N10327

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 421 OF 2021

THE STATE

V

AWEI ANGIAK

Angoram: Thoke, AJ
2023:  6th & 17th February, 20th April & 6th June

CRIMINAL LAW – Trial -Wilful Murder-Criminal Code s.299 (1) -Guilty plea- No strong intent to kill-Killing in the course of targeting another-Circumstantial evidence warrants charge for Murder under section 300(1)(a) of the Criminal Code Act- relevant matters for consideration

CRIMINAL LAW- Practice and Procedure- Identification issue - Dangers to be borne in mind in accepting evidence of identification -Recognition and Clear Identification—- Defence’s evidence to disprove identification has no credibility.

CRIMINAL LAW- Practice and Procedure- Defence of Alibi- Failure to file Notice of Alibi within required time- Lack of credible evidence to successfully establish a Defence of Alibi

CRIMINAL LAW- Practice & Procedure- Assessment of Evidence- evidences of Defence which are related to the substantive issues of identification and defence of alibi are illogical and inconsistent- State’s evidence outweighs Defence’s evidence- Accused guilty of Murder.

Brief Facts:
On the 15th of July 2020 at 6am in the Andafuka village in the Angoram District, East Sepik Province, the Accused was alleged to have wilfully shot dead the Deceased in retaliation to 12 houses previously burnt down by the deceased’s group.
The Accused denied being part of the group nor the one who committed the offence of murder.
Held:

1.	One state witness’ untruthfulness in some instances with obvious reasons of evading alleged involvement in earlier incident that does not have a direct bearing on the substantive issue under the circumstance that the other state witness becomes a truthful witness and reveals the hidden truth, does not render doubt in proving one guilty.

2.	During Cross Examination, the first state witness was evasive in regard to his alleged involvement in the first incident of burning down 12 houses and denied knowing his brother Ferdinand, while the second state witness, Cyril Akore revealed the truth.  These evidence are however, not related to or has no bearing on the substantive issue of identification and alibi defence. 

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 evidence adduced by Defence Alibi witness, Joe Ginnings was totally rejected by the Court as he was alleged to have shot Max Katui in the State v Max Amongra Katui (2023) N10255 case.

5.	It is evident in this case that the deceased was victimised and shot in the course of attacking Kenneth Maikasa and Ferdinand Pai.

6.	Accordingly, the accused is not guilty of wilful murder as charged, but of Murder.

Cases Cited:
The State v. Marety Ame Gaidi (2002) N2256
The State v. John Beng [1977] PNGLR 115
The State v Max Katui Amongra [2023] N10255
The State v Sod [2012] PGNC 118; N4826 

Legislations Cited:
Constitution
Criminal Code Act 1974
Criminal Practice Rules 1987

Counsel:
K. Andrew, for the State
J. Julius, for the Accused

JUDGMENT ON VERDICT

6th June, 2023

1.     THOKE AJ: An indictment was presented on the 15th day of February 2023 charging the Accused for willful murder under section 299 (1) of the Criminal Code. The charge on the indictment is quoted as follows:

“AWEI ANGIAK of ANDAFUKA VILLAGE, ANGORAM DISTRICT, EAST SEPIK PROVINCE stands charged that he at Andafuka village, Angoram District, East Sepik Province in Papua New Guinea on the 15th day of July 2020 willfully murdered one WALTER WANDAGAI contrary to s.299 (1) of the Criminal CODE”.

2.     The Accused did not plead guilty. 

THE CHARGE

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

a.	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 willful murder.

b.	A person who commits willful 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. Kenneth Maikasa and Mr. Cyril Akore. The State also tendered six sets of documents into exhibit with the consent of the Defence Counsel, which include the Record of Interview in pidgin (exhibit P1) and the translated English version of Record of Interview (exhibit P2), Photo of Emty Black Cartridge Shell casting (exhibit P3), Physical Exhibit of Cartridge Shell casting (exhibit 4), Medical Report of Kenneth Maikasa (exhibit P5),  Medical Report of Cyril Akore (exhibit P6), Photographs of Deceased Showing Two Pellet Wounds (exhibit 7) and three pellets (exhibit P8)..

6.     The State Witnesses made their sworn evidences in Pidgin. However, I translate them into English and simplify for easy understanding and reference.

7.     The First State Witness, Kenneth Maikasa, gave sworn evidence that:

(i)	On the 15th July 2020 at 6am, he was with the deceased when he saw deceased came out of his house.

(ii)	5 minutes later he heard the gun shoot so he came out to check what was happening.

(iii)	He saw Joe Ginings shooting Max Katui Amongra causing his death (unsubstantiated).

(iv)	He saw the deceased urinating under a coconut tree.

(v)	The deceased was standing 3-4m meters away from him and Cyril Akore.

(vi)	Accused was 5-6 meters away from him who came with many other men.

(vii)	It was a very fine morning and he could see the accused clearly.

(viii)	He saw the accused pointing a gun at the deceased Walter Wandagai and shot him on the chest.

(ix)	He saw the accused fall down and die on the spot.

(x)	The accused threw the empty used cartridge shell casting at him and said “I kill your pig so you can cook and eat it” and walked away.

(xi)	When he went to assist the deceased, Maxwell Kaova shot him on his right thigh and right hand.

(xii)	He also went with Cyril Akore to assist the deceased. 

(xiii)	He knows the accused very well because they are from the same village and also accused was his mother’s cousin brother.

(xiv)	In cross examination, he maintained his story that the accused was Awei Angiak.

(xv)	He denied allegations that he was part of the group that earlier dated 29th -30th June 2020 set on fire 12 houses belonging to the accused team.

8.    The Second State Witness, Cyril Akore, gave sworn evidence that:

(i)	He was with the deceased and Kenneth Maikasa in the morning at 6 am on the 25th July 2020 and saw the accused shooting the deceased on the chest.

9.     In the Record of Interview, the Accused said he would tell his story in the Court and did not say anything.

10.     The Medical Report was never tendered in as evidence but was only marked in for Identification as MFI 1. 

PROSECUTION’S SUBMISSION

11.     The Counsel for the State submitted that:

(i)	The two state witnesses gave credible evidences in chief as to the tragic events taking place in the morning of 15th of July 2020.

(ii)	In the cross examination, Kenneth Maikasa was evasive as to his involvement in the group that burned down 12 houses and further could not identify or give a clear explanation of the killing of  Max Katui Amongra.

(iii)	In the cross examination, Kenneth Maikasa did not falter in the identification and corroborated well with the evidence of Cyril Akore.

(iv)	Kenneth Maikasa was only evasive regarding his involvement in the burning down of 12 houses and killing of Max Katui Amongra but did not falter in identifying the accused as the person killing the deceased.

(v)	Cyril Akore was an outright state witness who had no allegations of involvement pertaining to the burning down of 12 houses on the 29th-30th of June 2020.

(vi)	Cyril Akore was only injured as he was standing near to Kenneth Maikasa who was the target.

(vii)	The demeanors and appearances of both state witnesses during their examination in chief and cross examination regarding the issue of identification were very good and confident. 

(viii)	On the other hand, the evidences of the defenses witnesses were not logical, at times inconsistent and not logical, notably;

•	When he said, the sun was bright by 8 am and then said that the sun was up and bright every other day by 6am. 

•	In Examination in Chief he said that he was never at Kenneth Maikasa’s camp where killing took place yet his alibi witness during his Cross Examination said he and the Accused went to Kenneth Maikasa’s camp after they saw that there was no one at Ferdinand Pai’s camp. At this point, the Accused was shaking and scratching his head. 

•	It is against logic to accept that the Accused was with him the entire time and never killed the deceased and then later asserts that it was Ferdinand Pai who killed the deceased. Ferdinand Pai was allies with the Accused, hence further illogical on the part of the alibi witness to shift blame. 

DEFENCE’S EVIDENCE

12.     The Defence called two witnesses, the accused Awei Angiak himself, and Joe Ginnings as Accused’s Alibi witness.

13.   The Defence also tendered Cyril Akore’s prior statement as being an inconsistent statement [ marked D].

14.    Defence First Defence Witness, Awei Angiak, the accused,  gave unsworn evidence that:

(ix)	He was never a part of the first group that went to Kenneth Maikasa’s camp where the killing occurred but was part of the second group that went to Ferdinand Pai’s camp.

(x)	He was armed with a homemade gun and was part of the group who were all armed with offensive weapons.

