N7524

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 627 OF 2016

THE STATE

V

WESLEY YANDUO

Kimbe: Miviri AJ
2018	   : 18 & 22 October

CRIMINAL LAW – PRACTICE AND PROCEDURE – Wilful Murder S 299 CCA – Trial – death proved – intent to kill proved – Identification – deceased cut with bush knife – right wrist – head and scalp – severed brain matter – massive bleeding – unarmed innocent 14 year old boy deceased – circumstances of identification good – identification not in difficult circumstances – known identity of neighbour – close quarters –alibi unsupported false – recent effect of – corroboration of – accused identified beyond doubt – guilty.
CRIMINAL LAW – PRACTICE AND PROCEDURE – Wilful Murder S 299 CCA – Trial – father of accused – witness in support of alibi – sitted in the court hearing of State and defence case – objection by State – high probability of influence in view – evidence tainted by hearing evidence in court – Section 59 Constitution Justice done seen to be done – reasonable man test – high probability of biasness – high probability of influence exerted sitted in court althrough prosecution defence case combined – objection upheld – witness disallowed – Section 37 Constitution Protection of law according to Law not without.
Facts
Accused chased and cut victim a 14 year old boy on the wrist he fell to the ground where accused cut him on the head causing massive bleeding killing him.  

Held
Killing undisputed
Intention to kill
Identification of accused
Beyond doubt
Accused killed deceased
Guilty wilful murder

Cases Cited: 
Nilkare v Ombudsman Commission of Papua New Guinea [1999] PNGLR 333 Rooney (No 2), Public Prosecutor v [1979] PNGLR 448 
State v Mai and Avi, [1988-89] PNGLR 56 
The State v Angosiwen [2004] PNGLR 432 
The State v Balbal [2007] PGSC 16; SC860 
The State v Bonu and Bonu [1997] PGSC 11; SC528 
The State v Boateng [1990] PGSC 7; [1990] PNGLR 342 
The State v Bulen, [1990] PNGLR 43 
The State v Davinga [1995] PNGLR 263 
The State v John Beng [1977] PNGLR 115 
The State v John Jaminan [1983] PNGLR 318 
The State v Kandakason [1998] PGSC 20; SC558 
The State v Ono [2002] PGSC 10; SC698 
The State v Tubol, [1994] PNGLR 378 
The State v Veisame [2004] PGNC 132; N2648 
Waranaka v Dusava [2009] PGSC 11; SC980 

 Counsel:

R. Galama, for the State
B. Takua, for the Defendant
		
VERDICT
22nd October, 2018 

1.	MIVIRI AJ: This is the verdict of the accused charged with Wilful Murder. He cut the victim on the wrist felling him then cutting him on head causing him to bleed to his death.

Charge

2.	The charge is contrary to Section 299 (1) of the Criminal Code Act Wilful Murder, Accused intended to kill Naegel John Las and did kill him. It reads as follows ; 

(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.

Background
 
3.	On the 6th December, 2015 Naegel John Las died after being cut on the wrist with a bush knife when he lifted his hand to defend himself from Wesley Yanduo who swang it at his head. He fell to the ground and Wesley Yanduo continued and cut him on his head through the scalp involving the brain matter. He bled to his death as a result. He intended to kill him at the time he swung the bush knife and killed him.

Undisputed evidence

4.	The following evidence were undisputed and admitted as exhibits in the matter. Exhibit S1A the medical certificate of death dated the 18th January, 2016 signed by Doctor William Toua Medical Registrar of the Kimbe General Hospital detailed Naegel Las was 14 years old Male originally from Sepik resided at Galai 16. He was viewed on the 23rd December, 2015. He had severed brain matter, hypovolaemic shock and death. There were two deep larceration on skull with linear fracture.

5.	Exhibit S1B was the Post Mortem Report of Naegel John Las Male 14 years old. It set the time of death as 6th December, 2015 at Galai 1 Section 16 Block number 1560. The cause of death was hypovolaemic shock. There was severe traumatic penetrating head injury. The summary was the deceased received knife wounds to his head and face and also on his left hand causing death (as adapted from police report). Notably the evidence of injuries was deep larceration x2, to the skull, extending through the scalp to the skull and involving the brain matter (1) At Sagittal Sinus 13 cmX 3cm deep (2) Temporal region 8cm X 3cm deep also severed right wrist hanging by the skin. 

6.	The head and neck deep lacerations X2, to the skull, extending through the scalp to the skull and involving the brain matter At Sagittal Sinus 13 cmX 3cm deep (2) Temporal region 8cm X 3cm deep.

7.	The eventual cause of death could be due Hypovolaemic shock leading to death secondary to deep traumatic penetrating skull injury with severed right wrist.

Facts established beyond all doubt

8.	This evidence established beyond all reasonable doubt that Naegel John Las a 14 year old boy died from being cut on the head and the right wrist which was severed. The extent of this injuries showed that whoever inflicted the injuries did not intend that he survive from it. The head with the brain a major organ of the body and survival was minimal to none when injury was inflicted in this way to it.

9.	It was also established beyond all reasonable doubt that earlier there had been a death of a youth Issac Vitalis who was assaulted by youths from section 16. His dead body was carried there to the gathering place on the end of section 13 near section 12. Where the intention was to get compensation from section 16 youth. There was dispute over it that lead to a fight involving those who were from section 13 and 16. They were throwing stones the deceased with the witnesses were blocked from the back so ran into the block of one Erick Ben Mando intending to escape the fighting that had erupted. They were from Section 16 and he and those who were with him were blocked from escaping and he succumbed to a bush knife attack upon him. 

Issue

10.	The question for the Court was who was this person that caused these injuries upon the victim deceased from which he died?

Law on Identification

11.	This raises what the law is on identification. Which is set out in John Beng v The State [1977] PNGLR 115 (2 May 1977):

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

What is the evidence on identification called by the State?

Evidence

12.	To satisfy the State has the sworn evidences of four witnesses Jackson Imialas, Brody Takura, Douglas Simon and Elizabeth Klabasa. 

13.	Jackson Imialas gave sworn evidence he was from East Sepik resident at Buluma SBLC. On the 6th December, 2016 I was at the block Galai 1 Section 16. There was a fight in the Community and Issac Vitalis was beaten by our boys he came to the hospital and died.  We heard that they would bring the body to section 16 and ask for compensation. We left our block came to a hill waiting for them and watched them brought the body and threw stones on the house cut the betel nut palms. We stood on hill but left family and came down. We were blocked from our back by other boys we had no way so we went to other side block belonging to Harry Ben Mando. We were Naegel, Brody, and I running together in that order we jumped over palm fronds and went into a clearing for new garden it was dry season and they cleared it. And I heard Wesley Yanduo calling out “banisim banisim” I told Brody to go and hide. I sat down and was looking on when Wesley called out, banisim em banisim em, yupela ol man bilong kilim ol man, condone him off condone him off you are people who kill people, Wesley lifted the knife and he was a small boy he was helpless the boy lifted his arm to protect his head, Wesley cut his hand on the palm he fell down to his knees and he cut his head. Yes I saw it with my eyes. I was scared and I sat down to hide and I saw another section 15 boy his name is Gregory. I was scared and crawled and hid in the oil palm dry frond and I was waiting for someone to come and kill me. No one came to kill me so I escaped. I was there and Wesley was calling out and repeating, “I am from one three, I killed one of them, in pidgin, mi mangi one three ya wanpela bilong ol mi kilim ya.” I came out of hiding from one palm to the next and eventually I came out. The first person I met was the mother of Naegel and I told her they cut Naegel inside, she went and brought him back and we called the Ambulance and took him to the hospital at Kimbe where he died.

