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State v Sagalol [2018] PGNC 158; N7236 (23 April 2018)

N7236

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR N0. 1438 – 1447 OF 2017

THE STATE

V

JOSHUA SAGALOL
WILIE LOTE
WILFRED LOTE
JUSTIN LOBAU
TADIUS TOLEPUNA
DONLEY SALE
ANDREW AILAS
DAMASIUS KOSALKE
GORDON KANGERI

Palmalmal: Susame, AJ
2018: 9^th, 10^th, 11^th, 12^th, 17^th & 23^rd April

CRIMINAL LAW – Trial – Crime of wilful murder s 299 criminal code – Defence of self-defence s 269 –Factors to consider for availability of defence – Onus remains with the prosecution to show absence of defence – Alibi defence –Principles applicable – Identification evidence – Guiding principles applicable in assessment of evidence – The need for warning of dangers inherent in eye witness evidence – Wilful murder charge – Element of intention to kill essential element to prove – Onus of prove remains with prosecution – Alternative conviction available if intention not proved- s.539 (1).

Facts

The accused persons are all from Marmar village, Central Pomio, East New Britain Province. The deceased Francis Tangaliurea was suspected of practicing sorcery, committing rape causing deaths including the death of a small boy in the village. At about 4:00am on 17^th August 2017 a large group of men and young children converged at the dwelling house where the deceased lived with his family. They shouted insults and threw stones on the roof of the house waking up the family. The deceased opened the door armed with a bush knife to investigate. He then swung the bush knife cutting the hand of one of the accused who knocked on the door. The deceased and his family rushed out of the house when the deceased was pulled away from behind. He however freed himself and was chased by the assailants and caught a short distance from the house. He was assaulted with objects and weapons and left lying on the ground bleeding from the wounds he received. A stretcher was made and he was carried to Pomio Health Centre about a kilometer down the village. He was alive on arrival but died of shock caused by massive loss of blood at 8:00am on the same day.

Held:

1. Defence of self-defence provided in s 269 of the Criminal Code is unavailable. Facts do not support accused persons acted in self defence.
2. Evidence of identification of accuseds involvement is strong, has weight and convincing. Alibi defence weighed against the strength of evidence of identification by the prosecution made up and not convincing.
3. Evidence lacking from the Prosecution to prove element of intention to kill
4. Alternative conviction and guilty verdict entered for crime of murder
   

Cases cited:
Papua New Guinea Cases

R v Kaiwor Ba [1975] PNGLR 90
The State v Angela Colis Towavik [1981] PNGLR 140
R v Yambiwato [1967-1968] PNGLR 222
R v Paul Maren (1971) N615
John Jaminan v The State (No. 2) [1983] PNGLR 318.
The State v Lucas Soroken & Ors (2006) N3029
The State v. Marety Ame Gaidi (01/08/02)) N2256,
The State v Raphael Kuanande [1994] PNGLR
Goya v The State [1987] PNGLR 51.

Overseas Cases

Raymond Turnbull & Ors [1970] HCA 21; (1970) 126 C.L.R 321, 3 All ER 549

Counsel

Mr. Lukara Ragan, for the State
Mr. Andrew Tunuma, for the accuseds

JUDGMENT ON VERDICT

23^rd April, 2018

1. SUSAME, AJ: The eleven accused persons were initially charged with the wilful murder of Francis Tangaliurea under s 299 of the Criminal Code. All of them denied the charge.
   
2. In their defence 7 of the accused persons; Joshua Sagalol, Willie Lote, Justin Lobau, Donley Sale, Bently Kiren, Gordon Kangeri and Anzelem Mathias raised an alibi defence. Rest of the accused persons, Wilfred Lote, Tadius Tolepuna, Andrew Ailas and Damasius Kosalke raised the statutory defence of self-defence.
   
3. At the initial investigation stage 13 suspects were bought to police. (Refer to witness Vanessa Niel’s statements marked exhibits 19-21). Of the 13, eleven of them (the accused persons) were arrested and charged.
   
4. At the close of prosecution’s case and in upholding the defence, no case submission against accused persons Bently Kiren and Anzelem Mathias was dismissed. Trial then progressed with respect to rest of the accused persons.
   

LAW ON WILFUL MURDER

s299. Wilful murder.

(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.

ELEMENTS OF THE OFFENCE

1. Accused had an intention to kill a person
2. Accused manifested that intention by an overt act
3. A person was killed
   

EVIDENCE

5. States case rests on the following;
   
   1. Oral testimony of witness Elizabeth Tangaliurea.
   2. Oral testimony of witness Pontian Tangaliurea.
   3. Evidence tendered by consent are tabulated below.
      

6. At this juncture let me respond to the defence counsel’s argument asking the court to place less weight on the photographs taken of the injuries received by the deceased as being uncertified by the Crimes Officer Robert Tobung who took the photographs. Counsel also challenged the contents of the report by Registered Nursing Officer Gertrude Otto who attended to the victim prior to him being pronounced dead.
   
7. At the outset the challenge on those documentary evidence is without merit. These documents were tendered into evidence by consent of the defence and forms part of evidence for the prosecution. In the initial pre-trial review stage if defence perceived certain issues in regard to the photographs and the clinical report counsel should not have consented to them being tendered. When he consented to them being accepted as evidence by the court he was making his position clear that he would later raise no issues of contention on those evidence.
   
8. It is absurd for the defence to now come back challenging those evidence. Nonetheless I examined the photographs. Each of them actually bear the signature of the Crimes Officer who took the shots. He has also sworn an affidavit confirming or verifying he took the photographs as part of his trained responsibility. The photographs are no fake, they are genuine showing external injuries the deceased sustained. As regards the clinical report the contents of the report are self-explanatory and limited to that extent only. No additional information can be read into or added on it by the court or anyone for that matter.
   
9. For the defence evidence came from accused persons oral testimonies. Of the list of witnesses defence had intended to call for each of the accused person two witnesses attended proceedings. These are Wendy Joshua (the wife) for accused Joshua Sagalol and Francisca Sale (the mother) for accused Donley Sale.
   
10. Witness Salvanos Patongin for accused Justin Lobau was available to give evidence. However, Mr. Rangan raised an objection against the witness testifying for reason that this particular witness was present in the court room all throughout the trial when evidence was heard. Mr. Tunuma sought leave of court to verify the objection with the witness and others in the court room. On confirmation of the presence of the witness counsel decided against calling the witness.
    
11. It was however, open for the counsel to ask court to exercise discretion in allowing the witness to testify. There is no law prohibiting such a witness from giving evidence. Court may exercise discretion to allow the witness to give evidence but his evidence of course will be subject to comment and assessment as to its weight and credibility.
    
12. Other than that no other witnesses were readily available to give evidence for each of the accused persons.
    

DEFENCE RAISED

13. In their defence accused persons raised defence of self-defence and alibi defence. Defence of self -defence was raised by four accused persons; Wilfred Lote, Tadius Tolepuna, Andrew Alias and Damasius Kosalke. While alibi defence was raised by rest of the accused persons.
    

ISSUES

1. Whether 4 of the accused persons named acted in self-defence?
2. With respective to the other 5 names who raised alibi defence the issue is one of identification. Whether they were involved in the commission of the crime?
3. If each of them were positively identified as being involved the fundamental question is, whether all the nine accuseds wilfully intended to kill the deceased?
4. If not whether they can lawfully be convicted of an alternative charge?
   

FACTS ESTABLISHED BY EVIDENCE

14. The uncontested facts and established by evidence are these. Francis Tangaliurea (deceased) was a catechist with the Catholic Church. He is from the neighboring Pomio village but was living at his wife’s Marmar village about a kilometer up the hills from Pomio Village. For some time villagers from Marmar village suspected him for stalking females and causing deaths by practicing sorcery and committing other wrongs. It so happened a particular small boy died and was buried in the village. The deceased was held the prime suspect for the death.
    
15. At a gathering at the ‘haus Krai’(a small hut erected for mourning) on the evening between 16^th & 17^th August 2017 discussions were held concerning the death of the boy. In that gathering two boys who happened to see the deceased and the small boy (also deceased) earlier at an unspecified spot told their story. Following the discussions a large group of men and young boys numbering 20 or 30 converged at the deceased’s home at 4: 00am on 17 August 2017. Deceased and his family were asleep then.
    
16. The group threw stones on the roof and wall of the house shouting out insults and calling for the deceased to go out of the house. The deceased and his family woke up. Deceased got hold of a bush knife and opened the door of the bed room.
    
17. Photographs of the house taken during the investigations and seen during the court’s visit to the crime scene shows it is low set house built on the ground. The part used as the bed room is raised by post about 20 centimeters above the ground and is walled all around. There is a door (2^nd door) to that room. There is an extension in front adjoining the bed room. There are no fixed walls around that part of the building. To create an enclosure iron sheets were placed horizontally up to waist high on either sides, leaving an open space where you can look straight through to the other side. The extended front part of the building is on the ground and used as the kitchen area. There is another door (1^st door) fixed to gain entry to the area. So one would first enter through the door (1st door) into the kitchen area and therein enter the bed room door through another door (2nd door).
    
18. The deceased and the family were forced out of the house and whilst outside the deceased was chased and continuously assaulted with objects and weapons as he was lying on the ground 10 meters from the house between a tree and a coconut tree (refer to the sketch of re-make of the crime scene marked exhibit 7a and photographs marked 7a & b). He was left bleeding from the injuries and wounds he received.
    
19. Photographs in particular exhibit 7c show the injuries victim received on various parts of his body; large open cut wound on the right ankle, lacerations and swelling on forehead above the left eyebrow, wound on the left buttock wound on the left calf muscle, large open wound on the left ankle and wound on the right ankle covered with blood stained linen.
    
20. Objects and weapons were used in the assault and subsequent death of the victim are as follows:
    

An axe marked exhibit 7e
A crow bar marked exhibit 7f
Piece of 6x3 timber marked exhibit 7g
2 other pieces of timber marked exhibit 7h & i
5 branches of tree marked exhibit 7j
Top part of spear marked exhibit 7k
17 rocks and stones marked exhibit 7l

21. Although not included in the list of exhibits tendered into evidence a fishing spear and a bush knife were also used as stated by witness Pontian Tangaliurea and 4 accused persons Wilfred Lote, Tadius Tolepuna, Andrew Alias and Damasius Kosalke in their evidence.
    
22. A stretcher was made and deceased was carried to the Pomio Health Centre which is about a kilometer down the hills on the coast. He was alive on arrival but passed on at 8:00am that morning. According to the brief clinical report (Exhibit 6) of Getrude Otto a registered Nursing Officer who attended, the deceased died of shock due to massive loss of blood. The report does not state in detail the exact physical injuries received externally and internally.
    

ARGUMENTS

23. I have read and considered submissions filed. Much of Mr. Rangan’s submission centered on legal principles on alibi defence and identification (by citing relevant authorities) which court should adopt and apply. Needless to say there was no precise and clear argument from the learned counsel against availability of defence of self-defence. His other arguments were on evidentiary aspect of the case. Counsel argued it was safe to infer that in the meeting at the ‘haus krai’ it was resolved Francis had to be killed. That is evidenced by the words of encouragement uttered at the crime scene implying there was intention to kill and therefore court to return a guilty verdict on the charge of wilful murder or in the alternative return a guilty verdict for murder or manslaughter pursuant to section 539 of the Criminal Code.
    
24. For the defence apart from arguments on evidence Mr. Tunuma argued in respect of the defence of self defence four named accuseds acted in self-defence in protection of Damasius Kosalke who had been cut by the deceased and in protection of their own lives because there was an apprehension of being attacked by the deceased with the weapons he was armed with. They acted within the confines of the law and therefore their actions were lawful. Counsel argued the four accused persons did not have the pre-requisite intention to kill the deceased or did not intend to cause grievous bodily harm.
    
25. In respect of the other five accused persons who raised the alibi defence in total denial counsel’s argument was on the evidence. He asked the court to accept the alibi evidence as being unchallenged against the evidence adduced by the two State witnesses which contained discrepancies and inconsistencies.
    
26. First I will deal with the issue of defence of self – defence which was raised by the accused persons. This particular defence is provided in section 269 of the Criminal Code.
    

Section 269. Self –defence against unprovoked assault. Sub section (1) reads:

“When a person is unlawfully assaulted and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make an effectual defence against the assault, if the force used is not intended to cause and is not likely to cause, death or grievous bodily harm.
Subsection (2) If-

(a) the nature of the assault is such as to cause reasonable apprehension of death or

Grievous bodily harm; and

(b) the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous bodily harm,

it is lawful for him to use force to the assailant as is necessary for defence , even if it causes death or grievous bodily harm.

27. In giving effect to the defence it was held in R v Kaiwor Ba [1975] PNGLR 90 that:
    

“The person using force in self-defence is entitled to use any force which is reasonably necessary to preserve himself from death or grievous bodily harm if (1) the nature of the force is such as to cause reasonable apprehension of death or grievous bodily harm and (2) the person using the force by way of self defence believes on reasonable grounds that he cannot otherwise preserve the person defended from death or grievous bodily harm.”

28. The essence of the defence is that violence is presently being offered to the person who uses the force or some other person for which force is being used. In situations where “fear of death or grievous bodily harm on some future occasion” or “where a person is in fear of some future assault by another person defence of self defence does not become available (see The State v Angela Colis Towavik [1981] PNGLR 140 & R v Yambiwato [1967-1968]PNGLR 222).
    
29. When the defence is raised the burden does not shift to the accused person. It remains with the State to show the defence is absent (see R v Paul Maren (1971) N615).
    

EVIDENCE

30. Versions of facts of what happened at the victim’s house to the time deceased was assaulted and left lying on the ground by the two prosecution witnesses differ from that of the accused persons.
    
31. Let me set out the evidence.
    

Witness Elizabeth Tangaliurea

32. She is the wife of the victim. She gave an account of what she heard and did when she was woken up by noise of stones thrown on the roof. She heard noise by the side of the house and people calling her son to open the door. The son opened the door went out and sat down at the fire place. (Door witness referring to is the bed room and the fire place is inside the enclosed kitchen area.) Gordon (that is Gordon Kangeri the 10^th accused) told Pontian they wanted to see his father. Pontian replied his dad was asleep. Gordon told Pontian to go wake him up. Pontian sent in the grand child and woke up her husband. Her husband walked out of the bedroom and went and sat down at the fire place and started making fire. Gordon told him the people said that he has killed the little boy. Her husband replied everything they said is not true and the issue be discussed and settled with the leaders. They (meaning those others present) called out on top of him demanding him go out of the house.
    
33. Court’s assessment. Court was shown the exact location at the house Gordon and others stood. They stood on the western side less than a meter outside just by the bedroom door. Just above the bed room door was a round solar light bulb. The second similar light bulb was on the rafter immediately above the spot Gordon and others stood. Both lights were on and Gordon and others would be standing directly under the lights when Gordon was talking to Pontian. The lights illuminated the area inside and outside of the house spreading to the spot the deceased was assaulted and left lying on the ground. That is a distance of 10 meters from the house as indicated on the sketch tendered into evidence by consent and marked exhibit ‘7a’.
    
34. As her husband was about to sit down a stone hit the back of his head. Her husband then told all his family members to enter the room and close the door. The witness closed the door. Gordon then went and broke opened the front door (ie.1^st door into the kitchen area). He walked to the bed room and broke opened the door. Witness said they all stood on and her husband told them to stick together and not to leave him and remain inside or they might be killed. The people shouted calling her husband to go out. Witness said they were going to go out and her husband saw one of the boys holding a crow bar. Her husband got a bush knife and swung it at the boy cutting him on his hand. The witness told them village court was there to settle the matter but they would not listen to her. The witness carried her grandchild, held their little daughter and they went out of the door. Her husband held her blouse and followed them out. Her husband was pulled by the attackers from behind and he was chased to the spot where the coconut tree was. There they held him and assaulted and killed him.
    
35. Court accepts that at the point of time the husband was assaulted the witness had her back and did not want to see what was happening to her husband trembling with fear. She was therefore not able to identify who was involved in the assault and cutting of her husband. However, two of the accused persons she saw and identified were Gordon and Damasius Kosalke who had come and stood under the lights when Gordon was waking up Pontian to tell his father to go out. She agreed when questioned other names were provided by her son Pontian.
    
36. Witness Pontian Tangaliurea is the victim’s son. His story is similar to his mother’s story but in more detail. The witness also confirms it was Gordon who called out to him to wake up his father. He replied Gordon. He confirmed sending the little boy named Terence into the bed room to wake up his dad. Witness also confirms his dad opening the door and going to the fireplace. There Gordon told him he was being suspected of killing a little boy. His father stood up telling them the story is not true. They should wait till day break and settle the matter with the committees. When the father said that boys shouted at him. Witness said that was when Donley threw a stone and hit him on the back of his head. Donley would have shot the deceased from the eastern side of the house.
    
37. His father cried out and told them to go back inside the house. At that point Gordon and his brother Mainard broke opened the 1^st door (door into the kitchen). Then Mainard broke opened the bedroom door with a branch of a tree. When they broke the 2^nd door Andrew got a fishing gun and shot his dad with it. Damasius got a crowbar lifted it up and attempted to hit his father with it. To protect himself his father cut Damasius hand with the bush knife he was holding. Andrew told his mother to get out of the house and they will get in and see his dad. Witness stated then his mother went out of the house with his dad holding onto her blouse.
    
38. Witness stated outside of the house they pulled his dad from behind and started assaulting him. His father was chased to the spot children usually play (spot by the coconut tree measuring 10 meters from the house). There they continued to assault him. He said Joshua held his dad’s hand, twisted it and broke it. (No medical evidence to confirm hand was fractured). They cut him with a grass knife. Justin got a crowbar and shot his dad’s leg. Carl kicked him on his head with his boots. Witness stated at the time his dad was being assaulted he heard Wilfred saying they will clean the place up and Carl said to kill him.
    
39. Courts assessment of this part of the story. Witness and his dad were inside the kitchen area at the fire place. Gordon, Damasius & few others were on one side (western side) of the building standing directly under the lights. The father was responding to Gordon. Donley would have positioned himself on the eastern side.
    
40. Four accused persons Wilfred, Tadius, Andrew and Damasius relied on their own testimonies. Their account of what happened is generally similar. This is their story. Four of them were with the people in the community. They had no plans to walk down to Francis Tangaliurea’s (deceased) house. They went and to question him if it was true he had killed the small boy.
    
41. Damasius entered the house through the 1^st door went and knocked on the 2^nd door which is the bed room door. When Francis heard knock he opened it. He was already armed with a bush knife and an axe. Immediately, he swung the bush knife at Damasius cutting his left upper arm. Francis chased Damasius out of the house. The other three then searched for sticks to remove the knife and axe from Francis. Wilfred ran to the back of the house. Andrew followed him and got a piece of timber. Andrew returned to where Francis was and used the piece of Timber and hit his hand removing the knife. He got the knife and cut him with it. Tadius hit his hand with a stone and removed the axe from him. Wilfred then went back to the house and saw the son Pontian. Pontian told him here is the crow bar go and hit dad. Wilfred never broke his leg but removed the outer skin. Tadius got the axe and cut his buttocks once. Pontian again told Andrew to get the spear and spear his father with it. So Andrew got the spear and threw it at Francis but missed him. When this was going on there were a lot of people at the scene. They left Francis lying there and returned to their houses. All four accuseds stated no other persons including the other five accuseds who raised the alibi defence, accompanied them to Francis’ house that morning.
    
42. At the time Francis cut Damasius a lot of people had gathered around. They were also involved in assaulting the deceased. Stones were thrown at the house. All four accused persons denied having any intention to kill Francis but merely to take revenge and paralyze him so he won’t be able to walk around committing the wrongs he was suspected of doing in the community.
    
43. Evidence has established Francis Tangaliurea (deceased) had cut Damasius on his left upper arm with a bush knife. I have weighed and given some thought on the versions given by witnesses from both sides.
    
44. These are my observations. First of all court accepts evidence that the four had been at a meeting at the ‘haus krai’ with many others after the burial of the small boy who had passed on. Two boys told the gathering they had seen the deceased and the boy prior to their deaths at some spot in the bush. The boy looked abnormal. They held the deceased as the prime suspect and decided he was the one who killed the boy through sorcery. The four went down ahead to Francis house while many others followed. The four stated they went to ask if it was true he had killed the boy.
    
45. Is that really so? There is abundance of evidence that well over 20 to 30 people converged at Francis’ house. There was a lot of noise of people shouting and stones being thrown on the roof of the house. The disturbing noise woke up Francis and his family as well as the village people (including the few witnesses who provided evidence for the State) who came out to observe. From such evidence it can safely be inferred the four including others who may have been or may not have been at the gathering at the haus krai had gone down not for peaceful settlement of the allegation but to interrogate and attack Francis. The four accused expressly gave evidence which the court accepts they had gone down to take revenge and paralyze him with no intention of murdering him.
    
46. Obviously, the sound of the crowd around the house and noise of the stones thrown at the house signaled danger and brought fear to Francis and his family. Not only that but Francis was that moment being questioned and blamed for killing the small boy. Court accepts as a fact when Francis refused to go out of the house Gordon and his brother Mainard broke into the house. They went in and broke open the bed room door to forcefully take Francis out. It was not Damasius who entered the house. When Francis came out he sighted Damasius standing by the side close to the bed room door attempting to hit him with a crow bar. He swung the bush knife and cut his arm. I consider that Francis would have then acted in self-defence when faced with a threatened attack or assault.
    
47. Furthermore, it has been established by evidence after Damasius was cut the deceased went out of the house holding onto his wife from behind. While outside the house he was pulled from behind. He was assaulted and chased by his attackers. Francis was unarmed when he was assaulted.
    
48. Court has however heard from the four accused persons when Francis cut Damasius and chased him out of the house. Francis was then armed with an axe and a bush-knife. The four accused used piece of timber, sticks, stones and hit Francis and he dropped the axe and knife. They picked up the axe and bush knife and cut him. They used a crow bar and fishing gun at him. Court also heard Pontian (deceased’s son) also encouraged them to assault his father using a crow bar and a fishing spear. Others also joined in and continued to assault him and left him lying on the ground and left for the house.
    
49. What amazes me and which is beyond belief is how a son could possibly encourage his father’s attackers to use a crow bar and a fishing gun to continue the attack on his father under his watchful eyes under normal circumstance? What about the bondage of love and affection they would have of each other? Was there any animosity and hatred the son had towards his dad for him to do such a thing? It is beyond imagination. I have difficulty accepting that part of the evidence from the defence.
    
50. Going by the defence version of facts (which I am not convinced) in my respectful judgement defence of self-defence still cannot stand. My reason is this. The mob including the four accused had converged at the house with a pre-requisite intention of taking revenge and paralyzing Francis to stop him from moving around in the community doing illegal activities he was accused of doing.
    
51. Francis was no longer putting up a fight or threatening to cut any one. He had been dis-armed. Why pick up the same very weapons and cut him again? Yet again he was continuously beaten up even with objects like stones, sticks, and a crow bar when he was helpless and lying on the ground bleeding to the point of death. In my respective view their actions were unlawful and unjustified. The attackers including the four accused were really taking their revenge on him rather than acting in self-defence. Their actions were not within the confines of the law and unlawful. I am not persuaded by the defence argument. Evidence heard do not establish the three scenarios provided in s 269 (1) (2) (a) (b). As such defence of self- defence is lacking and is not available to the four accuseds.
    

ALIBI DEFENCE

52. Five of the remaining accuseds named pleaded this particular defence in total denial of their involvement in the commission of the alleged crime.
    
53. In raising this defence the accused attempts to prove by evidence he or she was in some other place at the time the alleged offence was committed. Alibi defence is a complete denial by an accused of the commission of the alleged crime. Associated issue that often arises with this defence is the issue of identification of the person alleged to have committed the crime.
54. Defence counsel had complied with the procedural requirement in O 4 R 4 of the Criminal Practice Rules and given adequate notice to the prosecution of its intention to adduce alibi evidence prior to trial commencing. The rule exists in our criminal practice and procedure for fairness, that prosecution is not caught by ambush and is given an opportunity to adduce evidence to negate the alibi. Surprisingly, Mr. Ragan for the prosecution opted not to adduce any additional evidence to disprove the alibi.
    
55. Guiding principles on how the courts should treat evidence of alibi against the prosecution’s evidence were laid down in the often cited case of John Jaminan v The State (No. 2) [1983] PNGLR 318. His Honour Cannings J in, The State v Lucas Soroken & Ors (2006) N3029 simplified the principles in this manner;
    

a. “If an alibi is raised, the burden of proof does not shift from the prosecution. The onus is never on the accused to prove an alibi or prove innocence.

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

c. How strong or convincing the alibi evidence must be, depends on the strength 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.

d. 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.

e. An alibi is not one of the excusatory defences such as self-defence, provocation or mistake, which concede the presence of the accused and his or her involvement in a series of events that led to the final state of affairs and are like a confession and avoidance. An alibi entails a complete negation and puts every matter in issue.

f. 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.

g. An alibi that is determined to be false may, depending on the circumstances, amount to corroboration of the complainant's evidence.

h. The court should consider whether the alibi evidence contains convincing detail or whether it is vague and short on detail.

i. The court should also consider the demeanour of the alibi witnesses and whether there are any inconsistencies in their evidence.”

LAW ON IDENTIFICATION

56. Principles of law guiding the courts in assessing evidence of identification are well settled in this jurisdiction. These guiding principles were laid down by the House of the Lord in Raymond Turnbull & Ors [1970] HCA 21; (1970) 126 C.L.R 321, 3 All ER 549. They have continuously been applied by the courts in Papua New Guinea.
    
57. It is important the trial judge or magistrate must be mindful and warn himself that there are dangers inherent in eye-witness identification evidence. This is because there have been experiences over the years sometimes completely honest evidence have shown to be wrong and innocent people convicted. I quote the relevant passage of the judgment in John Beng v The State (supra) and this is what the court stated;
    

a. “Whenever the case against an accused person depends wholly or substantially on the correctness of one or more identifications of the accused which the defence allege to be mistaken, the trial judge should warn the jury of the special need for caution before convicting in reliance on the correctness of the identification. He should make some reference to the possibility that a mistaken witness could be a convincing one and that a number of such witnesses could all be mistaken. Provided such a warning is given, no particular form of words need be used.

b. Further, the trial judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made....

c. Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made. All these matters go to the quality of the identification evidence. When the quality is good, the jury can be safely left to assess the value of the identifying evidence even though there is no other evidence to support: Provided always, however, that an adequate warning has been given about the special need for caution.

d. When the quality of the identifying evidence is poor — i.e. a fleeting glance or a longer observation made in difficult conditions — the judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification.

e. The trial judge should identify to the jury the evidence which he adjudges is capable of supporting the evidence of identification. If there is any evidence or circumstances which the jury might think was supporting when it did not have this quality, the judge should say so.”

58. In The State v. Marety Ame Gaidi at page 5 to 6 of the judgment His Honor Kandakasi J reiterated the guiding principles in these terms:
    

a. "1. It has been long recognized that, there are dangers inherent in eye-witness identification evidence;

b. A trial judge should warn the jury in the case of a jury trial system or himself as in our case, of the special need for caution before convicting in reliance on the correctness of the identification because for example:

1. a convincing witness may be mistaken; or

2. a number of witnesses could be mistaken;

c. Provided such a warning is given, no particular form of word need be used;

d. There should be a specific direction to closely examine the circumstances in which the identification was made;

e. Identification by recognition may be reliable but one needs to be cautious because there can be mistakes in trying to identify close relatives and friends;

f. All these go to the quality of evidence – if the quality of evidence is good the identification may be reliable. If however, the quality of evidence is bad, the identification will be bad;

g. The quality of the evidence may be poor if there is a fleeting glance or a longer observation made in poor conditions; and

h. There should be an acquittal if the quality of the evidence is

bad."
59. It is trite law that the onus of proving guilt always rests with the State. The law places no obligation on an accused person to prove his innocence.

DEFENCE CASE ON THE ALIBI

60. Prior to the assessment and weighing of evidence I am reminded of the principles of law on alibi evidence earlier in the judgment.

61. I adopt and apply them. Firstly, accused does not bear the onus of proving his alibi defence or his innocence. The burden of proof of guilt remains with prosecution all throughout. Secondly, if the evidence adduced by the prosecution is strong then 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. Thirdly, “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.” (The State v Lucas Soroken & Ors (supra).

EVIDENCE OF IDENTIFICATION BY THE PROSECUTION

62. I adopt and apply the principles of law discussed in the judgment. In the assessment of identification evidence, I am mindful and warn myself of dangers inherent in eye-witness identification evidence. This is because there have been experiences over the years sometimes completely honest evidence have shown to be wrong and innocent people convicted.

63. What is the strength of evidence of identification adduced by the prosecution? Elizabeth (1^st State witness) stated it was Gordon Kangeri who came and woke up his son Pontian to wake up his dad. She came out of the room and sat at the western side of the kitchen just under the lights. She saw Gordon. She also identified Damasius as the one her husband cut just outside the bedroom door. She also said Donley was the one who threw the stone and hit her husband on the back of his head. While outside at the material time her husband was chased and being assaulted she had her back and did not observe what was happening and who was assaulting her husband. She turned around and saw her husband on the ground bleeding when the attackers had stopped assaulting him and left. She stated her son who watched provided names of the other persons involved.

64. Her son Pontian also gave evidence it was Gordon who woke him up. He recognized his voice. He came out of the room and Gordon was talking to him. Gordon and his brother Mainard broke open the kitchen door and entered. Then they broke open the bed room door. When the father had is back talking to the persons on the western side of the house Pontian said Donley threw a stone hitting him on the back of his head. He stated it was Damasius who cut his dad with the bush knife on his hand by the house.

65. When further questioned during examination in chief Pontian mentioned the names of other persons involved including accuseds Joshua Sagalolo, Willie Lote and Justin Lobau. They were seen at the material time his dad was being assaulted on the spot where the children play. He said many others had gathered around and were also involved in assaulting his dad. He was observing at a very close distance of 6 to 7 metres. He said Joshua Sagalol held his dad’s hand and twisted it (Though it has not been proven by medical evidence of the fracture). Justin Lobau shot his dad’s leg with a crow bar. (Question 96 & answer, at pg.57 of note book).

66. Are the witnesses mistaken in the identification of the five accused persons? To answer the question assessment and weighing of alibi evidence against the evidence of identification adduced by the prosecution is necessary.

67. The law also requires that an 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.

68. All the five accused gave sworn statements in support of the alibi defence. Accused Joshua Sagalol and Donley Sale were the only ones who called a single witness each in support of the alibi. The other three did not. I do not intend to set out the stories each of the accused persons told the court. Their alibi story is simple and easy to follow.

69. Their evidence is that at the material time incident happened they had gone to bed in their respective homes as early as 7:00am or 8:00am. They never woke up and left their homes at any time in the night until they woke up as early as 5.45 am and 7 am or 8am the morning of 17^th August 2017.

70. I took note of the discrepancies identified by Mr. Ragan in their oral testimonies and their explanations in their respective records of interview. I noted the particular questions and answers (Q.14 & ans. accused Joshua Lobau R.O.I, Q.8 & ans. Accused Willie Lote R.O.I, Q.13 & ans. Accused Justin Lobau R.O.I and Q.13 & Ans. Accused Donley Sale R.O.I)

71. Indeed the times given in their oral evidence vary from the times given to police in the record of interview. Surprisingly, their evidence is almost the same. Every one of them had gone to bed about the same time and waking up at about the same time the next day.

72. I have watched the demeanor of the accused persons and the two witnesses who gave evidence. Witness Wendy is Joshua Sagalol’s wife and witness Florence is Donley Sale’s mother. The witnesses were very careful not to make mistake when answering questions under cross-examination. They maintained the exact times when they went to bed and woke up given by the accused persons. They even told the court when questioned the two particular accuseds never woke up at any time in the night and gone out of the house.

73. How certain were they? The witnesses would have been fast asleep. How would they possibly know with certainty if the two particular accuseds had left the house even if they responded to nature’s call?

74. For the other three accuseds no other evidence was adduced to support their alibi story. Nonetheless, their story was same as the other two accused persons.
How convincing is that alibi story? Weighing that story against over all evidence adduced by the prosecution the alibi is not convincing. Evidence of identification of the involvement of the accuseds is strong, has weight and is far more convincing.

75. The incident started at 4:00am until 6:00am when the place had cleared up. The place would have obviously still be dark between 4:00am and 5:00am but getting clearer. There were many others involved in the assault of late Francis apart from the accused persons. The places immediately around the house was illuminated by the two solar light bulbs fixed on the rafter on the western side of the house and with another fixed right at the doorway into the bedroom. Elizabeth and Pontian clearly saw Donley threw a stone and hit the deceased on the back of his head.

76. The Spot where late Francis was assaulted and he fell down on the ground and continued to be assaulted (distance measuring 10 metres from the house) was within the illuminated area. The deceased was being assaulted under the watchful eyes of not only his son Pontian but many other parishioners and members of the community some of whom were never involved but merely onlookers. They knew who was involved and refrained from providing names to police for whatever reasons but talk amongst themselves and do nothing about the serious crime that was committed right under their nose.

77. This is not a case where Elizabeth and Pontian had a “fleeting glance” of the identity of the persons involved. The attack of the deceased took almost two hours at the single location in the village. The witnesses live in the community and accused persons are known to them. Gordon and Damasius are close family relatives of Elizabeth and Pontian who also hail from Marmar village.

78. The two witnesses saw all five accused persons including the other four who raised the defence of self-defence involved in the assault of the late Francis Tangaliurea. They were never mistaken to identify them including others who they mentioned in their respective testimonies.

ELEMENT OF INTENTION TO KILL

79. Court has found that the accused persons were involved in the death of the deceased. The other most important element requires proving is the mental element of intention. Hence, the question. Did the accused persons have the pre-requisite intention of killing the deceased? Did they plan to kill the deceased at the gathering at the haus krai? Thereafter, set out on the course to his house to execute their intention.

80. In The State v Raphael Kuanande [1994] PNGLR 512 at page 514, Injia AJ (as he then was) said:

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

81. I must again remind myself prosecution maintains the onus of proving beyond all reasonable doubt by evidence either direct or circumstantial there was intention to kill. If it fails accuseds are entitled to the benefit of doubt.

82. Examination of evidence in particular evidence of accuseds, Wilfred Lote, Tadius Tolepuna, Andrew Alias and Damasius Kosalke and Records of interview of accuseds reveals this. Marmar community had all along suspected late Francis Tangaliurea for practicing sorcery. They claimed he was a convicted rapist, a murderer and committed other wrongs in the community. Few occasions he had evaded meetings he was asked to attend to resolve the allegations.

83. Whilst these unresolved allegations were hanging over his head a small boy died and was buried. Late Francis Tangaliurea was believed to have caused his death through sorcery. At the gathering at the haus krai on the evening between 16^th August and 17^th August 2017 discussions were held concerning the death. Two boys told the gathering they had seen the deceased and the boy prior to their deaths at some spot in the bush. The boy was sweating and looked abnormal. The deceased was held as the prime suspect. That was the reason the group of persons numbering over 20 to 30 people converged at his house at 4:00am on 17^th August 2017.

84. Examination of evidence at the scene of the crime. Other five witnesses for the prosecution whose statements were tendered into evidence stated there was a large group around the house. The group were armed with weapons. They were throwing stones at Francis’ house and calling out for Francis to exit from the house.

85. Witness Elizabeth told court Gordon called Pontian to wake up his dad. When his dad woke up and came out from the bed room to the kitchen area Gordon told him he has been accused by the people for killing the small boy and asked if it was true. Witness was not able to tell court any other statements she heard from the crowd or the accused persons.

86. Pontian said he heard words kai kai kan uttered and Gordon came and called him to wake up his dad. Gordon told him his dad was suspected of killing a small boy. Witness stated (page 46 of notebook) as his dad was being assaulted he heard Wilfred saying they will clean the place up and Carl saying to kill him. Carl said that many times (Q 25 & answer pg. 18 of note book). At the time stones were thrown on the roof he never heard anyone else calling out to kill his dad. (Question 40 & answer pg. 48 of notebook). He also heard Gordon say his father was the one who kill the boy. He swore saying “yu kaikai kan blo mama blo yu.”(Question 64 & answer, pg. 52 of notebook.)

87. Strictly speaking Carl would be an accomplice if he was allegedly involved. Though, he was never arrested and charged. The alleged statement of him saying ‘kill him’ has not been verified, no other witness had testified of hearing such words had been uttered. Hence, I place less weighed on that statement.
88. Court’s finding on the issue. When Francis cut Damasius with a bush knife in self-defence, when confronted with immediate danger of being attacked the accused persons responded and attacked him. They assaulted him with offensive weapons. He was left lying on the ground with pain and bleeding from the wounds/cuts he received. He was still alive then and carried on foot on a stretcher that was made that morning to Pomio Health Centre which was about a kilometer down on the coast. On arrival he was still alive. But due to lack of qualified medical officers and equipment for urgent medical intervention to save his life Francis was pronounced death at 8:00am. He died of shock due to massive loss of blood.

89. Evidence is lacking from the prosecution as proof all the nine accused persons including the two whose case had been dismissed were at the haus krai and involved in the discussions, except for the four who said they were there. Evidence is also lacking to establish what was actually said or expressly stated by any interested individual or any of the accused persons.

90. What is derived from the defence evidence and which court accepts is that the group had not only gone to confirm if Francis had killed the boy. They had gone to actually attack and paralyze him to stop him from walking around committing any more wrong in the community.

91. At the crime scene there is no direct evidence that accused persons had gone to the house with the pre-requisite intention to kill Francis. Even from the evidence examined which is not convincing in my assessment it cannot be safely inferred with certain degree of confidence that accused persons had gone to the house with an intention to kill Francis. Hence, they are entitled to the benefit of doubt.

92. I consider s 539 (1) of the Code. The provision reads:

“On an indictment charging a person with the crime of wilful murder, he may be convicted of the crime of murder or of the crime of manslaughter but not, except as expressly provided in this Code, of any other offence other than that with which he is charged.”

93. I quote a passage on page 144 of Criminal Law and Practice Papua New Guinea, 3rd Edition, in the discussion of s. 8 of the Code which is relevant, “to justify a conviction of wilful murder pursuant to s 8, there must be proof beyond doubt that the intention to kill was the common purpose which was shared by all, or that it was a probable consequence of their common purpose. Where the common purpose is to attack a person with the intention merely of causing grievous bodily harm, but death results, the proper conviction is murder, even though one of the assailants may form the intention to actually kill.” The learned authors re-stated what was held in The Supreme Court in Goya v The State [1987] PNGLR 51. I adopt and apply the principle to this case.

SUMMARY OF DECISION

1. Whether defence of self-defence is available to accuseds, Wilfred Lote, Tadius Tolepuna, Andrew Alias and Damasius Kosalke? Answer: No.
2. Whether Accused person Joshua Sagalol, Willie Lote, Justin Lobau, Tadius Lobau & Donley Sale were involved in the commission of the crime? Answer: Yes.
3. Whether all the accused persons had the pre-requisite intention to kill the deceased? Answer: No.
4. Whether they can be lawfully convicted for an alternative charge? Answer: Yes.
   

94. Alternatively, Court enters conviction of murder and according returns a guilty verdict against the accused persons.

95. Judgment on sentence is reserved. These orders are issued:

1. Prisoners bail is revoked and they be kept in custody at Kerevat jail pending their sentence.
2. Directional order is issued to counsels to file submissions on sentence.
3. Further directional order for means assessment and pre-sentence reports to be filed as requested by the counsel for the prisoners.
4. Case to return to court for administering of allocutus and hearing of submissions at Kokopo National Court on a date to be fixed in the month of June 2018 on consultation with the Criminal Clerk and the Counsels.
   

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