N9687

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 868 OF 2018

BETWEEN:
THE STATE

AND:
PAUL IREVAKA

CR NO. 870 OF 2018

Between:
THE STATE

And:
SMOKEY IREVAKA

CR No. 873

BETWEEN:
THE STATE

AND:
NATHAN PAHAS

Wewak: Thoke, AJ
2021:  13th, 16th And 9th And 26th November
2022:  14th April

CRIMINAL LAW- Wilful murder – Criminal Code, Section 299(1) – Elements of wilful murder – Group attack – Criminal Code, Section 7 – Standard of proof is beyond reasonable doubt – Constitution, Section 37(4) 

CRIMINAL LAW – Practice & procedure – Establishing the elements of wilful murder – Identification issue – Dangers to be borne in mind in accepting evidence of identification - Relevant matters for consideration 

CRIMINAL LAW – Practice & procedure – Defence of alibi – Breach of rule in Browne -v- Dunn (1893) 6 R 67 HL –- Unfair to State’s case to lead evidence of alibi – Evidence of alibi not credible – Criminal Practice Rules 1987 – Order 4, rules 4, 5 & 8.

CRIMINAL LAW – Practice & procedure – No case to answer based on grounds of inconsistency in the Prosecution Witnesses’ evidence (State –vs- Paul Rope [1976] PNGLR 96) – Not the right stage to scrutinize inconsistencies

CRIMINAL LAW – Evidence – Assessment of evidence - Logic and common sense play a major part in accepting or rejecting evidence in determining the guilt or innocence of an accused person – Evidence going against any logic and common sense unreliable – Illogical explanations coupled with inconsistencies amount to unreliable evidence which ought to be rejected.

Facts:

The three (3) Defendants/Accused were charged with Wilful Murder of a fellow villager and clansman, Smody Lus. It was alleged that the three collaboratively attacked the deceased over reasons only known to them.

Held:

1.	When there is evidence proving each element of Wilful Murder, the Court cannot stop the case upon a No case-answer submission based on inconsistencies in prosecution evidence, unless those inconsistencies have a significant bearing on the entire outcome of the case.

2.	In situations where the State witnesses’ presence at the scene of the offence, in accurately identifying the Accused(s) are questionable and lack good quality, there must be an independent witness to corroborate the evidences.

3.	When a Defence of Alibi is raised, and where the issue of Identification is questionable and of poor quality, the Defence must adduce some credible evidence to successfully establish a Defence of Alibi. 

4.	The Defence’s key witness, Cassedy Mariningi, was sentenced to ten (10) years imprisonment for the same offence. The onus was on the State to further examine Mr. Mariningi’s evidence in light of his conviction and guilty plea.

5.	The Prosecution has the duty to call the Investigating Police Officers to turn in the Record of Interview (ROI) in Court to prove that section 42 and 37 have been complied with, unless Defence raises the issue of Voir Dire. Failure by the Prosecution to tender the Record of Interview constitutes denial of Defence case in cross-examining the credibility of Police Investigating Officer’s conducting the Record of Interview.

6.	In this case, more than nine (9) Accused were involved in partaking in the day that occasioned the death of the Deceased, and State has failed to sought assistance from the community leaders in arresting and charging the suspects in light of the supreme court ruling in Maslin Paiakali –v- The State.

7.	The quality of state witness’s presence at the scene of the killing lacks credibility, contrary to Defence’s last witness Cassedy Mariningi’s guilty plea, and as such, the benefit of Acquittal goes to the 3 Accused.

Cases Cited:
Papua New Guinea Cases

Bate v The State [2012] PGSC 46, SC1216
John Beng v The State [1977] PNGLR 115
Masolyn Piakali-vs- The State [2002] PNGLR 141
State v Cosmos Kutau Kitawal and Christopher Kutau (No.1) (2002)
State v Marety Ame Gaidi (01/08/02) N2256
State v Paul Rope [1976] PNGLR 96
State v Sod [2012] PGNC 118; N4826 
The State v Anis Noko [1993] PNGLR
The State v Mekorie [2012] PGNC 9; N4744

Overseas Cases

Browne v Dunn (1893) 6 R 67 HL

Legislations Cited:

Constitution
Criminal Code Act 1974
Criminal Practice Rules 1987

Counsel:

Ms. Linda Maru, for the State
Mr. Stanley Parihau, for the Accused

JUDGMENT ON VERDICT

14th April, 2022

1.	THOKE, AJ:  An indictment was presented by the Prosecution on the 26th of November 2021 charging each of the Defendants with one count of Willful Murder, pursuant to Section 299(1) of the Criminal Code Act. The charge on the indictment read as follows:

“Paul Irevaka, Smokey Irevaka, and Nathan Pahas of Sima Village, Yangoru, East Sepik Province stand charged that the said Paul Ireveka, Smokey Ireveka and the said Nathan Pahas willfully murdered Smody Lus.”

