N7576

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 827 of 2015

THE STATE

V

PAUL AWAGL

Lae:  Kaumi AJ
2018: 19, 21, 22 June 
 02, 05, 11 July
15, 24, 29 August

CRIMINAL LAW – Particular Offence-Murder-Not Guilty plea-Trial-Criminal Code Act 1974, Part V-Offences Against the Person and Relating to Marriage and Parental Rights and Duties, and Against the Reputation of Individuals, Division 3-Homicide: Suicide: Concealment of Birth-Section 300 subsection (1) (a).

CRIMINAL LAW- Evidence-Identification evidence-Relevant principles identified and applied in determining credibility-pre-existing knowledge of identity of accused.

CRIMINAL LAW-Evidence-Alibi evidence-Relevant principles identified and applied when in determining credibility of Alibi-Evidentiary onus-False alibi-Alibi rejected. 

CRIMINAL LAW- State bears onus of establishing the charge against an Accused person on the required Standard of Proof, Beyond Reasonable Doubt.

The accused pleaded not guilty to murder and a trial conducted.

HELD:
[1] In assessing the evidence relating to identification I remind myself of the inherent dangers of relying on the correctness of identification to support a conviction and caution myself, as the tribunal of fact accordingly.
[2] When I considered the totality of the evidence on the issue of identification I found it to be of good quality because it was strong, cogent and convincing enough to base a conviction.
[3] The evidentiary onus or burden shifted to the accused not for the purposes of proving his alibi but rather for him to provide evidence of his alibi that would be of sufficient convincing quality to create reasonable doubt in my mind as to his guilt.
[3] I find that the accused other than what he said in evidence or in his Record of Interview did not in practical terms lead any evidence which I could say was of sufficient weight or was sufficiently credible or sufficiently convincing to create reasonable doubt in my mind to gain an acquittal. In fact I have lurking doubts about the accused’s alibi and find it not reliable and as a result place less weight on it.
Cases Cited:

John Beng v The State [1977] PNGLR 115
John Jaminan v The State (No.2) [1983] PNGLR 318
 Biwa Geta v The State [1988-89] PNGLR 153, 
The State v Wer [1988-89] PNGLR 447 
The State v Tony Pandau Hahuahori N2185 
Jimmy Ono v The State (2002) SC698, 
The State v John Bosco (2004) N2777 
State v Noutim Mausen (2005) N2870
The State v Kapil Omba (2010) N4130
The State v Okata Talangahin (No 1) (2004) N2581; 
 The State v Eki Kondi (No 1) (2004) N2542; 
The State v Donald Poni (2004) N2663 

Legislation Cited: 

Criminal Code 1974
Criminal Practice Rules1987
Counsel

Ms. Comfort Langtry, for the State
Mr. Isaac Tsipet, for the offender

JUDGEMENT ON VERDICT

19th November, 2018

1.	KAUMI AJ: 	This is a decision on verdict of a man who pleaded not guilty to the charge of murder contrary to s.300 (1) (a) of the Criminal Code Act.

BACKGROUND

2.	The State alleges that the accused, Paul Awagl’s son was alleged to have been murdered by people from Sepik at 4 mile in Lae on 19th October 2014. The State alleges that on the 20th day of October 2014, the accused’s relatives dragged the deceased, Terry Nawak, who was from the East Sepik Province, out from a bus and took him to the accused’s house where they accused him of murdering the accused’s son. The accused took an iron bar and hit the deceased on the head with the iron bar. The iron bar fractured the deceased skull and he died. The State therefore alleges that in hitting the deceased with an iron bar on the head the accused intended to cause his death and at that time the accused intended to cause the deceased grievous bodily harm. He thereby contravened section 300(1) (a) of the Criminal Code Act.

THE LAW

3.	The offence which the accused has been charged with is murder under Section 300(1)(a) of the Criminal Code, which states:

Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder: …
if the offender intended to do grievous bodily harm to the person killed or to some other person.

4.	The prosecution has the onus of proving beyond reasonable doubt that:
(a)	The accused killed the deceased; and
(b)	He intended to do grievous bodily harm.
5.	These are the two elements of the charge of murder under section 300 (1) (a).

ISSUES

6.	The primary issue is, did the accused kill the deceased.

7.	I highlight the primary issue in the following manner:
(a)	Did the accused kill the deceased? If the answer is yes, then the first element of murder is proven and the court should consider whether the second element of murder is established. If the answer is no, he must be found not guilty of murder.
(b)	Was there an intention to do grievous bodily harm by the accused? If the answer is yes, the second element of murder is established and the court will enter a conviction for murder. If the answer is no, the court will consider whether an alternative verdict of manslaughter should be entered under Section 539 (1) of the Criminal Code.

8.	To arrive at a formal determination of this question of whether the accused killed the deceased I will review the evidence of the State witnesses with respect to identification and also review the evidence of the accused with respect to the alibi he raised.

THE PROSECUTION CASE

9.	Three documents tendered into court by consent were, the Record of Interview marked as exhibit “A”, the affidavit of Dr. Ludafoa dated 27 October2014 and attached to it the Post Mortem Report marked as exhibit “B” and lastly, the Medical certificate of death marked as exhibit “C”. 

10.	The State called three witnesses to give oral evidence.

1	Steven Kia	Neighbour
	
11.	Evidence: Steven Kia said that he had lived at 4 mile for 20 years. He told the court that he knew the person sitting in the dock. That he knew that the accused who also lived at 4 mile and that for the 20 years he had lived there he had seen the accused as they both used the same road going in and out of 4 mile and that his name was Paul.  Further that he didn’t know Paul’s second name but knows that he comes from Simbu and is married with children. That on the morning of 20 October 2014 at 7:30am he saw the accused kill the Sepik boy inside the accused’s house. That on that morning he was sleeping at his house and woke up and followed his neighbours and other people who were following boys who were dragging a boy to the accused’s house.

