N6153
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 151 OF 2014

THE STATE

V

LUTHER FRANCIS MELO

CANNINGS J

Madang: 6 May, 9 July 2015
Ramu: 15 July 2015
Madang: 22 July, 11 December 2015

CRIMINAL LAW – trial – wilful murder – Criminal Code, Section 299(1) –whether the accused killed the deceased – whether the killing was unlawful – whether the accused intended to kill the deceased

The accused was charged with the wilful murder of his wife. The accused pleaded not guilty and a trial was held. The State relied on the evidence of an eyewitness and another person who said he saw the accused behaving suspiciously shortly after the deceased died. The accused raised an alibi, which was uncorroborated.

Held:

(1)	Under Section 299(1) of the Criminal Code the offence of wilful murder has three elements:

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

(2)	It was proven beyond reasonable doubt that the accused killed the deceased as: there was credible eyewitness evidence, which was accepted by the court; there was strong identification evidence; the accused's evidence was unconvincing and his alibi was not credible and was rejected.

(3)	As the accused did not rely on any specific excusatory defence, the killing was not authorised, justified or excused by law and was therefore unlawful.

(4)	It was proven beyond reasonable doubt that the accused intended to kill the deceased, given the severity of the wounds. The accused was convicted of wilful murder.

Cases cited

The following cases are cited in the judgment:

Biwa Geta v The State [1988-89] PNGLR 153
Jimmy Ono v The State (2002) SC698
John Beng v The State [1977] PNGLR 115
John Jaminan v The State (No 2) [1983] PNGLR 318
The State v Abaya Ulas (2010) N4009)
The State v David Yakuye Daniel (2005) N2869
The State v Ephraim Ria Boa (2008) N3436
The State v Jenny Dei (2011) N4231
The State v Melchior Kapus (2010) N4114
The State v Moses Nasres (2008) N3302
The State v Paul Gambu Laore & 11 Others ((2007) N5026
The State v Raphael Kuanande [1994] PNGLR 512

TRIAL

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

Counsel

M Pil, for the State
V Agusave, for the Accused

11th December, 2015 

1. CANNINGS J: The accused, Luther Francis Melo, is charged under Section 299(1) of the Criminal Code with the wilful murder of his wife, Roslyn Patrick Luther, at Drai Wara, near Ramu town, on Friday 9 August 2013. He pleaded not guilty so a trial was conducted. The State alleges that the accused unlawfully killed the deceased by strangling and stabbing her.

2. The State's case is based on the evidence of a woman who says she was with the deceased immediately before her death in the early hours of the morning and saw the accused attack the deceased (after he attacked the witness) and on the evidence of a man who says that he saw the accused behaving suspiciously soon after the incident. The accused raises an alibi: that he was asleep in a house nearby and was not aware of his wife's death until later in the morning.

UNDISPUTED FACTS

3. A number of undisputed facts have emerged from the evidence:

•	The accused and the deceased were both aged about 25 years in August 2013. They had been married for two years prior to the death of the deceased. The accused is from the Ialibu area of Southern Highlands Province. The deceased was from Margarima. They were married in Mt Hagen and moved to Ramu to find work two years before August 2013. They were both working for Ramu Sugar at the time.
 
•	The first State witness, Loife Tony, and the deceased were walking along a road near Drai Wara settlement on the outskirts of Ramu town in the early hours of 9 August 2013 when they were attacked by a man who first stabbed Loife Tony and then stabbed the deceased.

•	The body of the deceased was found in a sugar field close to the Drai Wara settlement on the outskirts of Ramu town in the early hours of 9 August 2013.

•	A post-mortem examination conducted at Angau Hospital, Lae, revealed that the direct cause of death was "neck strangulation and hypoxia [deficiency in the amount of oxygen reaching the tissues]" and that the other significant condition contributing to the death was "penetrating knife wound to bowels [intestines], omentum [a fold of peritoneum connecting the stomach with other abdominal organs], hypovolemia [a decreased volume of circulating blood in the body]".

ISSUES

4. The offence of wilful murder is created by Section 299(1) of the Criminal Code and has three elements. 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.

5. The primary issues are:

1	Did the accused kill the deceased?
2	If yes, was the killing unlawful?
3	If yes, did the accused intend to kill the deceased?

1 DID THE ACCUSED KILL THE DECEASED?

6. Resolution of this issue requires a:

•	summary of evidence for the State;
•	summary of evidence for the defence;
•	formal determination of the question whether the accused killed the deceased.

Evidence for the State

7. Three witnesses gave evidence for the State, as summarised in the following table.

No	Witness	Description	
1	Loife Tony	Mature-aged married woman, resident of Tari Kona 	
Evidence	
In August 2013 she was employed by Ramu Agri Industries Ltd in the company's oil palm plantations as a loose fruit picker – the deceased, Roslyn, was her fellow worker – they woke up early on Friday 9 August to go to work, it was about 3.00 am that they walked to the road, where they were going to wait for the pick-up vehicle – she (the witness) was holding a torch.

