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State v Amongra [2023] PGNC 147; N10255 (23 February 2023)

N10255

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 418 OF 2021

THE STATE

V

MAX KATUI AMONGRA

Angoram: Thoke, AJ
2022: 6^th & 21^st May
2023: 23^rd February

CRIMINAL LAW- Practice and Procedure – Trial-Establishing the elements of Wilful murder under Section 299 (1)- Circumstantial Evidence warrants Charge for Murder under Section 300 (1)(a) of the Criminal Code- relevant matters for consideration.

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 is unreliable – Illogical explanations coupled with inconsistencies amount to unreliable evidence which ought to be rejected.

CRIMINAL LAW- Practice & Procedure – Issue of Identification – Dangers to be borne in mind in accepting evidence of identification - The credibility of a state witness’s evidence is not affected when imposed with threat to identify the accused in Court- Evidence of State witnesses are of good quality – Accused was easily identified- Defence Evidence lacks credibility- No Evidence by Defence to establish that there was another gunshot fired apart from the accused- accused guilty of Murder.

Brief Facts:
This is a killing that took place on the 15^th of July 2020, between 5:45 am and 7am, at Adafuka village in the Yuat LLG in Angoram District in the East Sepik Province where the accused was alleged to have wilfully shot dead the Deceased.

Prior to the day that occasioned the death of the deceased, the accused and his team had sometime earlier set on fire 12 houses belonging to the larger Adafuka villagers, whereby in retaliation the deceased in the company of some other youths came at around 5:30 and raided the area where the accused, his other brother Felix Angui Amongra, his wife and four (4) other small children were at that time. The counter – attack resulted in the death of the deceased.

Held:

1. The Accused and his elder brother Felix Angui Amongra woke up as early as 6am understanding that, an attack of retaliation by the Adufaka village was imminent, hence the Accused (along with his brother) were prepared, either to counterattack or seek means for an escape route.
   
2. Both defence witnesses negatively responded to questions asked by the Prosecution pertaining to the presence of anyone other than Felix, Felix’s wife and 4 small children. This is where the principle in the State v Cosmos Kutau Kitawal and Christopher Kutau (No.1) (2002) is applied, making the accused criminally liable for the death of the deceased.
   
3. The 20-30 minutes or 3-4 hours in which the accused is allegedly lying unconscious on the ground is sufficient time to easily spot and fire a shot against a member of the opposing team, given the short distance of 15-20 meters from the accused’s position.
   
4. In circumstances where state witness elects not to identify the accused in the court room upon receiving threats prior to the trial; the credibility of the identification is not affected.
   
5. The principles of Ilai Bate v. The State (2012) SC1216) and John Beng v State warns judges to take caution in relaying on the identity of mistaken witness(es). This protects innocent person(s) from being prosecuted, however such is not applicable in this case, rather the quality of evidence under the 6^th term of the 8-point principles derived from His Honour Justice Kandakasi (as he then was) judgement on The State v. Marety Ame Gaidi.
   
6. Pursuant to the rule in John Beng v The State, the State’s evidence outweighs the evidence of the Defence.
   
7. Accordingly, the Accused is found guilty of Murder.
   

Cases Cited:

Papua New Guinean Cases
Ilai Bate v. The State (2012) SC1216).
The State v Amjoni [2021] PGNC 340; N9184
The State v. Cosmos Kutau Kitawal (2002) N2245
The State v. Gari bonu Garitau and Rossana Bonu [1996] PNGLR 48
The State v. John Beng [1977] PNGLR 115
The State v Laore [2007] PGNC 231; N5026
The State v. Marety Ame Gaidi (01/08/02) N2256
The State (24/07/97) SC528 and Paulus Pawa v. The State [1981] PNGLR 498
The State v. Tom Morris [1981] PNGLR 493

Overseas Cases
Brown and Dunn, 1983 6R 67 (SL)

Counsel:
Ms. Deborah Ambuk, for the State
Mr. Nasson Katosingkalara, for the Accused

JUDGMENT ON VERDICT

23^rd February, 2023

1. THOKE AJ: An indictment was presented on the 6^th day of May 2022 charging the Accused for willful murder under section 299 (1) of the Criminal Code. The charge on the indictment is quoted as follows:
   

“MAX KATUI AMONGRA of Andafuka, Yuat LLG, Angoram, East Sepik Province stands charged that he, on the 15^th day of July 2020 at Andafuka Village, Angoram, in Papua New Guinea, willfully murdered one DESMOND AKAMA”.