14.	Brody Takura was from Section 16 Galai Oil Palm Block. He finished school in grade 5 and was unemployed. On the 6th December, 2016 in the afternoon I was at 16 with Jackson, Joshua, Naegel. There were a lot of people waiting, they brought the body and were trying to talk and solve but the fight broke out and we ran. I was afraid of the fight group from 13 that brought the body, they chased us we were afraid and ran into Mando’s block. Jackson and Joshua ran ahead, myself and Naegel we went following. Wesley Yanduo and them were already in the garden. We ran and broke up separated Naegel when he went he ended up with Wesley who cut his right hand on the palm. I saw him I was afraid I  fell onto the ground later he cut his head. He fell to the ground and Wesley Yanduo called out, “Mangi one three ya wanpela bilong ol mi cutim pinis.” I am from one three I have killed one of them; repeatedly I stayed down there until it grew dark and I went home. The distance was about from the bench to the back door about 8 meters when I saw him cutting Naegel.

15.	Douglas Simon from Drekikir East Sepik Province staying at Section 16 block 1557 Galai 1, oil palm grower and a leader in community there. On Saturday 5th December, 2015 I was in my block section 13 carried the body with Youths and brought it to Section 16 Block 1555 and left it there. I talked to them and not long crowd came, boys from Section 13 came to Section 15 caused disturbance and people started to run. We were there and heard that Naegel has already got injured. I left the group that I was standing with and ran to where Naegel was. His mother was carrying him, there was blood all over her skin when they came to the road. As the mother was carrying him she asked him in my presence and hearing who cut him and he said Wesley Yanduo cut me. At this time Naegel was alive but was not walking. I saw blood coming out on his head and right hand. We rang the Ambulance from Buvussi Health Centre. We put the body and took him to the Kimbe Hospital.  Wesley Yanduo is from Yangoru his block is at section 13. There is no other who is Wesly Yanduo he is the same one in court now. Witness pointed to the Accused in the dock. The crowd that came ran away when Naegel was hurt. Some of them carried the body that they had brought and ran away. John Yanduo and other leaders were also there at that time.

16.	Elizabeth Klabasa was the fourth and final witness for the State who lived at section 16 Galai 1. Block number 1530 original from West Sepik. Saturday 5th   December, 2015 where were you on between 4 and 5 pm. I was there at the place where they people from section 13 and 14 came with the body and left. I was there after they put the body I saw that flies came onto the dead body so I went to chase them as the mother of the deceased is a sister. My cousin sister Vivian was with me at that time. We were looking after the body. Wesley Yanduo ran up from the side of Erick Mando’s block towards us and said “em yupela tasol ya, you are the ones.” He was shaking and he came and punched me on my jaw and I fell side -ways. And then he swang the bush knife he was holding it at Vivian. I felt pain one week I did not eat I drank water only. He swore at us also and said he will kill us. But did not do this. There were others John Yanduo, Nelson Lukas, Martin Yawi and others. There were shouts from the side that they killed someone already so they took the body and ran away. Shouting came after punch from Wesley Yanduo. Wesley ran out from Mando’s block. This witness was the last witness for the State. These observations are consistent with the medical report by Doctor William Toua of the injuries that Naegel John Las suffered. He is an independent who confirms the injuries as seen by the witnesses.

Defence case

17.	Wesley Yanduo gave sworn evidence that he was from Kubalia in East Sepik Province and was resident at Galai 1 section 14. On the 5th December, 2015 I was in my house and I saw the bus that loaded the deceased and they passed my house heading to Section 16. This was three o’clock in the afternoon when the bus came and picked up the dead body and they went. When I was in the house with my mother and my wife came to the market and father came to town the bus came and picked Juali Magistrate. As soon as bus left the dyna came from town and left my father at the block. About 30 minutes later Nelson Lukas from section 13 came to the house and told father that they will go to section 16 for the mediation. It was about the body that was taken there. After Nelson was Martin and there were others still walking at the back. When they wanted to walk the three of us walked together. The time that we left the house was about 3.40pm. From my house to the place where the gathering was was about where the court is to the Kimbe General Hospital. Witness confirms the sketch plan tendered before the court as shown and points out locations. But then says he left them and went into creek away from that which was exposed to the public to one that was secluded where he had his wash as there he could dive into the water and wash not the other. After washing he followed the track up to Ronis block after crossed to Douglas block. There met another person Kalos Samson from Morobe who ran away from the fight. He said there was a fight. I came and met Chris Patrick from West Sepik between the boundary of Section 16 who swang an oil palm chisel at me. I followed suit but he escaped. I have no grudges against him and he did what he did. I came out to the place where the gathering was including my father, Douglas Simon. I looked and saw Chris’s mother it was 5.20pm I went approached her slapped her father stopped me.