Suddenly a man ran up to them and told her to turn off the torch – she asked him why she should do that, as it was a public road – he said 'someone is chasing me' – she responded 'you can go' – he said 'I will rest first' – then without warning he grabbed hold of her and attempted to stab her with a knife, so she turned around to avoid the knife, then he stabbed her in the back – she was shocked and told him 'I am a Rai Coast woman!'

He left her and turned his attention to the deceased – the deceased started to move away and told her (the witness) to run away – she (the witness) had blood oozing from her wound and she felt dizzy – when the deceased started to run away, he chased her and grabbed her and stabbed her – the deceased called out 'Aio Mama! Aio Mama!'

She (the witness) was later that morning taken to the local hospital for treatment – by the time she got there the deceased's body had been brought in – she saw the accused come into the hospital and he looked at the deceased's body – she (the witness) recognised him as the man who had a few hours earlier stabbed both her and the deceased and immediately told the Police – she was able to recognise him as she had seen his face in the torchlight – she did not know until someone told her that that man was the deceased's husband; in fact she was not aware that the deceased was married – she identified, in the courtroom, the accused, as the man who had attacked her and the deceased, and whom she had seen at the hospital looking at the deceased's body.

In cross-examination, she was adamant that it was the accused who had stabbed her and the deceased – he had first tried to stab her on the chest, but she turned around and he stabbed her on the back – she agreed that it was dark, but she saw his face in the torchlight and there was no one else around, just her and the deceased and him – when she put the torchlight in his face he got the torch and threw it away and then he stabbed her – it was her first time to meet him – she did not know who he was – she only came to know that he was the deceased's husband when she saw him for the second time at the hospital where she recognised him as the man who had stabbed her and the deceased.

Defence counsel put to her that her evidence was based only on what she heard the deceased's relatives saying (that the deceased had been killed by her husband) – she repeated that she saw the accused attacking both her and the deceased – it was no one else, it was him.	
2	Dick Page 	Young man, son of L Tony	
Evidence	
He is from Kandep, Enga Province – State witness No 1, Loife Tony, is the second wife of his father – he calls her mother – at 4.00 am on 9 August 2013 his mother came to Drai Wara where he was sleeping and woke him up and told him that she had been stabbed – she said that she was with her work colleague (who he described as 'a Tari lady') and that her colleague was stabbed too, by the same man – they found the Tari lady's sister and then went looking for the Tari lady.

They went to the road and walked past a very drunk, staggering man – they almost bumped into him – he (the witness) shone his torch in his face but did not recognise him as anyone that he at that time knew – then they went a bit further and the Tari lady's sister saw some thongs on the road and said that they belonged to her sister – they started to search the area and found the naked body of the deceased lying in a nearby cane field – they contacted Guard Dog Security and the body was taken to the hospital.

He then went to the hospital with his mother – while there, his mother saw a man who was looking at the body of the deceased and told him (the witness) 'that's the man who stabbed me' – he looked and observed that the man pointed out by his mother was the drunken man he had seen on the road a few hours earlier – in his opinion, the man was pretending to cry at the sight of the body, he was not genuinely crying – in the courtroom he identified the accused as being that man – he did not know at the time that that man was the deceased's husband.

In cross-examination he stated that his mother Loife Tony was blind in one eye [this issue was not raised in the evidence of Loife Tony] due to her being attacked some time ago by his father's other wife – he (the witness) also has a problem with his sight from one eye.	
3	Constable Edward Alphonse 	Police investigating officer	
Evidence	
He arrested the accused at the hospital on the morning of 9 August 2013, acting on information received from Loife Tony and Dick Page – Loife Tony said that the accused was the man who had stabbed her and the deceased – Dick Page told him that the accused was the drunken man who he almost bumped into, a few hours earlier – the accused was behaving suspiciously – he later questioned, interviewed and charged him with murder of the deceased.	

8. Two exhibits were admitted into evidence by consent:

•	The record of interview of the accused: he said that at the time of his wife's death they were living at Gusap but on the late afternoon of 8 August 2013 he met her at Bumbu betel nut market and they could not get transport to take them to Gusap so they decided to stay at Drai Wara for the night. He spent some time at a video house with one of his male relatives. Then he slept. He was still asleep between 3.00 and 5.00 am on Friday morning. He denied stabbing Loife Tony or his wife.

•	The medical certificate of death, referred to earlier.

