N5570

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 589 of 2012

THE STATE

-v-

WARREN BONSU
(NO. 1)

MapriK: Geita. AJ
2014: 3rd and 4th April

CRIMINAL LAW –Trial –Plea of not guilty - Murder – Evidence on trial – Oral and documentary - Criminal Code s.300 (1) (a).

CRIMINAL LAW - Death inflicted by the two blows to the neck and head of the victim by use of a 4x2 piece of timber - deliberate act to cause harm and maim – Evidence of identification credible and good – State witness no motive to lie in court – Motive and Intention to harm present -Sufficient evidence to support a finding that the assault was violent which resulted in instant death –.

CRIMINAL LAW - Guilt of accused only reasonable inference available to Court to draw from - Guilty Verdict returned -Criminal Code s.300 (1) (a)

Cases Cited
John Beng-v-The State [1977] PNGLR 115

Counsel:
Mr. Francis Fingu, for accused
Mr. Joel Done, for State

JUDGMENT ON VERDICT

4th April, 2014 

1. GEITA AJ: The accused is indicted with one count of murder pursuant to Section 300 (1) (a) of the Criminal Code. The accused plead not guilty to the murder of Mark Wabi, a Community Health Worker from Yerakai village on 21 February 2012 at Ambunti Station, East Sepik Province.

Trial

2. The State called two witnesses and relied on these documents tendered into court by consent. They include:
•	Record of Interview Exhibit "A" a & b (English & Pidgin versions) 27/3/2012
•	Statement by Witness Silas 6/3/2012 Exhibit "B"
•	Statement by Arresting Officer Sgt Zacchias Exhibit "C"
•	Statement by S/Constable Steven Exhibit "D"
•	Medical Report of death – 18/4/2012 Exhibit. "E" 

State Evidence in summary

Witness 1 Noah Luman.

3. The witness is the Interim Chairman of Yerakai Primary School and had travelled to Ambunti Station with other parents in a motorized canoe to attend a parents and citizens meeting on that day. As they came on shore six people, all drunk with beer bottles in hand and sticks approached them and tried to remove the outboard motor from the canoe they were in, however were distracted by Dixon who came in another motorized canoe. The man ran away except two who remained behind. One of the men, Rat ran to his house and returned with a one meter long bush knife and jumped onto the canoe as they pushed off to get away. Rat began attacking them with the flat end of the bush knife when Dixon came along and stopped him. In the process Rat cut the fuel container Dixon was using to protect himself.

4.	During the commotion Noah and Mark got off the canoe and went on shore. At that moment Warren came running with a 4 x 2 piece of timber and hit Mark twice on his neck and back causing him to fall face down. The witness turned him around and realised that he had died and so he called out to the village people to come and assist. He was rushed to Ambunti Health Centre and pronounced dead on arrival. The witness than went on his way to attend the parents and citizens meeting at Ambunti.

5.	In examination in chief the witness said the accused was known to him as he frequents Yerakai village and the Yerakai's likewise frequent his parents petrol outlet along the way to Ambunti Station. He said as they came close to the shore six men came rushing at them but he could only recognize Rat and Dixon who was Warren's brother. He said Warren came from the main road to the beach armed with a stick and hit Mark. He said he was standing about a metre away from Mark.

 6.	In cross examination the witness said Rat was the first to lead the six youths to attack the canoe. When put to him that Jimeon was Warren's brother the witness said he knew him as Rat Bonsu, by his other name. He said he was not mistaken with the name Rat and Jimeon, the accused's small brother. He said he knew Warren very well and it was him who hit Mark on the head with a piece of timber on a clear daylight hours of 9am and 10.30 am that day. Cross examination continue:-

Q. 16 Accused and others were on road?
A. Others stayed back, Warren followed road.
Q. 17 You sure Warren was alone?
A. I am telling the truth.
Q. 18 Warren and four others wanted to fight but were stopped by people and auxiliary police and they ran to the hills, correct?
A. Your Honour I never saw those people.
Q. 19 Warren came after the killing took place?
A. Warren killed man and ran away.

Witness 2 Crosbie Maimban.

7.	He testified of growing up in Ambunti and said he knew the Bonsu family well by their faces but knew Jimeon well by his nick name Rat. He recalls arriving at Ambunti Station around 9.30am in a motorized canoe with others to attend a parents and citizens meeting at the Station. As they came ashore Jimeon Rait and his brother Warren Bonsu came with four other boys and attacked them. Jimeon came on board the canoe and began hitting them with the flat surface of the bush knife. By than they had reached the government wharf so he alighted and walked up the beach. The deceased Mark was the first person to walk followed by Noah and the witness. The witness said he walked past Mark and stood some distance away, about 2 metres and saw Warren hit Mark on his neck two times with a piece of timber causing him to fall to the ground. He said he came to assist Mark but he could not move.