12.	At the accused’s premises he saw the accused get a 1mil, 2 meter long fencing pipe from inside his yard. Steven said this pipe was white in colour and the bottom part of it was rusty and was a heavy one. He hit the boy on his head with it after which he fell down and died. Steven was asked where exactly the accused hit the deceased on his head and he indicated to court by tapping the top of his head.

13.	Steven was standing outside of the accused’s fence looking into his yard with his back to the road from a distance of 6 meters and the accused was standing just inside his premises at the gate when Steven says he saw the accused hit the deceased. Steven says, when the accused hit the deceased on the top of his head he screamed out ‘aiyo mama’ and died. And he saw blood come out of the deceased’s head. Steven said he saw no one else hit the deceased.

14.	Steven said he did not hear the accused say anything when he hit the deceased. Nor did anyone say anything when the accused hit the deceased He said there were many boys holding onto the deceased’s hand as they dragged him into the house.

15.	Steven said the deceased was moving before Paul hit him and after being hit he did not move. That it was a short time between the time the boys dragged Terry into the yard and the accused hitting him. 

16.	Steven said that when they tried to take the deceased to the hospital they were not allowed to so he went home at 9am.

17.	In cross-examination Steven told the court that he gave his story to the CID and they took it down on paper and that he didn’t sign the statement. That it was read back to him and he agreed with what he heard. He further told the court that he did not know how to read or write.

18.	Mr. Tjipet then took Steven through the statement he gave to the CID and he confirmed what he told them that at 7.30am in the morning of 20 October 2014 he was fast asleep at his house at 4 mile when he was awoken by people shouting and he heard from people that a Simbu man was killed by Sepik. And that upon hearing this he walked to the Simbu’s area and that there were many people there and not long he saw Simbu people pulling a Sepik inside the Simbu man’s yard and that he heard the deceased say ‘aiyo mama’. That he told the CID that a Simbu man by the name of Peter lifted a heavy iron and hit the deceased on the head to which Steven said no that he didn’t know the name Peter. The defence of alibi raised by the accused was put to Steven to which he responded to by saying he didn’t know anything about it.

19.	In re-examination Steven was asked if he saw the accused hit the deceased to which he responded yes.
	
2	Bakele Yangera	Neighbour
	
20.	Evidence: Bakele Yangera is an Engan who is a neighbour of the deceased who has been living in 4 mile since he was a young man until he got married and currently has 3 children. He is uneducated and has been doing small jobs here and there, like fencing. He stated in his evidence in-chief that he knew the accused as Peter but didn’t know his second name. He describes himself and the accused as neighbours whose houses are within a minutes’ walk from each other on a particular stretch of road that the deceased, Terry Nawak, was also a commuter of. Bakele didn’t know the deceased name but knew he was from Sepik.

21.	He stated that the incident occurred on a Monday, 20th of October in 2014. That the deceased was brought by Simbus at around 7:30am to the accused’s house where he was hit on the head with a fencing iron which was approximated to be a meter and a half (1 ½ meters). The witness stated that he was standing at the gate of the accused house while the accused was inside with the deceased. They were chased away with bush knives so were standing outside the accused’s fenced premises. The witness states that he was about 4 meters away from the accused and the deceased. He further stated that the accused said, ‘one of my sons died so I will take the action for that’, while in the act of hitting the deceased on the head with the fencing iron. The accused also said, ‘one of my sons died so I will kill him’, according to the witness.

22.	In cross-examination the witness, Bakele Yangera, was asked by Defense if he knew the accused and he said he knew him because they lived together along the same street. The witness stated that he didn’t know much about the family except that the accused was a teacher and was from Simbu. When questioned the witnessed agreed that the accused is a community leader. 

23.	Mr Tsipet read to the witness his statement that he had given to the CID on the morning of the incident. The witness is uneducated. He said the police took the body to the hospital.

24.	When questioned if there were plenty people around when the incident happened he said yes, its 4 mile and there was a very big crowd there. When asked if there were plenty Simbus around at that time and he said yes. 

25.	It was put to him that the accused did not hit the deceased and he said yes, it was further put to him that it was another person who hit the deceased and he said yes. 

26.	In re-examination he reconfirmed the person who hit the deceased is Peter by pointing to the accused and that he did see the accused hitting the deceased and that the deceased was still alive before the accused hit him. 
	
3	Bosco Maul	Sepik Man
	
27.	Evidence: He is from the East Sepik Province. He stated that the name of the deceased was Terry Nawal and that they lived together at 5 mile before the deceased died. He said that at that time the Simbu people were angry. He did not see the killing of the deceased.
	
THE DEFENCE CASE

28.	The first and only witness called to testify for the defence was the accused. The gist of his evidence was that when the deceased was killed he was not at his home but in the company of an offsider and a suspect in the killing driving up to Markham bridge to look for the persons who killed his son and upon his return to his premises found the body of the deceased lying on the front of his family’s store. That upon his arrival back in his area or house he found two police vehicles there and a police officer told him that “this is the body of one of the culprits who killed your son”. 

29.	In cross-examination by the State Mr. Awagl was asked if his fifth son was killed on the 20th of October 2014, to which he agreed and stated that prior to his death his son had lived his whole life with him up to the day he died.

30.	The accused’s son had completed Grade10 in 2013 and had not continued but was respected within the Simbu community at 4 mile and also in the village. It had hurt him and worried him that he had lost a son, who was killed by complete strangers.

31.	When asked whether he wanted those who killed his son to be held accountable he said yes but in saying that, that was to be dealt with by the law and justice to be served by God. The accused stated that he was a teacher and a church-goer and for that the community respected him. When the Simbus were angry about this loss the accused stated that he told them not to do anything, but to leave it to the law and God.

32.	The accused stated that he had driven out in the morning and when he drove back he found out that Terry Nawak’s body was inside his fenced premises or area. When asked as to how the body got there or if he ever wanted to know or inquire he said he didn’t want to because his son had also died and it was also his first time to experience such.

33.	He claimed that the Simbus and Sepiks were living peacefully and he denied suggestions that he was there at the time Terry Nawak was brought to his premise and was the one who hit him on the head with an iron bar. He denied these suggestions with a raised voice and it was also put to him that he had said, ‘one of my son’s died so I will kill him’ which he also denied in the same manner.

34.	In re-examination Paul Awagl, the accused was asked if there were many people in his area when he returned back from his drive out that morning and he said there were many both inside and outside his fenced area. Paul said he didn’t hit the accused on the head and didn’t know who did it.

SUBMISSION FOR THE ACCUSED

35.	The gist of the submission by Mr. Tjipet for the accused was that the demeanor of the two State witnesses was bad as they lied to court and that there were inconsistencies in their evidence.

36.	With respect to the demeanor of the two witnesses Mr. Tjipet submitted that the two State witnesses Steven Kia and Bakale Yangera were evasive in their answers to direct and clear questions put to them and as such their demeanor was not of trustworthy or truthful witnesses.

37.	Mr. Tjipet submitted that there were inconsistencies in the evidence of these two witnesses and highlighted such an instance with respect words the accused is supposed to have said when the deceased was dragged into his premises. Steven Kia said when the deceased was dragged into the accused premises the accused and the boys who were there with him never said anything. Bakale Yangera said when the deceased was dragged into the premises of the accused he said, “One of my sons died and I will do the action for that, one of my sons died so I will kill you” and hit the deceased on the head and he died.

38.	That both witnesses claimed that they knew the accused well however it appears as the court would know each of them do not know the accused as well as they claimed. They don’t know his family, his wife, his children, where he worked, etc. It appears each of the state witnesses do not know the accused at all. They both referred to the person that hit the deceased killing him as Peter when the accused name is Paul. That is clear indication of mistaken identity. Both witnesses however also confirmed that there were plenty people or a crowd in that area at the material time hence they could be mistaken as to what they saw.

39.	That the court would note at the time the situation was tense, there was a fight between two ethnic groups, the Chimbus and the Sepiks. The third State witness Bosco Maul confirmed that the situation was tense and chaotic and there was noise here and there and people were shouting.

40.	That both State witnesses Bakale Yangera and Steven Kia claimed they saw the accused hitting the deceased once on the head with the iron bar however that is inconsistent with the medical evidence especially the post mortem report which says that there were multiple injuries to the head including lacerations and abrasions. 

41.	The accused evidence on the other hand was consistent, what he told the police in the ROI was again stated in court. His demeanor was good and he confirmed that he did not hit the deceased causing his death. He had told the people in his area not to take the law into their own hands but was surprised when the policeman informed him about the deceased body lying in his yard. That the court should believe his evidence as opposed to the state witnesses.

42.	Mr Tjipet submitted that the State had not proven its case beyond reasonable doubt on the charge of murder. The element of identification was not proven beyond reasonable doubt. Evidence by State witness Steven Kia and Bakale Yangera as to identification was unreliable and the court should not rely on that to convict the accused. In fact identification was not proven beyond reasonable doubt.
And that questions arose as to whether the accused had the intention to do grievous bodily harm to the deceased and further hitting the deceased on the head causing his death.

SUBMISSION FOR THE STATE

43.	Ms. Langtry of counsel submitted that the State’s evidence was credible because firstly, its witnesses could not be mistaken in their identification of the accused it was 7.30am and there was light and they were not far away from the accused when they saw him hit the deceased and that their witnesses lived at 4 mile for a long time and knew the accused’s job, where his house was and that he was married with children and he was not a stranger to them. Further that the accused in his evidence acknowledged knowing Bakale as he lived at 4 mile and their houses were not close to each other.

44.	Ms. Langtry further submitted that the State’s evidence was credible because the accused had the means in that the two State witnesses said that the accused hit the deceased on the head with a heavy pipe that was 1.5 to 2 meters long and rusting on the bottom; further  the motive and the opportunity to harm the deceased; that the State’s witnesses were not shaken in cross-examination and their evidence was corroborated by independent evidence in form of the medical evidence and that the two State witnesses had no motive to mislead the court as they were not related to the deceased and that in fact were from the Highlands.

45.	Ms. Langtry submitted further that the accused’s evidence was incredible and highlighted parts of it to show this, firstly, that it was impossible for a reasonable person who was angry and worried over the death of his son to immediately forgive as that the accused said he did; secondly, that it was impossible for the Chimbu community to immediately forgive the Sepiks and refrain from going after them as the accused said and that in saying so was not forthright; thirdly, that it was impossible for the police to the identity of the person who harmed Joshua Paul that same morning within the space of a few hours as they did not have time to investigate; fourthly, that it would be impossible for someone who found a dead body in his residence not to ask questions about who and how it got there if not immediately then some days or months later or years later. That the accused’s evidence was not only incredible but lacked corroborated and further was inconsistent with logic and common sense and his alibi should be given little weight for these reasons.

46.	Finally she submitted the Court should be satisfied that the accused was present at the scene of the crime and that he hit the deceased on the head with an iron bar and caused his death and that he intended to cause grievous bodily harm.

FEATURES OF THE EVIDENCE

47.	It is uncontested that the deceased Terry Nawak was murdered on 20th October 2014. The primary issue is whether the prosecution has proven beyond reasonable doubt that it was the accused who murdered the deceased.

48.	The features of the adduced evidence that I need to consider in determining this primary issue question are:
(a)	 First the prosecution relies on the evidence of two witnesses to   identify the accused as the perpetrator and this entails firstly identifying what the established principles of identification are in this jurisdiction then considering and applying them to this evidence. Therefore the principles relating to identification evidence must be considered. 
(b)	Secondly the accused relies on an alibi and therefore I must consider the established alibi principles of this jurisdiction and apply them to the evidence of the accused on his alibi. 
(c)	In my consideration of these features of the evidence I will determine the consistency both internally and externally of the evidence of the witnesses, whether or not there are any contradictions and whether the evidence is logical and sensible. Further to this I will consider the possibility of recent invention, whether there was any hearsay evidence and lastly will consider the demeanour of the witnesses.

IDENTIFICATION
Principles

49.	The principles on identification in this jurisdiction are well settled and I refer to two cases which discuss them for purposes of reaffirmation of those principles and as guidance to me as I determine the issue of identification.

50.	Firstly, Cannings. J’s summary of them in State v Noutim Mausen (2005)  N2870:

“ In assessing the identification evidence I have applied the principles set out by the Supreme Court in John Beng v The State [1977] PNGLR 115, Prentice DCJ, Williams J, Kearney J; Biwa Geta v The State [1988-89] PNGLR 153, Kidu CJ, Bredmeyer J, Los J; and Jimmy Ono v The State (2002) SC698, Hinchliffe J, Sevua J, Kandakasi J. In particular:
•	I have considered the inherent dangers of relying on the correctness of identification to support a conviction and caution myself, as the tribunal of fact, accordingly.
•	It is particularly dangerous to rely on the correctness of identification where there is only one witness giving evidence of identification. However, provided the evidence is carefully examined the evidence of one witness can suffice.
•	It is not necessary to have an identification parade. 
•	If the quality of the identification evidence is good the matter should proceed to verdict. But if the quality of the evidence is poor an acquittal should be entered unless there is other evidence that goes to support the correctness of the identification. 
•	There is always the possibility that an honest witness can be mistaken and still be a convincing witness. The court must be satisfied that the witness is both honest and accurate.
•	If the accused has not given evidence the court must not take that into account when considering the quality of the identification evidence, as no inference of guilt ought to be drawn from a failure to testify.
•	In assessing the quality of the identification evidence, relevant considerations include: whether the witness is purporting to identify a person who was a stranger or someone he or she recognised; the length of time that the witness observed the accused (e.g. a prolonged period or a fleeting glance?); the emotional state of the witness at the time of the incident; the prevailing conditions (e.g. was it broad daylight or at dusk or dawn or inside or outside?) the line of sight (e.g. did the witness have a clear front-on view or was the line of sight interrupted or did the witness just see the accused from the side?)
•	If there are discrepancies in the identification evidence the court should consider them and assess whether they are explicable in terms other than dishonesty or unreliability”.

51.	Secondly, Makail. J in The State v Kapil Omba (2010) N4130 stated:
“56. The final issue is whether the accused was the offender. This raises the issue of identification of the accused. In assessing the identification evidence provided by the victim, I will apply the principles set out by the Supreme Court in John Beng -v- The State [1977] PNGLR 115; (1977) SC112 and Biwa Geta -v- The State [1988-89] PNGLR 153. I have considered the inherent dangers of relying on the correctness of identification to support a conviction and caution myself, as the tribunal of fact, accordingly. I accept that it is dangerous to rely on the correctness of identification where there is only one witness. I note there was no identification parade in this case but it is not necessary to have one. I am conscious of the possibility that an honest witness might be mistaken as to who they saw.
57. It has been said trial judges should warn themselves that the reliability of an identification of a person depends upon the circumstances in which the witness observed the person who he or she has identified as the accused and any one of those may possibly lead to error. For example:
•	How long was the period of observation;
•	 In what light was it made;
•	From what distance was it made;
•	Was there anything about the person observed which would have impressed itself upon the witness;
•	Was there any special reason for remembering the person observed;
•	How long afterwards was the witness asked about the person seen; and
•	How did the description then given compared with the appearance of the accused.
58. Each of these matters must be considered in every identification case”.  

Application

52.	I apply the principles enunciated by the Supreme Court in often-cited authorities of John Beng v The State [1977] PNGLR 115; (1977) SC 112 and Biwa Geta [1988-89] PNGLR 153 to the evidence by Steven Kia and Bakale Yangera relating to identification and remind myself of the inherent dangers of relying on the correctness of identification to support a conviction and caution myself, as the tribunal of fact accordingly. I accept that it is dangerous to rely on the correctness of identification where there is only one witness giving evidence of identification. I note there was no identification parade in this case but that it is not necessary to have one and that there is always the possibility that an honest witness can be mistaken and still be a convincing witness. I must be satisfied that the witness is not only honest but accurate as well.

53.	With respect to the identification evidence and in particular the demeanor of the two State witnesses Steven Kia and Bakele Yangera I will consider if the evidence they gave was credible, believable and accurate and if they were shaken in cross-examination. They saw the accused on the morning of 20 October 2014 sometime after 7:30 in broad day-light, strike the deceased on the top of his head with a one mil fencing pipe. Steven described this 1 mil fencing pipe as being white in colour, about 2 meters long and was rusting on the bottom and I take this to mean a one millimeter thick metal pipe. I note that Steven was standing 6 meters behind the accused and Bakele was standing 4 meters behind the accused when he hit the deceased on the top of his head. And that they were part of a very large crowd of people watching the events unfold in the premises of the accused and that Bakele did not run away from the scene when the Simbu people chased people away but stood his ground because he wanted to help. Both said that there was a large crowd of people standing outside the premises of the accused at the material time. This large crowd of people had followed some Simbu people who had dragged the deceased off a bus and dragged him along the road to the accused’s premises. Steven heard the deceased scream, “ayo mama” when the accused hit him on the head.

54.	 Mr. Tsipet of counsel submitted that there was inconsistency in the evidence of state witnesses Steven Kia and Bakale Yangera. That Steven Kia said when the deceased was dragged into the accused residence the accused and the boys there never said anything. The deceased was dragged in, hit once on the head and died. Further that Bakale Yangera on the other said when the deceased was dragged in, the accused said, “One of my sons died so I will kill you”, and hit the deceased on the head and he died.

55.	Whilst I accept that it is reasonable to ask how it is possible for two men who say they were standing meters away from an event taking place to give different versions of how it happened, I am not prepared to subscribe to the prescription by the learned counsel that the State’s witnesses were inconsistent as I do not consider that what they said to be inconsistent but rather was different. Steven Kia said the deceased upon being hit on the top of his head he shouted, “Aiyo mama” (oh mother) whilst Bakale Yangera said he heard the accused say “One of my sons died so I will take action for that”. These two statements are different but not necessarily inconsistent. And the reasons why I say this are because firstly, the two witnesses were at different positions which respect to where the accused was in his premises. Steven was 6 meters away from the accused and Bakale was closer to the accused at 4 meters and secondly because I note from their evidence and that of Bosco Maul and the accused as well that they were part of a large crowd of people at that time with a lot of noise and people both outside and inside the accused’s premises shouting and it was chaotic and given that these were circumstances prevailing at the time it quite possible for them from the different positions they were at to have heard differently and that is certainly nothing out of the ordinary. Thirdly, because the events unfolding in the premises of the accused at the material time were certainly not an everyday event such a football game as the atmosphere was highly charged as any ethnic clash (Simbus versus Sepiks in this instance) would be in this country especially where a death has occurred and it was in these circumstances that these two State witnesses made their observations and I accept that there would be some differences in their observations however I do not consider the differences in their evidence to have severely depleted their credibility as strongly suggested by counsel for the accused. 

56.	One observation I want to make about these differences in the evidence of the prosecution witnesses is that they point to two things firstly, they show that they were not coached prior to their testimonies in court and secondly, these differences make their testimonies more authentic and patently credible.  

57.	The next matter I wish to consider with respect the identification evidence of these two State witnesses is the degree of certainty with which they identified the accused.  Both in examination-in-chief and cross examination said they knew the accused, recognizing him as a person who used to walk on the road into 4 mile which they had also used for close to 20 years. Bakele said he knew the accused as a teacher. So it was not a matter of identifying who the accused was rather it was a matter of recognition as they both knew him for a matter of years (20) and he was no a stranger to them, they even knew where his house was and his family. In other words they had pre-existing knowledge of identity of the accused. A matter of interest in this case is the place where the State witnesses and the accused live. It is called 4 mile and is a “melting pot” and home to hundreds of people from different parts of Papua New Guinea and has been home for a lot of these people for long periods of time from 20 to 40 years as was in the case of the accused and the two witnesses. And it is normal for people who live together in such settings to recognize each other but not necessarily know each other’s name and such is the acceptance of this practice that over time a pidgin term for such recognition has evolved i.e. “luksave pes” (recognized face). And I accept that that was what happened in this case. The two State witnesses recognized him as a member of their 4 mile community though they were not too familiar with his actual name. I also note that the observations of the two State witnesses were made well before the Simbus decided to chase away the people out of the accused’s yard who gathered around to observe what was happening in the accused’s premises at the material time. And as a matter of fact Bakale did not runaway but stood his ground because he wanted to help. I find that both witnesses’ evidence was consistent internally and externally generally with respect to their knowledge of the accused. Any inconsistency in my view such as whether the accused’s name was Paul or Peter or whether or not the accused had said anything when he hit the deceased does not impinge on the primary issue of whether or not the accused killed the deceased. I do not give much weight to Bakale’s answer in cross-examination that it wasn’t the accused who hit the deceased on the head and that it was some else who did as the question was asked at the tail end of vigorous questioning and he may have been fatigued or overborne as a result when he answered in the manner he did and when I consider the totality of his evidence against those answers I find that they were against the grain of his evidence and answers. Indeed in re-examination he redeemed himself by pointing to the accused sitting in the dock as the person who hit the deceased on the head.  Further the observations of these two State witnesses of the actions of the accused at the material time were made in broad daylight and were made over a period of time and were certainly not fleeting glances (Steven Kia was at the material scene from 7.30am to 9.00am).

58.	When I consider the totality of the evidence of Steven Kia and Bakale Yangera on the issue of identification I find it to be of good quality in that I found it to be strong, cogent and convincing. Both were not evasive in their answers but consistent and adamant that it was the accused who hit the deceased on the top of his head with a fencing pipe in his premises in broad daylight on the morning after 7.30am of 20th October 2014.

ALIBI EVIDENCE
Principles

59.	The principles on alibi evidence in this jurisdiction are well established emanating from the seminal case of John Jaminan v The State (No.2) [1983] PNGLR 318 and adopted and applied in many cases and for purposes of reference I cite two cases which discuss them.