Evidence for the defence

9. The only witness for the defence was the accused.

No	Witness	Description	
1	Luther Francis Melo	The accused	
Evidence	
He did not stab the deceased – he does not know how she died – he only found out about it when he woke up on the morning of 9 August and people at Drai Wara were talking about her death – he was asleep at the time of her death, which has been reported to him as being between 3.00 and 5.00 am – she had slept at a different residence, with her relatives.

He had met her at the betel nut market on the afternoon of 8 August – she was a little angry with him and she left him and went to Drai Wara – it was getting dark and he went there too – she slept with her relatives and he slept with people from Mendi.

He heard of her death at the market and upon hearing the news, he went to the hospital – he tore his shirt and cried and then the Police arrested him – he was by himself and the Police followed what the State witnesses said – he had no one to assist him – he was happy with his wife and they had no major problems. 

In cross-examination he denied absolutely stabbing the deceased – he denied being drunk – he denied knowing that his wife would have had to get up very early to go to work – he denied following her and Loife Tony – he denied having any motive for killing his wife – he had no enemies.	

Site visit

10. After the closure of evidence and before submissions were made, the Court party took a view of the site where the deceased's body was found. The State witnesses pointed out the places referred to in their evidence.

Did the accused kill the deceased?

11. Having weighed the competing evidence and the submissions of counsel I have concluded that the State has proven beyond reasonable doubt that the person who stabbed and killed the deceased was the accused, and no other person, for the following reasons.

(a)	The evidence of Loife Tony was credible and convincing

12. This witness gave an eyewitness account of what happened. I reject Mr Agusave's submission that her demeanour was poor, that she was evasive and that she was lying and had a motive to lie. I consider that her demeanour was sound, that she answered questions directly, that she did not give the impression that she was lying and that she was not shown to have any motive for giving false evidence. She gave direct evidence of herself being attacked and stabbed by the accused and of the deceased being attacked and stabbed by the accused.

(b)	The evidence of Dick Page was credible and convincing

13. I consider that his demeanour was sound, that he answered questions directly, that he did not give the impression that he was lying and that he was not shown to have any motive for giving false evidence. He gave direct evidence of seeing the accused behaving suspiciously, in the vicinity of the place where the first State witness said the deceased was attacked and in the vicinity of the place where the deceased's body was found, shortly after the attack and shortly before the body was found. The significance of his evidence is that it puts the accused in the vicinity of the crime scene shortly after commission of the offence.

(c)	The identification evidence was of high quality

14. I have considered the principles on identification evidence in the leading Supreme Court cases of John Beng v The State [1977] PNGLR 115, Biwa Geta v The State [1988-89] PNGLR 153 and Jimmy Ono v The State (2002) SC698. 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. If the quality of the identification evidence is good the matter should proceed to verdict. However, if the quality of the evidence is poor an acquittal should be entered unless there is other evidence that goes to support the correctness of the identification. I remind myself there is always the possibility that an honest witness can be mistaken and still be a convincing witness. 

15. In this case, I have assessed both State witnesses as being honest witnesses. However, there is still a risk that they were both mistaken about who they saw. The court must be satisfied that the witness is both honest and accurate. In assessing the quality of the identification evidence, relevant considerations include: whether the witness is purporting to identify a person who was a stranger or someone he or she recognised; the length of time that the witness observed the accused (eg a prolonged period or a fleeting glance); the emotional state of the witness at the time of the incident; the prevailing conditions (eg was it broad daylight or at dusk or dawn or inside or outside?); the line of sight (eg did the witness have a clear front-on view or was the line of sight interrupted or did the witness just see the accused from the side?). If there are discrepancies in the identification evidence the court should consider them and assess whether they are explicable in terms other than dishonesty or unreliability.

16. Mr Agusave made some valid points when challenging the veracity of the identification evidence:

•	both State witnesses are blind in one eye;
•	it was early morning and dark;
•	both State witnesses had only a fleeting glance of the person they identified;
•	Loife Tony was traumatised as she had been attacked just before the deceased was attacked;
•	neither State witness knew the accused; it was not a case of recognition;
•	Dick Page was equivocal in his courtroom identification of the accused.

17. I nevertheless uphold Mr Pil's submission that the identification evidence of each State witness was of good quality for the following reasons:

•	Loife Tony had a torch. She was unequivocal in her courtroom identification of the accused. Though it was dark, she saw the assailant's face in the torchlight. Though traumatised, she made a quick identification of the accused only a few hours after the attack, when she saw him at the hospital and pointed him out to the Police.

•	Though Dick Page was during cross-examination apparently equivocal in his identification of the accused (he said more than once that the accused looked "similar" in appearance to the drunken man he had almost bumped into on the morning of 9 August and the man that he had seen at the hospital), the uncertainty of his evidence was dissolved in re-examination. He eventually gave clear evidence that the drunken man he had almost bumped into on the road was the same man he saw at the hospital and that that man was, in fact, the man in the dock in the courtroom: the accused.

