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State v Kaka [2013] PGNC 20; N5082 (5 February 2013)

N5082

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 1028 OF 2011

THE STATE

V

SAMUEL KAKA

Kokopo: Lenalia, J
2012: 2nd & 4th October,
4th & 13th & 24th December
2013: 5th February.

CRIMINAL LAW – Charge – Murder – Plea of not guilty – Trial – Evidence –
Charge – Elements of murder – Criminal Code s.300(1)(2)

CRIMINAL LAW – Evidence on trial – Onus of proof on circumstantial evidence – Whether evidence shows if the accused was actually with the gang of eight men who murdered the victim or was he a member of the group that killed the victim.

CRIMINAL LAW – Circumstantial evidence from two witnesses show accused was on the scene at the time of the attack on the victim – He was a member of the gang that repeatedly assaulted the victim and he fell down unconscious on the ground. He later died in the hospital – Verdict of guilty returned.

Cases cited.

John Beng-v-The State [1977] PNGLR 115
The State-v-Tom Morris [1981] PNGLR 493
Paulus Pawa-v-The State [1981] PNGLR 498
The State-v- Delga Puri and Tapri Maip [1982] PNGLR 493
The State-v-Jacob Dugura Roy (2007) N3137
Devlyn David-v-The State (2006) SC881

Counsel

Mr. L. Rangan, for State
Ms. J. M. Ainui, for Accused

February 5th 2013

1. LENALIA, J: Samuel Kaka is charged with one count of murder contrary to Section 300(1)(2) of the Criminal Code. It is alleged that between 4th and 5th December 2009, the accused amongst eight others met up with the victim Brian Lee and attacked him until he was unconscious. He died the next day. After the charge was read and the brief facts stated to him, the accused entered a plea of not guilty. Before the trial commenced, the following documents were tendered by consent including some that were tendered during the trial.

➢ Statement of Dr. Hilton T Abraham & its annexure Ex. "1" & "1a"
➢ Statement of Joesokia Emma Ex. "2"
➢ Statement of Nason Kiala Ex. "3".
➢ Statement of Henry Junias Ex. "4".
➢ Statement of Simon Kauli Ex. "5".
➢ Statement by Walter Burangat Ex. "6".
➢ Statement of Doreen Robin Ex. "7".
➢ Statement of Const. Joe Baimuru Ex. "8".
➢ Statement by Sgt. Foregere Aiyofa Ex. "9".
➢ Statement by Sgt. Harry Dale Ex. "10".
➢ Record of interview Pidgin version and English translation Ex. 11 and 11(a).

Prosecution Evidence

2. On this trial, the prosecution called two (2) witnesses. To begin with the evidence of Henry Lote is circumstantial while that of Josepha Joshua is direct evidence from what she saw during the night of the incident. In the case of Henry Lote, his evidence relates to an incident that occurred on 4th December 2009. He was not on the scene at the time the offence was committed.

3. However, Henry's evidence shows that, on the early morning on 5th December 2009, while still lying down on his bed and was already awoken, he heard the accused mentioned to his family members and other boys sitting on the bed outside Henry's house leaning on the wall that, he (accused) and other boys had robbed and fought with Brian Lee at Ralum Club at the Golf Coast. In chief the witness revealed that he was about 2 feet away from the accused when he heard the accused tell the story to those boys how he (accused) and others had killed Brian Lee after they had robbed him of his personal items, particularly money and his mobile phone.

4. Henry's evidence is supported by Josepha Joshua. This witness was on the scene of the fight. Josepha saw the accused with six or seven other boys assaulting the victim Brian Lee at Ralum Country Club. Josepha and the victim were returning from her house and as they were walking back toward the Queen Emma Lodge Steps, they met up with some boys.

5. Josepha said as she was standing she saw the boys started to fight with Brian Lee. She said, before she ran to seek assistance, she saw and recognized the person known by his nick-name as Sense. Asked in chief and cross-examination who was this person whom she referred to as "Sense". Josepha answered that Sense is the alias for Samuel Kaka, the accused in court.

6. Asked further how she would know the accused when he comes from Ulaguan while she comes from Vunamami village. She said, the accused is well known to her as he comes around to Vunamami village and they meet each other now and then and she knows him by his nick name as "Sense".

7. This witness was pressed in cross-examination as to the correctness of her identification of the accused. The witness said, he knows the accused well and she was very sure that at the time of the incident, she saw the accused as he was the only person she did recognize that night on the scene of the fight.

8. On all other pieces of evidence tendered by consent, the Court accepted them as part of the prosecution case by their circumstantial nature.

Defence Evidence

9. The accused was called upon to either make a statement from the dock or give evidence on oath pursuant to s.572(1)(2) and (3) of the Criminal Code. The accused elected to remain silent. This position was confirmed by the accused's lawyer Ms. Ainui. He was asked if he wanted to call any witnesses, he indicated he would not call any.

Addresses on verdict

10. Since the defence did not make any statements or give evidence, the Court called upon Mr. Rangan to address the Court first on verdict. Counsel submission is that, there is sufficient evidence to convict the accused of the charge of murder. He referred to the evidence of the two witnesses Henry Lote and Josepha Joshua saying such evidence is truth of what occurred on the night of the killing and the Court should find the accused guilty of murder because there is evidence that the accused was on the scene and he was seen by witness Josepha on the evening on the date and time the youths attacked Brian Chimang Tomong Lee.

11. Ms. Ainui in reply submitted that, the Court has to treat the evidence by Josepha with caution as, she did not have clear view of all the attackers that night. She urged the Court to be cautious in treating unsubstantiated evidence by Josepha as it was dark and the lighting on the scene was not as clear and although there were lights, such lights shone from a distance and the Court should conclude that there was no identification made on her client.

Applicable Law

12. On this case, the State invoked Sections 7 and 8 of the Criminal Code. I quote both Sections in the following terms:

"Division 2.—Parties to Offences.

7. Principal offenders.

(1) When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:—

(a) every person who actually does the act or makes the omission that constitutes the offence; and

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and

(c) every person who aids another person in committing the offence; and

(d) any person who counsels or procures any other person to commit the offence.

(2) In Subsection (1)(d), the person may be charged with—

(a) committing the offence; or

(b) counselling or procuring its commission.

(3) A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

(4) Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, it would have constituted an offence on his part, is—

(a) guilty of an offence of the same kind; and

(b) liable to the same punishment,

as if he had done the act or made the omission, and may be charged with himself doing the act or making the omission."

"8. Offences committed in prosecution of common purpose.

Where—

(a) two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another; and

(b) in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of the purpose,

each of them shall be deemed to have committed the offence."

12. From the evidence by the prosecution I identify two issues. First, the issue of identification and recognition and secondly, question of whose evidence should the court accept and believe. On identification and recognition can it be said that no identification had been established by the prosecution evidence in terms of the principles of identification stated in cases such as John Beng-v-The State [1977] PNGLR 115.

13. The issue now is does the evidence prove the allegation of facts and evidence as put by the prosecution which will lead to one reasonable conclusion, that the accused amongst the others who have not been caught committed the offence charged. The case of Paulus Pawa-v-The State [1981] PNGLR 498 establishes that if not, the accused is entitled to an acquittal. (See also Devlyn David-v-The State (2006) SC881 for such proposition).

14. Ms. Ainui's objection to the prosecution evidence is based on the issue of identification evidence adduced by witness Josepha and even the evidence given by Henry Lote. Counsel's submission is that Josepha did not correctly identify the accused as it was dark. I find from the evidence that, the two witnesses do know the accused well and they are from neighbouring villages.

15. On this case, I find that, the issues on this trial are of recognition and identification. The law on identification laid down by the Supreme Court in John Beng-v-The State (supra) and later adopted in Biwa Geta-v-The State [1988-89] PNGLR 153 and many subsequent cases both in the National Court and Supreme Courts on appeal is that, recognition is more reliable than identification of a stranger. It was stated in the two authorities above and subsequent cases that, recognition enhances or improves the quality of identification.

16. I adopt what the Supreme Court said in Biwa Geta-v-The State (supra) that where the State relies on the correctness of identification evidence which the defence alleges to be mistaken the court must warn itself of the dangers of convicting an accused on the identification evidence. The warning contained and developed from the above cases which have been stated and restated and followed in many authorities including The State-v-Delga Puri and Tapri Maip [1982] PNGLR 493, Cosmos Kutau & Christopher Kutau-v-The State (2007) SC927 and many more cases say that, at this stage of the trial, as the Judge of both facts and law, I must warn myself of the special need for caution before convicting the accused on reliance on the identification given by Josepha Joshua and the issue of recognition evidence adduced by Henry Lote.

17. With those considerations in mind, I now apply the principles enunciated in the above cases to decide if this court can enter a conviction or not in the evidence purely based on identification and recognition on the principles set out by the Supreme Court in Paulus Pawa-v-The State (supra).

18. On this trial the court must decide whether the accused ought to be acquitted unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than his guilt. Secondly, to enable the court to be satisfied beyond reasonable doubt of the guilt of the defendant, it is necessary not only that his guilt be a rational inference but that, it should be the only rational inference that the circumstances would enable it to draw.

19. In Devlyn David-v-The State (2006) SC881 the Supreme Court restated the Paulus Pawa-v-The State (supra) principles by saying that the question to be asked is:

"do the proven facts lead reasonably to only one conclusion – that the accused did all the things constituting the elements of the offence? If yes, the accused is guilty. If no, the accused is entitled to an acquittal."

20. The State's evidence has established that an assault was conducted on the victim Brian Lee between 4th and 5th December 2009. That this assault was conducted at Ralum Country Club between 10 and 10.30 pm by the accused and eight other persons. It is also proven by identification evidence that the accused including the gang members and the deceased had a confrontation during which they assaulted the victim.

21. I find from the evidence by the prosecution that not only the accused was identified by Josepha but the accused himself came to Henry Lote's house early on 5th December and told those who were sitting outside Henry's house sitting on the bed that, they had assaulted and killed Brian Lee after they robbed him of his valuables.

22. The first prosecution witness recognized the accused voice on the morning of 5th December 2009 and concluded that it was the voice of "Sense" as they commonly refer to him in the village but his real name is Samuel Kaka.

23. On the basis of the foregoing evidence, I now warn myself of the dangers of convicting the accused on the identification evidence called by the State. I must warn myself of the special need for caution before convicting the accused on reliance on the identification evidence adduced by the State.

24. The reason for such warning is because there is a possibility that a mistaken witness may be a convincing one and any number of witnesses could be mistaken about the identity of someone they are trying to identify. Mistaken identity may be made even where someone is a very close friend or relative of an offender: John Beng-v-The State (supra).

25. In this case the quality of identification evidence is good. I can safely assess the value of such identification evidence even in a case where there may not be any other supporting evidence: The State-v- Delga Puri and Tapri Maip (supra). The question to be asked is whose evidence is credible. The defence called no evidence. No incriminating inferences can be drawn from that: Biwa Geta-v-The State (supra).

26. It is proven fact that, the accused comes from Ulagunan village. He comes around to town with Henry Lote. There is evidence by both prosecution witnesses that, they know the accused well as he is commonly called by his alias as "Sense". I therefore accept the prosecution evidence as credible evidence on this trial.

27. I find that the State's evidence is credible. It is now settled law in this jurisdiction that the court can either accept or reject evidence both by the prosecution and the defence on the basis of whether such evidence is credible or not: The State-v-Tom Morris [1981] PNGLR 493, see also Paulus Pawa-v-The State [1981] PNGLR.498.

28. In the circumstances of this trial, I find that the evidence of the prosecution is more credible and truthful. I find that the case of the prosecution was both one of identification and recognition. I must return a verdict of guilty against the accused.

29. The Court finds that the accused was together with several persons who together attacked the victim at the same time and same location. They used their hands to hit the victim and the medical report shows that the victim suffered a skull base fracture and massive cerebral hemorrhage. The cause of death was from cerebral hemorrhage.

30. The Court finds that the accused acted in concert with the eight others in terms of Awap Omowo and Warsa Yirihim-v-The State [1976] PNGLR 188 or the case of Porewa Wani-v-The State [1979] PNGLR 593.

31. The accused is found guilty because he aided, abetted and in terms of s.7 and in the course of committing the offence of robbery on the victim, the gang including the accused committed the offence of murder (s.300) in terms of s. 8 of the Criminal Code. The court returns a verdict of guilty to the charge of murder.

________________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused