N7436
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. N0. 1144, 1145, 1146 & 1147 OF 2016

THE STATE

V

JOE NGOTNGOT
ERIC JOHN
JACK BEMAU
DAVID HARO

Kokopo:  Susame, AJ
2018:  24-25 May, 27 June & 29 August

CRIMINAL LAW – Particular Offence – Wilful Murder –S 299(1) Criminal Code - Practice and Procedure – Alibi Defence- Principles - Need for Defence to Put Full Version of Facts Relied on to Opposing Witnesses- Reliability And Weight to be Attached for Failure to do so – Rejection of Alibi is Does not Shift Onus – Onus of Proving Guilt Remains with the Prosecution – 

CRIMINAL LAW - Practice and Procedure - Identification Evidence – Guiding Principles – Necessity for Court to Caution itself of Dangers Inherent of Eye Witness Evidence – Reliability of Evidence -Criminal Law – Intention to Kill Essential Element - Evidence Insufficient to Prove Intention – Deceased Assaulted -  Multiple Injuries Sustained – S.7 Principal Offenders Considered -Splenic Injury Was Cause of Death – Alternative Guilty Verdict Entered for Manslaughter 

Held:

1.	On defence of alibi- Defence failed to put across to the prosecution witnesses during cross-examination full version of facts to be relied and later adduce evidence in support of the alibi defence. This was in breach of rule in Browne v Dunn hence alibi was considered unreliable. Guiding principles in John Jaminan v The State followed. 
2.	With the issue of identification –. Witnesses were never mistaken. Evidence of identification was reliable – Guiding principles in John Beng v The State followed.
3.	With the issue of the injuries that caused the death – Multiple physical injuries received both externally and internally, were direct result of the victim being assaulted by those involved in the illegal search.  It is inconceivable a single fall on the log crossing would have caused the injuries.  
4.	By operation of s 7 all persons present and witnessing the beatings are considered principal offenders and are each and severally criminally liable for causing the death. 
5.	With the issue of Intention to Kill – Evidence is lacking from the prosecution to establish convincingly accused had the intention to kill late Wesley Nolu when they conducted the raid and search and assaulted him. 
6.	State has not discharged the onus of proving the wilful murder charge. Evidence does not support a verdict of murder charge under s. 300.
7.	Evidence however, established Wesley Nolu died of raptured spleen as a result of beatings he received. Hence, alternative guilty verdict is entered for the crime of manslaughter under s 302 against the accused. 

Cases cited:
Papua New Guinea Cases

John Jaminan v The State (No. 2) [1983] PNGLR 318
The State v Lucas Soroken & Ors (2006) N3029
The State v Simon Ganga [1994] PNGLR 323
The State v Merriam [1994] PNGLR 104
John Beng v The State [1977] PLNGLR 115
The State v Raphael Kuanande [1994] PNGLR 512
R v Potosi (1973) N730 
 R v Tovarula [1973] PNGLR 140 
R v Woods (1966) N0 399

Overseas Cases

Brown v Dunn (1893) 6 ER 67
Raymond Turnbull & Ors (1970) 126 C.L.R 321, 3 All ER 549

 Counsel:

Mr. Camillus Sambua, for the State
Ms. Jean Marie Anui, for the Accused

JUDGMENT ON VERDICT
29 August, 2018

1.      SUSAME, AJ:  This is one out of the many cases that arose out of police brutality. The accused are members of the Police Task Force Unit at Kokopo. They were each indicted for wilful murder of late Wesley Kenny pursuant to s 299(1) of the Criminal Code.

ALLEGED FACTS

2.  At about 3.30 in the morning of 21 July 2015 the accused and other fellow officers conducted a raid at the complainant’s block at Floodway, Warangoi. They had gone there after receiving a tip off of marijuana being cultivated at complainant’s block. A search was conducted of their residential area including their garden. During the search the deceased was severely beaten up by the accused and other Officers.  As a result he sustained life threatening injuries which subsequently led to his death. 

3.  On arraignment the accused entered a not guilty plea to the charge. Joe NgotNgot raised an alibi stating he slept in the vehicle while Reserve Constable Sam Taken slept in the other vehicle during the entire search. The other three accused denied assaulting the deceased and inflicting injuries on him. They claimed he sustained the injuries when he slipped and fell off the wobbly slippery log crossing. 
  
EVIDENCE

4.  For the prosecution evidence consisted of documentary evidence tendered by consent and oral testimonies of witness’ Joe Nolu, Maria Joe Nolu, Dr. Tommy Walters, Nigel Joe and Saint Luke Maibogu.  The following were Documentary evidence tendered by consent: 

•	Record of interview of the accused Pidgin and English versions marked   - Exhibits A1 A2, B1 B2, C1 C2, & D1 D2 respectively.
•	Medical Report of Dr. Tommy Walters dated 8 August 2015 - Exhibit   E
•	Medical certificate of death - Exhibit   F
•	42 photographs taken in 21 pages -   Exhibits   G1 –G42
•	Statement of Inspector Freda Waktamol - Exhibit   H
•	Statement of Officer Jerry Kriaos - Exhibit   I

5.  For the defence evidence came from accuseds’ oral testimonies. 

UNCONTESTED FACTS

6.  Much of the facts on the search that was conducted have been well established by evidence received. The accused were amongst other Officers who went to conduct the search at the complainant’s block at Floodway, Warangoi in the morning of 21 July 2015. The team leader of the search party was Officer Nick Taulo. The search followed a tip off from certain informers of marijuana being grown at the complainants’ block.  

7.  After a short briefing at Balioura Police Barracks the party advanced to the                                                                                                                                                                                                              location and arrived at about 3.00 or 3.30am. They parked the vehicles at the neigbouring block and the search party headed straight for the complainant’s dwelling house. They woke up Maria Joe Nolu, the mother of the deceased. Then they went and woke up the deceased and his father from the kitchen house where they were sleeping.

8.  Police told them to lead them to the garden where marijuana drugs were grown. They crossed the river on a log crossing and got to the garden. The officers carried out the search and found the marijuana plants and uprooted them. From the garden the search party was led to Nigel Joe’s house. They woke him up and apprehended him. 

9.  The search party then proceeded back over the log crossing to where the vehicles were parked. It was on that return trip the deceased fell off into the river.  

10.  At the place where vehicles were parked it was observed deceased condition was getting worse. He was grimacing with pain, shaking and taking deep breaths. Nigel was then ordered to climb up a coconut tree and get coconuts for them to drink.  Seeing his worsening condition few of the officers got the deceased on one vehicle with his father and took him to Gelegele Health Center. While waiting for a medical officer to see him the deceased passed away and was pronounced dead by a medical officer who arrived later in the morning. 

11.  The other Officers took Nigel with the marijuana plants on the other police vehicle and headed back to Kokopo Police station where he was arrested and charge.
 
12.  One notable undisputed fact and accepted by the court is that no search warrant had been obtained from the District Court at either Kokopo or Rabaul for the search of the complainant’s residential area or his property. 

13.  Facts that are at issue are in relation to what occurred at the beginning of the search to the time when the search party returned to the waiting police vehicles after crossing over the log bridge. That to me is the crucial segment of time during which deceased sustained the injuries that caused his death. 

ISSUES

1. Whether the accused assaulted late Kenny Wesley and caused the injuries that led to his death? Or whether the injuries were caused when he fell on the log crossing?
2.  Whether the accused had intended to kill late Kenny Wesley?

ACCUSED JOE NGOTNGOT

14.  The accused had admitted in his evidence he had gone with the search party. But stated due to tiredness of the previous day driving duties he felt asleep in the vehicle while his other colleagues conducted the search. In that regard he raised an alibi defence in general denial of the alleged crime. 
  
LAW ON ALIBI DEFENCE

15.  The defence is well defined in criminal law. Alibi arises when an accused attempts to prove by evidence he was in some other place at the time the alleged offence was committed. It is a defence of complete denial, totally different from other statutory defences whereby accused puts up an excuse to justify his or her act or omission that amounts to criminal behavior. 

16.  Guidelines as to the manner in which court should treat and weigh 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 and were summarized by Cannings J in The State v Lucas Soroken & Ors (2006) N3029 when he stated the following:   

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.”

BROWNE AND DUNN RULE

17.  This rule of evidence was established in the famous English case of Browne v Dunn (1893) 6 ER 67 and has been repeatedly adopted by the courts in this jurisdiction.

18.  The essence of the rule is basically for fairness. That if a party is intending to challenge evidence of a witness, the reason for the challenge must be put to the witness during cross-examination. Party challenging must put his full version of facts he will lead evidence later to establish, to the witness to give him an opportunity to respond in agreement or otherwise. Failure to do so is tantamount to acceptance of evidence in chief which cannot be impugned or challenged in the party’s final address. That omission also affects the credibility of the witness and reliability of the evidence by the party challenging. (See The State v Simon Ganga [1994] PNGLR 323 & The State v Merriam [1994] PNGLR 104.) 

19.  Has the defence breached the rule in Browne and Dunn? Mr. Sambua picked up three instances where defence had failed to put across their version of facts to the prosecution witnesses during cross-examination. First, the defence assertion of the presence of Reserve Constables Trevor Lenalia and Constable Jimmy Ponga in the raid.  Second Trevor and Eric John had assisted deceased across to the other side when he fell into the water. Third accused Joe Ngotngot had remained asleep in the vehicle during the entire search. I will consider the above later in my examination of evidence. 

EXTERNAL & INTERNAL INJURIES

20.  There is overwhelming evidence accused sustained physical injuries both externally and internally. The photographic evidence (undisputed) and the autopsy report attest to that fact. They were recent photographs taken on 21 July 2015 by Police Officer Saint Luke Maigobu with over 37 years of experience in examination of crime scenes in Forensic Evidence immediately when death was reported. He was accompanied by Officers John Siurah and John Kamau when the photographs were taken. Both have also attested to that fact. The photographs more relevant to the injuries are: 

•   Photograph # 03 is a close –up shot showing inflamed marks on the deceased neck below his collar bone.
•   Photographs # 04 & 35 is a close-up shot showing remains of blood that flowed out from the deceased’s left ear.
•    Photograph #05 is a close-up shot showing a cut on deceased’s head.
•   Photograph #06 is a close-up shot of the same cut on the head but stretched opened. 
•    Photograph # 07 is close up shot of the injury on the deceased’s jaw 
•    Photograph # 39 is a close-up shot showing abrasions on deceased left shoulder. 
•   Photograph # 40 is a close-up shot of the deceased’s blood filled stomach cavity taken during the post-mortem. 
•     Photograph#41 is a close-up shot of deceased’s raptured spleen.
•     Photograph #42 is another shot of the ruptured spleen.