(xi)	He saw Kenneth Maikasa and Ferdinand Pai burning down his house and 11 other houses on the 29th -30th of June 2020, thus was intending to take vengeance.
 
(xii)	He did not shoot the deceased in the chest because he was never there.

15.      The Second Defence Witness, Joe Ginnings, gave sworn evidence that:

(i)	He was the community appointed peace officer.

(ii)	He tried to stop Kenneth Maikasa and Ferdinand Pai from burning down 12 houses but they swore at him.

(iii)	He had planned with the Accused and others for two weeks to retaliate against Kenneth Maikasa and Ferdinand Pai and their group.

(iv)	 He led the second group to Ferdinand Pai’s camp but they could not see anyone upon arrival at Ferdinand Pai’s camp.

(v)	He was armed with a gun as others.

(vi)	They then went to Kenneth Maikasa’s camp.

(vii)	There was a fight taking place already at Kenneth Maikasa’s camp.

(viii)	He further said accused was with him entire time

(ix)	When asked by this Court, he said that it was not the accused but Ferdinand Pai who killed the deceased.

THE DEFENCE’S SUBMISSION

16.     The Counsel for the Defence submitted that:

i.	Evidences of the State are fabricated and false testimonies and that they are contradicting, notably, state witness, Cyril Akore’s evidence, whereby, he had made prior statement to police (Exhibit D1) on being a witness to the burning down of houses yet in his testimony he denied having no knowledge about the burning down of 12 houses.

ii.	There is not medical report supporting the evidences of shooting. 

ISSUES FOR THIS COURT’S DETERMINATION

17.      The counsels for the State and the Defence analyzed in their respective submissions the following issues:

(a) The state’s analyzed the following points:

•	Whether it was the accused who killed the deceased?
•	Whether the accused had an intention to kill the deceased?
•	Whether the state has negated the Defence’s alibi?
•	Whose story should the court believe?

(b) The defence analyzed the following issues:

•	Identification
•	Who to believe

18.     I agree with the disputed facts and undisputed facts as listed by the State Counsel and I extract them for ease of reference as follows:

Undisputed facts:

•	The deceased Walter Wandagai is related to the accused, Awei Angiak by marriage. The Accused is the cousin brother of Kenneth Maikasa’s mother. Cyril Akore is related to the accused by marriage. All parties before the court know each other very well.

•	The Accused alleged that Ferdinand Pai and Kenneth Maikasa were responsible for the burning of 12 of their houses on the 29th and 30th of June 2020.

•	The Deceased was killed on the 15th of July 2020 around 6 o’clock in the morning by a shot from a homemade gun to his chest.

•	The Accused was armed with a homemade gun and bush knives.

•	The Accused had an intention to kill somebody in retaliation to the burning down of his house and 11 other houses in Andafuka village.

•	The accused resides in the main Andafuka village about a 100m away from where the deceased lived with his brother-in-law, Kenneth Maikasa.

•	There are only two houses in Kenneth Maikasa’s camp (hamlet) which is still part of Andafuka village.

      Disputed facts:

•	The Accused was present at Kenneth Maikasa’s house on the 15th of July 2020 around 6 o’clock in the morning.

•	The Accused shot the Deceased once in the chest as he was urinating under the coconut tree.

•	The Deceased died as a result of the shooting.

•	Kenneth Maikasa and Cyril Akore witnessed the Accused shooting the deceased in the chest with a homemade gun and immediately after that the Accused said, “here was their pig and cook it and eat”.

•	An accomplice of the Accused. Maxwell Kaova shot Kenneth Maikasa and Cyril Akore when they tried to assist the deceased.

•	Maxwell Kaova then set fire to house.”

19.    In view of the issues outlined by both parties in line with the facts alluded above, I find only one issue as the main issue and all others as subsidiary. All other issues will be addressed while addressing the main issue. 

         Main Issue:  Which version of the evidences is reliable in determining 
                               the alibi defence?

         Subsidiary Issues:

•	Whose story should the court believe?

•	Whether it was the accused who killed the deceased?

•	Whether the accused had an intention to kill the deceased?

•	Whether the state has negated the Defence’s alibi?

  MAIN ISSUE: WHICH VERSION OF EVIDENCE IS RELIABLE IN DETERMINING THE ALIBI DEFENCE?

20.     The Defence submitted that the Accused was not there at the time and place of killing. Accused said that he was part of the second group that went to attack Ferdinand Pai’s camp and not the first group that attacked Kenneth Maikasa’s camp where the killing of the deceased took place, and that he never set foot at Kenneth Maikasa’s camp. However, the second defence witness Joe Ginnings who is the key alibi witness said that the accused was with him during the attack made to Ferdinand Pai’s camp but upon seeing that there was no one at Ferdinand Pai’s camp, they went to Kenneth Maikasa’s camp where fighting had already ensued. This discredits the accused’s evidence that he was never at the place of killing.

         Whose story should the court believe?

21.     The Defence again submitted that there are discrepancies in the evidences of the two State witnesses and submitted that the Court should not believe these evidences.  I examined these evidences and discover that the first state witness, Kenneth Maikasa was compromised to some extent, in revealing the truth, as evident during cross examination that he had not known Ferdinand Pai,  although the truth as disclosed by second state witness, Cyril Akore, is that Fernandi Pai is Kenneth Maikasa’s brother. The first state witness, Kenneth Maikasa then denied the truth in another instance, asserting that Max Katui Amongra was shot death by Joe Ginnings. That is absurd as it is evident in the recent case heard by me, The State v Max Katui Amongra (2023) N1025, that Max Katui is alive and in custody, the truth which is again reaffirmed by state’s second witness, Cyril Akore that he was never killed, rather alive and in custody. I will therefore deeply assess why this particular witness was being untruthful in these instances, and further determine whether his untruthfulness in these particular areas have a direct bearing on the issue of alibi defence under the circumstance that the key alibi witness’s evidence appears to dismiss the absurdity and doubt obscuring the truth. 
 
22.     I agree with the Defence submission that during Cross Examination, Kenneth Maikasa was evasive as to his involvement in the burning down of 12 houses and killing of Max Katiu Amongra. He could not explain further the identity of who and how Max Katui Amongra was killed and also tried to hide the fact that he was involved in the burning of 12 houses earlier on the 29th and 30th of June 2020, all the while denying Ferdinand Pai as his brother. I then questioned myself why was it that Kenneth Maikasa and Ferdinand Pai became the wanted persons and their camps (hamlets) became the targeted point of attack. Under this circumstance, I infer that these versions of evidence from Kenneth Maikasa were made under the motive of making himself innocent in the earlier incident of burning the 12 houses.  I thus agree with the State’s  submission that Kenneth Maikasa was evasive in Cross-Examination regarding the allegations against him of taking part in the burning of twelve houses (12) of the Accused’s group and killing of Max Katui Amongra by the Accused group. I see that these versions of evidences are not related to identification of accused but are rather Kenneth Maikasa’s alleged involvement in the earlier incident. I find that these does not affect the substantive issue of identification in this case.

23.     I agree with the State’s submission that Kenneth Maikasa did not falter in the identification during the cross examination, and that his un-faltered stand in asserting the accused’s identification during Cross Examination has direct bearing on the credibility of the defence of alibi. 

24.    The State on the other hand submitted that the Accused’s version of evidences are inconsistent and illogical notably, the inconsistency in the evidence where he asserts that sun rays were clear at 8am,  and later adds the sun rays appear clear every day at 6am as well as pointing to an illogical evidence where the Accused’s second witness shifted the blame on Ferdinand Pai without regard that Ferdinand Pai and the deceased were on the  same side. The State further submitted that the Accused was shaking and scratching his head when the second defence witness, Joe Ginnings said that Accused was with him on their attack on Ferdinand Pai’s camp but upon seeing no one in that camp, they went to Kenneth Maikasa’s camp. Unlike untruthful evidences of the first state witness, Kenneth Maikasa, the inconsistent and illogical evidences provided by Accused in these instance touches the substantive issue of identification. I therefore find that the State’s case to negate the defence of alibi is essentially founded. 

25.     Further, Defence Counsel’s submission lacked substance, and did not address fully on the law of identification as to harness the burden of proof and quality of evidence. Even so, Defence’s failure to file the Notice of Alibi earlier before trial goes to add that there was no substantial element of alibi initially, rather fabricated. 

       Whether it was the accused who killed the deceased?

26.     The question of who actually killed the deceased is raised by the Court after both the state and defence cross- examined Joe Ginnings, the second defence witness. In response, he said, Ferdinand Pai shot or killed the deceased. I raised that question, because in the case of the State v Max Katui (2023) N10255, Joe Ginnings, was alleged to have been leading his group to kill Max Katuai Amongra, but failed. As an alibi witness for the accused in this case, he said he was the community appointed Peace Officer, and that the accused, was with him at the time the deceased was shot. Under the circumstance that the  deceased killed in this case is from Max Katui  Amongra’s group and that Max Kataui Amongra was found guilty of killing Desmond Maka, who was from Joe Ginnings group, this was an act of  vengeance or retaliation. His group shot the deceased Walter Waringui. If Joe Ginnings is a Peace Officer, he should have reported immediately to the Angoram Police Station that the leader Ferdinand Pai killed the deceased. There is no evidence he did that, hence that tells this court that the Accused did not kill the deceased, and he is rather being untruthful. The Defence of Alibi was not filed on time, however, the court accepted it during trial with consent by state Counsel. Therefore, this Court rejects the evidence of Joe Ginnings and rule that the defence of alibi was merely fabricated.

27.     The first State witness Kenneth Maikasa said that he saw the Accused armed with a homemade gun and shot the deceased on the chest resulting in the instant death. Kenneth Maikasa said the Accused is his mother’s cousin brother and from the same village and knew him very well. Kenneth Maikasa further said Deceased is his relative by marriage who stayed with him but as he went out, taking leak under a coconut tree, the Accused stood from a distance of 5-6 meters and shot him. The weather was fine and clear to recognize and identify a person unquestionably. Further, Kenneth Maikasa and the Accused are related and of the same village and recognition was easy. Thus, it falls well within the principle derived in the State v. John Beng [1977] PNGLR 115, therefore,  I am content to rule that the accused, Awei Angiak cannot exempt himself from criminal culpability. 

28.     Although the medical report was not tendered and only marked for identification, I also take into account that the Accused himself admitted being armed with a homemade gun and generalized other accomplices of him as also armed with offensive weapons, this gives an added benefit to this Court to prove beyond reasonable doubt that it was none other than the accused who used his home- made gun and shot the deceased.

       Whether the accused had an intention to kill the deceased?

29.     This killing was done in retaliation to a previous incident. The previous incident involved the burning down of 12 houses including the house of the accused. They had planned for two weeks to take revenge. They had planned to kill Ferdinand Pai and Kenneth Maikasa as they were allegedly involved as ring leaders to the group causing the first problem. As such, the accused acted out as planned, however the victim, Walter Wandagai was not initially targeted in the plan. There was no clear evidence as to establish whether the deceased Walter Wandagai was being plotted and conspired to be killed. Under these circumstances, I find there was no strong intent to kill by the accused to willfully murder the deceased as opposed to their targets, Kenneth Maikasa and Ferdinand Pai. 

30.     It is safe to say that the accused had the intention of killing anyone from the opposing party at the time of the killing, thus, accused is found not guilty of willful murder but murder under section 300 (1)(a) of the Criminal Code Act.  

DECISION SUMMARY 

31.     In State v Sod (2012), His Honour Justice Cannings, enunciated the principles of 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 makes an assessment of the alibi evidence. The two bodies of evidence are then weighed against each other together.”

32.     Here, the quality of the identification evidence was good given that the state witnesses were able to recognize the accused and had good view of the persons involved and they were identifying someone that they knew well, hence having weighed the identification evidence against the alibi evidence the court is satisfied beyond reasonable doubt that the identification evidence is credible and ultimately weigh better against the defence of alibi. 

33.    There is no clear evidence to establish whether the deceased, Walter Wandagai, was being plotted to be killed for being a ring leader in the earlier incident pertaining to 12 houses being burnt down, as opposed to the two brothers Kenneth Maikasa and Ferdinand Pai who were targeted. It is rather evident that the deceased was victimised and shot in the course of attacking Kenneth Maikasa and Ferdinand Pai.

2.	Accordingly, I make the following orders:

1.	The verdict of guilty of Murder is entered for the Accused.

2.	The accused be remanded in custody awaiting sentencing.
___________________

__________________________________________________________________________________
Public Prosecutor: Lawyers for the State         
 Jpj Lawyers:  Lawyers for the Accused