N6682

PAPUA NEW GUINEA
 [IN THE NATIONAL COURT OF JUSTICE]

CR Nos. 1116-1120 OF 2014

THE STATE

V

KENNY KOGET, EDWIN KOGET, ROBERT KOGET, 
MOSES DADU & SYLVESTER DADU

Madang: Cannings J
2016: 9, 10, 16 March, 3 May, 7, 8 June,
 		7 July, 12, 15 August, 19 October 
     2017: 17 March 

CRIMINAL LAW – wilful murder – Criminal Code, Section 299(1) – elements of offence – whether any of the accused killed the deceased – whether killing unlawful – whether intention to kill – Criminal Code, Section 7 – whether any accused enabled or aided another in committing the offence.

Five accused were charged with wilful murder of a man who was chased and stabbed following an altercation between two groups of people at a market.  The State alleged that the fourth and fifth accused directly killed the deceased by stabbing him, that they acted unlawfully, intending to cause his death, making them guilty of wilful murder under Section 299(1) of the Criminal Code, and that the other accused enabled and aided the fourth and fifth accused to commit the offence, making them also guilty of wilful murder under Sections 7(1)(b) and (c) of the Criminal Code. All accused denied being present and presented alibi evidence.

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 fourth and fifth accused killed the deceased as: there was credible eyewitness evidence, the alibis of the fourth and fifth accused were unconvincing, there were no significant inconsistencies in the State’s case and the medical evidence was consistent with the State’s case. 

(3)	There were no excusatory defences relied on, so the killing of the deceased was unlawful. 

(4)	It was proven that the fourth and fifth accused intended to kill the deceased.  They were each guilty of the offence of wilful murder. 

(5)	As to the first and second accused the State proved that they were present but failed to prove for the purposes of Sections 7(1)(b) and (c) of the Criminal Code that they aided or assisted the fourth and fifth accused. As to the third accused the State failed to prove that he was present. The first, second and third accused were thus acquitted.

(6)	In summary, the fourth and fifth accuseds were convicted of wilful murder. The first, second and third accused were acquitted. 

Cases cited:

The following cases are cited in the judgment:

Biwa Geta v The State [1988-89] PNGLR 153
Browne v Dunn (1893) 6 R 67 (HL)
Fei Stanley v The State (2006) SC1324
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
Kampangio v R [1969-70] PNGLR 218
Kutau v The State (2007) SC927
Rex Paliau v The State (2016) SC1537
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 John Buku Kailomo (2007) N4997
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
The State v Sapik Tommy (2014) N5575

TRIAL

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

Counsel:

F K Popeu, for the State
A Meten, for the Accused

17th March, 2017

1.	CANNINGS J: The five accused are charged with the wilful murder of Patrick Ngsem at Bemlon, in the Vidar area of Madang District, Madang Province, on Sunday 6 July 2014. They have pleaded not guilty so a trial has been conducted. The State’s case is that:

•	the fourth and fifth accused, Moses Dadu and Sylvester Dadu, are the principal offenders and are guilty of wilful murder under Section 299(1) of the Criminal Code as they directly and unlawfully killed the deceased by stabbing him, intending to cause his death; and

•	the first, second and third accused,  Kenny Koget, Edwin Koget and Robert Koget, enabled and aided the fourth and fifth accused to commit the offence, thus making them guilty of wilful murder under Sections 7(1)(b) and 7(1)(c) of the Criminal Code.

All accused denied being present and presented alibi evidence.

UNDISPUTED FACTS

2.	A number of undisputed facts have emerged from the evidence, from a site visit conducted after the close of evidence and from submissions of counsel:

•	An incident in which the deceased, aged 26, lost his life occurred at or near Bemlon market, on the North Coast Road, 25 kilometres north of Madang town on Sunday 6 July 2014. Bemlon is a small village, next to the larger village of Rempi.

•	The incident followed immediately after a fight between two groups of young men. The deceased was a member of one of the groups. 

•	As a result of the fight the deceased and other members of his group were chased by the other group. While being chased the deceased fell and was stabbed twice and died shortly afterwards as a result of the wounds he suffered.

•	The cause of the fight is unknown. It is also not known what the deceased is alleged to have done that would have caused others to chase and stab him. 

•	The first, second and third accused are brothers, aged 25, 27 and 30 years respectively at the time of the incident. The fourth and fifth accuseds are brothers, aged 19 and 18 years respectively at the time of the incident.