8.	In examination in chief the witness said he was standing on the main road when the accused came from behind him and hit Mark with a 4x2 timber. He said as they came ashore the six boys approached them and accused them of making trouble and attacked them.

9.	In cross examination the witness said he knew the accused well but not the rest of the boys. When put to him that one other boy attacked the deceased and not the accused the witness said he saw Warren Bonsu took timber and hit the deceased, saying he cannot lie to court. 

Record of Interview.

10.	The accused denied hitting the deceased and maintained throughout the interview that he was mistaken for his younger brother Jimeon. He said he escaped into the bush and heard that Jimeon had killed a man. He admitted that Jimeon Bonsu was armed with a one metre bush knife and attacked the Yerakai people and he was there to stop Jimeon. 

Medical Report.

11.	The report confirms receiving the victim at Ambunti Health Centre around 11am the same day and confirmed the injuries resulting in the death of Mark Wabi. The Health Extension Officer Ms Dominica Wain attributed the instant death to a severed cervical spinal injury and loss of blood due to the head injury. 

Sailas Saun's statement

12.	His evidence was of little use as it was hearsay and he did not see what happened but arrived late at the scene and was told about it.

The two Police statements 
13. 	Their role was to corroborate the statements received from the accused and that was all.

Defence Evidence in summary

Witness 1. Accused Warren Bonsu

14.	The witness testified of sitting and drinking beer at their business area Wispa when the Yerakai people came on shore in the dinghy. He said Jimeon who was sitting with them at the time approached them and began to fight with them. They went after him and brought him back in case there was fighting. Jimeon instead took a one meter long bush knife and ran towards the dinghies but they could not stop him as he was swinging the bush knife. When the Yerakai people saw him coming they pushed the dinghies further upstream but Jimeon had boarded the dinghy by then and began hitting the occupants with the blunt end of the bush knife. 

15.	He said whilst at the bridge they ran down to bring Jimeon back but were alerted by the public that the auxiliary police members were approaching so they ran away into the hills to hide. The witness said about 30 minutes later they heard that a man had been killed. They were apprehended by the auxiliary police members and taken to the police station and later charged. At the police cells he was accused of the death and now in court as a result.

16.	In examination in chief the witness said five of them never reached the bridge. He said out of the seven boys arrested he was singled out and charged, saying the Yerakai people mistook his younger brother Jimeon and instead singled him out to be the perpetrator.

17.	In cross examination the witness said his younger brother Jimeon was mistaken for him and charged, but was released instead. He agreed that Jimeon was on the Yerakai canoe and that they would have recognised him well however they have mistakenly singled him out to be the perpetrator. The witness said the Yerakai's were confused and so called his name. He denied State witness Noah and Crosbie docking at their place and denied the family operating a fuel depot at their place. He however admitted Jimeon getting on the Yerakai canoe and he had gone there to stop Jimeon from fighting the Yerakai's. He admitted that they were drunk accept his other brother Dixon who was sober. Cross examination continue:-

Q. 24. You arrived at government bridge armed with a 4 x 2 timber correct?
A. No.
Q.25 Noah and Crosbie saw you use timber to hit the deceased on neck and head correct?
A. No.
Q.26 After deceased fell face downwards you ran away?
A. No.
Q.36 Did you tell District Court Magistrate that you were not properly charged?
A. No
Q. 37 If your brother Dixon knew that you were not at fault he would come and ask Police for your release?
A. He is my brother but I don't know his thinking
18.	In re-examination when asked if the District Court Magistrate invited him to address court under the provisions of Section 96 Statement, the witness replied in the negative. 

Witness 2. Jeffrey Watis

19.	Jeffrey testified that he was drinking beer at Wispa with other boys including the accused when the Yerakai's came ashore in their canoe. He said Jimeon left the group of boys to go and fight with the Yerakai's when they followed behind him and brought him back to their camp. The witness said as the arriving Yerakais' pushed their canoe out to the river again Jimeon ran after them with a one metre bush knife and boarded their canoe and began assaulting them with the bush knife. In the canoe he said there were about 30 men, women and children. Some of them got scared and jumped into the river when the canoe came and moored at the bridge.

20.	The witness said they heard fighting and walked down the main road. At that time there were many people nearby who alerted them that the auxiliary police men were coming and so they all ran up the hills. He said about 50-60 minutes later they heard that someone had died and so they got scared and returned to their houses.

21.	In examination in chief the witness said Warren, Nipsi, Stallion, Donald and him ran towards the bridge. He said they all appeared before the District Court charged with assault and were fined K400 each except Warren who is now facing a murder charge. He did not recognise some people in the canoe. 

22.	In cross examinations the witness admitted that he was not able to recognise the people in the canoe as his judgment and thinking was impaired by drinking that day at Wispa. He further admitted that Wispa was a common spot for Yerakai's to come and refuel however denied that the fuel business was not in operation on that day in question. The witness admitted that he was requested to come to court and given evidence yesterday but denied that he was coached. Cross examination continue:-

Q. 16. I will take you to Wispa? You agree you rushed to the dock to attack the Yerakai people?
A. No I went to stop fight.
Q. 17. Did you tell police about stopping Jimeon?
A. Yes
Q.18 Tell me the name of the police officer you spoke too?
A. CID Sakias.
Q.19 Was your story taken down in written form?
A. Yes
Q. 20 The court file does not contain your story, what do you say?
A. Witness stays mute.
Q.24 Noah and Crosbie told court that only Dixon tried to stop Jimeon from attacking the Yerakai people, what do you say?
A. That is not true; we also went and tried to stop Jimeon from fighting the Yerakai people.
Q. 25 If you were assisting Jimeon the two men would come and tell court, correct?
A. They both saw us trying to stop Jimeon, they lied to court.
Q. 34 Your friend the Accused said Dixon followed the Yerakais in a motor canoe but you say you did not see Dixon?
A. I was running on the road and so did not see Dixon following the Yerakai's.
Q. 36 I suggest to you that you ran away with Warren Bonsu in fear when deceased fell down?
A. No we ran away in fear of police approaching.

23.	 In re examination the witness agreed that he was asked to come to court and give evidence yesterday. (NB. A day before trial) 

 Defence submissions 

24.	The defence contention is that the evidence of two State witnesses must be treated with caution in that whilst they both were quick to point out the accused as the perpetrator they were unable to identify other persons who were also nearby. Mr. Fingu for the accused submitted that his clients name was given to them as the perpetrator and not from their own knowledge of early acquaintance as stated and their evidence of identification should not to be believed. He submitted that his clients version of coming onto the scene of the crime and being scared away by the presence of auxiliary police to be believed and have him acquitted. 

State submissions

25.	Mr Done submitted that the case was hinged on the demeanour, creditability and consistency of evidence before court. He said there was no mistake of identity as the accused was seen by two State witnesses on the day in question in broad daylight. Furthermore Wispa camp, where a fuel station was operated by the accused's family was regularly frequented by the people from Yerakai and other villagers living up river en route Ambunti Station. The accused would have been a familiar figure at that family camp from 2010 up to 2012, the time he returned from staying outside Ambunti. He submitted that cracks began to surface during cross examination through their lies and inconsistencies adding that defence witness Jeffery Watis was not a witness of truth as he wasn't there and didn't see what happened. His version of events contradicted with those of the accused in vital areas for instance, not being able to see Dixon who came to the aid of the Yerakai's when attacked by Jimeon. Whether Jimeon appeared before the District Court and fined K400 for assault, also drew two different answers from the two defence witnesses, raising doubts of inconsistencies and creditability. He submitted that the defence witness were not witnesses of truth and their evidence disregarded ahead of state witness evidence. A guilty verdict to be returned instead Mr. Done submitted. 

The Law:

26.	Section 300 of the Criminal Code creates the offence of murder and it is in the following terms:

"300 Murder
(1) Subject to the succeeding provision 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 or to some other person;
Penalty: Subject to Section 19, imprisonment for life."

Elements

27.	The mandatory elements being:

 1. A person who kills another person;
2. The death of another person; and 
 3. Intention to do grievous bodily harm.

Findings

Issue of Identification

28.	The only issue in this trial is one of identification, whether or not the accused was responsible for the injury which caused the death of the Mark Wabi. This Court is now left with the evidence from State witnesses to make a finding of guilt or innocence of the accused. The two State witnesses had no difficulty in identifying the accused, firstly through his family fuel business along the river regularly frequented by the people of Yerakai on their way into Ambunti Station, and secondly they both clearly saw the accused on that fatal morning attack the victim as they were with the victim at the time and in very close proximity to him. Here we have eye witness accounts of two State witnesses, independent of each other that saw the accused and his friends. The question of visibility was not in issue as the incident happened around 9 am and 10.30 am in the morning as they were on their way to attend a parents and citizens meeting in Ambunti. 

29.	Although the accused maintained that he was mistaken for his younger brother Jimeon his evidence did not find corroboration in the evidence of his only witness Jeffery. Jeffery told court that Jimeon has been charged for assault before the District Court and fined K400 with the rest of the boys said to be present that day. His assertion of being singled out by the Yerakai people and the two State witnesses was not supported by any evidence before me. What is now before court is that Jimeon attempted two attack the Yerakai people twice: firstly as they came on shore at Wispa and secondly as they attempted to escape his aggression. Jimeon however boarded the canoe and was taken for a ride all the way to the government bridge as he continued assaulting them with his bush knife. Inferentially the occupants of that canoe would have had ample opportunity in identifying him with no difficulty if he was the perpetrator. Instead they singled out the accused. Furthermore the accused would have been the only person remaining at the scene, as the rest of the boys had escaped. I have no reason to disbelieve the State witness version of identification. The same cannot be said for the accused.

Demeanour of witnesses

30.	Having observed the demeanour of the two State witnesses they remained calm and focused in giving their evidence. They gave their evidence from their chests and told court of events as they unfolded which culminated into the death of the accused. 

The two defence witnesses appeared to me to be tensed up and very evasive during evidence and cross examinations. Specific details of evidence were omitted and only adduced during careful prodding in re-examination. They remained evasive and at times and showed signs of reluctance to answer questions.

Defence witness Jeffrey's admission of being invited to give evidence one day before trial raises question on issues on his evidence being concocted and of recent invention. These issues presented themselves in his evidence being inconsistent with crucial known facts outside his knowledge. I am here referring to the presence of Dixon as he came to assist the Yerakai people according to the accused and the two State witnesses, which were denied by this witness. Two possible scenarios present themselves: first he was heavily intoxicated and did not see that event or secondly he was not around at the time of the murder. I am more incline to believe that he was heavily intoxicated and not present at the crime scene. He was one of those four boys who ran away leaving the two boys behind one of which was the accused. I am therefore not convinced that he is a witness of truth and his evidence not to be believed.

Quality of eye witnesses evidence

31.	The dangers associated with mistakes and fleeting glance identification may pose real, however that is ruled out in this case as it was a non issue. I am therefore satisfied that all two eye witness accounts remain credible and should be believed. The principle of law in relation to identification is well settled in the case of The State v John Beng [1977] PNGLR 115. Under the circumstances I consider that the identification of the accused by two State witnesses to be of high quality and believable.

Motive & Intention

32.	The accused and his friends were under the influence of alcohol at their Wispa camp and when the opportunity for stealing presented itself at their doorsteps so to speak, Jimeon led the pack to attack. I draw inference from State witness Noah's evidence: Six men with bottles of beer in their hand armed with sticks came to remove the outboard motor from the canoe. Inferentially it is open to court to find that the six men, under the influence of alcohol attempted to steal the outboard motor, however when their plan became undone they resorted to violence resulting in the deceased being viciously attacked. 

It follows that the attack was violent and intentional in that the accused and other boys had walked some distance to attack the deceased as he got off the canoe to dry land, causing instant death: ample evidence proving intention to cause harm. In the absence of any evidence to the contrary I have no reason to doubt and find the presence of motive and intention in this murder. I am not convinced that the two defence witnesses were witnesses of truth. 

33.	Might I add here as a afterthought that the accused's chances of being let off the hook, so to speak presented themselves in several forms: Firstly it was open to him to plead his innocence and mistaken identity before the Committal Court Magistrate when S. 96 District Court Act was administered however he chose not too; secondly his blood brother Dixon was the next best person to come to his defence in his plea of mistaken identity. Dixon was not called to give evidence nor did he make a statement to have his blood brother recused from the murder charge. Again it is open to court to draw inference that perhaps the accused was the murderer and therefore no point in Dixon coming to court to deny that fact in a court of law. 

34.	Out of the six boys who attempted to stop Jimeon, so they say, from attacking the Yerakai canoe, the accused's concern and obligation in assisting his brother remained real due to normal human behaviour of assisting family members in times of need. Again it is open to court to draw inference that he did come to his brother's aid, armed with a weapon which resulted in drastic consequences. Therefore there is more reason to linked him to this death than the others. 

35.	Applying the above findings to the facts of this case, I have no doubt in my mind that the accused was responsible for the death of the deceased. All possible circumstances that may give rise to mistaken identity are ruled out in my findings. Furthermore any plausible evidence such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused is ruled out. In my view the guilt of the accused is the only rational inference that the overall circumstances can enable the Court to draw from. In the final analysis I am therefore satisfied beyond reasonable doubt that there is ample credible evidence, express or inferential that connects the accused to the death of Mark Wabi on 21 February 2012 at Ambunti Station, East Sepik Province.

Verdict.

36.	Accordingly, I return a verdict of guilty against the accused and have him convicted. His bail will be returned to him and a warrant of commitment will be issued for his detention until time of sentence. 

Verdict:	Guilty. 
--------------_____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused