanging on the counter of his store. 

16.	 Then he heard from those standing outside that Daniel was killed. A minute later, the accused Yako Kaipas entered the store, holding a bush knife covered all over with fresh blood stains. And the accused told a drunkard, who was inside the store, to follow him and they left. After they have gone, Michael Ango took his lighted Coleman and he went outside, closed his store and he saw Joseph Toma shouting: "He is killed". While the body was still lying there, he saw the deceased had a wound on his head. The deceased was taken in a white Nissan double cabin to the hospital. Apart from his lighted Coleman lamp, there was light from the Water supply area and from Martin Lakari's residence and from Malin's place. The electricity was not connected to his store at the time. 
 
Defence Evidence: 

17.	The accused Yako Kaipas and his wife Susan Yako gave sworn evidence. The accused Yako Kaipas gave evidence that during the day on the 3rd of June 2009 he was at Sangurap market selling his cooked lamb flaps. He was with someone. Between 3.00pm and 4.00pm he felt sick so he went to the hospital. After getting medical treatment he went back straight to his house and slept while his wife prepared their dinner. After having their dinner the family 
stayed together. Between 8.00pm and 9.00pm they heard people shouting so he sent his wife to go out and hear what they were saying. When she came back she told him that the people were saying: "Yakop Kaipas killed someone". So they went out and they saw one of their houses, occupied by one of their son, was set on fire. And the people were heading towards their other house. So they took their children and ran away looking for a place to stay. He was at Pawas market when police arrested him.
 
18.	The witness Mrs. Susan Yako gave evidence that on 3rd of June 2009 she and her children were at home when her husband Yako Kaipas (accused) came home between 4.00pm and 5.00pm from Sangurap. He told her that he was feeling sick. She cooked their dinner, ate and stayed together until between 8.00pm and 9.00pm they heard people shouting. Her husband sent her out to hear what they were saying. When she returned, she told him that the people were saying: Yako Kaipas killed a man". People came and burnt down their two houses so they moved away hiding. She went back to her own village Sakarip and the accused went to Pawas village. Later the accused was arrested at Pawas. 
 
19.	The Court has the duty to decide whose story to believe and who not to believe. In deciding who to believe, the Court is been urged to consider from the evidence as presented before it the following tests – consistency of evidence; contradictory evidence; logic and common sense; credibility and Reliability of the witnesses. 

The Issues: 

20.	When the alibi defence is raised, all the elements are in issue: see The State –v- Gabriel N. Berger (2010) N3989, at paragraph 24. However, in the present case the defence does not take issue on the second and the third elements of the charge except the first element on identification and the fourth elements on intention. Thus, the only issues are:

1.	Whether or not the accused killed the deceased.
2.	Whether the accused had the intention.
3.	Is the defence of alibi strong. 

Issue No. 1: Whether or not the accused killed the deceased. 

21.	From the evidence of the State's eye witness Joseph Toma, the accused chopped the deceased right in front of the witness Joseph Toma in front of the store. A minute after killing the deceased, the accused walked into the store still holding onto his blood stained bush knife, spoke to a drunken man in the store and both left. The accused denied killing the deceased and he said that he was in his house with his family at the time of the killing. 

Submission by Defence

22.	The defence counsel submitted that the evidence for the State is so inconsistent, contradictory, illogical and lacked common sense, credibility and it is unreliable. In support of his submission, he submitted that: 

(a)	 The witness Joseph Toma said the accused swung his bush knife three times but the accused only cut the deceased twice. So the deceased should have only received two bush knife wounds and not more than two. The medical report showed a total of 5 wounds, indicating multiple wounds. 
 
(b)	 Joseph Toma said that when the deceased was inside the store, the deceased said "Yako Kaips fought me but he did not kill me. If I find him somewhere I will fight him". But the witness Michael Ango said that when the deceased walked into the store he said someone fought with him without mentioning names.
 
(c)	 Joseph said there was enough light to see people clearly but he did not see the accused hiding behind the left side of the store. He said there were no cover walls surrounding the store.
 