18.	In cross examination he denied that he chased the victim with Jackson Imialas, Joshua Nalo, and Brody Takura. And maintained that he was never there as he had followed a bush track had a bath and came upon the gathering. He agreed that he assaulted Elizabeth Klabasa because her son Chris Patrick had swung an oil palm chisel at him for no reason. This evidence distorts the alibi and his defence.

Alibi

19.	This is the first time that this Alibi has been disclosed into Court. There is no Record of Interview because that too has been objected to and the State has not challenged because no Notice of Voir Dire has been served in accordance with the rules. Instead the State has simply abandoned tender of the Record of Interview leaving the accused with nothing initially when the police arrested him. Effect of which is that this is the first time accused defence has been disclosed. In law he is not obliged to prove his innocence it is he who asserts who must prove and that is what the State has done bringing forth evidence.

20.	No notice of alibi was filed in accordance with the Criminal Practise Rules Order 4 Division 2 nor was the State accorded and to accede strictly would have had the trial adjourned to comply. The State elected to waive their rights to have notice in accordance and to allow the accused to run the alibi. It was discretionary in the light of Tubol, The State v [1994] PNGLR 378 (12 April 1994) including considerations as in that case under Section 37 Right to a Fair Hearing in particular given the facts Section 37(3) and 37(4) (f) of the I. Further by Davinga v The State [1995] PNGLR 263 (1 November 1995) real opportunity must be accorded. The Constitution was Supreme Law Sections 10, and 11. Therefore the Criminal Practise Rules did not override and so the discretion exercised to allow. The trial did not start initially set to allow defence to properly prepare and for the State to take instructions to reply. That was done and on the date parties were ready and so proceeded. 

21.	By negligence or by oversight or by design neither of which helped the defence case, John Yanduo father of the accused was sitted in court since 9.30am Thursday 18th October 2018, when the matter started on trial. Prudently it was upon defence counsel to ensure all witnesses were aware of the preliminary befalling all witnesses to be called. Defence knew he was an alibi witness all along yet did not inform the witness to be outside until called. And this was despite him being sitted directly behind defence counsel. From the morning when the case of the state opened he was sitting directly behind defence counsel almost parallel in court in full view of the Court right up to the closure of the State case. All four witnesses of the State gave evidence in his presence and hearing he would smile or make certain facial. It went to an extent where there were people also accompanying and sitting at the back of court who did similar prompting the interpreter to inform the court of this conduct. Accordingly all were told that should the behaviour continue those who saw fit would be told to participate in the proceedings of the court at the back of the court in the cells. After this observation a number of persons in the public gallery left the public gallery but this witness remained still in full view of the court. And then when the defence case opened with the evidence of the accused he was still sitting in court where he had been all morning behind defence counsel right after lunch and 1.30pm when the court resumed up to the completion of the evidence of the accused and then he was called he simply stood up from the back of the defence counsel.