21.  The autopsy report confirms without any shadow of doubt notable external injuries were bleeding of his left ear and laceration on his scalp.  Notable internal injuries were massive blood measuring 3.5 liter in the abdominal cavity caused by enlarged raptured spleen.  

Question: What caused the injuries? 
 
22.  There are two competing versions. Prosecution’s claim is that the external bodily injuries and raptured spleen were direct result of deceased being assaulted by police which led to his death.  Defence contends otherwise. Its hypothesis is that deceased slipped and fell on the log bridge into the water and sustained the injuries. 

EVIDENCE 

23.  A close examination of the evidence is necessary. Evidence of identification of the accused came from witnesses Joe Nolu, Maria Nolu and Nigel Joe. As regards what actually happened at the log crossing evidence came from witnesses Joe Nolu and Nigel Joe. 

Witness Joe Nolu’s Evidence

24.   He is the father of the deceased. He told court between 3.00am and 3.30 am on 21 June 2015 he was woken up by accused Eric John. He asked for his son Wesley (deceased) and he woke him up. His son woke up and went and sat down next to him.
 
25.  The wife came over with a battery lamp and hung it up on the door. Eric placed his hand on Wesley telling him he was being arrested. Eric told other Police Officer to tear a shirt and tie his son’s hands. Joe later came to know the Officer’s name as Elijah. Elijah tied up his son’s hands behind his back. Eric then told him and the son to lead them to the garden where the marijuana were grown. There he heard his son called out, “Wiau” meaning his son called out in pain when he was assaulted. He never saw the person who assaulted his son. Police had torch lights and lights from their mobile phones. There was little moonlight. At the garden his son was again assault to force him to show where the marijuana plants were planted.  Joe said he saw Eric assaulting his son and he fell down. Then other police officers joined in and assaulted his son when he was lying on the ground. 

26.  He recognized Elijah as the one who held a knife. He pointed the knife at his son to make him show where the marijuana were. He also recognized a tall Police Officer who held a branch and hit his son on his head. He recognized his face at day break. His name was later made known to him as David Haro. 
 
27.  Joe observed from an estimated distance of 3-4 meters and watched his son being assaulted. His son was calling out in pain and he begged them to stop assaulting him. He told them to go and get his other son Nigel over. Accused Joe Gnotgnot swore at him saying cunt shut up and threatened him to blow his head off with a gun. 

28.  Joe said he then heard other policemen call out from other side of the garden they had found the marijuana. So they had to walk to the spot where drugs were found. He was walking ahead and he heard a loud bang like sound of dried branch breaking and his son calling out “Wiau mama mi dai nau.”  That was at an estimated distance of 9-10 meters. At one stage as he was resting and sitting on a log two policemen assaulted him but could not recognized who they were. Under orders he tore up his laplap and tied up the marijuana plants in a bundle and carried them while they go get his other son Nigel. 

29.  At Nigel’s house they were two policemen one of them he recognized as Jack Bemau. He later learnt that the other was Kenneth. That time day was breaking and place was getting clearer and he could recognize faces. Nigel was ordered out of the house and made to sit next to Wesley. Officer Kenneth used a knife and cut off his dreadlocks. 

30.  Joe said he carried the bundle of marijuana from Nigel’s house back to the log crossing. Wesley and Nigel were at his back with policemen. He crossed over to the other side. He looked back and was surprise to see Wesley fall into the river. His hands were tied up and Officer Joe who was holding the gun kicked him. Wesley had difficulty getting back onto the log and he walked across the water to the other side. 

31.  Joe pulled him out of the water and with Constable Eric they walked back to their house. When questioned in examination in chief how Joe had kicked his son witness said he swung the butt of the gun at him. He observed his son’s condition was getting worse and weak. He was bleeding and feeling cold.  He was too weak to walk and from the house Nigel helped him while witness carried the bundle of drug escorted by Constable Eric to the waiting vehicles.  When they reached the waiting vehicles he recognized their boss Nick Taulo was there. There Nigel was ordered to climb up a coconut tree and get young coconuts for them to drink. Wesley had difficulty drinking coconut water because of the injury he received.  They got him on one vehicle and together with four policemen they took Wesley to Warangoi Health Center. 

Witness Maria Joe Nolu’s Evidence

32.  She is the mother of the deceased. She gave evidence that at about 3.00am and 3.30am she was woken up by police. She walked out of the house with her baby and one Police Officer slapped her. She recognized that Officer as David Haro. She recognized him as he stays at the Balioura Police Barracks in the community she comes from. She had a battery lamp with her in the light she recognized him. 

33.  She gave her baby to her elder sister and followed the Officers to the kitchen with her battery lamp. She hung it up the kitchen and in the light she saw Erick John, Joe Ngotngot, her husband and son Wesley.  She saw Erick John placing his hand on his son and told him he was under arrest. She saw another Officer Elijah enter the kitchen and got three knives and a spade. There they tied up Wesley’s hands behind his back with a torn cloth. 