2.	Each of the Accused pleaded not guilty. 

THE CHARGE

3.	Section 299(1) of the Criminal Code states:

(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.

4.	The Prosecution has the onus of proving beyond reasonable doubt the three elements of the offence which are:

(i)	That the accused killed the deceased;
(ii)	That the killing was unlawful; and 
(iii)	That there was an intention to cause the death of the deceased (or some other person).

THE PROSECUTION’S EVIDENCE

5.	The Prosecution called three witnesses, namely Mr. Brian Kungaie, Mrs. Getrude Kungaie and Mrs. Martha Lus. The State decided not to call the Police Investigation to tender the Record of Interview of the three Accused. 

6.	The three State Witnesses’ evidences, although lacking sound English grammar and structure, were obvious to understand. I paraphrase them for ease of reference.

7.	The First State Witness, Brian Kangaie, gave sworn evidence that:

(i)	On 26th August 2017, at 5pm, he (Brian) was at their family abode in Sima Village along with his wife Getrude (the Second State Witness), their children, Gertrude’s parents and Martha Lus (the Third State Witness), when Derrol and Cassedy went to the house to get Smody Lus (the Deceased). At that time, the Deceased was asleep in the house so they (family of the Deceased) told Derrol and Cassedy to leave. So Derrol and Cassedy left. 

(ii)	At about 6:45 pm, Derrol and Cassedy returned to seek for the Deceased again. This time the Deceased upon waking up went with them as it was to witness a peace ceremony between Pangu Village boys and his Uncle Joseph. 

(iii)	When they (Derrol, Cassedy and the Deceased) walked up along the way, Smokey Irevaka (one of the three Accused) and Hillary Yalus started attacking the Deceased by hurling sticks and stones. At this time, the boys from Pangu Village joined forces against the Deceased. One of the boys, Joshua Mariningi, tripped the Deceased who fell to the ground. While the Deceased was on the ground, Paul Irevaka (one of the three Accused) used a fighting stick called ‘pongo stick’ to hit the Deceased on the back of his head. The Deceased immediately stopped moving afterwards. 

(iv)	Then, he (Brian), his wife Getrude and Martha picked the Deceased up from where he was lying and carried him to the house. As they carried the Deceased off, Nathan Pahas (one of the three Accused) said “koapim em na karim em igo” (have sex with him and take him away). 

(v)	At around 4am the next day (27th August 2017), the Deceased passed away.

8.	Brian Kangaie identified the three Accused persons in Court by pointing them out.

9.	The Second Witness, Getrude Kungaie, is the elder sister of the Deceased (and also wife of the First State Witness). Her sworn evidence had a narrative analogous to the First State Witness, except she stated that:

(i)	When the Deceased went out of the house with the boys (Derrol and Cassedy), they (herself, Brian and Martha) followed closely behind. So, they all watched the fight taking place before them.

(ii)	When the Deceased was on the ground after being hit with the ‘pongo stick’ by Paul Irevaka (one of the three Accused), she cried out, “Paul you killim brada blo me pinis” (Paul you have already killed my brother). That is when Nathan Pahas (one of the three Accused) who was also there, yelled out, “koapim em na karimem go” (have sex with him and take him away). Without replying, she, her husband and Martha carried the Deceased home.

10.	The Third State Witness, Martha Lus, is also another sister of the Deceased. Her sworn evidence had the exact same narrative as the Second State Witness, Getrude Kungaie. She also blurted out “Paul you killim brada blo me pinis” (Paul you have already killed my brother), in chorus with her sister, Getrude.

11.	The State also relied on the Medical Report by Dr. Kambo (see Exhibit 1), which declared the primary immediate cause of death as intra-cranial bleeding (bleeding inside the brain).

THE PROSECUTION’S SUBMISSION

12.	The Counsel for the State submitted that:

•	Each of the Witnesses identified Smokey Irevaka as the person who started the fight against Deceased and was assisted by Hillary Lus.
•	Each Witness identified Smokey Irevaka as one of those who hurled sticks, stones and bottles at the Deceased.
•	Each Witness identified Paul Irevaka as the person who used the ‘pongo stick’ to hit the rear side of the Deceased’s head.
•	Each Witness identified Nathan Pahas as the person who said “koapim em na karem em igo” (have sex with him and take him away).
•	Each of the Witness said there was sufficient light at the time of the fight and they were able to see clearly and witness what was going on.
•	They all stood at a distance of 1.5 meter and watched the fight.
•	All three Accused persons are known to them (the State Witnesses) as they are all from Sima Village.