22.	Objection was raised by State Counsel on this basis that the witness John Yanduo could not give objective evidence in view of all the facts set out above. Could it be likened that the accused was not given the protection of the law afforded under Section 37 in that his witness in an alibi was not allowed to testify. That his evidence was refused not heard by the fact of his presence all through out the trial when he sat in on it from when the State case started to when defence opened and then he came in to give his evidence after all that. In my view Protection of law is by law not without adherence to the dictate of fairness and justice which must be seen to be done and be done by section 59, Nilkare v Ombudsman Commission of Papua New Guinea [1999] PNGLR 333 (3 May 1996):

 “5. Whilst we have some sympathy for the view that the Commission would be expected to be critical of the conduct of the persons concerned in its investigation and reports, there is an over-riding duty to be fair. To put it in another way, the referral to the Public Prosecutor is the final product of its investigations. The Commission will have satisfied itself, in its deliberate judgment, that there exists a prima facie case of misconduct, which is worthy of prosecution by the Public Prosecutor before the Leadership Tribunal. As such the referral will contain some information, which will be critical of the conduct of the person referred. However, there are limits as to how far the Commission can go in its referral report. The Commission's conclusions and opinions must be fair, objective and reasonable and supported by its factual findings and the evidence before it. The Commission must not make wild baseless and scandalous allegations. It must not make highly personalised accusations. It must not make sensational, emotive, insensitive and indignant statements which are likely or calculated to degrade the leader or unduly influence those for whom the report is prepared into making a decision in favour of the Commission's findings. It must not exaggerate matters of minor significance or of little utility. The Commission must bear in mind that it is a Constitutional office of the people and it must act fairly and objectively. In other words, the Commission must not be biased.

6. The test of "bias" to be applied should be, in our view, the "reasonable suspicion" test. Although this test has been applied to judicial, quasi-judicial or administrative tribunals in this country, the same test should be applied to the Commission. However, because of the administrative nature of the Commission’s functions, we think that the standard of "reasonable suspicion" could be much lower than the relatively high standard applicable to judicial, quasi-judicial and administrative tribunals.” (emphasis added)

23.	In my view although in consideration in a leadership tribunal referral the principles set out by the court are equally applicable in a criminal trial as here. The Constitution section 59 underlies for the purposes of this matter I adopt it in the consideration set out by the Supreme Court as relevant and applicable given the facts and circumstances here. This is a criminal trial not a leadership prosecution. Common to both are that adherence to fairness and justice is not by word alone but by deed. The alibi evidence intended to come from the father of the accused would not be fair and just to the State to take it as it is in view. All State witnesses have not heard nor have they seen what evidence was led before them in court. All came independent outside blind into the evidence that was led prior to their own. Each does not know what the evidence was from the other. Justice is not concocted by spiral intent to bring a serious allegation without basis in law settled. Justice must be seen to be done and be done according to law: Boateng v The State [1990] PGSC 7; [1990] PNGLR 342 (7 August 1990). Where the prosecutrix was sitted in court with Police informant Cecilia Madana with Rita Tomarum wife of the presiding Judge Justice Konilio Tomarum, the conviction was set aside and a new trial was ordered. Objectively Justice was not done and seen to be done in view. “The test to be applied in determining whether an accused had been denied a fair trial was whether a reasonable and fair-minded person sitting in a court and knowing all the relevant facts would have a reasonable suspicion that a fair trial for the accused was not possible.” Boateng (supra). Would therefore a reasonable and fair-minded person sitting in court knowing all the relevant facts see John Yanduo if called as a witness and testifying be fair that Justice is done and seen to be done if the court accords him to voice his evidence on oath.  

24.	In Waranaka v Dusava [2009] PGSC 11; SC980 (8 July 2009) assessment of logic and common sense and consistency in evidence are important tests for credibility of witnesses and their testimony. Any serious unexplained inconsistencies in evidence and evidence not in keeping with logic and common sense are basis for rejection of such evidence. It would in my view be necessary for a witness not ceased of the evidence that has unfolded in court to come afresh to speak un influenced not tainted to give his own not tailored by what has been illuminated in the course of the trial as here. That would not be the case of John Yanduo who has been stationed all along in entire duration of the trial from Prosecution to now the defence case.

25.	To put it another way what is before the court is sub judice to hear and be in the hearing of the court and to take part as a witness is not and will not be the basis upon which a court will be destined to make its decision: Rooney (No 2), Public Prosecutor v [1979] PNGLR 448 (11 September 1979). Any evidence to be presented into court must come untouched by illegalities and must be verified in its independence by law not without: Mai and Avi, The State v [1988-89] PNGLR 56 (3 June 1988).

26.	In the State v Veisame [2004] PGNC 132; N2648 (30 August 2004) it was submitted by the State that the case has not been heard within a reasonable time. Since the adjournment, it is submitted, one of its witnesses, who was still giving evidence, could have had his evidence interfered with. That there had been a long delay of 10 months since the dispute had not been resolved and one of the state witnesses was still giving evidence since the long delay and his evidence might have been influenced in the break and therefore a mistrial. He may have discussed his evidence with others thereby tainting his evidence. The long delay was because the commission of the presiding Judge had expired and a new one was needed. Counsel for the accused objects to the application. It is submitted that the delay of only 10 months since the adjournment, is not unreasonable and the trial should continue. It is submitted that declaring a mistrial would be prejudicial to the accused persons’ interest for a speedy trial. The acceded and ordered trial to continue after considering section 59 of the Constitution. The court in passing viewed that to comment on matters pending in court was sub judice. 

27.	The converse is to be sitting in court all throughout the entire proceedings and to come out on oath as a witness in the other side of the case, here the defence. That is clearly injustice contrary to section 59 and cannot be seen as justice done and seen to be done. If all witnesses of the State have come by way outside and to give evidence in the serious allegation of wilful murder or for that matter any other criminal offence, it is fair and just and that Justice must be done and seen to be done if the same is accorded to the other side, the defence case. The Protection of law under section 37 is by law and is accorded in this way not in breach or defiance of that section.

28.	The objection was upheld there was real and likely possibility and probability in view of all set out above that his evidence could in all material aspects be clouded by that fact. Motive of a witness surrounding circumstances are important factors in the credibility of a witness to assess the veracity of the evidence: Kandakason v The State [1998] PGSC 20; SC558 (7 July 1998) whether or not the witness has given a statement out of court and in court comparatively to assess credibility underlies whether evidence is properly and lawfully before the court or otherwise. In view of the demonstration earlier leading to the court warning contempt and confinement in the cells at the back, and further because of his immediate blood line to the accused, he the natural father of the accused by that fact would be more inclined to the defence of his son. And read well in the light of section 59 of the Constitution Principles of Natural Justice, “59. Principles of Natural Justice; 

(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.
(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.

29.	That would not be the case in law here accordingly the witness John Yanduo will not give evidence, the objection is sustained. There are no other witnesses for the defence as this case has been adjourned from initially when it was set to start to allow defence and State to organize their individual cases.  Enough time was given to both sides to the case. The rights of this accused are not superior nor does it override those others who are also on the criminal list according to the trial will proceed. No further evidence was called for the defence closing its case.

Analysis of evidence

30.	I observed Jackson Imialas give evidence. He was observant clear concise and truthful. He was not in doubt as to his evidence. He gave it in a forthright manner and was never distracted from what he observed. He named the accused as the person he saw on that day and none other. That it was the accused who cut Naegel John Las. I find him a truthful witness and have no reservation in the evidence that he has given and I believe his evidence as the truth as it unfolded him on that day. He had no motive except to tell the truth as he saw. He was not shaken in cross examination and remained strong in his evidence.

31.	I make similar observation in the case of the witnesses Brody Takura, Douglas Simon and Elizabeth Klabasa all whom I find as truthful witnesses who swore and upheld that truth and veracity in their evidence. They all showed what they observed because the conditions on that day and the surrounding circumstances did not prevent what they observed and I have no reservation to believe what they told the court as the truth as it unfolded before their eyes. They had no motive other than to tell as best as they can without any exaggeration, additions or subtraction of what was seen before their eyes. 