•	All accused except the second accused, Edwin Koget, live at Bemlon. The houses of the first and third accused, Kenny Koget and Robert Koget, are adjacent to each other and at a spot that, by a road track, is approximately 265 metres from the market. By taking a direct walking track the distance is approximately 200 metres. The fourth and fifth accused, Moses Dadu and Sylvester Dadu, live together in a house at a spot that, by a road track, is approximately 250 metres from the market. By taking a direct walking track the distance is approximately 150 metres. The houses of the Koget brothers is approximately 50 metres from the house of the Dadu brothers. 

•	The second accused, Edwin Koget, does not live at Bemlon. His house is on a mountain top approximately 1.5 kilometres from Bemlon.  

•	The Police were called and arrived on the scene soon after the incident. The five accused were taken into custody in the afternoon of the incident. 

ISSUES

3.	As the fourth and fifth accused are alleged to be the principal offenders, the Court’s attention must be focussed on them first. They have been charged under Section 299(1) of the Criminal Code, which states:

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.

4.	The three elements of the offence are that:

•	the accused killed the deceased;
•	the killing was unlawful; and
•	the accused intended to cause the death of the deceased (or some other person).

5.	     The Court must determine whether those elements have been proven beyond reasonable doubt. A decision will then be made on whether the fourth and/or fifth accused are guilty of wilful murder or any other offence (eg murder or manslaughter). If either or both are guilty, the Court’s attention will shift to the other accused to determine whether any of them aided or assisted the principal offender(s) in committing the offence or is otherwise criminally liable under Section 7 of the Criminal Code. If both the fourth and fifth accused are found not guilty of any offence, the others will also be acquitted. The issues are addressed in this order:

1.	Did the fourth or fifth accused kill the deceased?
2.	If yes, was the killing of the deceased unlawful?
3.	If yes, did the fourth or fifth accused intend to cause the death of the deceased?
4.	Are the fourth or fifth accused guilty of wilful murder or any other offence?
5.	Are the first, second or third accused guilty of any offence? 

1 	DID THE FOURTH OR FIFTH ACCUSED KILL THE DECEASED?

6.	This is a question of fact, to be determined by applying the definition of killing in Section 291 (definition of killing) of the Criminal Code:

Subject to the succeeding provisions of this Code, any person who causes the death of another, directly or indirectly, by any means, shall be deemed to have killed the other person.

7.	The question is whether Moses Dadu and/or Sylvester Dadu directly or indirectly caused the death of the deceased. Resolution of this issue requires a:

•	summary of evidence for the State;
•	summary of evidence for the defence;
•	determination of the question whether the fourth and/or fifth accused killed the deceased.

Evidence for the State

8.	Five witnesses gave evidence for the State, as summarised in the following table.

No	Witness	Description	
1	Melchior Nabur	Local resident 	
Evidence	
He is from Rempi – a primary school teacher – he is also related to all the accused and knows all of them – his mother is from Tangu, Bogia and he is related to the deceased. He was at Bemlon market on the Sunday morning – lots of people were there – he heard people shout ‘Fight!’ – he then saw the accused Kenny Koget, Edwin Koget, Moses Dadu and Sylvester Dadu chasing the deceased and other Tangu boys – all the accused were armed: Kenny held a long knife, Edwin had a fishing gun, Moses had a US knife and Sylvester had a grassknife – there were seven or eight boys in the deceased’s group, all unarmed, being chased by the accuseds’ group.

Moses and Sylvester got close to the deceased, who fell, and they stabbed him twice and shouted ‘We killed him! We won!’ – the deceased fell into an area that sloped down off the main road – he (the witness) was about 15 metres away when he saw Moses and Sylvester shouting that they had killed the deceased and ‘won’.

He does not know how or why the fight started in the market or why the deceased was chased – however, he thinks it might have something to do with land, in particular a dispute between Bemlon people and Rempi people.

In cross-examination it was put to the witness that he did not get a clear view of what happened and was not in a position to say that any of the accused was present and involved – the witness responded he knows the accused very well as they are the sons of his cousin-brothers – he saw them armed and chasing the deceased – it was only the four of them chasing the deceased; others had been in the accused’s group, but they ran away – he had a clear view of the four of them, no one else could have stabbed the deceased – he saw Moses and Sylvester stab the deceased and shout that they had killed him and won.

It was put to the witness that he was running away and too focussed on saving himself to see what happened – he replied that he had been running away, with the others in his group, to get shade tree branches to defend themselves, but he came back to help the deceased (who had been living with him for three months).
	