13.	In Cross Examination, they all maintained that they witnessed the fight that occasioned the death of the Deceased. They also maintained that the three Accused persons were part of the group of men who attacked the Deceased.

14.	Counsel for State further submitted that the Defence had not clearly put the details of its case witnesses, particularly the story by the Defense Witness Cassedy Mariningi in compliance with the rule in Browne v Dunn (1893) 6 R 67 HL, so that the State Witnesses could have had an opportunity to either rebut or affirm that during Cross Examination.

THE DEFENCE’S ‘NO CASE TO ANSWER’ SUBMISSION

15.	After the close of the Prosecution’s case, the Defence raised the issue of “no case to answer” based on the authority of State –v- Paul Rope [1976] PNGLR 96. The Defence Counsel submitted that he relied on the second limb and based on grounds of inconsistency in the three Prosecution Witnesses’ evidence.

16.	The Prosecution contested that the issue of inconsistency or consistence cannot be raised at this stage of hearing. The State further submitted that all the essential elements of the offence (of willful murder) had been established in their case. 

17.	I agree with the State’s submission on the basis that this Court will need to hear from Defence witnesses before touching on the issue of inconsistencies in the State witnesses’ evidence, should there be any.

THE DEFENCE’S EVIDENCE

18.	The Defence called four (4) witnesses, the three Accused and Cassidy Mariningi who is serving 10 years imprisonment for the same offence. Cassidy’s presence was confirmed by the 3 State Witnesses.

19.	Paul Irevaka’s evidence was that he was a church driver and a member of the SDA Church in Sima Village, Yangoru District, and stated that:

(i)	On 26thAugust, 2017, between 5pm and 6:30pm, he was attending Sabbath Closing Service in his church which was quite a distance from his residence. He went to bed after returning from Church. Although his children informed him of the fight in the village, he was not interested at all thereby telling his children it was not their problem. 

(ii)	He denied any form of involvement in the fight. Other people shared the news that the Deceased was attacked by youths, including Cassidy Mariningi who was blamed for throwing a stone which landed on the rear side of the Deceased’s head causing death hours later.

20.	In Cross Examination, Paul Irevaka maintained that the SDA church was far away, about 400-500 meters away from his residence, and usually one could clock a 30-40 minutes’ walk to and from his house.

21.	The Second Accused, Smoky Irevaka, told the court that he was busy studying in his home on that night, hence denied knowledge of all happenings in his village (Sima), let alone the incident involving the death of the Deceased. He further said, he did not set foot outside of the house.

22.	The Third Accused, Mr. Nathan Pahas, also denied getting involved in the fight with the Deceased. Because he was sick from his chronic asthmatic attacks,he said he was unable to go out to find out what was happening outdoors. He was unexpectedly arrested the next morning of 28th August 2017, for allegedly  taking part in the fight that led to the Deceased’s death.

23.	Mr. Cassidy Mariningi’s sworn evidence (as Defence Witness) at trial, of what actually transpired is correctly quoted by Counsel for State in her written submission as follows:-

“On Friday 25th August 2017, he was with Smody Lus and they were drinking brew all of Friday and then on Saturday 26th August 2017, they continued drinking. In the afternoon, Triman Nangupari came and told him and Smody that the boys from Pangu came because they fought with uncle Joseph. So Smody got two bush knifes and they (he and Smody) walked up to where those boys were. He said when they arrived, Smody started the fight with the boys from Pangu and they fought back. He said he got a stone and wanted to throw it at the boys from Pangu but instead he accidentally hit Smody on the back of his head with it and Smody fell to the ground. That is when the fight stopped. He and Smody then walked back to Smody’s house and he shaved Smody’ s hair where the cut was. Then Smody’s wife cooked rice and they ate and later Smody went to sleep and he left the house to go. As he was about to leave, Smody said to him “you come back tomorrow and check me, and my wife can take to me the hospital.” However, next morning Smody passed away. He further said he did not see the 3 accused persons there at the fight. He also said he did not see the three state witnesses at the fight as well. He also said Derrol was also drunk and was not there at the fight. He said prior to the fight, he was staying with the deceased and his family. He was picked up by police on Monday the 28th of August 2017 and taken to the Police Station.”

THE DEFENCE’S SUBMISSION

24.	In response to First State Witness Brian Kungaie’s sworn evidence, the Defence Counsel submitted that his evidence was not consistent. In Cross Examination, when asked whether he was present at the time when the fight or commotion started, he (Brian) said “he was still in the house”. That was confirmed. When the fight started he ran to the scene and found out that they were fighting with Pangu village men.

25.	He further submitted, the Second State Witness, Gertrude Kungaie, was not there at the actual vicinity of the fighting to actually witness the events unfolding. Had she been there, she could have taken the Deceased to the hospital. Her evidence in Cross Examination that she was there and that there was no one available to assist her to take the Deceased to the hospital is unreliable according to Defence Counsel.

26.	Regarding the Third State Witness, Martha Lus, she made her way to the fighting place, sometime after Cassedy Mariningi and Derrol left with the Deceased from the house, hence could not have entirely witnessed the fight. When the Defence Counsel put to her that she could not have been there at the scene, at 6:45 pm on 26th of August 2017, because she was said to be living in Wewak, she objectively maintained that she was there at the fighting scene. 

27.	As to the Accused/Defence Witnesses, the Defence Counsel submitted that all three Accused persons were never present at the time when the fight broke out and did not know anything about the fight even the killing of the Deceased until the next morning. They only became more aware of the fight when they were arrested with the other suspects on 27th August 2017.

CASSEDY MARININGI EVIDENCE

Submission By Defence

28.	The Defence Counsel referred to Cassedy Mariningi’s evidence as the only evidence that is relevant and needs to be considered by this Court. It was submitted that:

•	Cassedy Mariningi was the one who was with the Deceased when he was attacked by a group of suspects. All the State Witnesses, as per their narrative, confirmed that he (Cassedy) was responsible for taking the Deceased out to the fighting scene from the home.

•	Cassedy says that the only people that were present at the fight with him (regardless of participation) were; the Deceased, Daniel Jumanambo, Japhet Jumanambo, Isaac Jumanambo and Stanley Namangugla. According to him, no one else was there to witness the fight. He said the Deceased sustained no other cuts or injuries to his body except for the blow to the head. 

•	In Cross Examination, he stated that he was charged with willful murder and he admitted to the charge and because he was only a juvenile of 16 years at that time, he got a suspended sentence instead and now on probation. A copy of the Court order on his sentence was tendered as Exhibit on P.2.

Submission By State

29.	The Counsel for State, Ms. L Maru, asked the Court not to believe and accept Cassedy’s sworn evidence.  

30.	First, she submitted that the Deceased died not because of the stone Cassedy threw towards the group of attackers but the 'pongo stick’. 

31.	Next, she submitted that the Defence failed to put to the State Witness in Cross Examination in compliance with the rule in Brown v Dunn. 

32.	She further submitted that, in Cross Examination, if Cassedy admitted that he accidently killed the Deceased, how was he charged with willful murder? He could have pleaded not guilty and run a trial. Besides, she added that his co-accused wanted to plead not guilty so they still waited to run their trials. 

33.	She said the Deceased suffered injuries to the head and that would not have only come from the stone he (Cassedy) threw. This was confirmed when his evidence was contradicted by the findings of Dr. Kambo whose Report revealed that the Deceased suffered multiple injuries and not a mere one blow by a stone to the Deceased’s head.

34.	She concluded that if Cassedy’s story is true, then who gave the identities of the three Accused persons to the Police soon after the incident for their arrest?

ISSUES FOR THIS COURT’S DETERMINATION

35.	The issue for this Court to consider now after hearing and evaluating the evidence of both the State and Defence Witnesses, correctly raised by the Counsel for the State and Defence, respectively, is that which version of the story should the Court believe?

36.	Each of the three State Witnesses, Mr. Brian Kungaie, Gertrude Kungaie and Martha Lus said, they were all present at the scene of the fight, thereby identifying the three Accused. However, the Accused persons denied any form of involvement, direct nor indirect, with the group of people (consisting of more than nine) from Pangu Village, who attacked the Deceased (which later caused death). In other words, they raised a Defence of Alibi.

37.	This Court is drowned into the following issues:

(i)	Whether the evidence of the Accused persons raising the Defense of Alibi is questionable or of a good quality?
(ii)	Whether the evidence of the last Defense Witness, Cassedy Mariningi, is credible?
(iii)	Whether the evidence of the three State Witnesses is questionable or of good quality? 

ISSUE 1 - WHETHER THE EVIDENCE OF THE ACCUSED PERSONS RAISING THE DEFENSE OF ALIBI IS QUESTIONABLE OR OF A GOOD QUALITY?

38.	The law relating to the Defence of Alibi is clearly discussed in the case of John Jaminan, quoted in par. 23-24, pg. 80:  Alois Erebere: And Taros Togote v The State, Cannings, J -2011 in Papua New Guinea Law Reports - Volume 2 - 2011:

“As to the third submission it is true that his Honor did not expressly refer to John Jaminan’s case, which is properly regarded as the leading case on alibi evidence in Papua New Guinea. But His Honor was not obliged to cite the case specifically. What is important is whether he considered and assessed the alibi evidence in a manner consonant with the principles in Jaminan. Mr. Siminji in his submission succinctly summarized key features of the Jaminan principals in the following way;

•	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 in 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 evidence of the prosecution witnesses. If their evidence is very string to raise a reasonable doubt in the mind of the judge as to the guilt of the accused.

•	An alibi is properly regarded as a defense but before it can be said to fairly arise there must be some evidence in support of it, and not mere speculation. 

•	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.

We do not consider that his Honor offended against those principles when rejecting the alibi evidence. His Honor’s judgement showed no signs of shifting the burden of proof away from the prosecution. Nor did his Honor place the onus of proving the alibi or proving innocence on the accused. His Honor noted that there was alibi evidence, summarized it on its merits and concluded, by rejecting identification evidence, which his Honor considered was convincing, and other incriminating evidence against the first appellant. His Honor did not at any stage of his judgement state or indicate that because he was rejecting alibi, a conviction should be entered. He was satisfied by a proper and orderly process of judicial reasoning, based on the evidence presented by the State, that the prosecution has proven its case beyond reasonable doubt. The third submission has no merit.”

39.	In considering the first issue, the three Accused persons denied the charge of Wilful Murder and each said, they were not involved in killing nor assaulting the deceased around 6:45pm or 7pm on the 26th of August 2017. 

40.	The Accused, Paul Irevaka, said, on the 26th of August 2017, between 5 o’clock and 7:30 pm, he was attending Church service at the SDA Church. Returning home late he went straight to bed brushing aside the story of the fight. He also mentioned Cassedy Mariningi is the one who killed the Deceased and was convicted and sentenced. When put to him during Cross Examination that he was the one who used the ‘pongo stick’ to hit the Deceased, he denied outright. When State Counsel put to him that he was the one who killed the Deceased, he maintained his denial.

41.	However, this Court had difficulty accepting his narrative as true and appropriate in the circumstances. Why? Because the fight took place near his abode and as a reasonable person he would have formed an interest to inquire of the fight in his village that led to the loss of one’s life. In our Melanesian culture, whatever happens in the community affects all members. Thus, a normal Melanesian man would investigate, for purposes of his own consumption and awareness. Anything detrimental to the community as a whole, in this case a fight causing grievous bodily harm leading to death of another member of the village, would have been a big concern to Paul rather than brushing aside the news and heading straight to bed.

42.	The Third Accused, Nathan Pahas, also denied taking part in the fight. He said when the attack was going on he was sleeping until the next morning. He also denied his involvement in the fight. He said he was busy studying or doing his school work in his house. Both of the last Witnesses’ evidence were very brief and not corroborated by any other witness or witnesses.

43.	In assessing the evidence of the three Accused, their denial and Defence of Alibi is questionable because their evidence is without support from any other witness to justify their Defence of Alibi.

44.	Now I turn to the second issue.
ISSUE 2 - WHETHER THE EVIDENCE OF THE LAST DEFENSE WITNESS, CASSEDY MARININGI, IS CREDIBLE?

45.	Cassedy Mariningi’s evidence exonerates the three Accused. He said he did not see them at the scene of the fight. In a group fight, especially around twilight, it becomes wearisome for identity to be established. Against the gravity of Cassedy’s evidence, the State Witnesses’ evidence is shaken with somewhat identity crisis.

46.	The most applicable case laws on the principles of identification are John Beng v The State [1997] 115 and Ilai Bate v. The State (2012) SC1216). These two cases had made it mandatory for courts and in particular for a National Court Judge to caution himself or herself when dealing with a case where conviction is dependent on identification. The Supreme Court in Ilai Bate v The State (supra) summarized the principles. I set them out herein.

“It is settled law as explained by the Supreme Court in John Beng v The State [1997] PNGLR 115, Biwa Geta v The State [1988-89] PNGLR 153 and Jimmy Ono v The State (2002) SC698) that there is an inherent danger in convicting an accused on the basis of identification. The trial judge should by his or her reasons for decision demonstrate that danger is recognized and heeded. This is done by administering a self-caution. It is the sort of caution that a judge would give to a jury in jurisdictions that have trial by jury. In PNG, we have no juries. The judge is tribunal of fact as well as of law. So, the judge is expected to caution himself of herself as a matter of self- discipline and as a means of demonstrating through his or her judgement that the principles on identification evidence have been applied.”

47.	I have cautioned myself and carefully considered the evidence of all Witnesses from both sides in accordance with the law on identification applied in this jurisdiction.

48.	I quote a more simplified principle in John Beng v. The State (supra) set out in another more important   Supreme Court ruling in PNG, where the Prosecution and Defence witnesses are to take caution in applying the law of identification. 

“The law on identification evidence is settled. The often-cited authorities are the judgements of this Court in John Beng v The State [1977] PNGLR 115. Recently, Kandakasi, J summarized those principles in an easy to follow manner in The State v. Marety Ame Gaidi (01/08/02) N2256, in these terms at pages 5 to 6 of the judgement:

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

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

(a)	A convincing witness may be mistaken; or
(b)	A number of witnesses could be mistaken;

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

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

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

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

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

8.	There should be an acquittal if the quality of the evidence is bad.”

49.	In this case, the three State Witnesses each confirmed that he (Cassedy) came with Derrol to seek the Deceased’s company to attend a peace ceremony. None of the State Witnesses joined the team as they (Cassedy and Derrol) left with the Deceased. Even, in any part of the three State Witnesses’ evidence, they did not see or mention Cassedy Mariningi at the scene of the killing. What happened to him during the fight? Where was he? Why did they fail to identify him at the fighting scene?  Each of the State Witnesses did not mention his name at the fighting scene. Such evidence is very questionable and not of good quality.

50.	Cassidy was under-aged and a juvenile at that time. In my opinion, he was there at the scene of the fight, maybe some meters away and witnessed the whole or part of the event. I also accept his evidence that he got a stone and threw it directly at those youths from Pangu village who came to attack the Deceased, but accidently landed on the rear side of the Deceased’s head. Further, he admitted that he killed the Deceased accidently for which he was convicted and sentenced to 10 years.  A copy of his court order was presented in court as Exhibit P. 2 (CR No 865 OF 2018 - State v Kessedy Mariningi).  

51.	Further, when Defence Counsel put to him in Examination-in-Chief, whether he was remanded with the three Accused at Boram Correctional Institute, and he said he was separated from other remandees and had no form of contact with any of them. 

52.	At this juncture, it is proper to mention that the Counsel for State submitted that the Defence had not clearly put the details of the case, particularly the story of Cassedy Marinigi in compliance with the rule in Brown v Dunn, so that the State Witnesses could have had an opportunity to either rebut or affirm that during Cross Examination. In response to that submission, the Defence had put to each of the three State Witnesses that Cassidy Marinigi was convicted and sentenced to 10 years imprisonment for the same offence (in which the three Accused were charged). The Defence also mentioned in Pre-trial Review Statement that matter CR No. 667 of 2018 State -v- Cassedy Marinigi, was already dealt with by this honorable Court in 2018. With respect to the Counsel for the State, she should let the evidence of the State Witnesses decide whether or not Cassidy Marinigi was convicted for the same offence.

53.	With regard to the State Witnesses, their evidence is good to establish all three elements of Wilful Murder. Each of them identified all three Accused prior to calling of Defense Witnesses. They also recognized their faces as the same persons at the scene of the fight (as were from the same village). However, each State Witnesses’ evidence is questionable and not of good quality, because the very person (Cassedy) who they agreed spending the final moments with the Deceased before the fight erupted, traversed no iota of their existence within the fighting place. Had the State Witnesses’ presence actually ticked a distance of 1.5 to 2 meters away from the Deceased or fight, they would have been injured by any of the flying objects/weapons (bottles, stones and sticks). Moreover, being related to the Deceased, the State Witnesses, had they been present at the scene, at least sympathy would have driven them to aid the Deceased in his physical defence against the Pangu Village men. The State did not call any independent witness to corroborate their evidences to identify that each Accused was present at the time when the offence was committed.

54.	Therefore, I am satisfied that Mr. Cassedy Mariningi’s evidence is credible and of more gravity to this Court as he was not only present at the scene of the fight, but was actively participating in the fight.

55.	Now, I turn to the third issue. 

ISSUE 3 - WHETHER THE EVIDENCES OF THE THREE STATE WITNESSES ARE QUESTIONABLE OR OF GOOD QUALITY?

56.	I agree with the Defence that, to prove the three elements of Wilful Murder, one has to solve the issue of identification. In the event where the issue of identification is crucial to solve, as in this case, whereby the State Witnesses’ narratives or oral evidence do not refute the evidence of Cassidy Mariningi, rather creates doubt of identification and inconsistencies, it has become difficult for this Court to pass a verdict of guilt. 

57.	Moreover, when the onus lies on the State to establish good quality of evidence with an independent witness involved in supporting to identify the three Accused persons in attacking the Deceased, the benefit of acquittal goes to the three Accused persons. This does not mean that three Accused persons are innocent. They might have taken part in attacking the Deceased, but there is no other credible eye witness to identify and confirm their presence at the scene.

58.	Further, each of the testimony or evidence of the three State Witnesses lacks common sense or logic. In the case of the State v Cosmos Kutau Kitawal and Christopher Kutau (No.1) (2002), the law in relation to application of common sense and logic was expounded by His Honor, Justice, Kandakasi (as he then was) as: 

“Logic and common sense do play an important part in either the rejection or otherwise of evidence before a court of law and whether or not an accused person should be found guilty.  In The State v. Gari bonu Garitau and Rossana Bonu [1996] PNGLR 48, applying a logical and common sense approached, the National Court found the defendants guilty of murder even when there was no evidence directly showing that the defendants had killed the deceased. The Court proceeded to convict them, when the defendant’s failed to provide a reasonable explanation for the appearance of the badly wounded deceased body in their house.  On appeal, the Supreme Court affirmed the National Court’s approach and dismissed the appeal: see Garitau Bonu & Rosanna Bonu v. The State (24/07/97) SC528 and Paulus Pawa v. The State [1981] PNGLR 498 for an earlier authority on point. “

59.	In the above case the principles of common sense and logic favored the State evidence, however, in our instance, the same principles cast’s a dark shadow over the State evidence, for the reasons being:

(a)	Why would the three Accused persons have an interest in attacking or killing the Deceased? Why would they betray their own village neighbors and join forces with the Pangu Village boys attacking the Deceased? The reason(s) for the three Accused to assault the deceased with the ‘pongo stick’ and throwing stones, sticks and empty bottles were not in evidence. At least one of the Prosecution Witnesses should have told the Court the main cause for the attack as submitted by the Defense Lawyer. Had there had been a history of animosity (for example, customary land dispute or theft) between the Deceased and any one or all of the Accused persons, such should be presented in the evidence when the Defence had filed a Notice of Alibi. Any ordinary layman would understand that one cannot attack or assault another person, let alone a close friend or member of the same clan, without any good/bad known reason or cause.

(b)	All the State Witnesses firmly stated that they were at close proximity (of 1.5 to 2 meters apart) to the fight. It is absurd to think that they would comfortably watch the drama at such a close distance when stones, sticks and empty bottles were being hurled towards the Deceased?  Were they not frightened to negotiate swiftly their proximity and kept 5 to 10 meters away in fear of being hit by the flying objects? Unless, they joined forces with the Deceased, no reasonable person would stand close at such a distance of 1.5 to 3 meters in the event where a group of angry people are throwing harmful objects. 

(c)	The three State Witnesses said that there was sufficient light at 6:45pm to recognize and identify the three Defence Witnesses. I am currently staying at Village Inn Hotel and Apartments, Wewak. Facing towards the West I notice that at 6:35pm the sun sets, however there is sufficient light to recognize and identify a person at a distance of two meters.  However, in this case, the timing is still an issue, because the Defence says that fight occurred after 6:45pm, which means it was between 6:46 and 7pm. If the First State Witness came out from the house to the fighting scene, generally, he would have taken him few minutes to reach the fighting scene, and the fight could have started at 6.50 or 7:00 pm, in which, light could have started to dim. However, at 6:45 and 7 o’ clock, when the sky is obscured by clouds, it would be darker than the natural lighting between 6:45 and 7:00 pm. I conclude that the timing to recognize and identify the three Accused at this time is very difficult at some distance away or far from the fighting scene (10 to 20 meters away), given the fact that the three Witnesses were not close to the Deceased in accordance with reasoning (b) above.  That is at 6:45pm, I am of the view that the three Accused were some distance away from the scene of the fighting.

(d)	The State Witnesses stated, the Accused, Paul Irevaka, hit the Deceased on his head with the ‘pongo stick’ (a fight stick). However, that stick was not introduced in Court as an Exhibit. Whether that ‘pongo stick’ is capable of causing serious damage to the brain/skull is still in question when it was not tendered in as evidence. None of the three State Witnesses provided a proper description of how strong a ‘pongo stick’ is and the likely potential it has to cause death.

60.	The three Prosecution Witnesses were all immediate family members of the Deceased and had been living together in the same house before the death of the Deceased. First witness, Brian Kungaie is the brother-in-law of the Deceased while the Second Witness, Martha Lus is the sister of the Deceased. Why didn’t the State bring to Court a neutral witness from Sima Village to ensure that their evidence was corroborated. Accordingly, the credibility of their evidence is questionable. Whether they are telling the truth about their presence at the scene of the fighting place is dubious.

61.	The three Accused were each charged with Wilful Murder, however for the protection of their rights under Sections 37 and 42 of the Constitution, the Record of Interview should have been tendered as Exhibit 1. The Defence Lawyer also raised this in his submission. This Court has difficulty understanding the reason why the State decided not to tender this as part of the evidence. In my opinion, unless the Defence objects or raise the issue of voir dire, it is necessary for the State to follow the lawful process ensuring that the Police Investigating Officer has complied with and not seen to derogate the rights afforded under Sections 37 and 42 of the Constitution before a criminal trial is commenced. Without the sworn evidence of the Record of Interview, there is no evidence of whether each of the three Accused had been lawfully charged for Willful Murder. This Court is of the view that it is a mandatory requirement for the State to tender the Record of Interview before a criminal trial commences.

62.	Further, if the Police Investigating Officer had been called, he would have been in a better position to tell this Court the details leading to the arrest of the three Accused persons. Was that a village member who reported to the Police or one of the State Witnesses? The person who reported the matter to the Police should have furnished evidence as a State Witness to help the Prosecution’s case. The State’s case lacked substance and effort to such extent.

63.	In this case, where more than nine accused were involved in assaulting the Deceased, the Police Investigating Officer should have investigated and interviewed the village members, leaders including councilors, village court magistrates and peace officers from both villages to identify those suspects or culprits who were present during the fight that ensued between Sima Village and Pangu Village people. The Supreme Court in Masolyn Piakali-vs- The State [2004, Volume 1] PNLR 141 ruled that the Court ought to give due weight and consideration in the practice of handling suspects by committing the leaders in order to encourage community involvement in improving law and order. I quote part of reasoning by the Supreme Court of Sevua J, Kandakasi J (as then he was), and Cannings J, p.158:

‘This practice and contribution of the village leaders to law enforcement should not be treated as mere conjecture. This should particular be so when supported by appropriate evidence or there is nothing showing an error on the part of the village leaders in bringing offenders to justice.

His honor has regard to the judgement of Woods, J., in The State v. Anis Noko [1993] PNGLR 426, at 427. There, the court noted that the Constitution clearly recognized the overriding importance of the traditional village and the community leaders as the main viable asset in the country and the need for partnership with the community leadership and the legal system for a better PNG. Hence, when the community works to participate in the legal process, the courts must accept this participation not disregard it. There must of course be a proper basis for accepting such inputs of the community leadership. Relevant in that consideration is the fact that given the communal nature of PNG society, there can be very few secrets. When something happens, everyone soon knows. There are no strangers in the nights. 

In that case the witness found difficulty in identifying the accused and the councils and community leaders assisted the police in naming the suspects or culprits, which made easy for the police to arrest all the suspects involved in the killing;

64.	In cases like this, where there needs to be an identification of more than one accused, it should not be difficult for village leaders to hunt down the suspects or culprits who are hidden under the clan and village protection. The police investigating officers are to utilize village mechanisms which includes village leaders, councilors, village court magistrates and peace officers to identify and arrest those suspects. The Supreme Court of this country has already empowered village leaders to investigate and assist police in identifying suspects. This is a sad case where more than nine suspects are at large but no action was taken to identify and arrest those suspects with assistance of community leaders.

65.	The State evidence lacked corroboration from special persons such as the Police Investigating Officer and village member or leaders. As such integrity and worthiness of the evidence suffered.

DECISION SUMMARY

66.	In State v Sod (2012), His Honor Justice Cannings, enunciated the principles identification and Defence of Alibi which should apply in this kind of situation, in the following words:

“In a case where there is competing evidence (identification evidence versus alibi evidence) as to the presence of an accused the first task is to assess the quality of the identification evidence. Having done that the court assesses the alibi evidence. The two bodies of evidence are then weighed against each other together.”

67.	The quality of the State’s identity evidence, in this case, lacked substance. The Defence’s alibi evidence also lacked discerning features yet weighed better against the State’s identity evidence.

68.	It is always important to note in criminal cases that the onus is on the State to prove beyond reasonable doubt, as per Section 37 (4) of the Constitution. And having answered all three questions, I am satisfied that the State has failed to establish the identity of the three Accused persons at the scene of the killing, hence it has not established a prima facie case against the three Accused persons, thereby not establishing all the elements of the offence of Wilful Murder.

69.	Finally, since the three Accused were not present there at the scene of the killing, Section 7 of the Criminal Code Act cannot be invoked.

70.	Accordingly, each of the three Accused are acquitted and discharged.
_____________________________________________________________________
Public Prosecutor:  Lawyer for the State
State Solicitor:  Lawyer for the Defendants