(d)	 Joseph said the light from the Coleman lamp reached the outside of the store as there were no cover walls surrounding it. But Michael Ango said there was cover walling surrounding the store and the light from the Coleman lamp cannot go outside.
 
(e)	 Joseph said that after killing the deceased, the accused went into the store and said to a drunkard man that he had some beer at home and both left the store.
 
(f)	 Michael Ango said he did not hear from the accused anything when the accused entered the store. But in his statement to police he heard the accused said to a drunkard: "I have beer in the house" and the accused grabbed him and both left the store.
(g)	 Joseph said when he arrived at the store he saw the deceased and one other drunkard inside the store. But Michael Ango said the deceased entered the store all alone.

(h)	 Joseph said when the accused entered the store he showed his blood stained bush knife to Michael Ango. But Michae Ango said he saw the accused walking into the store with the blood stained bush knife.

(i)	 Joseph said the lights from the Water supply premises and from Martin Lakari's resident gave enough lighting to the crime scene. But Michael said the lights from these premises cannot give full bright light, only shadow lights and outside would be still dark. 

(j)	 Joseph said when he was returning from the police station that night, he saw a white Nissan double cab carrying people crying. He formed the view that it was carrying the deceased to the hospital. But Michael Ango said he saw Joseph standing outside the store and Joseph and others took the body to the hospital in a white Land Cruiser. 

(k)	 Joseph said he did not see the colour of the shirt or the trousers the accused wore. Michael said the accused wore a button shirt, a coat with a cap on it. 

23.	Defence council submitted that it was illogical and makes no sense for someone after killing a person to walk in to a store. The only logical conclusion is that the killer would run away for his safety. This is incredible. Joseph said the accused is his best friend. Yet Joseph did not assist when the deceased who was lying on the ground. It would be only logic if Joseph assisted the deceased as Joseph was a best friend to the accused. Joseph said the store was built with big posts measuring 30cm in circumference and the accused was hiding behind one of these posts. This is illogical unless the store was a big wholesale store. 

24.	The defence submitted that having identified these inconsistencies, contradictions and illogical evidence, the evidence for the State lacked credibility, the witnesses are untruthful and unreliable. He submitted that the evidence for the defence is consistent, coherent, logical and sensible. 

Submissions by State

25.	The State submitted that the law in respect to identification is well established in the case of John Beng v. The State [1977] PNGLR115. In the present case it is more of recognition than identification of the accused for the first time. There was sufficient light, no obstruction of the witnesses' view, there was sufficient time of observation and the observation was made within the close proximity of the person known to him. That the accused face was not covered at the time of the killing. 

Decision of the Court: 

26.	In deciding whether or not the accused was the person who killed the deceased, I have to consider if the quality of identification made by the witnesses was good. The evidence of the witness Joseph Toma is that he was standing outside the front of the store only some 1 or 2 metres away. He took few paces back when the deceased was trying to step out of the door of the store. Then suddenly the accused emerged from left side of the store, holding a bush knife and he attacked the deceased right in front of the door way of the store. He was about 5 – 6 metres away when the accused attacked the deceased. There was a light coming from the Coleman lamp that was hanging on the counter of the store. 

27.	The witness Joseph also said there was light coming from the Water supply area and the lights from premises' of Martin Lakari and Malins. The security lights from the Water supply area are up on a cliff some 10 – 15 metres above the store where the incident occurred. During a visit by the Court party to the crime scene on Wednesday 13th June, I noted that the security lights from the Water supply area were facing away from the direction of the store. And so these lights would not have sufficiently brightened up the area where the crime took place. 

28.	Martin Lakari's resident is some 100 metres or so away from the store where the killing occurred. Just outside Martin Lakari's residence are number of tall trees. These trees would no doubt reduce the brightness of light to the crime scene. Malins' place is not far from the store, about 20 or 30 metres away it is also near the highway opposite the store. The store is located just near the Wabag/Pogera highway. The light from Malins' place provided sufficient lighting to the front of the store. 