2. The accused did not plead 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 two witnesses, namely Mr. Solomon Masi and Mr. Philemon Wakam. The State also tendered three sets of documents into exhibit with the consent of the Defence Counsel, which include the statement of Senior Constable Peter Tupaia, the Statement of Constable Jepten Waiki and the Record of Interview in pidgin (exhibit 3 (a)) and the translated English version of Record of Interview (exhibit 3 (b)).
   
6. The State Witnesses made their sworn evidence in pidgin. However, I translate them into English for ease understanding and reference.
   
7. The First State Witness, Solomon Masi, gave sworn evidence that:
   
   • (i) On the 15^th July 2021 at around 5:30 am, he went into the accused area together with many others including the deceased, Desmond Akam, whose two houses were burnt down among 12 others by the Amongra Family, and surrounded the hamlet belonging to them.
     
   • (ii) Although many men went with the deceased, he was one of the five men who approached the accused’s house leaving others at various locations mostly on the other side of the drain.
     
   • (iii) He stood behind a flower hedge with his fellow attackers and saw the accused coming out of the house when the deceased shot him.
     
   • (iv) He was at the right side of the deceased at a distance of 5 meters from the accused when he pulled the trigger.
     
   • (v) Upon being shot the accused ran into his elder brother Felix Angui Amongra’s house.
     
   • (vi) He then saw the accused pushing the barrel of his gun through the wall made of sago fronds that were horizontally stacked together. He created a gap for barrel of is gun to pass through by separating the sago fronds, before shooting the deceased.
     
8. The Second State Witness, Philemon Wakam, gave sworn evidence that:
   
   • (i) He was also part of the five men team that was led by the deceased into the accused’s house together.
     
   • (ii) He saw the deceased shooting the accused when the accused ran up into Felix Angui Amongra’s house and made a shot at the deceased from inside the house.
     
   • (iii) He further said that Max Angui Amongra pushed his gun barrel out through the hole in the wall of the house and fired at the deceased. Upon seeing that the deceased was hit, he heard the voice of the accused from inside the house, in pigin saying “Yu pilim ah”.
     
   • (iv) He finally said that Desmond called out to Solomon Masi after realizing he was injured saying the words in bracket “Paps, I am injured”. They then left the group and went to the Health Centre where Desmond died.
     

PROSECUTION’S SUBMISSION

9. The Counsel for the State submitted that:
   
   • Each of the State’s two witnesses identified Max Katui Amongra as the only person who shot Desmond after he run into his elder brother’s house.
     
   • Both witnesses said the accused Max Katui Amongra pushed the gun barrel out through the wall made up of sago fronds by pushing one frond up and other down and pulled the trigger, shooting Desmond.
     
   • Both witnesses said that there was no one else in the house and heard Max Amongra Katui saying in pidgin the words in bracket “Yu pilim ah”.
     
   • The men from both sides have fair knowledge of each other including the accused. They grew up together, as result know each other’s family, clan, the family hamlet, and clan hamlet, hence providing identification of anyone among themselves, either by seeing or hearing a voice, should not be a concern of doubt or difficulty. It’s easy.
     

THE DEFENCE’S EVIDENCE

10. The Defence called two witnesses, the accused, Max Katui Amongra himself, and his elder brother Felix Angui Amongra.
    
11. Defence Witness, Max Katui Amongra, gave unsworn evidence that:
    
    • (i) He woke up and went to have water when he saw Joe Ginis leading a guerilla group and coming towards his hamlet and fired a shot 20 meters away with a Winchester rifle.
      
    • (ii) Joe Ginis then shot him causing him to fall down in front of his elder brother Felix Angui Amongra’s house. He was unconscious on the ground, 4 meters from his brother’s house, for three –four hours.
      
12. The Second Defence Witness, Felix Angui Amongra, gave sworn evidence that:
    
    • (i) He came out of his house upon hearing a gun fire at 6 am and saw Joe Ginis holding onto a Winchester gun at a distance of about 15-20 meters away from his house to the water station, and then saw his younger brother Max Amongra Katui laying on the ground with blood oozing from his skin.
      
    • (ii) He could not get down and assist because enemies had surrounded their hamlet. He hid behind the door and saw Joe replacing his cartridge on the Winchester gun. He delayed for 20-30 minutes for the attackers to retreat, then went down and dragged the accused by the hands to the house steps, and into the house with the help of Ferdinand Pai.
      
    • (iii) He then poured three buckets of water on Max Amongra Katui, to which he opened his eyes.
      
    • (iv) He further said that he had only his wife and his 4 small children living in his house.
      
    • (v) He demonstrated inside the court the distance from which he saw Max Katui Amongra laying on the ground, 8 meters away from his house.
      
    • (vi) He then said that they could not take Max Katui Amongra to the Medical Health Centre because the enemies lived along the way to the health center.
      

THE DEFENCE’S SUBMISSION

13. The Defence submitted eight points (8) in response to the State evidences from two State witnesses namely, Solomon Masi and Philemon Wakam as well as the documents tendered as exhibits with the consent of the Defence Counsel, which include the statement of Senior Constable Peter Tupaia, the Statement of Constable Jepten Waiki and the Record of Interview in tok pidgin (exhibit 3 (a)), and the translated English version of the Record of Interview (exhibit 3 (b)).
    
14. Firstly, the Defence Counsel raised issues of inconsistencies in the two State Witnesses evidence, whereby Solomon stated that the deceased shot the accused and ran into the house, while Philemon stated that the deceased missed fired at the accused as the accused ran into the house.
    
15. Secondly, the Defence Counsel submitted that evidence of the two state witnesses were inconsistent in the manner where one state witness asserting the accused was shot while the other saying the accused was miss- fired with the same bullet.
    
16. Thirdly, the Defence Counsel submitted that the State Witness Philemon’s evidence is untrue because he was unable to identify the accused in the Court room and only said he saw a person named Max Amongra running into the house at that time, while his fellow State Witness, Solomon, saw the accused running into the house after being shot.
    
17. Furthermore, the Defence Counsel submitted that there were batch of croton flowers close to the house that blocked off a clear view of the house at that time when deceased and his team arrived at around 5:30 am before shooting the accused in 15 minutes time. The Defence Counsel for this reason submits that the identification of the accused is of no-good quality and that the evidence given is unreliable.
    
18. In addition, the Defence counsel submitted that the evidence of the two state witnesses’ that they saw the accused shooting the deceased from inside the house was merely an assumption, as they were 12 -15 meters away, and that the houses were fenced, without any possibility to look into the house or yard.
    
19. The Defence counsel further submitted that the bullet that hit the deceased was fired from another point of location as they were other armed men surrounding the house as well, including Joe Ginis, who was standing on the other side of the drain next to Felix Angui Amongra’s house.
    
20. The Defence Counsel also contested first State Witness Solomon’s evidence, that the accused was running fast into the house, as illogical, taking into account the assertion that the accused was by then already shot.
    
21. The Defence Counsel submitted in addition, affirming that the accused’s unsworn statement is credible as he felt unconscious for 3 hours after being shot with pellets from Joe Ginis’s Winchester rifle, hence couldn’t know what happened afterwards. The Defence Counsel in addition said his demeanor and tone when giving evidence was of good posture, and that, the provision of medical report confirming the presence of the pellets inside his body supports his evidence.
    
22. The Defence Counsel submitted that the accused’s answer to Question 16 in the Record of Interview (ROI) was consistent with his evidence in his oral testimony or unsworn evidence, thus unambiguous.
    
23. The Defence Counsel submitted that the second defence witness Felix ‘s evidence is credible as he upon hearing the gun fire came out of his house to the verandah and saw accused laying on the ground bleeding from a distance of 8 meters where he also turned around and saw Joe Ginis standing at an estimated distance of 15-20 meters from his house.
    
24. The Defence counsel submitted that Felix Angui Amongra got down and dragged the unconscious accused into the house after 20-30 minutes of hiding behind the door to allow the enemies to retreat.
    
25. Finally, the Defence counsel submitted that Felix Angui Amongra did not own any gun and that he only lived with his wife and 4 small children, apart from the accused who was dragged into the house at that time of incident.
    

ISSUES FOR THIS COURT’S DETERMINATION

26. The Prosecution analyzed only two issues out of the whole facts, while the Defence counsel raised numerous issues.
    
27. This Court considers all the questions (issues) evaluated by both Prosecution and Defence as relevant as they are bound to be raised in such a circumstance where the accused denies the commission of the offence when evidently the accused/suspect is potentially the only key suspect at the place and time of incident, pertaining to the evidence given by witnesses from both parties.
    
28. However, this Court notes all other issues as subsidiary issues supporting the main issue of “Which version of the evidence is reliable and credible? and accepts the second question (issue) of the State as the main issue to be determined. I will address all the subsidiary issues which I have relisted as follows;
    

(i) Main Issue: Which version of the evidence is reliable and credible?
(ii) Supporting Issues:

1. Who killed the deceased?
2. Whether circumstantial evidences provided were sufficient to establish proper identification,

100. Whether evidence identifying the accused was of good quality?

4. Whether logic and common sense are applicable in these circumstances, if so, which party does logic and commons sense favor? the accused or deceased?
5. Whether accused’s answer to question 16 in ROI consistent with his oral Testimony?
6. Whether the evidence of the two State Witnesses is questionable or of good quality?
   

WHICH VERSION OF EVIDENCE IS RELIABLE AND CREDIBLE?

29. I have considered and cautioned myself in applying the Law of Identification in this case. I take note of His Honor, Justice Kandakasi (as then he was) expounding the principles of careful identification by both State and Defence witnesses in the case of John Beng v. The State. I quote the principles below for ease of reference:
    

“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.”
   
30. His Honor Justice Kandakasi’s (as then he was) 4^th term of eight (8) principles in the State v. Marety Ame Gaidi (supra) is a very crucial element to determine the quality of evidence. In this case, I agree with the statement of State’s submission under paragraph 37 that members of both sides are from the same village and have grown up together that they know each other very well.
    
31. Each of the two State Witnesses, Mr., Solomon Masi and Mr. Philemon Wakam, were all present at the scene of the fight, thereby identified the Accused easily who comes from the same village (Kafuka) as them. However, the accused denied shooting the deceased.
    
32. I agree with the Defence counsel that the second state witness’s statement were not in consistent with the First State Witness, which he said that the accused missed the gun shot and ran into the house whereas the first state witness said that the deceased shot the accused when he ran into the house. What is inconsistent here is one saying accused missed receiving the gun fire while the other saying the accused received the gun shot and ran into the house. However, what is consistent here in both statements of Defence and State witnesses is that the “accused ran into the house”.
    
33. I agree with the second defence witness who said that the accused was lying on the ground covered in blood. This corresponds well with the evidence of the first state witness that he was shot. This reaffirms that the accused received the gun shot. However, the question then is whether, the accused is capable of running into the house after being shot or turn unconscious on the ground after being shot?
    
34. The accused said that he was shot first and unconscious for three to four hours. His brother Felix Angui Amongra said he saw Max Katui Amongra lying on the ground but waited for 20-30 minutes giving time to the enemies to withdraw from the scene before dragging Max Katui into his house. Who is telling the truth? The accused gave unsworn evidence denying the killing of the deceased. I observed his demeanor, and he presented his defence convincingly; however, his evidence was contradictory to his brother Felix Angui Amongra that, he was not unconscious for 3 to 4 hours. If the accused was telling the truth, he should have elected to give sworn evidence for State counsel to cross examine him.
    
35. This requires the application of His Honor Justice Kandakasi’s (as he then was) principles of logic and common sense enunciated in the case of The State v. Cosmos Kutau Kitawal (2002) N2245, to either accept or reject the evidence. In doing so, this Court firstly takes into account the following facts:
    
    • The armed men including the deceased arrived at the scene at 5:30 am and awaited in anticipation of the accused and any of the Amongra Family members to come out.
      
    • Felix Angui Amongra said that he heard a gunshot at 6 am and upon coming out to see, he saw his younger brother already on the ground four (4) meters from his house.
      
    • Felix Angui Amongra again said he turned around and saw Joe Ginis reloading the Winchester Shotgun besides his house and further said that Joe Ginis was 20 meters away from where Max Katui Amongra was laying on the ground.
      
    • Max Katui Amongra himself said that he was shot first and was unconscious for 3-4 hours laying on the ground 4 meters away from Felix Amongra’s house.
      
    • Max Katui Amongra said that he came out to have water and rinse his mouth when he encountered the attack.
      
36. As the accused was laying 4 meters away from the house and Joe Ginis (enemy) was standing 15-20 meters away at such time as 6am, I infer that accused could have been seen by Joe Ginis or any other enemies that surrounded the house. The enemies could have approached him and made sure he was dead as he was the only ‘wanted man’ and the main target during that day. In other words, the deceased had and his team awaited in anticipation since 5am that morning to take revenge on him and his fellow Amongra family members in retaliation to the earlier incident, hence would have used the opportunity to do so.
    
37. Thus, I find it hard to believe that the accused was safely (without further attack) laying on the ground for 3-4 hours as he himself said he was laying 4 meters in front of Felix house, which is within a close range of 10-16 meters from Joe Ginis’s location, taking into account that Felix Angui Amongra observed Joe Ginis location to be 15-20 meters from his house and accused laying 4 meters in from of his house.
    
38. I also find it hard to accept the evidence of the second defence witness, the accused’s brother, Felix Amongra, that the accused was laying unconsciously on the ground for 20-30 minutes. Taking into account the assertion that the enemies had waited for accused or him or fellow Amongra family in anticipation to kill anyone spotted, logic does not sit well with me to accept this evidence. Hence, there is no credibility in the evidence of both Defence witnesses that he was laying unconsciously on the ground for that long safely without further confrontation from the opposing team.
    
39. I will now make a detailed analysis as to discover why and how the accused being unconscious after being shot immediately gained conscience and run fast into the house.
    
40. I agree with the evidence of Max Katui Amongra that he came out to have a cup of water. However, my question is why would he come out as early as 6am or before then to have water or to rinse his mouth. The most appropriate time any normal person to have water or to rinse mouths in the morning would be any time after 6am. This Court takes the judicial notice that this raid was in retaliation to an earlier incident whereby, accused, and men from his family, setting 12 houses on fire. Thus, I am not satisfied with the evidence that Max Katui Amongra woke up as early as 6 am to merely have a cup of water or to rinse his mouth. I infer from this notion that his decision to wake up as early as he did, even more, walking out was an act of vigilance and alertness as to the fact that he understood that a retaliation was imminent immediately after the 12 houses were set on fire by him and his team.
    
41. The second defence witness, Felix Angui Amongra said he came out of his house around 6am, upon hearing a gun shot, which potentially means that he was not awakened immediately by that rather he was already awake and alert to counter- attack or seek means to escape, understanding well that such a retaliation was bound to happen.
    
42. I agree with the Defence counsel’s submission under paragraph 11 which reiterated the demonstration of Second State Witness at cross examination that the first shot was after 15 minutes arrival of attackers, thus was a time discernably after 5:45 am. It is common sense that people normally do not wake up this time except under specific circumstances, such as going out early for toilet, to attend to an early work shift, to prepare early breakfast, or with a specific intention to do something.
    
43. By application of logic and commons sense, I infer from these circumstances that both Max Katui Amongra and Felix Angui Amongra were evidently alert at this time. They both had sensed and understood the possibility of retaliation. They both woke up earlier than the gunshot. They both had already strategized how to dodge the retaliation that was bound to happen any time.
    
44. It is reasonable to say that one can duck or dodge a gun shot and maintain conscience in the midst of gun shots, when one is fully alert and prepared for the possibility of such occurrence. Thus, I infer that the accused, Max Katui Amongra, upon the realization of being shot, quickly resorted to defence mode and managed himself to escape out of the vulnerable position to somewhere he found himself secure before making his next move.
    
45. Hence, the state witnesses’ evidence that the accused ran into the house after being shot is credible and reliable. This evidence falls specifically under terms 4 and 6 of His honor, Justice Kandakasi’s (as he then was) 8-point principles in the case of The State v. Marety Ame Gaidi (2002) N2256 (supra). I re-quote for ease of reference:
    

“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;

(c) A convincing witness may be mistaken; or
(d) 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.”
   
46. The Defence Witnesses did not say that there was an exchange of gun fires between the opposing parties or an intense fighting was going on at that time. Evidence speaks that deceased and his men who came in numbers only surrounded the hamlet to attack the Amongra family. The witnesses from both State and Defence did not say that there were many or recurring gun fires. The second defence witness, Felix Amongra, said that he heard the gunshot and came out of his house and saw the accused (his younger brother) laying on the ground in blood. He also said he saw Joe Ginis reloading the gun but didn’t say Joe Ginis making shots.
    
47. Unlike other weapons, gun fires are easily to be heard and no witnesses have made mention of any more gun fires’ apart from the one being fired at the accused, and another being fired at the deceased.
    
48. The state witnesses said that the shot that injured the deceased instantly was fired from inside the house, but the defence witnesses denied it, yet did not make mention of anybody inside the house capable of firing a gun apart from Felix, his wife and the 4 small children.
    
49. In the event that it is difficult to establish the presence of another person capable of firing a gun, taking into account the defence witnesses’ not providing reasonable answers to the prosecution’s questions asking for the presence of any other person apart from Felix Amongra, his wife and his children, on who made the shot from inside the house, the criminal liability shifts to the accused.
    
50. To avoid dangers of mistaken identity, I have taken note of the Supreme Court case of Ilai Bate v The State. I agree with the defense counsel contesting that the second state witness Mr. Philemon Wakam’s failed to identify the accused when counsel for the State asked him to identify the accused in court during examination in chief. I closely assessed his demeanor and noted that he saw the accused in court, but deliberately decided not to point at him. He saw him sitting in the defence witness box, but elected not to identify the accused, Max Katui. The reason for this is as submitted by counsel for the State in her written submission in paragraphs 40,41, 42 and 43. I quote paragraphs 40 and 41 for ease of understanding:
    

“40. .... I wish to bring to this honorable Court’s attention for purposes of judicial notice that on the morning of 10^th May 2022, the CIS Officers had to address the general public, concerning this matter after receiving information that witnesses in this case were at threat.

41.. He knew the accused, Max Katui, he grew up with him in the same village. He knows Max Katui Amongra by voice but he could not get himself to identify the accused in court because of the threats.”

51. The rationale enunciated in the Ilai Bate v The State and John Beng v. The State is to protect one from pointing an innocent person against the offence and so Judges, as well as the prosecution and defence witnesses are cautioned accordingly. In this case, I agree with the State’s submission that there were threats being imposed against the second state witness from giving evidences against the accused as addressed by the CIS officers that Philemon Wakam (second state witness) although identified the accused sitting in the court room elected not to point at him inside the court room as there were prior threats made at him.
    
52. The issue of credibility in the identification of the accused is however not affected and the evidence fits well into terms 4 and 6 or entire 8 terms of His Honour Justice Kandakasi’s (as he then was) 8-point principles in the State v. Marety Ame Gaidi (supra).
    

DECISION SUMMARY

53. In the case of the State v Cosmos Kutau Kitawal and Christopher Kutau (No.1) (2002), His Honor, Justice Kandakasi (as he then was) enunciated the principles applicable to this kind of situation, in the following words:
    

“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. “

54. In this case, principles of commons sense favor the state witnesses evidence. The accused failed to provide whether there was any other person(s) capable of killing the deceased from inside the house. The Accused and the Defence’s second witness who was accused’s elder brother, Felix Angui, both testified in court that there was no one in the house apart from themselves, Felix Angui’s wife and the 4 small children. When asked whether the wife or any other person in the house killed the deceased the accused confidently responded “NO”.
    
55. In such a circumstance, the Court is convinced beyond reasonable doubt that the accused cannot be exonerated from criminal culpability.
    
56. I am also content to establish that the accused did not have a strong intent to kill the deceased, but to kill any person(s) on the enemy’s side, going against him, as such, I find the accused guilty of murder, as opposed to willful murder.
    
    57. Accordingly, the formal orders of the Court are:
        
        1. The Accused is found guilty on the charged of one count of Murder pursuant to section 300 (1)(a) of the Criminal Code.
        2. The Accused to be further remanded in CIS, awaiting sentence.

________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defendants