32.	I give due warning in accordance and in fulfilment of law that this is broad daylight identification at close quarters by witnesses who are stationed as they were when they ran together from the fight intending to escape as they did. Naegel John Las was accompanied by Jackson Imialas, Brody Takura, and Jeffery Nalo. In full view unobstructed in clear broad day light both Jackson Imialas and Brody Takura made positive and clear identification of Wesley Yanduo. This identification was made at closed quarters 8 meters apart unobstructed in a clear area dry and cleared for a garden. They had no place to hide except to get under palm frond heaped there. But they made clear and unobstructed observation of what the accused Wesley Yanduo did to Naegel John Las. They all lived at the same locality and were all from Sepik and knew each other prior to the 6th of December 2015. And at the time they were making the observation it was not of a stranger nor of a masked hood in difficult lighting so that they were strained and obstructed to make the observation they made. I caution that mistakes have been made even of close friends and relatives. But the evidence is that accused said, banisim em banisim em, yupela ol man bilong kilim ol man, condone him off condone him off you are people who kill people, and then after he had cut Naegel John Las, he called out, “Mangi one three ya wanpela bilong ol mi cutim pinis.” I am from one three I have killed one of them; It was early in the afternoon and the evidence both for and against is that there was no difficulty in the conditions to make the identification that these witnesses made because it was conducive and warranted by the circumstance then and there prevailing. I make similar findings in respect of the hearing of the witnesses that this is what was uttered by the accused and coupled with the sighting it was not a case of a mistaken identity but of a fellow Sepik from Kubalia East Sepik Province. And all the witnesses themselves were Sepiks Jackson Imialas is from East Sepik Province, Brody Takura is also, Douglas Simon is from Drekikir East Sepik Province, and Elizabeth Klabasa West Sepik Province.

33.	I also take account that this was a case of Section 13 youth and persons who had a vendetta against those from Section 16 because Issac Vitalis was beaten by our boys in the words of Jackson Imialas and died. His body was taken to the gathering area for compensation against section 16 boys. Naegel John Las and the witnesses were all from section 16. Wesley Yanduo was from section 13. And this is the finding in law that I make that he uttered the words recounted by the witnesses, “banisim em banisim em, yupela ol man bilong kilim ol man, condone him off condone him off you are people who kill people, and then after he had cut Naegel John Las, he called out, “Mangi one three ya wanpela bilong ol mi cutim pinis.” I am from one three I have killed one of them; this is clear unambiguous consistency in all material particulars with the evidence compounded and within the fundamentals of law identifying the accused as the perpetrator of the allegation.

34.	And these findings are consistent with Section 20 of the Evidence Act of dying declaration. He knew that his death was imminent. He did not entertain any hope of recovery. As here legal proceeding will eventuate. Had he lived he would have been a competent witness in any proceedings brought. And would have given direct oral evidence in the matter in court: Bulen, The State v [1990] PNGLR 43 (16 January 1990). What is established by this evidence is that the deceased was on the verge of death from the injuries as a result of the cuts inflicted at the hands of the accused. He conceived that he was in no state to survive at the time he recounted to his mother in response to the question she raised as to who had cut him. The answer was made in the presence hearing of the accused and by Section 20 of the Evidence Act I hold that it is a dying declaration within the meaning of that section; Section 20. Dying Declarations,-

“A statement made orally by a person before his death relating to the circumstances resulting in his death is admissible in any legal proceedings if–
(a) 	at the time when the person made the statement he believed, or may be reasonably supposed by the court to have believed, that his death was imminent, whether or not–
(i) 	he entertained at that time any hope of recovery; or
(ii) 	he thought that legal proceedings might eventuate; and
(b) 	at the time when the person made the statement he would have been a competent witness in the legal proceedings; and
(c) 	the person making the statement could, if he had not died, have given direct oral evidence in the proceedings of the matter in the statement.”