29.	I find that the light from the Coleman lamp hanging on the counter of the store and the light from Malins' place gave sufficient lighting to the front of the store. Witness Joseph was standing just few paces outside the entrance to the store and the killing took place just in front of him. The accused is known to him and he is no stranger to him. The accused' face was not covered. And after killing the deceased, the accused walked into the store to bring out his friend who was inside the store and Joseph, while still standing outside the front of the store, saw the accused walking out of the store with a drunkard person and left. The identification, no doubt, was made at close proximity and under good lightings. The identification by witness Joseph Toma in the circumstances was good. 

30.	As soon as the accused killed the deceased, the accused walked into the store. The witness Michael Ango was standing behind the counter when he saw the accused walked in holding his bush knife covered with fresh blood stains. And the accused walked up to a drunkard person who was standing about a metre away from the counter, where the lighted Coleman lamp was hanging and the accused held him by the hand and both left. The identity of the accused by witness Michael Ango was made under the light within close proximity and to a person known to him. The identification was good. 

31.	I now discuss the inconsistencies, the contradiction and illogical evidence as submitted to by the defence council. The medical report stated that the accused sustained about 5 or 6 bush knife wounds to his head, chin and face. The witness Joseph said he saw the accused swung the bush knife at the deceased three times but only cut the deceased twice. On the second swing, the deceased advanced towards the accused to grab the bush knife and both struggled. It is possible that during that struggle, the deceased would have sustained other injuries. There is evidence from witness Michael Ango that when the deceased first entered the store, he saw him bleeding all over his face. It is possible the deceased would have received the other injuries during the earlier fight that same night before the accused killed him in front of the store. I find there is no inconsistency or contradiction to the evidence of the witness Joseph Toma and the medical report in that respect. 

32.	 After the accused and his drunkard friend left the store, Joseph was still there at the scene shouting that the accused killed the deceased when the witness Michael Ango closed his store and he came out holding his lighted Coleman lamp to where the deceased was lying. Joseph Tamo then left and went to Wabag Police station. It is possible that Michael would not have seen Joseph leaving the crime scene at the time. Then many people came. And when the deceased was put on a white Land Cruiser and took the body to the hospital, Michael would have thought the Joseph also accompanied the body. When Joseph Toma was returning from the police station, he saw a white Nissan double cabin loaded with people crying and he formed the view that it must be the vehicle taking the body of the deceased Daniel to the hospital. It is possible that the vehicle Joseph saw may not have been the vehicle that was transporting the body of the deceased Daniel but someone else. The vehicle that took the deceased to the hospital may have already gone passed before Joseph returned from the police station. I find that Joseph Toma did not accompany the deceased to the hospital. And I find that the evidence is not inconsistent nor is it contradictory.

33.	In the area in front of the counter of the store were two snooker tables. Both the on left and the right sides and the front of this area was enclosed by installing wooden posts all around it. The witness Joseph was never asked if the posts were split or round woods. During the visit to the crime scene, the posts appeared to be split and the witness Michael Ango, the owner of the store, indicated that these spitted wooden posts were there at the time of the crime and there were some cover walls around the lower part but not the upper part. I am satisfied that these wooden posts were split and not round post. Since there were some covering walls, Joseph Toma was not able to see the accused hiding on the left side of the store.

34.	It may be illogical for someone who killed another to be able to go into store or any building nearby where the killing takes place. The most logical and common sense thing for the killer to do is to escape for his safety. And I do agree with the defence submission in that regard. However, in the present case, the accused's friend who was drunk was inside that store at the time of the killing. In my view, the accused would not leave his friend in the store in case of retaliation by the deceased's friends or relatives. And so the most logical thing the accused did was to enter the store and take his friend out and run for safety. 

35.	From the above findings I find that the identification or the recognizance of the accused by the witnesses Joseph Toma and Michael Ango was good. And I find that the evidence for the State is consistent and the witnesses were truthful and reliable. I find that there was no contradictory evidence from the two State's witnesses. I considered that the identification evidence alone is sufficient to get a conviction: see The State v. Manovi [2009] PGNC 12. The State has established its case beyond reasonable doubt that the accused is the person who killed the deceased Daniel Mutikali.

Issue 2: Whether the accused had the intention to kill the deceased? 

36.	Since the accused claimed that he was not at the crime scene at the time of the killing, it will be quite difficult to establish if the accused had intended to kill the deceased. Whether the act was intended by the accused or not will very much depend on the actions of the accused as observed by the witnesses at the material time. According to the evidence of the witness Joseph Toma, as the deceased was just stepping out of the store, the accused swung his bush knife and cut the deceased on his face. The accused swung the bush knife the second time but the deceased advanced towards him and struggled. And when the deceased fell to the ground with his face down, the accused swung the bush knife the third time and cut the deceased across the back of his head killing him instantly. The accused swung the bush knife three times. The deceased was unarmed. The third time the accused swung the bush knife the deceased was defenceless and helpless. The accused was hiding beside the store watching while the deceased was inside the store. I find beyond any doubt that the accused has intended to kill or to cause grievous bodily harm to the deceased at the time. 

Issue 3: Is the defence of alibi strong? 

37.	In raising the defence of alibi, the accused said he was with his wife and children in his house at the time of the incident. He called his wife Susan Yako who supported and confirmed the evidence of the accused. The defence counsel submitted that there was no contradictory evidence adduced by the defence and that the defence evidence was consistent and reliable. As such the alibi evidence is very strong and convincing to create a reasonable doubt in the mind of the tribunal of fact: see The State v. Richard Wasabo Yandu (2009) N3798.

38.	The defence submitted that the accused has raised the defence of alibi during the record of interview by the police investigation it was not a belated alibi as in the case of John Jaminan v. The State (No.2) (supra). His alibi defence is further supported by the State's failure to call any rebuttal evidence, he relied on the case of The State v. Abua Ato (2004) N2748. 

39.	The State submitted that the defence alibi evidence should not be given weight in the light of the strong evidence of the State's witnesses who have no motive to tell lies about the presence and the involvement of the accused during the commission of the offence. 

40.	The State was given the notice of alibi defence in advance, thus satisfying the rule in R v. Brown & Dunn (1893) 6 R67 (HL) which is adopted in our jurisdiction in the case of The State v. Robert Wer [1988-89] PNGLR 444. The accused has maintained his alibi defence all alone. However the accused called a closed relative who is his own wife as an alibi witness. 

41.	In the case of The State v- Mathew Balu & 2 Ors (2011) N4350, the accused called two alibi witnesses, one of the witness was the wife of one of the accused and the other witness was the biological sister of both accused. His Honour Justice Makail did not accept the evidence of the alibi witnesses due to their close relationship and not from the independent witness therefore the evidence was tainted due to their close unique relationship. The present case falls in the same situation as in the case of The State v. Mathew Balu & Ors (above). And I do apply the same view taken by Justice Makail. The accused having called his wife as the only alibi witness, I refused to accept the alibi evidence due to the close relationship as wife and husband. There is no independent witness to support the alibi evidence. 

42.	I find the alibi evidence is unreliable and untrue and it was falsely invented with the aim to have the accused relieved of his criminal liability. Accordingly I find that the alibi evidence must fail and that such findings strengthened and corroborate the evidence for the State. 

43.	Having found beyond doubt that the accused is the person who killed the deceased and that the accused had the intention and having find that the alibi evidence is unreliable and untrue, I returned a verdict of guilty against the accused on a charge of wilful murder. Proceedings adjourned to 20 June 2012 for submissions on sentence. Prisoner remanded in custody. 

Verdict - Guilty as Charged
__________________________________________________________
Public Prosecutor: Lawyers for the State
Paraka Lawyers: Lawyers for the Accused