2	Adolphia Pakul	The deceased’s sister, age at trial: 7 years	
Evidence	
She is a student at Tangu Primary School, Bogia – she was staying with her aunty at Rempi in July 2014 – she was at Bemlon market on Sunday morning, 6 July 2014 – the Tangu boys came to the market then a fight started and as a result the Tangu boys were chased on to the road – she saw the deceased, Patrick, hit with a piece of wood, and fall – then two boys ran towards him and stabbed him twice while he was on the ground – one of the stab-wounds was under his armpit as he raised his arm trying to block the knife.

Another Tangu boy, Godfried Beanir, had been cut before Patrick was chased and stabbed – Godfried was bending down to buy peanuts when someone from the group that chased Patrick rushed towards him and swung a bushknife at him, which cut him on the leg – she followed Godfried and ran away with him and other Tangu people when he was cut.

She identified the five accused as being part of the group that cut Godfried and chased and stabbed Patrick – she had come to know who they were before the incident as her aunty with whom she was staying, lived close to their village, Bemlon. 

When Patrick was stabbed she was only 3.5 metres away – she had a clear line of sight – she saw two boys stab him: the fourth and fifth accused, Moses and Sylvester Dadu – Moses stabbed him first, on the back, with a USA knife – they pulled out the knife and used it to stab Patrick a second time, under the armpit – they shouted ‘We won! We killed them!’

The other three accused, Kenny, Edwin and Robert Koget, also chased Patrick – they did not stab him.

In cross-examination she confirmed that she is the deceased’s sister – she had been sent from Tangu by their mother to bring Patrick back to Tangu – while at Rempi, she and Patrick and Godfried were staying together at their aunty’s place.

A statement she made to the Police dated 8 July 2014 was admitted into evidence as exhibit D1 – it was put to her that she was giving a different story to what she told the Police – she denied that. Questioned as to whether she actually saw what happened or whether she was just saying what she heard from others, the witness was adamant that she saw the incident ‘with her own two eyes’ – she knows State witness Melchior Nabur  and he was also present – many people witnessed the incident.

Asked to describe the knife allegedly used to stab the deceased, the witness described it as a ‘USA knife’ of about 38 centimetres length – she was shown the knife when she was interviewed by Police, she does not know where it is now – it was the only knife used to stab Patrick. She does not know why the accused were chasing Patrick. 
	
3	Solastica Keinam 	Aka Solastica Guad, from Tangu; aunt of the deceased	
Evidence	
She was at Bemlon market on Sunday morning, 6 July 2014 – her eldest son is Godfried Beanir – she was with him at the market – as Godfried was buying peanuts he was attacked by a group of men and cut on the leg – she identified the five accused as being in the group that attacked Godfried – when that happened, all the people she was with ran away, on to the main road.

She was only 3.5 metres away when she saw her nephew, Patrick Ngsem, stabbed, after he had fallen to the ground – she saw one man stab him – she described the assailant as short and fat with light skin – she did not see his face as there was a group that was chasing Patrick –they stabbed him in the back and under his armpit – they shouted ‘We killed a pig! Come and take it away!’

In cross-examination she said that at the market, she was with Adolphia Pakul (State witness #2) as well as Godfried and Patrick – she only saw Patrick stabbed by one person – she could not identify who stabbed Patrick but indicated that it was one of the five accused as they were the men chasing Patrick.

Asked to identify the man who cut Godfried with a knife, she pointed to the third accused, Robert Koget. 
	
4	David Wanga	From Tangu but lives and works near Rempi	
Evidence	
He works at Ulunum Plantation – he was at Bemlon market between 10.00 and 11.00 am on Sunday, 6 July 2014, standing on the main road next to the market – he identified the five accused as being in a group that chased another group of men, including the deceased, Patrick Ngsem – the boys in Patrick’s group were locals, from Rempi.

He saw Patrick fall and then being stabbed in the back with a knife – he saw Patrick stabbed once – he does not know the name of the man who stabbed him, but he is short, with light skin, and he is one of the accused: the witness identified the fifth accused, Sylvester Dadu, as the man who stabbed the deceased, with a USA knife – after he stabbed Patrick, the assailant went back to the market and told the mothers there to continue their market and explained that those other boys were not behaving properly so they had to do something to stop them – he helped others stop a vehicle that was used to rush Patrick to hospital.

In cross-examination he stated that he was related to the deceased – he does not know what caused the accuseds’ group to chase Patrick’s group – he repeated that he saw the fifth accused stab the deceased in the back.  
	
5	Dr Jiuth Gawi 	Post-mortem examiner 	
Evidence	
He prepared a report of his post-mortem examination and concluded that the deceased died due to a “right pneumothorax”(the presence of air or gas in the cavity between the lungs and the chest wall, causing collapse of the lung)– this was caused by a penetrating stab wound on the right axilla (armpit) area, extending into the sixth intercostal spacing (between the ribs), measuring 2 cm x 1 cm, with a depth of 8 cm, which led to 200 millilitres of blood in the right pleural cavity.  

There was another wound on the right posterior chest region, measuring 4 cm x 2 cm, with a depth of 7 cm. The wounds were most likely the result of force with a sharp, penetrating object such as a knife or screwdriver. 

In cross-examination the doctor stated that he could not say whether the deceased was standing up or lying down when he was stabbed – he was unable to say with precision what weapon was used but it was clearly a sharp penetrating object – he was not told by the relatives of the deceased what had happened – the relatives only identified the body – however, he was told by the Police that his report was required for a murder investigation. 

Answering questions from the bench, Dr Gawi stated that the depth of the axilla wound was an indication of direct, strong force with a sharp penetrating object.  

Exhibits

9.	The only State exhibits admitted into evidence were the post-mortem report and medical certificate of death prepared by Dr Gawi, which he referred to in his oral testimony. 

Evidence for the defence

10.	Nine witnesses gave evidence for the defence, including each of the accused.

No	Witness	Description	
1	Kenny Koget 	First accused, age at trial: 27 years, married with three children	
Evidence	
He was not at Bemlon market on Sunday 6 July 2014 – he was at his house, 200 metres from the market, with his wife, Negita – between 10.00 and 11.00 am his three sisters-in-law, Georgina, Gabriella and Christina, came with garden food, which was cooked for lunch. At 1.00 pm the Police came to his house and called for all the young males to come forward – not many were around at that time of the day – the Police took him and his brothers to Jomba Police Lock-up where they were all detained.

In cross-examination he stated that he did not know anything about the incident in which the deceased was killed – he was not at the market that day – the evidence of the State witnesses who identified him as being present, is not true – he understands that the State witnesses were living at Rempi at the time, but he does not know them – he bears no grudge against them and he knows of no grudge they have against him – his brother Robert (the third accused) was with him at the house on that day.
	
2	Edwin Koget 	Second accused, age at trial: 29 years, married with two children	
Evidence	
He was not at Bemlon market on Sunday 6 July 2014 – he was at his house, with his wife, Leola, and his sister, Deslyn, and her husband, Jepa – after breakfast they went to their garden – his wife returned at 11.00 am to prepare lunch – at 11.30 am she called him in from the garden – after lunch they went to Bemlon market – he was there when the Police arrived from Talidig Police Station, including Adam Yawing; later Madang CID officers arrived, including Richard Sibolo and Aloysius Gabe – the Police did not ask any questions, they just asked him and the other accused to go to Jomba Police Station to sort out things.  

In cross-examination he stated that he did not know anything about the incident in which the deceased was killed – he was not at the market that day – the evidence of the State witnesses who identified him as being present, is not true –his house is not close to the market, it is on a mountain top, 1.5 kilometres away. 
	
3	Robert Koget 	Third accused, age at trial: 32 years, married with three children	
Evidence	
He was not at Bemlon market on Sunday 6 July 2014 – he was at his house, with his wife and three children and his brother Kenny Koget (the first accused) – between 10.00 and 11.00 am his wife went to Bemlon market but there was a fight and she came back to the house – he was asleep at the time and she woke him to tell him about it, and that no one was at the market as everyone had run away. 

Between 1.00 and 2.00 pm the Police came from Talidig and called for all the young men and women to gather, to talk about the fight at the market – later the CID officers arrived and decided to take his four brothers (the first, second, fourth and fifth accused) into custody – he is a youth leader and volunteered to go with them – when they got to Jomba Police Station he was surprised when the Police asked no questions and ordered him into the cell with the others – he and other accused remained in the cell until Thursday 10 July 2014 when they were taken to Madang District Court where they made their first court appearance, and realised that they were charged with murder. 

In cross-examination he stated that that he knows the first State witness, Melchior Nabur, as he is his relative – Melchior knows him and all other accused as they are all related – he does not know anything about the incident in which the deceased was killed – he was not at the market that day – the evidence of the State witnesses who identified him as being present, is not true – he bears no grudge against them and he knows of no grudge they have against him. 
	
4	Moses Dadu	Fourth accused, age at trial: 21 years, unmarried	
Evidence	
He was not at Bemlon market on Sunday 6 July 2014 – in the morning he was at his house, 200 metres from the market, with his sister, Rebecca Dadu, and her husband, Raphael, who had come to the village to discuss issues regarding purchase of roofing materials for their house – also present were his small brother, Sylvester Dadu (the fifth accused) and his big brother, Wendalin Dadu – between 10.00 and 11.00 am people came running down from the market, shouting about a fight– he and his family heard about the fight, but remained at the house and did not go to the market.

Soon afterwards the Police from Talidig, led by policeman Adam Yawing, came with a loudhailer and called for everyone to gather together – he listened to what the Police said and complied with their request to get into the Police vehicle, with the other accused – they were taken to Jomba Police Station, where they were detained in custody.

In cross-examination he stated that that he knows the first State witness, Melchior Nabur, as he is his relative – Melchior knows him and all other accused as they are all related – he does not know anything about the incident in which the deceased was killed – he was not at the market that day – the evidence of the State witnesses who identified him as being present, is not true – he bears no grudge against them and he knows of no grudge they have against him. 
	
5	Sylvester Dadu	Fifth accused, age at trial: 20 years, unmarried	
Evidence	
He was not at Bemlon market on Sunday 6 July 2014 – in the morning he was at his house, 200 metres from the market, with his sister, Rebecca Dadu, and her husband who had come to the village to discuss issues regarding purchase of roofing materials for their house – also present was his brother, Moses Dadu (the fourth accused)– between 10.45 and 11.00 am various people came into their area telling stories about a fight at the market.  

Soon afterwards the Police from Talidig, led by policeman Adam Yawing, came with a loudhailer and called for everyone to gather together – later, the CID officer Richard Sibolo came and told him and the other accused to get into the Police vehicle – they did as they were told and were taken to Jomba Police Station, where they were detained in custody.

He did not know the deceased – he bears no grudge against any of the State witnesses – he does not know why they would say he was involved in the fight at the market. 

In cross-examination he denied being at the market on the day of the incident – he maintained that he was at his house at the time– the evidence of the State witnesses who identified him as being present, is not true – he agreed that the State witnesses would have no reason to make up stories about his involvement in the death of Patrick Ngsem.
	
6	Christina Pias 	Friend of Kenny Koget	
Evidence	
She is from Yangoru, East Sepik – on Sunday morning 6 July 2014 she was with Kenny Koget and his wife at their house – she shared a meal with them and did her laundry.
	
7	Leola Edwin 	Wife of Edwin Koget, age at trial: 21 years 	
Evidence	
She was with her husband at their house on the mountain top on the morning of Sunday 6 July 2014 – after breakfast, she and her husband went to the garden, leaving the children with her sister – at 11.00 am Edwin asked her to go back to the house and prepare lunch – she went to the house and was preparing to cook lunch when some women came and told her about a big fight at the market – those women left, she then told her sister-in-law to fetch her husband from the garden – he came in from the garden but she told him nothing about the fight – after lunch she and her husband went to Bemlon to fetch water – as her husband was filling their buckets with water, the Police arrived and told her husband he had to go with his brothers in the CID vehicle to the police station – she did not see her husband again that day and later found out that he was in custody.

In cross-examination she stated that their house is not at Bemlon, it is at Kunai village – when the Police arrived at Bemlon she did not tell the Police that her husband had been at the garden that morning.  		

8	Rebecca Dadu	Sister of Moses Dadu and Sylvester Dadu, age at trial: 25 years	
Evidence	
She lives in Madang town with her husband, Raphael – at 8.00 am on Sunday 6 July 2014 she and her husband and their daughter went to Bemlon village for a family gathering to discuss issues regarding purchase of roofing iron for their house. After a while the Police came and collected her brothers and took them away with three others and they were all locked up – the Police did not say why they were taken away – she heard nothing that morning about the fight at the market.

In cross-examination she could not say what time the Police came to Bemlon – in re-examination she stated that the Police came between 1.30 and 2.00 pm.
	
9	Martin Belis 	Uncle to five accused, Rempi resident 	
Evidence	
He is a former policeman but he now lives as a subsistence farmer at Rempi, at a place 500 metres from Bemlon market – at 1.00 pm on Sunday 6 July 2014 he left his house, to walk to the market – he walked to the main road, at a point about 200 metres from the market, where he met Melchior Nabur (State witness #1) who was also heading to the market – he knows Melchior and greeted him, then he saw many women and children running towards him, away from the market – he asked what was going on and was told that there had been a fight at the market – he decided to take a short cut to the market, to see what had happened – on the way he went past the house of Moses Dadu and Sylvester Dadu – he saw Moses and Sylvester with their father, Franz Dadu, sitting around preparing food – he then went past the houses of Kenny Koget and Robert Koget and Kenny and Robert came out to talk to him and they stood at the front of their houses, talking.

They heard the Police siren, the noise coming from the market place – they started to walk towards the main road but on the way a Police vehicle drove into the village, with its siren on – soon afterwards the CID Police vehicle drove in – the Police called the village elders and youths to gather – he told them many youths had gone out fishing or for sport – the Police just selected Kenny Koget, Edwin Koget, Sylvester Dadu and Moses Dadu and told them they had to go the Police Station – he (the witness) asked Robert Koget to go with them, which he did – he was surprised when Robert did not return that day.

In the following days he made several checks at Jomba Police Station and with the CID office as he was concerned that the accused were being unlawfully detained without charge.

In cross-examination he stated that he did not see the fight at the market, which had occurred before he was in the vicinity of the market – it was put to him that his evidence about meeting Melchior on the way to the market at 1.00 pm was false, and his story of seeing the accused at their houses was false as all other evidence was that the fight occurred in the morning – he rejected the assertion that his evidence was false. 

Did the fourth or fifth accused kill the deceased?
	
11.	Having weighed the competing evidence and the submissions of counsel I find that the State has proven beyond reasonable doubt that the fourth and fifth accused directly caused the death of the deceased by stabbing him, for the following reasons:
(a)	The identification evidence of the State eyewitnesses was of high quality.

12.	Two State witnesses, Melchior Nabur and Adolphia Pakul, identified Moses Dadu and Sylvester Dadu as being the persons who stabbed the deceased. State witness Solastica Keinam did not specify which of the accused stabbed the deceased but said it was one of the five. David Wanga said he saw Sylvester Dadu stab the deceased. All those State witnesses gave credible evidence. Their demeanour was sound. 

13.	I have applied 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.  Having been reminded by defence counsel Mrs Meten to do so, 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. 

14.	I have assessed the four State witnesses who gave identification evidence as being honest witnesses. I acknowledge the risk that they were mistaken about who they saw. The court must be satisfied that a 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.
	
15.	Having applied those principles, I uphold Mr Popeu’s submission that the identification evidence was of high quality for the following reasons:

•	For State witness, Melchior Nabur, it was a case of recognition, not just identification, of close relatives; he knows them individually. His evidence was direct and to the point: he saw Moses Dadu and Sylvester Dadu stab the deceased. His evidence was of very high probabtive value.

•	The evidence of Adolphia Pakul corroborated that of Melchior Nabur. 

•	None of the State witnesses was shown to have any reason to give false evidence. The fact that they are related to the deceased is not a reason to reject their evidence. 

•	Each identification witness had more than a fleeting glance at those who stabbed the deceased.  

•	Though it was a traumatic and dramatic incident, none of the identification witnesses was being chased by the group that was chasing the deceased. They were in a position to observe what was happening, while not being under attack themselves.

•	The identification witnesses had a clear line of sight, and the incident happened mid-morning in fine weather (there was no evidence otherwise and it was not put to the witnesses that their viewing of the incident was impaired due to prevailing conditions).

•	The fact that David Wanga only saw Sylvester Dadu stab the deceased, and not Moses Dadu, is inconsequential. Such differences in evidence are understandable as this was a traumatic and dramatic event, witnessed by a number of people who, though in the vicinity of the stabbing, would have viewed it from different angles.  

(b)	The alibi evidence of the fourth and fifth accused was unconvincing.

16.	Moses Dadu and Sylvester Dadu presented an alibi: they were at their house, 200 metres from the market, at the time of the stabbing, where there was a family gathering to discuss roofing iron; they did not go to the market that day and they were not involved in any fight or chase or stabbing of the deceased. They gave sworn evidence to support that alibi. Evidence of other defence witnesses, Rebecca Dadu (their sister) and Martin Belis (their uncle), supported their alibi.

17.	In considering the alibi I have applied the principles emerging from the leading case John Jaminan v The State (No 2) [1983] PNGLR 318, in particular:

•	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 innocence.

•	However, in practical terms, the accused must lead evidence and it must be sufficiently convincing to create a reasonable doubt in the mind of the judge.

•	How strong or convincing the alibi evidence must be, depends on the evidence of the State 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.

18.	I have applied those principles and decided to reject the alibi for the following reasons:

•	No notice of alibi was given to the State, contrary to Division 4.2 of the Criminal Practice Rules. This is not by itself a reason for rejecting the alibi, but the failure to comply with this important requirement gives rise to the inference that the alibi was a recent invention. 

•	The evidence of Moses Dadu and Sylvester Dadu was not credible. Their demeanour was poor. Their evidence of being at their house discussing roofing iron while people ran down from the market shouting about a fight, and remaining at their house while this was happening, was very difficult to believe.

•	Rebecca Dadu was a very unconvincing witness. She was unable to answer simple questions, such as ‘what time did the Police arrive?’ during cross-examination. She was overly nervous and appeared to be lying. 

•	The evidence of Martin Belis was not credible. He was adamant that the fight at the market occurred at 1.00 pm. He was the first witness for either the State or the defence to say that the incident occurred in the afternoon. His evidence of the time of the fight and meeting and greeting Melchior Nabur on the road, before the stabbing, was not put to Melchior Nabur or any of the other State witnesses (who would have been expected to see him, if he was in fact there). This was a breach of the rule in Browne v Dunn (1893) 6 R 67 (HL), a rule of procedural fairness that applies in all criminal trials: the central planks of the defence case must be put to the State witnesses. Breach of the rule gives rise to the inference that the story told by the defence witness is a concoction (Kutau v The State (2007) SC927). That is a proper assessment of the evidence of this witness. It was a concoction. The demeanour of this witness was poor. He appeared to be lying.  

(c)	The medical evidence supported the State’s case

19.	Dr Gawi’s post-mortem report and the doctor’s oral testimony revealed that the deceased suffered deep wounds with a sharp, penetrating object to the axilla (armpit) and right posterior chest, one of which led to the right pneumothorax, which was the cause of death. This evidence was consistent with the eyewitness accounts, given by State witnesses Melchior Nabur, Adolphia Pakul and Solastica Keinam, of the deceased being stabbed twice, in the back and under the armpit.  
(d)	The absence of a motive is inconsequential 

20.	Defence counsel Mrs Meten emphasised that the State did not establish any motive for the deceased being chased and stabbed and could not prove that any of the accused had any grievance against the deceased that would make them want to do what they are alleged to have done. That is correct: no motive has been established. There were suggestions that the fight was caused by a dispute over land or tensions arising amongst local people due to “outsiders” from Bogia and other places settling on customary land in the North Coast Road area. This evidence was speculative and the motive for the attack on the deceased remains unknown. 

21.	The absence of proof of motive is inconsequential. Evidence of the presence or absence of motive, means, opportunity, previous attempts, threats or a propensity on the part of an accused to do the act that he is charged with, is admissible, as tending to prove guilt (The State v John Buku Kailomo (2007) N4997). However the presence of a motive ought not be elevated to the status of an element of a homicide offence. The Criminal Code creates statutory offences, the elements of which are prescribed by the Code itself. It ought not be interpreted in a way that imposes on the prosecution the obligation to prove things that are not elements of an offence (Kampangio v R [1969-70] PNGLR 218).

22.	The State is not required to establish a motive for commission of the offence of wilful murder or any other homicide offence for that matter. Proof of the elements of the offence is sufficient. 

Conclusion

23.	The State has proven beyond reasonable doubt that Moses Dadu and Sylvester Dadu directly killed the deceased. The first element of the offence of wilful murder is proven.  
2	WAS THE KILLING OF THE DECEASED UNLAWFUL?

24.	The fourth and fifth accused did not rely on any specific excusatory defence such as accident, compulsion, insanity, provocation or self-defence. Their killing of the deceased is therefore not authorised, justified or excused by law and is deemed by force of Section 289 (homicide) of the Criminal Code to have been unlawful. Section 289 states:

It is unlawful to kill a person unless the killing is authorised or justified or excused by law.

25.	The second element of wilful murder is proven beyond reasonable doubt.

3	DID THE FOURTH OR FIFTH ACCUSED INTEND TO CAUSE THE DEATH OF THE DECEASED?

26.	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, 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, The State v Sapik Tommy (2014) N5575).

27.	It is an accused’s state of mind at the time that he committed the act of killing that is critical. In assessing the state of mind at that time, evidence of his conduct (a) before, (b) at the time of, and (c) subsequent to, the act of killing, must be considered (Fei Stanley v The State (2006) SC1324, The State v Raphael Kuanande [1994] PNGLR 512). Here the evidence of the State, accepted by the Court, is that:

(b)	immediately before stabbing and killing the deceased, the fourth and fifth accused, armed and in company with others, chased the deceased and one member of the group threw an object at him, causing him to fall;

(c)	the fourth and fifth accused combined in inflicting two deep stab wounds on the deceased on vulnerable parts of his body as he lay in the ground, defenceless and outnumbered;

(d)	immediately after stabbing the deceased the fourth and fifth accused shouted that they had killed him and won.

28.	All of (a), (b) and (c) is consistent with an intention to kill. I find that the State has proven beyond reasonable doubt that the fourth and fifth accused intended to kill the deceased. 

4 	ARE THE FOURTH OR FIFTH ACCUSED GUILTY OF WILFUL MURDER OR ANY OTHER OFFENCE?

Yes, as it has been proven that they killed the deceased, unlawfully and with the intention of killing him. They are each found guilty of the offence of wilful murder. 

5 	ARE THE FIRST, SECOND OR THIRD ACCUSED GUILTY OF ANY OFFENCE?

29.	The criminal liability of the other accused must now be considered in the light of Section 7(1) of the Criminal Code:

	When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:—

(a)	every person who actually does the act or makes the omission that constitutes the offence; and
(b)	every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and
(c)	every person who aids another person in committing the offence; and
(d)	any person who counsels or procures any other person to commit the offence.

30.	I consider first the involvement of the third accused, Robert Koget. The first State witness, Melchior Nabur, did not name him as being in the group that chased the deceased. Other State witnesses gave evidence that put him in the group. Solastica Keinam stated that Robert Koget was the person who attacked her son, Godfried Beanir, with a knife in the market, before the group chased the deceased. I place the greatest weight on the evidence of Melchior Nabur, who is related to all accused. If Robert Koget was present, Melchior Nabur would have seen him in the chasing group with the others and would have identified him in his evidence. I find that the State has not proven that Robert Koget was in the group that chased the deceased.  It is unnecessary to conclude whether in fact he attacked Godfried Beanir. Robert Koget must be found not guilty.

31.	As for Kenny Koget and Edwin Koget I find, on the strength of the identification evidence of the four State eyewitnesses, in particular that of Melchior Nabur, that they were in the group that chased the deceased and that they were armed and behaving aggressively. 

32.	In making that finding I have considered their alibis. Kenny Koget’s is that he was at his house, 200 metres from the market, with his wife and three sisters-in-law. It is too difficult to believe that a major incident involving a fight, a chase and a death, and inevitably a significant commotion, could take place nearby without him hearing or knowing about it and just continuing with his quiet Sunday morning at the house. Furthermore there is no worthwhile evidence to support that version of events. The evidence of both Christina Pias (whose evidence was very vague and unconvincing) and Martin Belis (whose evidence has already been rejected) did not corroborate the accused’s evidence. His alibi is rejected.

33.	Edwin Koget said he was in the garden near his house on the mountain top 1.5 km from the market at the time of the incident. He was an unconvincing witness and his wife, Leola Edwin, was equally unconvincing.  His alibi is rejected.

34.	However, presence of an accused at a violent incident involving death, does not by itself result in the conclusion that the accused participated in the incident or commission of the crime (Rex Paliau v The State (2016) SC1537). Something extra must be proven: that by taking part in the armed chase of the deceased, the first and/or second accused aided or enabled the fourth and/or fifth accused to stab and kill the deceased. 
	
35.	If the standard of proof were on the balance of probabilities I would be inclined to the conclusion that this element of the offence (for these two accused) had been proven. However as the criminal standard of proof must be applied, I conclude that it has not beyond proven beyond reasonable doubt that either of them committed some specific act, such as throwing the object at the deceased to make him fall, or holding him down or disabling him after he fell or inciting the fourth and fifth accused to stab the deceased, such that they aided or enabled the fourth and/or fifth accused to stab and kill the deceased, and thereby commit the offence of wilful murder. Kenny Koget and Edwin Koget are found not guilty. 

VERDICTS

Verdicts for Kenny Koget, Edwin Koget, Robert Koget, Moses Dadu and Sylvester Dadu, having each been indicted on one count of wilful murder under Section 299(1)of the Criminal Code, are entered as follows:

1.	Kenny Koget: not guilty of wilful murder or any other offence;

2.	Edwin Koget: not guilty of wilful murder or any other offence;

3.	Robert Koget: not guilty of wilful murder or any other offence;

4.	Moses Dadu: guilty of wilful murder under Section 299(1) of the Criminal Code, as charged;

5.	Sylvester Dadu: guilty of wilful murder under Section 299(1) of the Criminal Code, as charged.

Verdicts accordingly,

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