SC410
PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

S.C Appeal No.7 of 1987 (No.2)

BETWEEN:

MAI KURI
Appellant

AND:

THE STATE
Respondant

Kidu, C.J.
Hinchliffe, J.
Sheehan, J
Brown, J.
Jalina, J.

17 & 12 December 1990

The Appellant was convicted of murder by the National Court at Mt Hagen and sentenced to 6 years imprisonment with hard labour.

His application to adduce evidence under s.8 of the Supreme Court Act (Ch. No 37) was not successful. We give reasons for our decision in a separate judgement: see Mai Kuri v The State [1991] PNGLR 000

In the Notice of Appeal the grounds of appeal stated are:

(a) His Honour erred in placing too much weight on the failure of the Defendant to call further witnesses to establish who was responsible for the blow or blows that caused the death of the deceased.

(b) His Honour erred in failing to place sufficient weight on the evidence that:

(i) Wae Lunga and Kap Kunjip had previously sworn affidavits concerning the circumstances of the death which circumstances in no way implicated the Appellant;

(ii) The prosecution witnessed had ample opportunity to fabricate evidence against the Appellant;

(iii) The prosecution witnesses had a plausible motive for implicating the Appellant in the killing of the deceased;

(iv) The prosecution witnesses differed substantially in the position of the deceased when he was struck by the Appellant.

(c) His Honour erred in failing to place sufficient weight on the evidence adduced by the Appellant and his supporting witnesses.

(d) His Honour erred in failing to place sufficient weight on the evidence that Parange Kalua was struck on the head by the deceased during the skirmish in which in which the deceased was struck.

(e) There was insufficient evidence upon which the Appellant could lawfully have been convicted.

(f) The conviction was against the weight of evidence.

ORDER SOUGHT:

There was also an appeal against the sentence but it was abandoned and we must say that this was a sensible decision as 6 years for murder cannot be said to be excessive.

The deceased was killed during a fight on 9 October 1985. On that day a compensation ceremony was held involving the Weimbin Clan, the Angalu Clan and the Goe Clan. A fight started as a consequence of state witness Wai Lunga's action.

In the trial the Appellant put up a alibi defence – that he was at another village when the deceased was killed. But this defence was not believed by the learned trial Judge who said in his judgement, "Mari Kuri's alibi is too vague, the State witnesses are too definite". There are two errors contained in this statement. Mai Kuri's alibi was not "too vague". He gave evidence on oath and was cross-examined. In his testimony he said inter alia:

"He was no the 8 October 1985 a Tuesday in the afternoon a man namely Maya from Weimbin clan came to my house. He came to inform me that his daughter is married to the Goe clan. I told him to go home and I told him I would come the next day in the morning. The next day in the morning about 8 am I left my village. I went to some of Maya's relatives and we went to another place Kaminai the place where Maya's daughter was married to. Maya's daughter is married to the Goe clan. We went to the place Kaminai to collect the bride price. The bride price was not ready and we were talking to each other and then we hear a call. We heard that the Goe clan, Auya clan and Angula clan were fighting so we left that place and went home and I came all the way that is all.

Q. When you say you went home where did you go to?
A. Back to Pispal.

Q. You have heard it said that you were at Lamaruli on that day of the trouble, what do you say?
A. That is not correct."

Defence witness Sipwani Keambibi Suigin said in his evidence:

"On the afternoon the 8th day of October 1985 I went to Mumu's house and slept there. The next day on the 9 October 1985 Maya's daughter Miriam was married to may form Goe clan. In the morning at the place Muku Ota I saw some people they were Mai Kuri, Peali, Mauya, Sipia, Aret, Po, Aioboa, came with some women and children. The greeted me by shaking hands and asked to spend the night here shook hands with them. Mai Kuri asked me have you got anything to do or are you doing nothing. He said id if you doing nothing you come with me. He told me that if I am giving pigs or money we can share it. So I went with him. We did not go on our own but we went wit hall those mentioned before. We went to a place called Waiumrota. We saw people where Miriam got married to. The there was a speech between theGoes and Weimbin and Mai Kuri spoke and said "the girl was married to your people long time ago and you have called us to come and get a bride price for that girl's relatives and the girl have been with you for sometime and spent sometime with you people already. Therefore you are to give the bride price". Then the boy's parents relatives said that it is true but we are short of money and pigs so we have to ask for extra time. So we left and came home. Mai Kuri his only aunt of Mari Kuri is the one I went with you. The only face I was Mai Kuri.

Q. Is Mai Kuri in court?
A. Yes, (the witness indicated the accused)

Q. When you were at the bride price matter did you hear the word of trouble at Lamaruli?
A. The place where the trouble was was another place and we were at another place we did not see what happen exactly with our eyes.

Q. Did someone tell you?
A. We were not told by anybody but only heard over a call."

Another defence witness, in his testimony, said as follows (i.e. Tralimbua Parange):

"Mai was not there I did not see him

Q. Mai who?
A. Mai Kuri the accused, it has been said that Mai Kuri struck Piakere on the head twice that day I saw Wai hit him."

So the defence of alibi was raised fairly and squarely. It cannot be said seriously that he alibi was vague. The evidence clearly shows otherwise. And the law is that when/alibi defence, or any other defence, is raised the onus is no the prosecution to negative it.

Was the evidence of the state witnessed "too definite"? The answer is quite clearly in the negative. Firstly there is a clear conflict in the State evidence as to the position the deceased was in when the appellant is said to have hit him on the head with the back of his axe.

Witness WAI LUNGA

"The another man Tumin Nagaya got a coffee stick and said is this your pig and hit Piakere Kewa on the head. Then another man Hendendoa Ugua kicked Piakere Kewa. Then another person Pate Mumu came with a coffee stick and hit it on Piakere's head. Piakere Kewa said I am feeling pain and he got a coffee stick and hit one of the pigs. Then I got a stick and said some of you abided by the law and I got the stick and hit Hendendoa. When the accused Mai Kuri came and cut on Piakere's head with a short handled axe. The accudsed Parange Kaluea cut Piakere's arm with an axe on Piakere's left arm. There were six of us from my side. The sixth person was the one hit and cut and there were five of us trying to pick up the victim but the others got stick and stones and hits us. Then I saw the victim died and the five of us fled.

Q. How did Mai Kuri cut Piakere on the head?
A. He hit him right on the top of the head.

Q. What part of the axe did he hit him with?
A. The back of the axe not the sharp part.

Q. How many times did you see him do that?
A. Twice

Q. During the first blow was the deceased still standing?
A. Yes.

Q. What happened after the second blow?
A. He fell and died.

Q. How far were you from where you saw Mai Kuri apply the blows?
A. The witness indicated about 3 to 4 meters away."

Witness MAI AKALIBO

"Tumints got a coffee stick and hit Piakere saying this is not your pig. We compensated the land. Then Piakere said you are hitting me for these pigs so he got a stick and hit one of those pigs. That time that pig was still alive. Then the councillor Pelyandawa got up kicked Piakere on the chest. The clan was compensating the land must have gathered together and discussed that they were to fight with the other clan. Then Pate got up and got a coffee stick and hit Piakere on the head. Piakere was standing when Pate hit on the head. And after Pate hit him on the head Piakere fell on the ground. When he fell on the ground Mai Kuri got up with a axe and Mai hit on Piakere's head on the spot as where Pate hit, with the back of the axe. Mai hit again the second time with the back of the axe."

In cross-examination Mai Akalibo gave the following testimony:

"Q. You are saying that Mai Kuri hit Piakere while Piakere was on the ground, are you sure?
A. When Piakere fell on the ground he did not die but Wai hit him on the head while he was on the ground.

Q. Wai Lunga said that Piakere was hit twice whilst he was standing up?
A. Piakere did not die straight away when he was hit.

Q. Who is telling the lies about standing up?
A. Both of us were telling the truth.

Q. Wai says that Mai hit Piakere when he was standing up and you said when he was lying down?
A. I saw with my eyes that is why I am telling the truth.

Q. I suggest that you and Wai have got together and made up the story about Mai hitting Piakere on the head?
A. I am not telling the lies I am telling the truth."

Evidence of DOA KEWA

"They had a struggle so we watched them and Piakere went in he is Wai's grandfather then Tumints hit Piakere away with the stick then Pelyandawa kicked Piakere then Piakere hit one of those pigs then Pate said that this not your pig and hit Piakere with the coffee stick. Then he fell on the ground then Mai hit Piakere twice on the head with an axe. I was there crying and saw Parange cut the victim's arm with the handle axe. Then we fled."

He was, he said, 2-3 meters away when he saw Mai Kuri hit the deceased on the head with the axe.

The following is part of his evidence when cross-examined:

"Q. Why didn't you talk you it?
A. We did not talk about this matter.

Q. Wai Lunga said that Piakere was standing up when Mai Kuri struck him on the head?
A. The first blow Piakere received was from Tumints and the second blow was from Pate and then he was about to fall down and he was hit by some men and fell. He was standing unconscious about to fall down on the ground."

This is a clear departure from his evidence-in-chief.

Witness RAKAPA BARANGE

"When Wai pulled the pig Pelyandawa kicked Piakere. Then Pate hit Piakere on the head with the coffee stick then Piakere fell unconscious and Mai Kuri cut on Piakere's head twice then Parange cut Piakere's arm with an axe then the victim died.

Q. Where were you at the time?
A. I was there.

Q. Did you see anybody else hit Piakere with the stick apart from Pate?
A. No there was no one.

Q. You said Mai Kuri hit Piakere twice on the head with an axe which part of the axe?
A. Mai had the axe in his right arm.

Q. Which side of the axe did he use?
A. The blunt side of the axe.

Q. Which hand did you see Parange cut with an axe?
A. On the left arm.

Q. How far were you away when you saw this?

KAP KUNJIP

"When Wai was assisted by Piakere, Tumints hit Piakere with a coffee stick on the head and Pelyandawa kicked Piakere on his chest then Pate Mumu hit Piakere on the head with a coffee stick. After that the victim was about to fall on the ground then Mai Kuri hit him twice on head. There were six of us and the sixth person was injured and the five of us were going to pick him up and Parange cut Piakere on the arm with an axe. Tumint hit the victim on head and Pelyandawa hit him on the chest and Pate hit the victim on the head with the coffee stick. Mai Kuri cut the victim with an axe on the head and then Parange cut him on the arm. I saw all this."

He was 5-6 metres away when he saw the appellant hit the deceased with axe.

The conflict of evidence of the state witnesses does not support the learned trial Judge's finding that "the state witnesses are too definite". It show clearly that they were not too definite.

Evidence of the state witnesses shows that the deceased was hit on the hit with sticks before the appellant to have hit him twice on the head with the back of his axe. But on this aspect of the case the state witnesses varied – i.e. where Wai Lunga, Mai Akalibo and Doa Kewa said that Tumint and Pate hit the deceased on the head with coffee sticks before the appellant hit him on the head with an axe. Rakapa Barange said Pate hit the deceased on the head with a coffee stick before the appellant is alleged to have hit the deceased on the head with an axe. He made no mention of Tumints. But in his affidavit tendered in the committal he made no mention of Pate hitting the deceased on the head with a stick.

In his evidence-in-chief he was asked: "Did you see anybody else hit Piakere (the deceased) with a stick apart from Pate?" and his answer was: "No there was no one."

The conflict of evidence on this matter suggests that between the time the witnesses swore their affidavits and the trial the state witnesses discussed the case.

There is a further inconsistency apparent in this case and it is in glaring form as far as the evidence of state witnesses Wai Lunga and Kap Kunjip. In their affidavits tendered at their committal hearing no mention is made of the appellant having hit the deceased on the head with an axe. Wai Lunga's affidavit is dated the 2nd of December 1985 – i.e. sworn two months after the deceased was killed and when the events of 9 October 1985 were fresh in his mind. He deposed, inter alia as follows:

"When we were pulling the pig Lumints came with a coffee stick and hit Piakere on the head and Piakere let go the pig and he got a stick and hit a pig and Councillor Pelyandawa came and kicked Piakere and he was walking around and Pate Mumu came and hit Piakere on the head with a stick and he fell down on the ground.

When I saw Pate Mumu hit Piakere I was angry and I went and hit Councillor Pelyandawa. When I was hitting Pelyandawa I saw Parange cut Piakere on the arm with an axe and Piakere didn't get up, he was laying on the ground. When Piakere was cut with an axe the fight broke out and Moka hit me with a stick on the right hand and I couldn’t do anything and we tried to save Piakere and there were only six of us who went against the four clan and they used sticks and stones to attack us so we left Piakere where he was and we left and went away. Later in the afternoon I heard that Piakere was brought to the Baiyer River Health Centre and he died. This is all I have to say.

The affidavit was read to me and I understood it."

In his affidavit tendered in the committal Kap Kunjip said:

"I, KAP KUNJIP a villager of Gimanda village Baiyer River Western Highlands Province, being duly sworn make oath and say as follows:

I recall on Tuesday 8th of October 1985, I was told by a man from the Weimbin clan that the Auya clan and the Goe clan were going to make a land payment. On Wednesday 9th October in the morning I left my house and I went to Wae's house and I told Wae about what I heard.

When I told Wae, both of us left the house and we went to the place where the land payment was taking place. When we arrived at the payment place I saw twelve pigs tied to sticks and the people were sitting down and councillor Pelyandawa was standing there talking to them and after that Pate Mumu got up and made his speech.

When Pate Mumu was talking, Wae got up and said, his father was not there so he was getting his father's pig, and he went and pulled his father's pig into the coffee garden and left it there. When Wae left the pig in the coffee garden Pepo went and brought the pig and Piakere went and untied the pigs from the stick and Tumints came and hit him on the head with a stick and he was walking around and councillor Pelyandawa kicked him and Pate Mumu hit Piakere on the head and he fell down on the ground.

When Piakere was lying on the ground Parange came with an axe and cut Piakere on the arm and Kewakali Kuri came and hit Piakere with a stone and sticks at us to kill us and Puma hit me on the elbow and I went away because I was afraid of being killed by the people who were throwing sticks and stones at us and I went away with the other Angalu clansmen leaving Piakere where he fell on the ground.

The affidavit was read to me and then translated to me in the Baiyer language and I understood it."

When he was cross-examined at the trial he gave the following account:

"Q. Did you tell the Police the truth about what happened?
A. I told the truth.

Q. In the affidavit there is no mention of Mai Kuri how did you forget about Mai Kuri?
A. I was not given a copy of that affidavit and when that statement was read back to me I heard it with my own ears.

Q. When the statement was read back to you did you hear Mai Kuri's name?
A. I heard that."

It is abundantly clear from the evidence that the affidavit sworn by the witness makes no reference to the appellant having hit the deceased on the head with an axe or with any other object. One would think that if the appellant did this the witness would have mentioned it to the police well before the trial.

So the evidence of Wai Lunga and Kap Kunjip at the trial and the obvious failure of the appellant's name in their affidavits sworn a few months after the death should have warned the learned trial Judge to treat their evidence with caution. Without it could not have been said that their evidence with caution. Without doubt it could not have been said that their evidence was "too definite".

Apart from the errors we have pointed out there are very basic errors in the judgment but we mention and comment upon two only and they are contained in the following statement:

"There are no other witnesses who identify anyone else as causing the wounds that could have cause Piakere's death. So with no other identification of who could have inflicted the blows to Piakere it is extremely difficult to discount the five state witnesses even though they are fellow clansmen."

If the learned trial judge had properly considered the evidence of the state witnesses and had taken into account the conflicts in their evidence it would not have been extremely difficult to discount their evidence or doubt the veracity of their evidence. Also it is not the law that a defendant has to produce witnesses to testify that some other person could have committed the offence. The onus of proof in a criminal case is quite clear. It is the State which must prove beyond a reasonable doubt its allegations. It is wrong to reverse the onus of proof directly or indirectly.

In all the circumstances we consider that the learned trial Judge could not have been satisfied beyond a reasonable doubt that it was the appellant who committed the offence. Therefore, pursuant to section 23(1)(a) and (3) of the Supreme Court Act (Ch No.37) we allow the appeal and direct that a verdict of not guilty be entered.

As the appellant was in legal custody until today he would not be able to claim compensation for the period of 3 years he has spent in jail. However, we consider that in all fairness the State should consider paying his costs of this appeal on a lawyer-client basis and seriously consider paying him, exgratia, a reasonable sum of money by way of compensating him for the 3 years he spent in jail.

Lawyer for the Appellant: J Mek Teine & Associates
Lawyer for the State: Public Prosecutor