•	It is significant that both State witnesses identified the accused at the hospital, only a few hours after their initial encounters with him, at a time when his face was fresh in their minds.

18. In light of the above, I conclude that the identification evidence of the State witnesses is honest, accurate and reliable.

(d) The evidence of the two State witnesses was generally consistent

19. The only apparent inconsistency in the evidence of the State witnesses is as to the state of drunkenness of the man who attacked Loife Tony and the deceased and who afterwards almost bumped into Dick Page. Loife Tony said nothing about the man being drunk. Dick Page said the man was very drunk. It is to some extent an inconsistency but it is not a clear or significant one. Mr Pil proffered the suggestion that the man who almost bumped into Dick Page was pretending to be drunk, in order to distract attention from himself. Most importantly, Loife Tony was not asked whether the assailant was drunk.

(e) Alibi evidence ineffective

20. An alibi defence can only be effective when the accused introduces evidence to support the proposition that at the time of commission of the offence he was somewhere else. The accused is saying:

•	I am a human being and I cannot be in two places at once,
•	the offence was committed at time A, at place B, and
•	at time A, I was at place C,
•	therefore I could not have committed the offence.

21. If an alibi is raised the burden of proof does not shift from the prosecution. The onus is never on the accused to prove an alibi or prove innocence. However, in practical terms, the accused must lead some evidence of an alibi and it must be sufficiently convincing to create a reasonable doubt in the mind of the tribunal of fact. How strong or convincing the alibi evidence must be, depends on the strength of the evidence of the prosecution witnesses. If their evidence is very strong, the alibi evidence needs to be reasonably strong to raise a reasonable doubt in the mind of the judge as to the guilt of the accused. 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. If an alibi is rejected it does not necessarily follow that the court should enter a conviction. The court must still be satisfied that the prosecution has proven its case beyond reasonable doubt (John Jaminan v The State (No 2) [1983] PNGLR 318).

22. In the present case, the alibi defence is weak. There is only slender evidence in the accused's testimony that at the time of commission of the offence (the moment that the deceased was attacked) the accused was somewhere else. There is no evidence to corroborate his vague claim that at the critical time he was asleep at Drai Wara in an unspecified person's house. He said only that he was staying with 'Mendi people'.

23. I have already assessed the evidence of the State witnesses to be strong, so the alibi evidence had to be quite strong, in order to cast doubt on the State's case. The alibi evidence here is weak and ineffective.

Conclusion: did the accused kill the deceased?

24. The State has proven beyond reasonable doubt that:

•	the accused is the person who attacked the deceased, killing her, on the morning of Friday 9 August 2013;
•	the accused directly caused the death of the deceased; and therefore
•	in accordance with the definition of killing in Section 291 of the Criminal Code, the accused killed the deceased.

25. The first element of the offence of wilful murder has been proven beyond reasonable doubt.

2 WAS THE KILLING UNLAWFUL?

26. The accused did not rely on any specific excusatory defence such as accident, compulsion, insanity, provocation or self-defence. His killing of the deceased is therefore not authorised, justified or excused by law and is deemed by force of Section 289 of the Criminal Code to have been unlawful. The second element is proven beyond reasonable doubt.

3 DID THE ACCUSED INTEND TO KILL THE DECEASED?

27. 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 (eg The State v Moses Nasres (2008) N3302).

•	If he did not intend to kill him, 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 will be convicted of murder, not wilful murder (eg The State v David Yakuye Daniel (2005) N2869; The State v Ephraim Ria Boa (2008) N3436; The State v Abaya Ulas (2010) N4009). If no, the accused will be guilty of manslaughter, not wilful murder or murder (eg The State v Paul Gambu Laore & 11 Others ((2007) N5026; The State v Melchior Kapus (2010) N4114; The State v Jenny Dei (2011) N4231).

28. As Injia AJ, as he then was, highlighted in The State v Raphael Kuanande [1994] PNGLR 512 the relevant time at which to assess the accused's state of mind is when he committed the act that constitutes or is an element of the offence:

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

29. Having examined the course of conduct of the accused before and when he attacked the deceased, and particularly given the nature of the cause of death ("neck strangulation and hypoxia") and that the other significant condition contributing to the death was a "penetrating knife wound to bowels, omentum, hypovolemia", it is clear that this was not an accidental death. The person who killed the deceased clearly intended to kill her. I am satisfied that the prosecution has proven beyond reasonable doubt that the accused intended to kill the deceased. The third element of wilful murder has been proven. It is not necessary to consider any alternative conviction.

VERDICT

30. Luther Francis Melo, having been indicted on one count of wilful murder under Section 299(1) of the Criminal Code, is found guilty, as charged.

Verdict accordingly.
____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused