N6466

PAPUA NEW GUINEA 
[IN THE NATIONAL COURT OF JUSTICE] 

CR No. 652, 653 & 654 OF 2015

THE STATE

V

CYRIL NOHUTA, JEROLD EGAHU AND GILFORD EGAHU

Popondetta:  Auka, AJ
2016:   20th, 21st & 22nd July,
31st August, And
1st & 2nd September

CRIMINAL LAW – Murder – Not guilty – Trial – Criminal Code, s.300 (1)(a).
CRIMINAL LAW – Trial – Identification evidence – Issue of Recognition and clear identification by two eye witnesses. 
CRIMINAL LAW – Evidence – Circumstantial nature – Injuries suffered by deceased extensive and serious involvement of one and more accused reasonable Inference.
CRIMINAL LAW – Evidence – Circumstantial nature – Payment of compensation by accused close relatives to the deceased wife.
CRIMINAL LAW – Evidence – Alibi defence –– Inconsistency in Accused evidence – Alibi evidence not credible.

Case Cited:	
Biwa Geta v. The State [1977] PNGLR 153
Garitau Bonu & Rossana Bonu v. The State (1997) SC 528
John Beg v. The State [1977] PNGLR 115
John Jaminan v. The State [1983] PNGLR 332
The State v. Tom Morris [1981] PNGLR 493

Counsel: 
Ms Babra Gore, for the State
Mr. E Yavisa, for the Accused

DECISION ON VERDICT

2nd September, 2016
1.	AUKA AJ:	 The three accused stand charged that on 27th September, 2014 at Eroro Village, Higaturu, Oro Province, they each and severally murder one Augustus Orio in company of another person contrary to Section (1)(a) in conjunction with Section 7 of the Criminal Code.

2.	The three accused each raised defence of alibi.

3.	The brief facts of the case alleged against the accused during arrangement were as follows, that the three accused are related to prisoner Henry Nohuta who earlier in the month of May, 2016 had pleaded guilty to the same charge of Murder of Augustus and sentences to 20 year imprisonment and is now serving his prison term of 20 years at Giru Correctional Institution. 
State alleged that the three accused persons with the prisoner Henry Nohuta all come from the same and big village of Erovo in the Higaturu area of Oro Province and they live on different portions of their customary locations within the Erovo Community.
State alleged that on the morning of 27th September, 2014, the prisoner Henry Nohuta’s son died and the deceased was accused of causing his death through Sorcery. So in the afternoon of 27th September, 2014, the prisoner Henry Nohuta and these three accused went to the garden house of the deceased all armed with bush knifes. When they reached the garden house, they called the deceased to come out of his garden house.
When the deceased walked out of the house, they all chased him down a slope and when he fell near a fish pond, these three accused and prisoner Henry Nohuta acted in concert, used their own bush knifes and cut the deceased all over his body until he died from the multiple knife wounds he sustained from the knife attacks. It was State’s allegation that when the accused cut the deceased, each of them intended to cause grievous bodily harm to the deceased. Unfortunately he died. Therefore the state brought the charge of Murder against each of them pursuant to Section 300 (1) (a) in conjunction with S.7 of the Code.

4.	To prove its case prosecution firstly tendered the following documents into evidence by Consent of the defence Counsel.

1.	A six (6) page Autopsy Report dated 26th January, 2015 and Affidavit of the Doctor – Exhibit ‘A’
2.	The Record of Interview of accused Jerold Egahu – Exhibit “B”
3.	The Record of Interview of Accused Gilford Egahu – Exhibit “C” 
4.	The Record of Interview of accused Cyril Nohuta – Exhibit “D”
5.	1st Statement by witness Martin Pulinan – Exhibit “E”
6.	2nd Statement by witness Martin Pulinan with photograph – Exhibit “E”
7.	Statement by Investigator Maritin Pulinan – Exhibit “F”

5.	There were no admissions in the Records of Interview. The accuseds remained silent.

6.	The Autopsy Report from the Popondetta General Hospital dated 26th January, 2015 and signed by Surgeon Doctor Opum Petrus, Summaries the injuries sustained by the deceased as :

	1.	Left chest open wound with fractured 11th and 12th ribs;
	2.	Left Lung Laceration from the same wound;
	3.	Fracture of the 4th and 5th lumbar spine and spinal cord transaction;
	4.	Multiple lacerations and abrasions; and 
	5.	Left partial open skull fracture. 

7.	The injuries suffered by the deceased were extensive and serious, denoting the violent manner in which he was attacked.

8.	The two witnesses called by the prosecution were the wife of the deceased Mrs. Norah Ovio Topute and the daughter Harieth Ovio Topute. Both are eye witness. Their evidence is more of recognition of known persons than identifying strangers.

9.	First Mrs. Norah Orio Topute’s evidence. She said in chief examination that on the afternoon of 27th September, 2014 between 4:00pm and 6:pm, she was in their garden house with her husband the deceased, her daughter Harieth Ovio and her other little children when the three accused and Henry Nohuta arrived at their garden house and called the deceased to come out. She said she had prepared the dinner and was about to share the food. When the four arrived, she saw her husband walked out of the garden house and the four whom she knows very well as her relatives started chasing him down the slope. She said at that time each of the accused were armed with their own knifes. She said she and her daughter Harieth followed the four accused chasing the deceased. She said she saw them chased the deceased until he fell down near a fish pond. It was at the fish pond that the four (4) accused caught the deceased and acted in concert and used their own knifes and cut the deceased all over his body until he died instantly.  
Asked in chief if she identified the four (4) accused at the scene of the killing, the witness said, not only that she identified them, but she recognised them and mentioned their names as Henry Nohuta, Cyril Nohuta, Jerold Egahu and Gilford Egahu. She said the four accused are close relatives through her grandparents. She said she saw the four accused were all present during the time she watched them cutting the deceased with their bush knives. She was asked how far away did she stand on the slope and watched the four accused cutting the deceased. She gave a estimate that it could have been 15 relatives. She estimated the distance from where she set in the witness box to the step leading into the court room.
She was asked about the condition of light. She said it was broad day light and she clearly saw the four accuseds. She said she had met with them at her village, talked to them and shared food with them.
She described the scene of the crime as a clear place with no trees or flowers growing between where she and her daughter stood and where the accused’s were cutting her husband. There was nothing blocking her from watching the accused cutting the deceased all over his body. She said she made no mistake in recognising the accused as the person’s responsibility for her husband’s death.
Further she said there was no animosity pre-existing the incident that could cause her to come to court and falsely testify against the three accused.
I closely observed her demeanour in the witness box and I did not find any trace of a witness either lying or being evasive. The witness impressed upon me as a truthful witness. In the circumstances I find this witness credible and her testimony also credible which I must say is supported by a substantial part of her daughter Herith’s evidence. Accordingly I accept Norah’s evidence very credible.

10.	The second eye witness called by the State is Harieth Orio Topute. She testified that in the afternoon of 27th September, 2014, she was with her father, mother and small brothers and sisters in their garden house when she saw the three accused with Henry Nohuta come to their garden house and started chasing her father away from the house towards a small slope. She saw them chasing her father until they caught up with him near a fish pond. She said she with her mother were following the accused chasing her father away from the house towards a small slope. 
She saw them chasing her father until they caught up with him near a fish pond. She said she with her mother were following the accused chasing her father and stopped some 15 meters away from the fish pond and continue to watch. She said the accused person were all armed with their own bush knives and acted in concert and started cutting her father all over his body and caused serious body injuries from which he died. She said it was still daylight and the place was clear and she stood with her mother on a small slope at 15 metre away and clearly recognised the three accused who she knew previously.

In Court this witness called out or named Jerold’s father and mother as Philma and Siplang. She said the accuseds are all her cousins from the mother’s side and she knows them well. Her evidence was never challenged or negative by the defence in cross-examination.
She was asked how far away did she stand on the slope and watched the accused’s cutting the deceased. She gave an estimate that it could have been 15 meters. She demonstrated in court that it was from where she sat in the witness box to the step leading into the courtroom.  She also described the scene of the crime as a clear place with no tress or flowers growing between where she stood and where the accused were cutting the deceased.
I observed that this witness was caused to grieve as she tried her very best to recall and tell in open court what happened to her father. This was evidence by occasions of crying and or sheding tears as she testified. Indeed I note that her mother’s testimony corroborates her evidence in most aspects. I closely observed her demeanour in the witness box and I did not find any trace of a witness either lying or being evasive. This witness impressed me as a truthfully witness. In the circumstances, I find the state second witness also truthful and her testimony also credible, which I repeat is supported by a substantial part of her mother’s evidence. Accordingly I accept the evidence of Harieth as very credible. 

11.	This court has during the trial found no evidence of any animosity pre-existing the incident that could cause the state witnesses to come and falsely testify against the three accused.

12.	Also this court have noted throughout the state case particularly in cross-examination that defence did not challenge the two (2) State witnesses credibility, impartiality and accuracy in their recollection of their evidence.

13.	There are other evidence that were produced in court which in my view can be used to draw reasonable inferences that more than one person was involved in the cutting of the deceased. For example the “Autopsy Report of 26th Janruay, 2015 signed by Dr. Opum Petrus which was tendered into evidence and marked Exhibit “A”. The doctor summarised the injuries sustained by the deceased as;

1.	Left chest open wound with fractured 11th and 12th ribs;
2.	Left lung Laceration from the same wound;
3.	Fracture of the 4th and 5th Lumbar Spine and Spinal cord transaction;
4.	Multiple Lacerations and abrasions; and 
5.	Left partial open Skull fracture.
It is clear that the injuries suffered by the deceased were extensive and serious denoting the violent manner in which the deceased was attacked.

14.	This Court finds that on the basis of the evidence given by the two state eye witnesses that the three accuseds with another were seen at the crime scene cutting the deceased body as reported in the above Autopsy Report is a very corroborative evidence from which a reasonable inference can be drawn that more people were involved and more knives were used on attacking the deceased. And as such the evidence of the two eye witnesses find support, strength and gain more credibility from the Medical Report.

15.	There is also evidence form the First State witness that she was paid some compensation in the form of K6, 000.00 in cash, 4 pigs, food staff and some customary items by the family of the three accused. This court finds that payment of compensation in the present case by the family members signifys that they accepted that their family members (the 3 accused) were responsible for the death of the deceased and as such were obliged by custom to make some good. The Court finds such payment as showing and providing support to the evidence of the two state witnesses that they saw the three accused at the scene of the crime cutting the deceased and causing his death. In the circumstances this evidence support the evidences of the two (2) eye witnesses on identification.

16.	This Court is impressed with the evidence of the two (2) eye witnesses and as such are regarded as truthful witnesses. As stated above, their evidence has found support from the intensive numerous injuries sustained by the deceased which showed that more than one person was involved in the killing. Finally the support from the payment of compensation by the family accepting that the three accused were involved in the killing. 

17.	All in all, I find the state case is very strong, truthful and reliable.

18.	I am not able to find the three accuseds evidence and their alibi witnesses credible because each of their testimonies and the evidence of alibi witnesses does accord well with logic and common sense.

19.	Their evidence also has inconsistencies and certain claims not supported by evidence. A clear example of a inconsistence is in relation to their claim that each of them don’t know the deceased, his wife Norah and the daughter Harieth. Despite the two (2) state witnesses credible evidence that they are well known to them in that they have met them many items at their respective villages and have talked to them many items at many occasions, all three accused in the evidence in Court maintained that they don’t know the deceased and the two state witnesses. That inconsistence was proved when one of their alibi witness namely Hilda Egahu gave clear evidence in Court that the three accused actually know the deceased, his wife Norah and the daughter Harieth as they are related.

20.	I find that the evidence of Hilda Egahu has created a major inconsistence to their evidence and as such I find the three accused as unreliable witnesses and their evidence not credible. Furthermore, I find the evidence of the alibi witnesses unreliable. 

21.	The Court refers to the transcript of proceedings where witness Hilda Egahu was asked by M. Gore of Counsel for the State and by the Court as follows:

	“Ms. Gore	-	You know Augustus Ovio?
				Ans =Yes
	“Ms. Gore	-	You know his wife?
				Ans =Yes, she is sister to me
	“Ms. Gore 	- 	How is she related to you?
				Ans = through my grandparents.
	“Ms. Gore	 -	So that means he is related to Cyril’s mother 					and Jerold’s and Gilford’s mother?
	 Ans = Yes, we are all family
	“Ms. Gore 	-	So you stay together as a family in that village?
				Ans = Yes, your honour
	“By Court 	-	So Cyril, Jerold and Gilford, they know Augustus 					Ovio?	
				Ans = Yes
	“By Court 	-	His wife they know him?
				Ans = Yes
	“By Court 	-	They told this court that they do not know Augustus 				and his wife. Are they lying?
				Ans = Yes, we are all family
	“By Court 	-	They go to Augustus village?
				Ans = Yes
	“By Court 	-	Augustus go to their Village?
				Ans = Yes

22.	As I said I have found that the above evidence from this particular alibi witness show clearly that the three accuseds are untruthful witnesses and their evidence not credible. Also I find no Logic and sense in their evidence and reject their defence of Alibi.

23.	Furthermore this Court have noted that the Alibi witnesses are very close relatives of the three accused and I have treated their evidence with great caution. In doing so this court also find that the witnesses had motive to tell lies to distance the three accused from the trouble. I closely observed their demeanours in the witness box and found traces of a witness lying and being evasive. The witnesses did not impress me as truthful witnesses. In the circumstances, I find the three accused and their four alibi witnesses as untruthful and their testimony not credible which I also find has no supporting evidence whatsoever.

Now, on my findings, I find that the issue in the case is one of identification.
		
24.	The law on identification laid down by the Supreme Court in John Beng v. The State [1977] PNGLR 115 and later in Biwa Geta v. The State [1988-89] PNGLR 153 and many cases both in the National and Supreme Court is that recognition is more reliable than identification of a stranger. It was stated in the two (2) authorities that recognition enhances the quality of identification. 

25.	I adopt what the Supreme Court said in Biwa Geta v. The State (supra) that where the state relies on the correctness of identification evidence which the defence alleges to be mistaken, the court must warn itself of the dangers of convicting an accused on the identification evidence.

26.	I therefore at this stage of the Current trial, I must warn myself of the special need for caution before convicting the three accused on reliance on the identification evidence adduced by the state.

27.	There is logic and common sense in that principle because there may be a possibility that a mistaken witness, maybe a convincing one and any number of witnesses could be mistaken about the identifying of someone they are trying to identify. Mistaken identify may be made even where someone is very close friend or relative. John Beng v. The State (supra).

28.	The warning includes close examination of the circumstances of identification or recognition as on the instant case such as the distance at which identification was made, the length of time taken to observe the three accused, the conditions of observation such as was the observation done during the daytime or at night or had the witness seen the accused’s before, and if so was it only occasionally or was there any special reasons why they remembered the accused, Biwa Geta v. The State (supra) and John Beng v. The State (supra).

29.	It is also settled law in this jurisdiction that the court can either accept or reject evidence both by the prosecution and the defence on the basis of whether the evidence is credible or not.  The State v. Tom Morris [1981] SC 528.

30.	In the circumstances of the instant trial I observed the demeanour of state witnesses Norah and her daughter Herieth who clearly saw what the three accused and another were doing to the deceased.

31.	I observed that the two state witnesses were eye witnesses and in broad day light and at a distance of 15 metres and with nothing obstructing them, they saw the three accused used their own knifes and cut the deceased all over his body causing instant death.

32.	The two state eye witnesses were firm and gave straight forward answers and both were quite elaborate and articulately answered questions. As I found already, I take their evidence as very credible. The court does not doubt their evidence on recognition.

33.	I find that the three accused are not strangers to witnesses Nora and Harieth. They all come for the same local community and also are related.

Having warned myself of the dangers about the principle enunciated in cases like John Beng v. The State and Biwa Geta v The State, I concluded that the three accused were vividly recognised as the persons who used their own knifes and cut the deceased all over his body with intention to do grievous bodily harm. I find the three accused guilty and convict each of them on the charge of Murder pursuant to Section 300 (1)(a) of the Criminal Code.

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