35.	This evidence independently corroborates the eye witnesses’ testimony of Jackson Imialas, Brody Takura, Douglas Simon and Elizabeth Klabasa who further strengthens that accused was armed with a bush knife that he used against her cousin Vivian in her presence there. And he came out from Mando’s block same place referred to by the eye witnesses. All state witnesses were at their respective locations and observed what they did from those areas and have simply recounted. There is no evidence apparent or identifiable to show motive or intent to lie concoct a false allegation against the accused by the witnesses other than the truth as it unfolded in their view.

False Alibi corroboration Identification

36.	The end result is that the facts and circumstances are on par with John Jaminan v The State [1983] PNGLR 318 (29 September 1983) that a false alibi has been created which effect is to corroborate the identification of the State witnesses. He went to great lengths and dept to paint out a time frame. Life was not regimented given the facts and circumstances set out by the evidence here. There is no reason to remember time by minute and hour three years ago. It is clear he was a normal human being who could not be present at two places distinct and separate one and at the same time. Acceptance of the State evidence as more credible than his means his case is not to the same level as of the state. He has not discharged on the balance of probabilities that he was at another location at the time of the murder.

37.	The case is therefore dependent on corroborating evidence independent material evidence that holds out the case for one side or the other, Balbal v State [2007] PGSC 16; SC860 (22 February 2007) although a sexual penetration of a minor the principles illuminated are relevant here:

 “The way to receiving, assessing and determining whether or not to accept a witness and his testimony is a well trodden one. Rules of evidence have much to say and do with the reception or rejection of evidence. Logic and common sense do play an important part in that, as has been noted and applied in many decisions of both this and the National Courts, Bonu and Bonu v The State [1997] PGSC 11; SC528 (24 July 1997).  This is in addition to any serious inconsistencies that might exist in the testimonies of the witnesses called by a party which makes any acceptance of the evidence difficult, Ono v The State [2002] PGSC 10; SC698 (4 October 2002)  Another important factor is the demeanour of the witnesses in the witness box as they give their testimonies. Witnesses’ performance in the witness box can indicate whether they are truthful witnesses telling it all or are untruthful witnesses, withhold the truths, State v. Angosiwen [2004] PNGLR 432 (18 June 2004). It is well accepted law that, a trial Judge is in a better position to observe the demeanour of witnesses and pass judgments as to the truthfulness or otherwise of witnesses and their testimonies. Given that position, this Court is often reluctant to readily interfere with the findings of primary facts by a trial judge.” 

38.	The caution set out above in sexual cases is applicable here. It is fundamental to tell the truth and to reproduce the truth. It is the same as in an accomplice corroboration is required it would be so here of close friends who have lost a friend: Kandakason (supra); Waranaka (supra) assessment of logic and common sense and consistency in evidence are important tests for credibility of witnesses and their testimony. Any serious unexplained inconsistency in evidence and evidence not in keeping with logic and common sense are basis for rejection of such evidence. That is the basis upon which the evidence of the accused is rejected. He does not have a twin brother nor could he be at two places one and at the same time. The State has discharged the burden of proof that Wesley Yanduo was the person who was armed with a bush knife. It was he who delivered the swing with that bush knife that cut the right wrist of Naegel John Las leaving it hanging by a thin shred of skin. And when he fell to the ground he cut him on his head extending through the scalp to the skull and involving the brain matter massive bleeding flowed suit from which he lost his life. I find beyond all reasonable doubt that there was an intention to kill and he executed that intention by using the bush knife in the way set out above.

39.	Accordingly, he is guilty of the Wilful Murder of Naegel John Las committed on the 6th day of December, 2015 at Galai Oil Palm Settlement pursuant to Section 299 (1) of the Criminal Code as indicted.

40.	The verdict is Guilty of Wilful Murder contrary to Section 299 (1) of the Criminal Code.

41.	His Bail is ordered to be refunded forthwith. He is remanded in custody to appear for sentence forthwith.

Orders Accordingly,
__________________________________________________________________Office of the Public Prosecutor:  Lawyer for the State	
Office of the Public Solicitor    : Lawyer for the Defendant