60.	Firstly, in The State v Tony Pandau Hahuahori N2185 Kandakasi. J stated:
“…The law requires an accused person, who claims to have been elsewhere then the scene of a crime, must give notice of that to the State. This is a well-established requirement in our criminal trial justice system. The requirement is expressed in these terms in Order 4 Rule 4: 
"4.	An accused person shall not upon his trial on indictment, without the leave of the Court, adduce evidence of an alibi unless, before the expiration of the prescribed period, he gives to the Prosecutor written notice of particulars of the alibi and unless the notice contains the name and address of any person whom he claims can support the alibi or, if such name or address is not known to him at the time he gave the notice—
(a)	he gives in the notice all information in his possession that may be of material assistance in locating that person; and
(b)	the Court is satisfied that before giving that notice he had made all reasonable attempts to obtain that name and address and that thereafter he continued to make all reasonable attempts to obtain and to inform the Public Prosecutor of that name and address."
The reason for this is simple, if it is indeed true that an accused person was at the place he or she claims he or she was at, and if that can be verified by the State, there would be no need to proceed against such a person. This follows on from the fact that our system of criminal justice is one in which fairness to both sides of a case must prevail. There is therefore, no room for surprises. Brunton AJ considered Order 4 Rule 4 and said these of the rational or purpose behind that rule in The State v Wer [1988-89] PNGLR 447 at p 447:
"But against the rights of the accused, there are the Criminal Practice Rules 1987. They make it very clear that when an accused person relies on a defence by alibi, then proper notice must be given. That is the law. Order 4, rule 4 and rule 5. These rules ensure that the State is not caught by surprise, and that the public interest in seeing a criminal case fairly and properly prosecuted, does not suffer.
"On the one hand, there are the interests of individuals, the interest of the accused, the right to a fair trial, and the right to have one’s day in Court. On the other hand, there is the public interest in the lawful and proper prosecution of offenders. Further, the public have an interest in the economic and efficient operation of the criminal justice system, and the courts."
It is also clear law that, a failure to observe this can have a detrimental effect on an accused person’s case. The Supreme Court decision in John Jaminan v The State (No.2) [1983] PNGLR 318 is a demonstration of what can happen to a defendant who fails to meet the requirements of this rule. In that case, Mr. Jaminan was convicted on four charges of rape and was sentenced to 4 years imprisonment on each charge to be served concurrently. He raised the defence of alibi at his trial. He maintained that he was not present in the room in a hotel where the offences were allegedly committed at the time but was somewhere else. He failed to give notice of this to the State. The National Court rejected the alibi defence and convicted and sentenced him in the way it did”.

61.	Secondly, Cannings. J in The State v Noutim Mausen (supra):
“There are two aspects of alibi evidence that need to be considered. First, the formal, procedural requirements that are prescribed by the Criminal Practice Rules. Secondly the more substantive principles, emerging from the case law, that guide the court on how to deal with alibi evidence and determine what weight to give it…
The leading case on the principles to apply in determining the value and weight to be given to alibi evidence is John Jaminan v The State (No 2) [1983] PNGLR 318, Supreme Court, Pratt J, Bredmeyer J, Amet J. Kandakasi J has also carefully set out and applied the relevant principles in a series of recent National Court decisions involving alibi evidence, eg The State v Okata Talangahin (No 1) (2004) N2581; The State v Eki Kondi (No 1) (2004) N2542; and The State v Donald Poni (2004) N2663. In a recent National Court case in Kimbe, Lay J dealt with the specific issue of the limited circumstances in which an inference adverse to the accused could be drawn by the accused’s failure to call a witness to support an alibi (The State v John Bosco (2004) N2777). 
I have considered all those cases and summarise the main principles as follows:
•	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. 
•	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. 
•	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. 
•	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. 
•	An alibi is properly regarded as a defence but before it can be said to fairly arise there must be some evidence in support and not mere speculation. 
•	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.
•	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. 
•	An alibi that is determined to be false may, depending on the circumstances, amount to corroboration of the complainant’s evidence. 
•	Great caution should be exercised before drawing an inference adverse to an accused, as a result of the accused’s failure to call a witness that might reasonably be expected to support the accused’s alibi. The State v John Bosco (2004) N2777). 
•	As a matter of practice, defence counsel should put questions about the alibi to the prosecution witnesses, to comply with the rule in Browne v Dunn (1893) The Reports 67.
•	A belated alibi, not revealed on any earlier occasion prior to trial, should be given less weight than an alibi consistently given over a long period, eg since the beginning of the police investigation, in a record of interview or in District Court committal proceedings.
•	Guilt should not be inferred from the accused not mentioning the alibi on an earlier occasion, as the accused has the right to remain silent at all times. However, as a matter of fact the lateness of an alibi reduces its weight. 
•	The court should consider whether the alibi evidence contains convincing detail or whether it is vague and short on detail.
•	The court should assess the degree of logic and commonsense in the evidence of the alibi witnesses (the terminology used by Kandakasi J in Talangahin (supra), Kondi (supra) and Poni (supra).
•	The court should also consider the demeanour of the alibi witnesses and whether there are any inconsistencies in their evidence”. 
62.	I consider what Amet. J (as he then was) stated in John Jaminan v The State (No 2) (supra) to be pertinently applicable in the instant case and which I reproduce: 
“The onus of proof remains on the prosecution throughout; there is of course no onus on the accused to prove his innocence. But if there is no evidence from the prosecution witnesses in support of the alibi, in practical terms it is incumbent upon the defence to lead some evidence of alibi. One can, I think, speak correctly of an evidentiary onus or burden on the accused. In practical terms in that situation the accused must lead some evidence of alibi and it must be of sufficient weight or sufficiently credible or sufficiently “convincing” — I will allow the word used by the trial judge — to create a reasonable doubt in the mind of the tribunal of fact to gain an acquittal. How strong or credible or convincing that evidence must be, depends on the strength of the prosecution witnesses: if their evidence is very strong then the defence evidence of alibi needs to be reasonably strong to raise a reasonable doubt”.

Application

63.	 In applying these principles of alibi I start with the second and third point of Cannings. J’s summary of these principles in The State v Noutim Mausen (supra). I have considered the evidence of the State witnesses Steven Kia and Bakale Yangera and found their evidence to be strong, cogent and convincing and from all three State witnesses I could not find anything in their evidence that was supportive in nature of the alibi raised by the accused and so given this sequence of events I must now consider if the accused has in practical terms, led some reasonably strong evidence of an alibi sufficiently convincing not to prove his alibi but rather to create a reasonable doubt in my mind as to his guilt. The two State witnesses’ observation of the actions of the accused at the material time were made in broad daylight and were made over a period of time and were certainly not fleeting glances. Both were consistent and adamant that it was the accused who hit the deceased on the top of his head in his yard in broad daylight on the morning after 7.30am of 20th October 2014. The accused was in court the whole time very strong and damning evidence was begin given against him by the two State witnesses and going by what Amet. J (as he then was) said in John Jaminan (No.2) “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” in practical terms he should have called alibi evidence that was reasonably strong.  I find that the accused other than what he said in evidence or in his Record of Interview in practical terms did not lead any evidence which I could say was of sufficient weight or was sufficiently credible or sufficiently convincing to create reasonable doubt in my mind to gain an acquittal. In fact I have lurking doubts about the accused’s alibi and find it not reliable and as a result I place less weight on it. The practical effect of raising an alibi as a defence in a trial is that the accused is saying he was never at the scene of the crime and this has the effect of putting every matter in issue. At the other end of the spectrum the excusatory defences of self-defence or provocation or any other of the excusatory defences within Chapter 5 of the Criminal Code Act (Ch. No. 272) concede the presence of the accused and his involvement in a series of events which led to the final state of affairs giving rise to the charge. This is the situation in this case and I can safely say the evidentiary onus or burden shifted to the accused not for the purposes of proving his alibi but rather for him to provide evidence of his alibi that would be of sufficient convincing quality to create reasonable doubt in my mind as to his guilt. John Jaminan v The State (No 2)   And I make mention of this bearing in mind what the Supreme Court said in John Jaminan (No.2) that “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”. John Jaminan v The State (No. 2)

64.	 Given the state of the State’s evidence which I found to be very strong it was incumbent upon the accused to call reasonably strong alibi evidence to cause me to doubt the evidence of the State regarding his guilt. And while on this train of thought I pose the questions, why didn’t he call the police officers who were at his house to corroborate his story? Why didn’t he call the police officer who he claims said to him, “this is the body of one of the culprits who killed your son”? Or Mote and the off-sider in his car to corroborate and confirm his alibi of being at the Markham Bridge at the material time. Another matter is if as he claims the police officer had told him upon his return to his premises from Markham bridge that, “this is the body of one of the culprits who killed your son”, then how is it that the accused is the one who is charged with the deceased’s death. All these matters I have referred to would undoubtedly have had the effect of causing me to seriously doubt his guilt but because he didn’t I find their absence severely depletes the credibility and believability of the evidence given by the accused. I am sure that had the accused raised these matters of his potential witnesses with his counsel the first of two things would have happened, a notice of alibi naming these persons and their addresses as alibi witnesses would have been filed and secondly, they would have been called as defense witness to corroborate and confirm the alibi raised by the accused, not to prove his alibi but as I have been emphasizing in this judgment cause me to have doubts about his guilt. The procedural requirement for notice of alibi was not complied with and I am not sure what transpired between the accused and his counsel and I can only decide on the evidence properly adduced before this court through the normal evidentiary process. 

65.	Another matter arises with respect to the non-compliance by the accused with the procedural requirement to file his notice of alibi in Order 4, rule 4 of the Criminal Practice Rules, 1987. The accused raised his alibi in his interview with police during the conduct of the record of interview from answers 21 to 33 and I considered his answers in the record of interview to be notice enough to police of his alibi at his earliest opportunity to do so and as such was not raised belatedly and therefore allowed him to proceed with alibi as his defence. Having said this I note he didn’t tell police the names of the boys who he says were with him at the material time at Markham Bridge and this was important for reasons of fairness both to the State and himself. For the State it would have allowed them the opportunity to verify his claim to have been elsewhere at the material time if his claim was verified then there would been no need to proceed against him.  

66.	I note that the demeanor of the accused in the witness box was not that of a witness of truth. He never looked at the bench but sat smugly with his arms folded and gave what I thought to be well thought out and intelligent answers to questions in cross-examination. I found parts of his evidence to be incredible, illogical, and irrational and did not sit well with common sense. He seemed to be evasive in his answers to crucial matters such as his where about at the material time. I got the distinct impression that he only told the court what he wanted it to hear and hid what actually happened on that day and was covering up for the actions of other persons involved in the murder of Terry Nawak.  For instance he continued to avoid saying that the Simbus were responsible for the death of the deceased and seemed to blame people from other provinces. He only made mention that the Simbus killed the deceased later under cross-examination after which he seemed to have realized what he had just said and retracted in his answer to the next question. To highlight this point I quote the questions and answers in his cross-examination:
Q: So similar to the stance that you took the Simbu community also forgave the Sepik community for killing one of their own? 
A: The Simbu community I told them not to do anything, God is the Judge but when I went out, that thing happened.
Q: You say that when you went out that thing happened. Tell us what that ‘thing’ was?
A: What I mean is the death of Terry Nawak. When I returned I saw the body in front of my house. That’s the thing I’m talking about.
Q: So I’ll ask you again; the Simbu community forgave the Sepik community for killing one of their own? They did not take any action against the Sepik community?
A: It didn’t happen that way, I think they did not forgive the Sepiks that is why they killed Terry Nawak.

67.	      I also found the accused conniving and evasive in his answers in cross-examination some of which I quote:
Q: When you say that’s why they killed Terry Nawak, you accept that someone from the Simbu community killed Terry Nawak?
A: That is not correct, not only Simbus are living at 4mile, all of PNG is living there, people coming from all parts of Papua New Guinea, so it was a new type of thing to happen there.
Q: Now I am not asking you who lives at 4 mile, I’m asking you when you say that’s why they killed Terry Nawak, I’m asking you; you accept that someone from the  Simbu community reacted to the death of your son and killed Terry Nawak?
A: That I won’t tell this Court, because I’ve told this Court that I wasn’t there at that time. I drove out.
Q: So what you are telling the Court is; to this day you don’t know who killed Terry Nawak?
A: Correct, until today I don’t know who killed Terry Nawak.
Q: And you told court that when you came back and you saw Terry’s dead body you didn’t do anything? You just opened your vehicle and stood there?
A: That’s correct
Q: You didn’t enquire as to how that dead body got there, did you?
A: No
Q: You didn’t ask?
A: No.
Q: You didn’t hear people mention how it got there?
A: No.
Q: At the hauskarai, people didn’t mention how Terry’s dead body got to be in your yard?
A: I didn’t hear anything, maybe they might have said but to my ears I didn’t hear anything.
Q: So they spoke about his death but you never heard it?
A: No one told stories with me on Terry death because my son was killed, died, so I was in a state of worry. So nobody would like to tell such stories with me.
Q: You didn’t ask at the hauskrai how Terry Nawak’s body got to be in your yard, did you?
A: No.
Q: My question is; you just weren’t curious as to how the body of your son’s killer got your yard?
A: I didn’t know that until the policeman told me that he is one of the culprits who killed your son, that time I knew.

68.	He also seemed to be trying to convince the court that there was no animosity between the Simbus and Sepiks and the relationship between these two ethnic groups was peaceful and didn’t say why this was so until later in cross-examination when he said a Simbu had died and then a Sepik had died so there was no more animosity between the two groups. The accused seemed to blame persons from other parts of PNG other than Simbus for the death of the deceased. Why would someone from the coast or Enga, Tari or Mt Hagen kill a complete stranger from Sepik for no reason at all? This totally runs against common sense, logic, rationality and PNG culture and this is what the accused would have the court believe. Indeed what the accused said contradicts what the three state witnesses said that the situation at 4 mile was very tense as the accused’s son had been killed and the Simbus had dragged the deceased a Sepik whom they blamed for his death to the accused’ premises.

ASSESSMENT OF EVIDENCE

69.	I find it incomprehensible that the accused was at Markham Bridge at the material time. He had just lost a young son in tragic circumstances and when he should have been grieving for his son he would have the court believe that he was driving around the Markham Bridge area at the material time playing the role of a police detective searching for the persons responsible for the death of his son. I find that the alibi he raised to be false and a false alibi in certain circumstances corroborates the prosecution case and I find for the aforementioned reasons that in this case that it does.

70.	I also find his evidence to be incredible and lacking corroboration.

71.	A good performance by a witness in the witness-box does not necessarily translate into believable evidence and though I agree with the defense counsel that the accused was composed, calm and collected in his performance in the witness box what matters is what he told the court on crucial matters and I find that what he told the court on those matters was just unbelievable. His composed and confident performance arises perhaps from his being a teacher for 38 years and his leadership in solving community problems.

72.	I find also that even without the fact that I have found his alibi to be false there is enough evidence from the State witnesses to convict the accused. I have considered the evidence of the State witnesses Steven Kia and Bakale Yangera and found their evidence to be strong, cogent and convincing and further from all three State witnesses I could not find anything in their evidence that was supportive in nature of the alibi raised by the accused.

 DID THE ACCUSED KILL THE DECEASED?

73.	Therefore I am satisfied that the State has discharged the burden of proving beyond reasonable doubt that the accused killed the deceased. The first element of the offence of murder has been proven. I will now answer the second question.

DID THE ACCUSED INTEND TO CAUSE GRIEVOUS BODILY HARM?

74.	The medical report is crucial on this aspect and its finding on the cause of death manifests the intention by the accused to cause grievous bodily harm to the deceased. The Post Mortem Medical Report under the heading HEAD EXAMINATION and sub-headings firstly, Skull/Vault  states Temporal-parietal skull fracture measuring 3cm x 2cm with multiple fracture segments; secondly, under DEATH RESULTED FROM 1. Severe Brain Injury. I find the examination of the skull/vault of the deceased and its finding consistent with the evidence from the two State witnesses that the accused hit the deceased on the top of his head with a fencing pipe with such force that it caused him to collapse and die from this blow. I note from this report that the deceased also had other injuries to his head but the crucial injury was the injury to his skull is recorded and which I have already referred to under the heading HEAD EXAMINATION.

75.	I find that the accused intended to cause the deceased grievous bodily harm.

76.	The second element of the charge of Murder has been proven.

VERDICT 

77.	I find that the State has proven both elements of the offence beyond reasonable doubt and return a verdict of guilty against the accused for one count of murder contrary to section 300 (1) (a) Criminal Code Act.

Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused