N6911

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 952 of 2014

THE STATE

V

RAPA TAIRO BILLY
Prisoner

Kainantu: Polume-Kiele J
2015: 2, 16 & 17 November
2016: 29 February; 10 March

CRIMINAL LAW – Trial – Wilful Murder – Criminal Code, Section 299(1) & (2) -Ruling on verdict

Brief Facts

On the 15th of October 2012 at about 8 am, the Emboroba people and the Kongora and Magia Clan of Norienda Village had gathered in their Village to discuss the death of a young man from their village during a social rugby match that weekend between the Villagers.  A number of people had gathered for this purpose and amongst them were peace mediators and leaders from various churches within the area. However, before any of the peace mediators or church leaders could sit to mediate, a fight broke out between the Emboroba people and the Kongora and Makea Clan of Norienda Village. 

It is further alleged that whilst the deceased, Kuito Ato and Bani Bire were watching the fight that was going on by the river, the accused and his sister, namely Avai’e came up from the river went to the side and attacked the deceased from the back; Rapa came from the back and cut the deceased with a bush knife, after that the accused’s sister came the same way and also cut the deceased.  The deceased suffered serious injuries to the back of his head and his left hand completely severed from his body. The deceased was rushed to the EBC Mission Health Centre at Barabundora for treatment however due to the serious injuries sustained, the deceased was rushed to the Goroka General Hospital for medical attention but the deceased died upon arrival at the Goroka General Hospital.

An indictment was presented by the State charging the accused, Rapa Tairo Billy with one count of wilful murder of one, Kuito Ota, a pastor of the EBC Church. 

The accused pleaded not guilty to the charge and a trial ensued.

Held: 

(1) 	The principles to apply when determining the value and weight to be given to alibi evidence is established in John Jaminan v the State (No.2) [1983] PNGLR 318:

• 	When an alibi is raised the burden of proof does not shift from the prosecution;
•	The prosecution must establish beyond reasonable doubt that the accused was at the scene of the crime at the relevant time; 

•	The evidence of an alibi must be sufficiently convincing to create reasonable doubt in the mind of the trial judge (Browne v Dunn [1983] PNGLR 67) to raise a reasonable doubt in the mind of the Judge;

•	The prosecution witnesses’ evidence must be sufficiently strong to raise a reasonable doubt in the mind of the Judge as to the guilt of the accused.

•	To enter a guilty verdict, it is necessary for the court to assess the degree of logic and common sense in the evidence of the alibi witnesses (Talangahin (No.1) Kondi (No.1) and Poni)) to draw an inference of guilt

(2)	It was proven that the accused was at the scene of the crime at the material time and that it was the accused and his sister who attacked Kuito Ato. The accused was seen cutting the deceased, Kuito Ato with a lethal weapon, namely a bush knife on the back of his head intending to kill him.

(3)	Having applied the principles on cases relating to alibi evidence: the prosecution evidence were sufficiently strong that the only inference to be drawn would lead to the conclusion that the accused intended to kill and killed the deceased.

(4)	The accused was accordingly found guilty of wilful murder. 

Cases cited:

Gibson Gunure Ohizare v the State (1998) SC 595
John Jaminan v The State (No 2) [1983] PNGLR 318
Paulus Pawa v The State [1981] PNGLR 498
The State v David Yakuye Daniel (2005) N2869
The State v Tauvaru Avaka & Anor (2000) N2024

Counsel:

Ms B Gore, for the State
Mr S Ifina, for the Accused

RULING ON VERDICT

10th March, 2016

1.	POLUME-KIELE J: The accused, Rapa Tairo Billy, an adult male appeared before me on the 16th of November 2015; charged on an indictment for the wilful murder of the deceased, Kuito Ato. He pleaded not guilty to the indictment and raised a defence of alibi. A trial was then conducted to determine the issue of culpability of the accused on the charge of wilful murder under s 299 (1) (2) of the Criminal Code. Section 299 of the Criminal Code states:
 “(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.
(2) A person who commits wilful murder shall be liable to be sentenced to death.”
ISSUES FOR DETERMINATION

2.	In order to determine the issue of culpability, the questions to be asked and determined are; is the identification evidence strong enough to enable this Court to conclude that the accused did not commit the murder?  Was the alibi evidence convincing in detail or was it vague and short in detail.

EVIDENCE PRESENTED BY THE STATE

3.	The State called only one witness, Bani Bire, a retired Pastor of the EBC Church who gave sworn oral evidence. He said that he was present when the attack on the deceased happened. He was standing shoulder to shoulder with the deceased on a slope and watching the fight which was going on by the river side and whilst standing there, he saw the accused and his sister walk uphill towards them and when they reached the spot where they were standing, the accused cut the deceased on the back of his head. The witness said that he had a direct view of the unfolding actions that took place resulting in the death of the deceased. 

4.	The accused gave sworn evidence, denying that he killed the deceased and raised the defence of alibi and said that he was at his wife’s village, Abina during the day of the murder and had been living in Abina all the time.

5.	In addition, a number of documents consisting of the Police Record of Interview dated 26th of June 2014; a number of Witness Statements, photographs and a Medical Report prepared by the Barabundora Health Sub Centre were admitted into evidence together with photographs of the deceased man's body.

State’s evidence

6.	The State witness; Bani Bire gave sworn oral evidence that he is an ex-Pastor of the EBC since 2000. However, he is still helping out with church work and he has responsibility for women groups in the Village of his congregation.  He is from the Emboroba Clan of the Norienda Area. He gave evidence that he was actually present when the attack on the deceased Kuito Ato happened on the morning of 15th October 2012 and will only tell this Court only of what he saw and witnessed on that day. 

7.	The witness said that the deceased Pastor Kuito Ato went and took him from his house and together they were to go and talk about the death of a boy who had died on that weekend on Saturday. He said that the deceased’s and his involvement in the dispute were based on their standing as Church leaders who went there to mediate in the dispute between the Emboroba people and the Kongora and Magia Clans of Norienda Village. However, before this talk could commence, he found out that the enemy tribes from the Kongora and Magia Clans had gathered together and surrounded their Village. During the early hours of the morning of 15th October 2012, at about sun rise, a fight erupted between the Emboroba people and the Kongora and Magia Clans beside a river. This resulted in the cancellation of the talk between the Villagers and the death of the deceased.

8.	The witness in his evidence said that the deceased, Kuito Ato and himself were standing shoulder to shoulder on a slope overlooking the river and watching the fight that was going on down by the river side. It was alright light and they were able to see clearly. He also said that whilst still observing the fighting, he saw the accused and his sister namely Avai’e walk up from the river towards them and that was when he saw the accused’s sister walking to the side and at the same time, the accused came from the back and cut the deceased at the back of his head with a bush knife. Although the witness gave evidence that he saw the accused’s sister attack the deceased, he did not see where exactly she cut him as he was feeling dizzy from  witnessing the attack on the deceased and also trying to assist the deceased who was already unconscious and losing a lot of blood. He said that he then took the deceased to the EBC Mission Health Centre at Barabundora for medical attention; however due to the extent of the deceased’s injuries, he was rushed to the Goroka General Hospital but the deceased died along the way to hospital. The witness did not accompany the deceased to Goroka General Hospital.

9.	In his evidence, the witness said that he knew the accused well, by his full name including that of his parents. The witness also said that the mother of the accused is from Habina Village.  The witness also said that he also knows the other siblings of the accused who all live in Kongora and are all known to the witness. These details were later confirmed by the accused in his evidence. The witness gave evidence that the accused is known to him and is not a stranger at all. He knows him well. 

10.	In cross- examination; the witness stated that deceased person, is his brother (same father). He stated that after the death of the young boy, there were talk that people from the death boy’s village were planning to the attack us so the deceased who is a Pastor of the EBC came and got me and we wanted to go and check out on our people and to mediate for peace, however, we were late as people had already surrounded the Village and were seen holding weapons and wood and standing on the road and fighting was going on by the river. So the deceased and I stood back and looked down towards the river where the fight was going on. Whilst standing on this slope, the accused approached us walking uphill and upon reaching us, he cut the deceased on the back of his head. When asked how many times did the accused cut the deceased, the witness said that the accused cut the deceased only once on the back of the head.

11.	In relation to the question of the mother of the accused, the witness said that the mother is from Habina. With regard to the question relating to when the accused lived? The witness stated that the accused goes and stays in Habina Village but also has a house and coffee gardens in Kongora and he goes and comes as he had property and gardens in Kongora. The accused has other siblings living in Kongora (one has died already) but four are still alive.

12.	In Examination-in-chief, the witness said that the deceased is his half-brother.

Documents tendered into evidence

Documents tendered into evidence include the following Witnesses’ Statements:

13.	Probationary Constable Samson Frigau – attached to the public safety division of the Aiyura Police Station was the corroborator in the conduct of the Police Record of Interview between Senior Constable Salvator Komau, CID (Investigator) and the accused Rapa Tairo Billy on the 26th of June 2014. He stated that the interview commenced at 11.00 am inside the CID Office and was recorded in the form of typing with the computer and was held in pidgin language as preferred by the accused (Exhibit ‘A’)

14.	He stated that the investigator firstly introduced the members of police present for the conduct of the interview and then informed the accused of the reasons for his arrest or why he was detained. The accused was also informed of his Constitutional rights under s 42 (2) of the Constitution of Papua New Guinea, cautioned and agreed to proceed with the interview. The accused also agreed to talk to his brother Ivan after the interview had concluded.

15.	During the interview, the accused denied being involved in the alleged killing of the deceased, now known as Kuito Ato as the accused said that he was not present at the time of the tribal fight in that area.

16.	PC Samson Frigau stated that during the conduct of the interview, there were no forms of threat, force or otherwise intimidation being made on the accused. All his answers were voluntarily obtained or made and that he agreed to everything that was recorded in the interview and all were true and correct. The accused then agreed to sign his signature on the bottom middle space of each page of the interview. 

17.	Senior Constable Salvator Komau, CID (Investigator), Aiyura Police - investigated Kuito Ato’s death. SC Salvator Komau states that on the 16th of October 2012, a report of wilful murder was made to his office at Aiyura Police Station and he then proceeded to conduct an investigation involving an adult male, later known to be Kuito Ato who was murdered by the accused Rapa Tairo during the tribal fight at Norienda Village, Ward 17 of Tairora/Gadsup LLG on the 15th of October 2012.

18.	The accused had been on the run and was apprehended by police personnel during a patrol along the Highlands Highway area on the 19th of May 2014 and taken to Kainantu Police Station where he was later detained in the police lock up.

19.	On the 26th of June 2014, a record of interview was conducted which commenced at 11.00 am inside the CID Office and was recorded in the form of typing with the computer and was held in pidgin language as preferred by the accused.  The investigator firstly introduced the members of police present for the conduct of the interview and then informed the accused of the reasons for his arrest or why he was detained. The accused was also informed of his Constitutional rights under s 42 (2) of the Constitution of Papua New Guinea, cautioned and agreed to proceed with the interview. The accused also agreed to talk to his brother Ivan after the interview had concluded.

20.	During the conduct of the interview, there were no forms of threat, force or otherwise intimidation being made on the accused. All his answers were voluntarily obtained or made and that he agreed to everything that was recorded in the interview and all were true and correct. The accused then agreed to sign his signature on the bottom middle space of each page of the interview. 

21.	During the interview, the accused denied being involved in the alleged killing of the deceased, now known as Kuito Ato as the accused said that he was not present at the time of the tribal fight in that area as he was away living at his wife’s village at Abina, Obura.

Medical evidence

Two documents were tendered as medical evidence:

22.	A Medical Report ( Exhibit “B”) was prepared by Kiabu Auwato, Community Health Worker (CHW) of Barabundora Health Sub-Centre, who reports of receiving Kuito Ato at the clinic with the following injuries:

•	Knife wound to the left hand and head due to a fight between the Eborava and Kogora-Makia 

Upon examination, the following injuries were confirmed:
•	Left forearm completely slash off;
•	Fracture of the Posterior Fontanilla (skull) 

His opinion is that the cause of death was due to intracranial hemorrhage (internal bleeding) and loss of blood from the slashed forearm.

23.	Photographs of the deceased’s body (Exhibit ‘C’) showing the wounds inflicted on the deceased were presented into evidence. 

Accused's statements to police

24.	In his record of interview, dated 26th June 2014, the accused said that on the day that Kuito was killed, he was at his second wife’s village at Abina in Obura area [paragraph 12]. He stated that he does not understand the reasons for his arrest and detention and has no idea as to the death of the deceased, Kuito Ato. He denied that he led a group of his clansmen during a tribal fight with the Emboroba clansmen and during that fight, he chopped Kuito Ato on the back of his head with a bush knife and he died. 

25.	Although the accused denied that he knew the deceased. In paragraph 25 of the Record of Interview, when questioned if it is true that Kuito is from Emboroba clan? The accused answered that the deceased is a member of the Emboroba Clan. So I asked as how the accused knew that the deceased is a member of the Emboroba Clan if he did not know the deceased at all?

EVIDENCE FOR THE DEFENCE

26.	The only witness for the defence is the accused. He gave sworn oral evidence.  There were no defence witnesses to give evidence in support of his alibi, which was that he was at his second wife’s village, Abina, Obura area. 

27.	The Defence witness, the accused, Rapa Tairo Billy, said that he is from Abina Village. His parents live in Kongora Village. His father is from Kongora and his mother is from Abina Village. Kongora is in the Tairora/Gadsup LLG and Abina is in the Namere LLG. The defence witness went on to say that he lived in Abina Village and is not aware of why he was in Court today. He stated that he has lived in Abina since a small boy and also married there. He has a family of 4 children and has coffee gardens at Abina. He only visits his parents occasionally as Abina is far from Abina, it is a day’s walk and if travelling by PMV, it costs about K35.00 to get there.

28.	The witness denied ever hearing of the death of Kuito Ato nor the tribal fight and only became aware of the death when he was arrested on the Highway sometime in May 2014. 

29.	On cross-examination, the witness denied that he knew the deceased, Kuito Ato, he only became aware after he was killed and the name came out. He also stated that he had not visited his parents between 15th of October 2012 and December 2013 and has lived in Abina Village all that time. He denied moving to Abina Village after the tribal fight and killing the deceased.

30.	With regard to the question of why the alibi witnesses, Martin Su’uka and Nini Tiro who were supposed to be called to give in support of his alibi defence were not in Court to give evidence; the witness stated that these witnesses were unable to come to Court today due to the distance as it would take half a day to walk into town and there was no means of transport to come here and had nothing further to say on that.

Elements of the Offence 

31.	The offence of wilful murder is created by Section 299 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.

32.	All of these elements are in issue as the accused does not rely on any specific defence such as accident, compulsion, insanity, provocation or self-defence. He says simply that he did not kill the deceased. His defence is a general denial coupled with an alibi.

33.	The crucial issue therefore is whether the accused, and indeed anyone, killed the deceased. If he did, the killing will is unlawful under s 299 of the Code (as no specific defence has been raised) and the court will proceed to consider whether he intended to cause the death of the deceased. If he did not have that intention, an alternative conviction for murder or manslaughter can be entered.

34.	The State presented direct evidence through an eye witness, Bani Bire who gave evidence that he saw the accused cut the deceased on the back of his head with a bush knife and he was within very close proximity to the deceased as they were standing shoulder to shoulder and watching the fight that was going on down by the river side. His close proximity to the deceased is sufficiently clear for him to identify the accused and where he cut the deceased resulting in his death. It is not a case of mistaken identity. The accused is well known to the witness including his parents and other siblings.  He even mentioned his sister by name as Avai’e. This is not a case based on circumstantial evidence (Paulus Pawa v The State [1981] PNGLR 498)

35.	The issues for this court’s determination are:

• 	Whether the prosecution has proven the facts in this present case?

• 	If these facts are proven, do they lead only to the conclusion that the accused killed the deceased?

FACTS PROVEN

The State's case

36.	       Ms Gore submitted that the following were proven facts:

(1)	The photographs of the deceased showing the injuries to the back of the head and the left hand completely cut off but tied with a cloth to the body to prevent it from falling off.

(2)	The medical report confirms that the deceased was cut twice, once on the left hand and once on the back of the head. The left hand was completely cut off and the injury to the head caused fracture of the skull. The medical report states that the deceased died from these injuries and loss of blood. There were no other injuries.

(3)	The witness gave evidence that the fight occurred in the morning when the sun was up. The witness, Bani Bire said that he was standing shoulder to shoulder with the deceased watching the fighting that was going on by the river side below. The accused was seen walking up from the river side uphill towards the witness and the deceased who were standing on the slope. Vegetation around the area was kunai grass so the witness was able to see the accused clearly and he saw the accused and his sister, namely Avai’e walk and then came from the back and cut the deceased from the back on the back of his head. The accused was not wearing any mask so the witness was able to see him clearly.

(4)	The witness saw the accused cut the deceased on the back of his head with a bush knife. The accused is not a stranger to the witness. They come from the same Norienda area and the witness knows the accused and all members of his family members well. He said that the mother of the accused is from Abina Village and his father is from Norienda Village (Kongora Clan). 

(5)	The accused confirmed that the witness is from the Emboroba Clan and thus there is recognition of a known person rather than identification of a stranger. In that the witness had the opportunity to observe the accused for some period of time and eventually when the attack occurred. Thus this is not a case of mistaken identity (John Jaminan v The State (No.2) ([1983] PNGLR 318.

(6)	The alibi evidence was very short and brief. This evidence is not supported by any other evidence. In addition the alibi witnesses did not turn up to give evidence for unknown reasons. Any difficulties raised with regard to communication issues and distance are irrelevant given the seriousness of the crime which attracts the maximum penalty of death; a penalty that should make it worthwhile for the alibi evidence to be provided for purposes of creating doubt in the prosecution’s case. Furthermore, the accused has more than sufficient time to make prior arrangements for his alibi witnesses to be available before the court.

(7)	The accused did not lead evidence from the other witnesses to say that he was else and not at the scene of the crime. Thus failure to lead alibi witness has the following effect on his alibi defence and that is; his defence of alibi is not true and therefore unsupported; this then leads to the attack on his credibility. Furthermore, the defence of alibi could not stand in the face of strong identification evidence by the witness of the State;

(8)	The State witness has no motive to lie. He gave evidence that he did not have any problems with the accused and his family and therefore had no reasons to tell lies to implicate the accused. He must therefore be believed.

(9)	The accused in his evidence said that he did not know that he was charged with a very serious charge. In addition, he also said that he did not know that the charge carries the maximum penalty of death and therefore did not bring the alibi witnesses to court to support him.  This then begs the question as to whether the accused understand the gravity of the charges laid against him and the reasons for his being in custody. His portrays an image of someone who does not care about what is going on around him, maintaining a denial of the law and consequences that could follow if the law is broken even up to the time of trial. This is an indication of a witness that could not be believed. 

(10)	Factors such as the demeanour and or the performance of the accused in the witness box are also relevant consideration in determining guilt as established by numerous case law (see The State v Tauvaru Avaka & Anor (2/11/00)  2024 and Gibson Gunure Ohizare v the State (26/11/98) SC 595). The demeanour of the accused was not impressive, he was evasive and hesitant when confronted with crucial and probing questions pointing to his guilt of the offence that he was charged with. Furthermore, his performance during the trial was also not good as he avoided eye contact with the prosecution and the bench. He just kept his eyes on the defence counsel and the interpreter; an indication that he had something to hide. He was not a witness of truth.

(11)	The State’s evidence was not destroyed by the Defence in any way, the alibi evidence by the accused is not strong to counter the evidence of identification produced by the State. The State witness gave a very strong identification evidence. His demeanour during the trial was very good. He is a witness of truth as his evidence were not calculated to hold the accused responsible for the killing of the deceased, who is his cousin. Because he could easily have said that the sister of the accused cut the deceased on his left hand and that he saw her do it but in fact he clearly told the court that he did not see exactly where she cut the deceased as he would have been attending to the deceased and therefore did not see what occurred next. This is an indication of a witness of truth.

(12)	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 judge. Depending on the strength or how convincing this alibi evidence is, there is the requirement that the evidence must be reasonably strong to raise a reasonable doubt in the mind of the judge as to the guilt of the accused. For this case, the alibi evidence is brief and not sufficiently convincing to create a reasonable doubt.

(13)	Ms Gore submitted that the evidence presented by the State’s witness has drawn a very strong identification evidence whereby he has identified the accused as the person who killed the deceased. In addition, the photographs and medical reports show that the injuries caused were serious. The injury to the back of the head is consistent with the account given by the witness gave as to how the accused attacked the deceased and on which part of the body. 

(14)	Further, there was intention to cause death and this is noted in the following:

(1)	The use of an offensive weapon, namely a long bush knife;
(2)	Attacking the deceased at a very close range without any warning
(3)	Injuries caused to most vital organs of the body, namely the head and complete slashing of the left hand

(15)	The only reasonable inference to draw from the above facts is that the accused was the person who killed the deceased. 

(16)	The defence counsel agreed with only some of the propositions of fact and submitted that no reasonable inference that the accused was the person who killed the deceased could be drawn from the proven facts.

(17)	The accused had a motive, arising from conflicts regarding the death of a young boy during a rugby match that weekend. The deceased was killed and did not die accidentally.

37.	In order to test each of the propositions of fact and determine the ones that have been proven and then provide a summary of the proven facts. 

Deceased last seen alive by Bani Bire and Kiabu Auwato (CHW) between the hours of 8.00 a.m. and 9.10 a.m. respectively.

38.	This is correct. The deceased died at about 9.10 a.m. upon arrival at the Goroka Base Hospital as recorded on the medical report prepared by Kiabu Auwato, (CHW). The deceased was seen by Bani Bire between 8.00 a.m. when he was attacked and cut on the head, taken to the Barabundora Health Sub Centre at about 9.00 a.m. The medical report confirms the time of arrival at the Health Centre to be 9.00 a.m.  It is not difficult to pinpoint the exact time. 

Deceased taken to the Barabundora Health Sub Centre and referred to Goroka Base Hospital on the day of the attack, 15th October 2012. 

39.	The evidence of Bani Bire is clear. He took the injured deceased to the Barabundora Health Sub Centre after he was cut on the back of the head with a long bush knife by the accused. His evidence as to the injuries sustained by the deceased and parts of the body was not contested by the defence. Nor was his evidence as to how the death occurred and where the deceased sustained the injuries. 

Time of death was between 5 to 10 minutes after 9.00 a.m.

40.	This time of death is undisputed. The medical report confirmed the timing of death between 5 to 10 minutes after 9.00 a.m.

The accused is known and not a complete stranger.

41.	     There is very significant evidence by the State witness that the accused is from Kongora clan of Norienda Village. He is known by the witness and is no stranger. In addition, all members of the family of the accused are known to the witness; including where his mother is from, that is she is from Abina Village, where the accused was said to be living at the time of the crime.  

42.	The court in assessing this evidence has to exercise great care before accepting this evidence as it from a member of their tribal group involved in the fight and uncorroborated. I considered and assessed this evidence and find that Bani Bire is a competent witness and that his evidence is admissible, and that he is a reliable witness. No reason was given as to why the evidence of the witness is unreliable or why this court should ignore his evidence. In fact, the accused had acknowledged that the witness is from the Emboroba clan of Norienda Village and therefore, there is recognition that the accused and the witness are known to each other. 

43.	I find that the witness had a clear recollection of what actually happened and was able to identify the accused. This is not a case of mistaken identity.

Shortly after the death of the deceased, the accused went into hiding and was not apprehended until about May 2014. 

44.	The State's case is based rather heavily on acceptance of the evidence of Bani Bire, as to what happened on the day of the crime. His evidence was uncorroborated. In his evidence, he said that he was standing shoulder to shoulder with the deceased watching the fighting that was going on by the river side below. The accused was seen walking up from the river side uphill towards the witness and the deceased who were standing on the slope. Vegetation around the area was kunai grass so the witness was able to see the accused clearly and he saw the accused and his sister, namely Avai’e walk and then came from the back and cut the deceased from the back on the back of his head. The accused was not wearing any mask so the witness was able to see him clearly.

45.	The accused however denied that he is responsible for the crime as he was not there at all. He was living in Abina Village with his second wife. He was not at the scene of the crime nor was he involved in the fight or ever visited Kongora Village during the time. He was all the time in Abina and never knew of the fight or the death of the deceased. However, having accepted the Bani Bire’s evidence about the deceased and him watching the fight going on by the river, and seeing the accused and his sister coming up towards them and cutting the deceased on the back of his head with a bush knife resulting in his death. The accused had reasons to go into hiding and avoid suspicion and apprehension and having observed Bani Bire's demeanour in the witness box, and that of the accused, I accept Bani Bire’s evidence as truthful.

46.	 I find it proven as a fact that the accused had gone into hiding at his second wife’s Village to avoid suspicion and apprehension by the police. 

Accused had ample opportunity to kill the deceased.

47.	Ms Gore submitted that even if the evidence of the accused is believed, and it is accepted that the accused was at his wife’s village during the time of the crime which is uncorroborated; the account of the events leading to the tribal fight, the presence and identity of the accused and his sister at the crime scene is far more convincing.  

I therefore find that since the alibi evidence is uncorroborated, I uphold the reasoning that the accused did have ample opportunity to kill the deceased.

The accused gave a false alibi.

48.	The defence counsel submitted that the accused could not have killed the deceased as he has an alibi: he was at home with his second wife at Abina Village and was nowhere at the crime scene nor at Kongora, Norienda Village nor did he kill the deceased.

49.	 In the assessment of alibi evidence with regard to the principles on alibi evidence established in the of John Jaminan v The State (No 2) [1983] PNGLR 318 And noting that the burden of proof rests on the prosecution to disprove the alibi evidence raised and that the onus is never on the accused to prove an alibi or prove innocence. It is also clear that 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. 

50.	The court must still be satisfied that the prosecution has proven its case beyond reasonable doubt. An alibi that is determined to be false may, however, depending on the circumstances, amount to corroboration of the State's case. 

51.	However, great caution should be exercised before drawing an inference adverse to an accused, as a result of the accused's failure to call a witness that might reasonably be expected to support the accused's alibi. A belated alibi, not revealed on any earlier occasion prior to trial, should be given less weight than an alibi consistently given over a long period, e.g. since the beginning of the police investigation, in a record of interview or in committal proceedings. The court should consider whether the alibi evidence contains convincing detail or whether it is vague and short on detail. The court should also consider the demeanour of the alibi witnesses and whether there are any inconsistencies in their evidence.

52.	Having considered all of the above matters, I make the following assessments:

(a)	The accused's evidence as to his movements on the day of the crime is basically that he was in his second wife’s village, at Abina. As to what he was doing and what he did that day is very vague. No details of his activities during the day, beginning with his waking up or what he eat for breakfast and what he did that day were not disclosed. He categorially denied being at the scene of the crime and cutting the deceased on the back of his head with a long bush knife resulting in his death remains uncorroborated. An accused who gives an alibi but then does not provide details of the alibi or little evidence to support this evidence or gives no explanation for being there exposes him to the normal and common sense logic that the alibi is a lie.

(b)	His alibi witnesses, Martin Su’uka and Nini Tiro were not produced during the course of the trial to give alibi evidence. The accused said that difficulties relating to transport and remoteness did not make it convenient for the alibi witnesses to travel to Kainantu to give evidence.  I find that these are not sufficient reasons for their absence. The offence of wilful murder is a very serious charge which carries a penalty of death and that makes it all the more convincing for the alibi witnesses to be in court to assist with the defence of the accused’s case if the accused is indeed innocent of the crime alleged against him.

(c)	 So the alibi cannot be regarded as true and I therefore dismiss it out of hand as being obviously false.

(d)	The accused was not as impressive a witness as Bani Bire, whose evidence as to the identity of the accused and his sister at the crime scene and cutting the deceased on the back of his head has already been accepted.

53.	In light of the above, I have concluded that the alibi evidence of the accused is not strong. The alibi evidence is poor and I determine that, in fact, it is a false alibi. 

The accused had a motive arising from the death of a young boy that weekend. 

54.	This has been proven. The state witness gave evidence to the death of a young man from the area and the tribal fight that ensued between the Emboroba people and the Kongora and Makia clan of Norienda Village on the morning of 15th of October 2012.  Although, the state witness said that there was no ill will between the accused and the deceased's family. It has also not been proven or even suggested that the accused was a violent or ill-tempered person or had ever done anything in his life to indicate that he may be a danger to anyone. However, the accused is a young adult male aged 30 years old and thus is capable of taking arms and leading his clansmen in a tribal fight should there be a need to defend his clansmen and community.

The deceased was killed and did not die accidentally.

55.	The medical evidence is clear.  The report by the Barabundora Health Sub Centre worker, Mr Kiabu Auwato. The medical reports records that the deceased was presented at the Health Centre with the following complaint:

•	Knife wound to the left hand; and
•	Head; due to a fight between the Eborava and Kongora-Makia 
On examination the following were noted:
•	Left forearm completely slash off; and
•	Fracture of the Posterior Fontanella (skull)

Emergency referrals were done to Goroka Base Hospital, when noting the seriousness of the injury. However the deceased died within 5-10 minutes after arriving at the Goroka Base Hospital due to Intracranial Hemorrhage (internal bleeding) and also loss of blood from the slashed forearm.

56.	Those injuries are consistent with the deceased having died due to internal bleeding and also loss of blood resulting from knife wounds inflicted on the deceased. It was not an accidental death.  Further as stated in (The State v David Yakuye Daniel (2005) N2869), no rule of law says that there must be an official post-mortem report prepared by a qualified medical practitioner. In many remote areas of Papua New Guinea, remote and rural Papua New Guineans depend on Health Extension Officers for all their medical and health matters and for these reasons, the Courts will work on the best evidence that is at hand.

57.	The two photographs of the deceased's body are conclusive evidence of the deceased sustaining knife wounds to the left forearm and the back of the head.

58.	Ms Gore asked the court to take into account that the State witness produced very strong identification evidence identifying the accused as the person who killed the deceased. Further photographs and the medical report do confirm that the injuries caused were serious and the deceased died as a result of loss of blood. Ms Gore submitted further that the intention to cause death can be noted by the facts that the accused had used an offensive weapon, namely a long bush knife, the attack was carried out at a very close range without any warning and the injuries were caused on the most vital organ of the body, namely the head and completely cutting off the left hand. These injuries clearly showed that the accused intended to kill the deceased. Furthermore, Ms Gore submitted that the accused and his sister acted with a common purpose aided each other or in conjunction in killing the deceased and invoked s 7 and 8 of the Code.

Proven facts

59.	 They can be summarised as follows:

• The deceased was last seen alive by members of his cousin, Bani Bire between the hours of 5.00 am and 8.00 am.

• The body was taken to the Barabundora Health Sub-Centre and Goroka General Hospital as confirmed by the OIC – of the Barabundora Health Sub-Centre. 

• The time of death was about 9.30 am which is consistent with the timing of the tribal fight.

• The accused had gone into hiding and was only apprehended in May 2014. His behaviour is that of someone who had committed a crime and was avoiding contact with his clansmen and community, family and home. 

• The accused gave a false alibi.

• The accused had a motive, arising from the death of a young man during the weekend rugby match.

• The deceased was killed and did not die accidentally.
	
DO THE PROVEN FACTS LEAD ONLY TO THE CONCLUSION THAT THE ACCUSED KILLED THE DECEASED?

60.	The accused and his sister were seen attacking the deceased during a tribal fight. It was the accused who was seen cutting the deceased on the back of the head with a long bush knife. The accused was known. He is from the Kongora and Makea Clan of Norienda Village. He is no stranger. It is correct to draw the inference that the accused was rightly charged as a suspect.  After the commission of the crime, the accused went into hiding and this behaviour is consistent with someone who has committed a crime and avoiding suspicion by staying away from the crime scene, his clansmen and community.

61.	It has been proven that the deceased was killed by someone at very close proximity with a sharp lethal weapon, a bush knife. The medical report states that the deceased had sustained knife wound to the left forearm (hand) which was completely slashed off and a fractured posterior Fontanilla (skull). 

62.	It has been proven that the accused had a motive for killing the deceased, there was a tribal fight between the Emboroba clan (people) and the Kongora and Makea Clan of the Norienda Village following the death of a young boy from the Kongora and Makea Clan. The accused is from the Kongora Clan of Norienda Village. The accused had killed the deceased who is from the Emboroba clan of Norienda Village. The accused had been in hiding for almost two years prior to his apprehension in May 2014.

DID THE ACCUSED KILL THE DECEASED?

63.	 The guilt of the accused is a rational inference to draw from the proven facts, these are the reasonable conclusion available to the guilt of the accused. The proven facts clearly do lead to the reasonable conclusion that the accused killed the deceased.

VERDICT

64.	Rapa Tairo Billy is found guilty of wilful murder of one, Kuito Ato under s 299 (1) (2) of the Criminal Code

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