34.  The police told her husband and son to lead them to the garden where drugs were grown. She went and got Eddy and followed after them to the garden. They hid in the dark and stood few about 7 or 8 metres away and watched her son being assaulted. They made Wesley sit on a log with her husband stand and questioned his son of where the drugs where grown. Her son denied knowledge of the drug and accused Erick John assaulted him and his son fell on the ground. 

35.  The others who she could not recognize joined in and assaulted her son. She saw someone very tall lifting up a cocoa branch and hit Wesley from top down. She heard her son cry out. Wiau mama am dying now. She recognized the policemen in the moon light and the place was getting clearer. They stood where the Helagonia were planted and watched. The lights on mobile phones were on. From there she and Eddy returned to the house.  She stayed up until her sons Wesley, Nigel and Officer Erick John arrived. She asked Officer Erick if he recognized Wesley his uncle who had been assaulted. That he is going to die. Officer Eric then told her husband and the sons to walk to the waiting police vehicles. 

Witness Nigel Joe’s Evidence

36.  He is the brother of the deceased.  He said he was woken up between 5am and 6am by sound of kicking on the door.  He was taken down of the house and they tied up his hands behind his back.  They told him to lie down where his brother was. He saw his brother was bleeding.  He recognized Police Officers Jack Bemau and Kenneth. He saw his late brother’s hands were also tied behind his back. His brother could not talk when he talked to him. 

37.  Then Jack Bemau came and cut off his dreadlocks with a knife. They cut the cloth off his hands and made him carry the marijuana plants. They came to the log crossing. He said the log was big, thick on one end slimmer on other hand. Two to three persons crossed same time in a single line. 

38.   His father crossed first, followed by policemen then he followed. After him was his late brother then other policemen.  As they were crossing he heard his late brother about to fall and he turned around to support him. That moment he saw accused Joe Ngotngot hit him with butt of a gun and his brother fell down. He wanted to help his brother up onto the log but Joe swore at him saying “kaikai Kan” (you eat a vagina) so he continued to walk across. 

39.  He got onto the other side and his late brother waded through the water and reached the side. His brother was weak and taking deep breath. Accused Eric hit him with a stick and told him to help his late brother up out of the water. He untied his brother’s hands and walked with his brother to their house.  They stayed at the house and their mother came and saw them.  After a short rest the police told them to walk to the waiting vehicles. Again he helped his late brother and walked to the waiting vehicles. Along the way his brother cried out in pain saying God forgive the policemen.  When they reached the parked vehicles police told him to climb up a coconut tree and get young coconuts to drink. He gave some coconut water to his late brother but he found it difficult to drink. His brother told him he was leaving him as police had done him harm.

40.  Three accused Eric John, Jack Bemau and David Haro in their account of their version of facts came up with the story that deceased fell on the wet slippery and wobbly log bridge and injured himself. They denied assaulting him and inflicting the injuries.
ACCUSED ERIC JOHN

41.  Accused stated they parked the vehicles and headed straight to the suspect’s house. They surrounded the area and blocked off all exit routes. David Haro (co accused) and himself went and stood on the steps and called out through the window waking people inside. A woman exited and stood at the doorway. There was a kerosene lamp hanging on the door. David asked her of whereabouts of Kenny Wesley. The woman (deceased’s mother) replied they were sleeping in the kitchen. 

42.  They walked over to the kitchen and found that Reserve constables Trevor Lenalia and Jimmy Ponga had already taken away Wesley and his father. They left crossed the log bridge and headed for the garden. They arrived at the garden and conducted the search. The suspects sat in middle of the garden with Trevor Lenalia and Jimmy Ponga.

43.  David called out when they found the marijuana plants. They uprooted them and then went over to Nigel Joe’s house. From Nigel’s house they walked back, passed the garden. At the log bridge Trevor Lenalia crossed first, deceased father followed then his two sons in the middle. He followed after them. 

44.  Trevor and others had completed the crossing and were on the other side because they were having turns crossing. He waited for Wesley (deceased) to cross first and he will cross later. It was morning and the log bridge was wet and slippery. He stood on the log and waited for Wesley to cross over with his both hands tied up behind his back. The morning was getting clearer and he saw Wesley slipped and fell, landing on the log then into the water. 

45.  There were cut branches of the tree on the spot. He helped Wesley to the other three who were already on the other side of the river. They sat him down and asked if he was fine. Deceased replied he was not fine, he felt pain on his side. He was shivering and taking deep breaths. 

46.  Accused helped the deceased to his house. From the house Nigel helped him to the waiting police vehicles at the neigbouring block.  They saw that deceased’s condition was getting worse. He asked for water and his brother climbed the coconut for him to drink. After having coconuts drinks deceased was taken to Warangoi Health Centre but no doctors and nurses were present to attend to him except the cleaner. The cleaner ran down to the public servants residential area to get a doctor. They waited for one and half hour until a doctor arrived and checked him and pronounced him dead. 

47.  Accused was further questioned by Ms. Ainui and Mr. Sambua if he ever assaulted Wesley together with David Haro and Joe Gnotgnot. He denied Wesley was ever assaulted by himself and other policemen.  (Note questions 16, 17, 27)

 ACCUSED JACK BEMAU

48.  Accused also denied assaulting and inflicting injuries on the deceased. They left the vehicles at one person’s fermentary and walked to the suspects’ house. When they got to the suspects house they surrounded it and blocked off all possible escape routes. Accused and David Haro approached the house. 

49.  Policemen checked the house and he stood by the exit behind the kitchen. Policemen got the suspects and they proceeded to the garden.  The accused and David Haro walked at the back and crossed the log bridge to the get to the garden. 

50.  At the garden the accused and David Haro separated. David searched the right side of the garden and accused searched the left side. Then he heard David called out he had found the marijuana plants. Accused crossed over to where David was and helped David uproot the marijuana plants. 

51.  Then they headed to Nigel’s house was. They woke him up. Accused entered his house and in his search he found traces of dried marijuana. The suspect (Nigel) got down and Constable Jimmy Ponga tied up his hands.
 
52.  They walked back and took turns crossing the log bridge. Officer Trevor Lenalia crossed first. The brother of the deceased followed after him then the father. The deceased followed his father, then John Erick. The accused followed John Erick. Accused stood and saw deceased fall, landing on the log then into the water. 

53.  Accused called out to John Erick to help him. Erick and Trevor assisted deceased and took him to the other side. The others helped the deceased while the accused, David Haro and Jimmy Ponga walked to where the police vehicles were parked. They waited for the others to arrive. 

54.  The deceased was not feeling well so he had to be laid on the bench by the fermentary. They had no water to give him so police told his brother to climb a coconut tree and get some coconuts for the deceased to have. Later the accused and other policemen got Nigel on one police vehicle back to Kokopo police station.  

ACCUSED DAVID HARO

55.  Accused gave evidence upon arrival they left the vehicles and proceeded to the house where the suspect was. They secured all exit points, windows etc. There were two buildings one a dwelling house and the other a kitchen house. Accused stood on the ground and knocked on the verandah of the house. A woman (deceased’s mother) opened the door and came out. Accused asked her if there were male persons in the house. The woman replied only her children were there.

56.  From there they walked to the garden. Accused was right at the back as he was limping.  He had just resumed and had a broken leg. Accused Jack Bemau was immediately in front of him. They reached the garden. Jack went to the right of the garden and accused went to the left of the garden to search for the marijuana plants. 

57.  It was dark and it took almost one and half hours for them to search. Accused discovered the marijuana plants amongst the ‘Tanget’ (Helagonia) plants. He called out to others he had found the marijuana. Others came over and assisted in uprooting the marijuana plants. 

58.  From the garden they proceeded to Nigel’s house. Jack Bemau and their other colleague went up and searched the house while he remained on the ground. After searching Nigel’s house they walked back and crossed the log bridge. Accused was right at the back and never saw the deceased falling off the log crossing but saw Derrick and Trevor assisting him over to the other side. Accused was the last one to cross. 

59.  After they had all crossed over the accused, Jack Bemau and Jimmy Konga went straight to where the vehicles were parked. A while later deceased, his brother and father arrived without being accompanied by Police Officers. Deceased was feeling pain and he was laid down on a platform by the fermentary. They told Nigel to climb a coconut and get young coconuts for them to drink. 

60.  After that accused, John Erick, Jimmy Ponga, Nickson Taulo (their boss), deceased’s father took the deceased to Warangoi Health Center seeing deceased’s poor condition. Under further questioning accused denied assaulting the deceased’s mother, he denied assaulting the deceased with a branch of a tree on his head. When questioned, accused never saw any blood covered on the deceased at any time even when he was taken to the Health Centre. He said his condition was normal.

ANALYSIS OF EVIDENCE 

61.  There is uncontested evidence from prosecution late Wesley had his both hands tied with a cloth behind his back at the house and before crossing the log bridge to the garden. He still had his hands tied up behind his back on the returned trip when he fell into the water at the log crossing. The fact that his hands had been tied up has been affirmed by accused Jack Bemau in his evidence. 

62.  The court therefore accepts that late Wesley hands had been bound behind his back with a piece of cloth at the kitchen house where he was taken. His hands remained bounded in that same position when he fell at the log crossing. 

63.  Witnesses’ Joe Nolu and Nigel Joe version of the order crossing differs from version given by accuseds Erick John, Jack Bemau and David Haro. Joe Nolu and Nigel’s evidence Joe crossed first before the police officers. Nigel followed the officers, after the officers his brother Wesley then followed by other officers. 

64.  Accused Erick John gave conflicting evidence to that of accused Jack Bemau in the order they crossed the log crossing.  From Erick’s evidence Trevor crossed first, followed by Joe Nolu and the two sons. Accused followed the sons. From his explanation it appears that late Wesley was immediately before him as the accused said he waited for him to cross over then he will follow. 
 
65.  Accused Jack Bemau said Trevor crossed first, then Nigel, followed by Joe Nolu, then late Wesley. Eric John was next and then the accused.
  
66.  Accused David Haro said he was at the rear and saw the deceased fall into the water. He was the last one to cross. He saw Trevor and Eric helped deceased over to the other side. 

LAW ON IDENTIFICATION EVIDENCE

67.  Guiding principles of law on identification evidence are well settled in this jurisdiction. These principles were laid down by the House of the Lord in Raymond Turnbull & Ors (1970) 126 C.L.R 321, 3 All ER 549. They have continuously been applied by the courts in Papua New Guinea.
68.  It is important the trial judge or magistrate must be mindful and warn himself that there are dangers inherent in eye-witness identification evidence. There have been experiences over the years sometimes completely honest evidence has shown to be wrong and innocent people getting convicted. I quote the relevant passage of the judgment in John Beng v The State [1977] PLNGLR 115: 

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.”

ASSESSMENT OF EVIDENCE OF IDENTIFICATION
 
69.  Joe Nolu was able identify Officers Eric John and Jack Bemau that night. He said he recognized accused Erick as one of them who assaulted his son while his son was lying on the ground in the garden. Officer Elijah held a knife and threatened him. One other Officer who he could not recognize hit his son with a spade. He recognized a tall Police Officer (who he later came to know as David Haro) hit his son on the head with a branch of a tree. At day break he clearly saw that tall Police Officer.  Joe Nolu stated during the search in the garden when he told police to stop assaulting his son accused Joe Ngotngot verbally insulted him and threatened to shot him with the gun. He said he recognized Joe Ngotngot as the policeman who had a gun at the log crossing on the return trip. He was the one who assaulted his son. 

70.  There is no evidence Joe Nolu had seen the accused Jack Bemau assaulting the accused during the search.

71.  Maria Joe gave evidence he knows David Haro. He lives at Balioura Police Barracks. He was the one who slapped her. She also recognized Eric John and Joe Ngotngot at the house in the lights coming from the battery lamp she had with her. In the garden she hid and watched from a distance of seven to eight meters and heard her son being assaulted. Accused Eric John was questioning her son of the drugs. She saw Eric assaulting her son who fell to the ground and others took part in assaulting him.  She saw a tall policeman hit her son with a branch of a cocoa tree from top down. She said the place was getting clearer, there was a bit of moonlight. Nothing obstructed her view from where she stood and observed. There is no evidence from the witness accused Ngotngot and Jack Bemau assaulting the deceased during the search. 

72.  Nigel Joe stated in evidence at the log crossing at 6.00am Joe Gnotgnot was the Officer who gun butted his brother and he fell into the water. When he tried to help his brother accused verbally insulted him. There is again no evidence from Nigel he had seen accused Erick John, Jack Bemau and David Haro assaulting his late brother. 

73.  There is no doubt all four accused were in the group that had gone to conduct the illegal search. However, they have all denied assaulting the deceased at any time during the search.
 
74.  David Haro gave conflicting evidence to that of Jack Bemau in regard to the search of the garden. David gave evidence he searched the left side of the garden while Jack searched the right side. Jack stated the opposite. He searched the left side while David searched the right side and found the marijuana plants.

75.  Were the witnesses mistaken in identifying the accused?  

COURT’S FINDING ON ISSUE OF IDENTIFICATION 

76.  I am guided by the principle in John Beng v The State (supra) and warn myself of dangers inherent convicting on evidence of an eye witness.  That there is a possibility that witnesses could have all been mistaken in their evidence of 

identification of the accused persons, particularly when a group of persons were involved in the raid during night hours with poor lighting conditions.  

77.  The search was conducted for almost three hours from about 3.30am to 6.00am. Prosecution’s witnesses gave evidence of the persons they saw involved in the raid some of whom they named including accuseds Joe Ngotngot and Erick John. Other Officer named was Elijah but was never arrested and charged. Joe had a firearm in his possession. He hit late Wesley with the gun butt and made him fall into the water.  The day was clear. It was not a case where witnesses had a fleeting glance of the accused.  

78.  None of the witnesses mentioned accused Jack Bemau was one of those who assaulted late Wesley. None of the witnesses mention David Haro’s name but gave a description of a tall Police Officer was in the group. That tall Officer was seen hitting the deceased with a branch of a tree.  

79.  Erick John, Jack Bemau and David Haro have all admitted in evidence of their involvement in the search. That adds support to prosecution evidence.  There is evidence from prosecution late Wesley had been assaulted few times by more than one policeman during the search. 

ASSESSEMENT OF EVDIENCE OF ALIBI DEFENCE 

80.  A close examination of the evidence revealed at no time during cross-examination Ms. Ainui made suggestions to any of the prosecution witnesses accused slept in the car during the entire search. Except suggestions that they were mistaken in identifying all four accused. 

81.  Secondly, a further examination of evidence show at no time during cross-examination Ms. Ainui suggested Joe Nolu and Nigel Joe that Trevor Lenalia and Jimmy Ponga were involved in the search. Nor did Ms. Ainui made suggestions to them deceased was assisted across the water by the Trevor and Erick.
82.  Apart from Accused oral testimony Defence adduced no other evidence in support of the alibi.

83.  Applying the principles of alibi defence in John Jaminan v The State (No. 2) “where the accused raises a belated claim of alibi coupled with a failure to put it to State witnesses in cross examination, then, the court is entitled to hold the alibi as unreliable and a recent invention, hence, reduced in weight.”  

84.  I consider the alibi Joe Ngotngot has raised was a recent invention. It was never raised earlier in time during the record of interview or at the committal proceeding. The alibi is not convincing in the face of evidence of identification of the accused actively involved in the search and assaulting of late Wesley. 

85.  Having said the above though I am reminded of the position of the law in proving guilty. When an alibi defence is raised there is no obligation on the accused to proving his innocence. Even if this court rejects the alibi the onus of proving the allegation never shifts and remains with the prosecution.  

86.  Court’s further scrutiny of the evidence. Given the order in which they crossed how can Erick and Jack possibly help the deceased across the water? Erick would have to walk back forcing those behind him to walk back before he could reach down and help the deceased up back on the log. 

87.  However, their evidence seems to suggest both of them actually jumped into the water and guided the deceased through the water onto the other side.  Did they actually do that? Police were hell-bent in conducting the raid and had apprehended the suspects. It would have been an exceptional kind deed for both Officers to jump into the water with full gear and get wet in their effort to assist a crime suspect. I doubt very much they did that.  

88.  Against their version is the version from prosecution witnesses which is more convincing and accepted by the court. Nigel was closer to his brother Wesley. Being the brother he would have had much concern to help his brother. Naturally, he turned to help but was verbally abused by the accused Joe Ngotngot he felt threatened from helping him. 

89.  About the cause of the fall. No one including the deceased slipped and fell during the first crossing except on the return crossing. Due to weakness caused by the injuries he had received from the heavy beatings before the crossing there is a possibility he could have lost his balance and fell due to lose of concentration. 
90.  The photo graphic evidence shows that the felled log is big in diameter at the trunk and is slimmer at the other end. There are no branches attached to the trunk sticking out of the water. Accused Erick and Jack were not certain of that and merely assuming. It puzzles me how a single fall could possibly cause such multiple abrasions and lacerations from the description of evidence of the fall by the accused. It is inconceivable.  

91.  Furthermore, there is uncontested photographic evidence of blood stains found on the fern in the bush and on blue piece of torn towel, photographic evidence of piece of cocoa branch used to assault the deceased, photographic evidence of disturbance of shrubs and turf of the spot deceased had been assaulted. There is also direct evidence from the prosecution witnesses who saw the deceased being assault and they heard him crying out in pain.  

DEMEANOUR OF WITNESSES

92.  Court is entitled to make an assessment of the demeanour of all the witnesses who gave evidence at the trial as to their credibility.  Following on from my earlier discussions and analysis of evidence there were instances accused were evasive in answering questions from the prosecution that required a simple yes or no answer or which required a simple straight forward explanation. Example when questions were raised about the legality of the search, their lack of knowledge and denial of sighting of blood on Wesley’s body, blood stains on the ferns and piece of cloths, Nigel’s dreadlocks being cut off with a knife and their complete denial of facts of what transpired during the entire search. 

93.  Prosecution witnesses on the other hand maintained consistency in their detail factual account of what had happened during the raid even under cross –examination. I assess them to be witnesses of truth and as such their evidence is much more credible, worthy to be believed and accepted by the court.

94.  The defence hypothesis that deceased sustained the injuries when he fall off the log crossing was a recently made to believe tale and is far from the truth. 
 Accused gave evidence portraying that the search was conducted without use of force and anyone being assaulted. Evidence adduced by the prosecution proves on the contrary the real scenario. Police had advanced on a course to conduct a raid to search for the marijuana plants and suspected drug cultivators at the complainant’s property.  They were armed with weapons for their own personal safety as they normally would in such operations.  
95.  At the start of the search individuals were assaulted and sworn at. Deceased had his hands bound behind his back. From the house to the garden he was assaulted when he denied knowledge of the marijuana plants.  At the log crossing accused Joe Gnotgnot was the one who gun butted him causing him to fall off the log into the water. When Nigel tried to help his brother Joe Ngotngot verbally insulted him stopping him from assisting his brother. Late Wesley had to wade through the water by himself without anyone assisting until he was pulled out of the water on the other side of the river.  

96.  There is  no shadow of doubt that accused Joe Ngotngot, Erick John and David Haro were actually involved in the physical assault of late Wesley.  The multiple physical injuries victim received externally and internally were caused by result of being assaulted and not from the fall at the log crossing. 

97.  There is however, no direct evidence accused Jack Bemau had been seen assaulting late Wesley.  Does that make him innocent of any wrong? 

PRINCIPAL OFFENDERS

98.  Section 7. Principal Offenders in the Criminal Code is worth considering. In arguing this point Mr. Sambua referred to two pre-independence cases of R v Potosi (1973) N730 and R v Tovarula [1973] PNGLR 140 and asked the court to hold the accused Jack Bemau as a principal offender for causing the death. 

99.  It was held in the two cases cited that physical presence of the accused at the scene bespeaks encouragement of, and support to, to those engaged in the actual crime, the accused may be regarded as a principal. Presence must be a willed, and not accidental, and with the intention of encouraging or assisting the commission of the crime charged.

100.  I adopt and apply the principles pronounced in those two authorities.  Late Wesley had been assaulted by policemen few of whom were never identified. Accused Jack Bemau was a member of the search party and was at the scene where late Wesley was assaulted. He witnessed all that was happening. At no time Jack Bemau or any member of the search party expressed dissent and stepped in to stop further assault being committed on late Wesley. They were more or less giving their approval of the beating. The father’s plea to stop them from assaulting his son in the garden was of no concern to them.  Instead he was sworn at and threatened by accused Joe Ngotngot. 
101.  The members of the search party were determined to use aggression to force late Wesley to show them where the marijuana were planted in the garden. Each of the accused and those never arrested and charged abated, aided and encouraged one another in assaulting him.  As a direct result of which he sustained multiple injuries to his body, externally and internally which led to his death. 

102.  By operation of s. 7 of the Criminal Code and the authorities cited accused Jack Bemau is considered a principal offender and is equally responsible for causing the death of late Wesley Nolu. 

103.  The conclusion reached from all of the discussions is that accused are each and severally guilty of causing the death of late Wesley. 

WILFUL MURDER

“S 299. 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

INTENTION

104.  Intention is an essential element of a charge of wilful murder. 

105.  Does prosecution’s evidence convincingly establish that accused had intended to wilfully murder the deceased? 

106.  Prosecution advanced this argument evidence in proving this element is circumstantial. It asked the court to consider the evidence of conduct of the accused during the search. They each and severally assaulted the deceased several times causing injuries that lead to his death. It argued from the evidence it can be inferred accused intended to cause his death.  In support of this argument counsel cited the case of The State v Raphael Kuanande [1994] PNGLR 512 which was cited with approval by Cannings J in The State v Binas [2007] PGNC 20 of the principle that inference of intention to kill can be drawn from direct or circumstantial evidence of the conduct of the accused prior to, at the time and subsequent to the act constituting the offence.  This is what the court 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 to, at the time and subsequent to the act constituting the offence.”
(Underlining added for emphasis)

COURT’S FINDING ON ISSUE OF INTENTION TO KILL

107.  Accused are police officers. They were members of the search party that had done to conduct a search of marijuana that were grown in a garden at the complainant’s block after a tip off. 

108.  As Police Officers it is their constitutional mandated duty to attend to complaints of criminal nature and apprehend suspects and take them into custody to be dealt with by the courts in accordance with law. 

109.  Not forgetting that the same constitution and the laws expect Police Officers to operate within the legally accepted practices in executing their duties. That is of paramount importance in our democratic society.

111.  The search that was carried out was clearly unlawful. It was unlawful because no search warrant had been obtained from the District Court authorizing the search. It was during that illegal search deceased received the injuries that caused his death as a result of police beating.

112.  What the court understands of the particular excerpt of the decision in The State v Raphael Kuanande (supra) is that to proving intention that there must be evidence, either direct or circumstantial of some representation or utterance made by the accused prior to and at the time offence was committed.  Consideration of evidence of accused conduct at the time act was committed is necessary.  Court has examined prosecution’s evidence. 

113.  Court finds that there is no direct evidence accused had made representations or utterance to kill the deceased prior to the search being conducted or at the time search was conducted and deceased was assaulted.  Similarly, it is unsafe for this court to infer from the circumstantial evidence of the conduct of the accused that they had assaulted late Wesley with the intention of wilfully murdering him.  

114.  Hence, accused are each and severally accorded the benefit of doubt in respect of the wilful murder charge. Accordingly no conviction is entered against them on that particular charge. 

115.  Having reached this conclusion that is not the final verdict of the court.  The court has found that accused are each and severally guilty of causing the death of the late Wesley Nolu. There is ample authority they each can be convicted for lesser homicide crimes of murder and manslaughter under ss.300 & 302 respectively. 

116.  No arguments have been advanced by the parties on whether court should enter alternative verdict for the crime of either murder or manslaughter. Court has the discretion to ask counsels to file formal arguments on this point. But, I consider it would be a time consuming and costly exercise for the court to do that.    Court is left alone to decide the final verdict and I proceed to do so. 

117.  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.” (Underlining added)

118.  I had done some reading of the discussions of the crimes of wilful murder, murder and manslaughter and various authorities cited in the “Criminal Law and Practice of Papua New Guinea, 3rd edition”.

119.  In view of the discussions on the crime of murder and decided authorities circumstances of the case do not support an alternative verdict of the crime of murder under s 300.  Evidence heard does support the crime of manslaughter provided in s 302 which reads:

“A person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder or infanticide is guilty of manslaughter.
Penalty: Subject to Section 19, imprisonment for life.”

120.  It was held in R v Woods (1966) N0 399 that if a judge is not satisfied there was intention to kill, a conviction of manslaughter only should be entered. (At page 298) 

121.  I note from the discussions of case law that deaths resulting from splenic injury caused by physical violence and assault come within the ambit of the crime of manslaughter. 

122.  Late Wesley died of a raptured spleen as a direct consequence of the beatings he received during the illegal search conducted of his parent’s property.   Evidence convincingly establishes and supports a conviction of the crime of manslaughter. 

123.  Accordingly an alternative guilty verdict shall be entered against each of the accused for the crime of manslaughter pursuant to s 302 of the Criminal Code. 

124.  Following this pronouncement the court orders revocation of their bail and prisoners shall be remanded at Kerevat jail pending hearing of submission on sentence which shall take place at 9.00am on 11 September 2018. 
________________________________________________________________
Public Prosecutor	:	Lawyer for the State				
Public Solicitor	:	Lawyer for the Accused