State v Minong [2016] PGNC 139; N6271 (10 May 2016)

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CRIMINAL LAW - accused charged with wilful murder under section 299 of the Criminal Code Act Chapter No 262 - State invoked section 7 - identification - sole witness for the prosecution - dangers and requirements discussed

CRIMINAL LAW - intention to kill discussed - pre-planned killing - evidence covered conduct of the accused during and after commission of offence

CRIMINAL LAW - defence of alibi - many crucial inconsistencies than consistencies - prosecution able to disproved the defence of alibi

PRACTICE AND PROCEDURE - confessional statements tendered by consent that were not confessions- exceptions to hearsay rule discussed - hearsay evidence already before the court - court's role under such circumstances discussed.

PRACTICE AND PROCEDURE - record of interview - not counter-signed by accused but tendered by consent - its admissibility discussed - statements in record of interview contrary to sworn evidence of accused - accused not asked to clarify inconsistencies at trial

The State charged the accused with wilful murder of one Hubert Valaval. The accused denied committing the offence and said at the time of the killing, he was elsewhere and not at the crime scene. The defence said the only time the accused was at the crime scene area briefly was after the killing which, the defence said, was when the accused was mistakenly identified as one of the persons who killed the deceased.

(Cases followed: Keko Aparo and Ors v. The State (1983) SC249; Ishmael Pavo Wrakuhan v. The State (2007) SC895)

Ilai Bate v. The State SC1216 (2012)
Ishmael Pavo Wrakuhan v. The State (2007) SC895
John Beng v The State [1977] PNGLR 115
Keko Aparo and Ors v. The State(1983)SC249
State v. Goi Mubin [1990] PNGLR 99

State v. Benjamin Garo (1996) N1521)
The State v. Michael Nuli (2011) N4198
The State v. Peter Raima [1993] PNGLR 230)
The State v. Raphael Kuanande [1994] PNGLR 512
The State v. Stanis Gala (2005) N2846

1. ANIS AJ: The State (prosecution) indicted Kelly Minong (accused) with one count of wilful murder under section 299 of the Criminal Code Act Chapter No 262 (Criminal Code). The prosecution also invoked section 7 of the Criminal Code.

2. The Court conducted the trial on verdict on 17, 18 and 21 March 2016, and reserved its ruling.

"Kelly Minong of NODUP, RABAUL, EAST NEW BRITAIN PROVINCE, stands charged that he the said KELLY MINONG and others on the 14th day of July 2011 at Nodup Village, Rabaul in Papua New Guinea, wilfully murdered on Hubert Valaval."

5. The prosecution allege that on 14 July 2011 at about 10pm the accused and other men assaulted Hubert Valaval (deceased) and killed him. The other men include David Bani, Raymond Kumaina, Raphael Purpur and Warda Karik, The incident occurred at sea close to the beach next to Nodup village in Rabaul. The prosecution allege the accused and others pre-planned the killing because they waited along the beach and when the deceased arrived in his canoe after fishing out at night, the accused and the others went into the sea and attacked him. Witness Lucy Hubert, the prosecution allege, heard people on the beach yelled " kilim em, kilim em" and screams coming from the deceased. The prosecution allege Lucy went down to inquire and there she witnessed the attack and killing of the deceased.

(i) Whether the prosecution has disproved the defence of alibi beyond reasonable doubt.

(ii) Whether the prosecution has proven beyond reasonable doubt that the accused was part of the group of men that assaulted the deceased that night at Nodup beach.

(iii) Whether the prosecution has proven beyond reasonable doubt that the accused wilfully murdered, or participated in the wilful murder of the deceased.

8. Lucy Hubert (Lucy) is the deceased's sister. Lucy is the prosecution's only witness. She gave sworn evidence at trial.

9. Let me summarise her evidence here: - Lucy said she was at her house next to Nodup beach on the night of 14 July 2011. She said at about 10pm she heard screams coming from the beach and she said she recognised the deceased's voice as one of the voices. She said she immediately ran down to the beach.

10. She said the moon was up in full and bright enough for her to see what was happening. She said she stood 3 meters away from what she described as a fight that was happening at the shallow part of the sea, between the deceased and some men. She said she saw the accused, David Bani, Raymond Kumaina, Raphael Purpur, Warda Karik and some other men whom she could not identify, fighting the deceased out in the sea. She said she walked into the water, stood 2 meters away from the fight and she tried to stop them. She said from 2 meters away, she saw and recognised the accused, David Bani, Raymond Kumaina, Raphael Purpur and Warda Karik. She said she recognised them because they were all from the same village. She said when the attackers saw her, the accused, Raymond Kumaina, Raphael Purpur, Warda Karik and some other men whom she could not recognise, left David Bani and the deceased and they retreated back onto the beach and stood under a tree not far from the beach. She said David Bani left the deceased soon after and returned to the beach. She said she was left with the deceased in the sea water.

11. She said she could tell that the deceased was seriously wounded because she could see the deceased's intestines floating on the seawater. She said she assisted by pulling the deceased back onto the beach. She said not before long, David Bani returned with a knife and tried to cut the deceased. She said she stood in his way and only the tip of the knife cut the deceased's head. She said the four men including the accused who had retreated under the tree threw stones at her and the deceased at that time and she said she heard them shouting "Kilim em Kilim em". She said one of the stones struck her on her leg. She said David Bani left shortly after and teamed-up with the others including the accused and they left to the other side of the beach. She said they tried to help the deceased but he died where she had left him on the beach at about 1am in the morning.

12. The defence called 3 witnesses including the accused. They all gave sworn evidence. The names of the two witnesses are Simon Marava and Peter Toku. The accused, Simon and Peter gave sworn evidence to support the defence of alibi.

Exhibit No	Description	Date
S1	Statement of AloisWarium,ie English version	30/7/11
S2	Statement of TarmanTabuie English version	19/8/11
S3	Statement of MichelleWende (P/C PW Constable)	5/4/13
S4	Sketch map of crime scene of 14/7/11 at Korere Village by Snr Sgt Saint Luke Maibogu	23/8/11
S5	Post mortem photographs of the decease (12 photographs)	undated
S6	Statement of Sergeant Lugakei Joe	13/5/13
S7	Affidavit of Dr H. T. Abraham	2/9/11
S8	Post Mortem report of the deceased	23/7/11
S9	(i)Confessional statement of David Bani Pidgin version	15/7/11
	(ii)Confessional statement of David Bani English version	15/7/11
S10	(i)Confessional statement of Raymond Kumaina Pidgin version	19/7/11
	(ii)Confessional statement of Raymond Kumaina English version	19/7/11
S11	(i)Record of Interview of the accused Pidgin version	26/3/13
	(ii)Record of Interview of the accused English version	26/3/13

16. The parties tendered the Record of Interview (RoI) by consent. It is marked as Exhibit S11.

17. The RoI was typed out in Pidgin and English and both versions were tendered. The accused refused to sign the RoI despite the fact that he was cautioned, his rights were read out to him, the content of the RoI was read out to him and after he had agreed with the content of the RoI after it was read out to him. Evidence to support these are two namely, Exhibit S3, which is a signed statement of the collaborator policewoman Michelle Wende, and Exhibit S6 which is a signed statement of Joe Lugakei, the policeman who interviewed the accused at that time.

19. At the trial, the accused did not challenge the RoI. By that, I mean the defence did not draw the accused to the RoI and asked him whether what he had stated therein was correct or whether he would like to explain, correct or change anything he said earlier.

20. I find as a matter of fact that Exhibit S3 and Exhibit S6 prove that the accused voluntarily gave his answers to the conducted RoI. I am also satisfied and rule that his rights were read-out to him; that towards the end of the interview, the recordings of the RoI were read-out again to the accused; that the accused was asked whether he wanted to alter the statement to which the accused replied that the statement recorded was in order.

21. Case law also states that Courts can accept an unsigned record of interview provided of course that those administering it namely the police investigator(s), provide evidence to certify its content. The police investigator(s) is also required to give evidence to show that he properly conducted the record of interview following the necessary processes (see cases: State v. Goi Mubin [1990] PNGLR 99 and State v. Benjamin Garo (1996) N1521). I also note and adopt Brown J's decision in the case of The State v. Peter Raima [1993] PNGLR 230 where he held on point and I read:

I cannot agree. If it is a truthful record of the interview and the defence has the opportunity to enquire, and is satisfied that it has been taken in accordance with constitutional safeguards, there is no reason why it may not be tendered by consent.

22. I am therefore satisfied that the RoI is properly before the Court for consideration as evidence.

24. Let me summarise Exhibit S9. David Bani gave a confessional statement to the Police on the matter. David's father and the deceased's father are brothers. David and the deceased are first cousins. David said on the evening at about 9 O'clock, he went looking for the deceased at his house. He said the deceased was not there. He said knowing that the deceased likes to fish, he went down to Nodup beach to check whether his canoe was there. He said four men namely Kelly Minong, Raymond Kumaina, Raphael Purpur, Warda Karik accompanied him down to the beach. He said on the beach they observed that the deceased's canoe was not there. He said he knew then that the deceased had gone fishing and they all waited for him at the beach. He said when the deceased arrived in his canoe, he told the 4 men to back away and wait at a distance and allow him to face the deceased alone. He said the deceased was still in his canoe when he approached him and questioned him in relation to an alleged affair the deceased was said to have had with David's mother. He said the deceased was still in his canoe when he threw the first punch on the deceased's face. He said the deceased fell into the seawater. He said he pulled the deceased out of the water and started punching him. He said the deceased tried to reach for his knife, which was in the canoe, but he said he held the deceased's hand and prevented him. He said Raymond saw what was happening and came over to where they were, pulled out the knife from the deceased's canoe and Raymond cut the deceased on his side. He said when he saw that, he left the deceased and he went back to his house.

25. Let me summarise Exhibit S10. Raymond Kumaina also gave a signed confessional statement. Raymond's evidence is somewhat similar to those of the accused and the two alibi witnesses. Raymond said he and the accused and others were sitting at Nodup beach not far from the crime scene. He said they were watching over some copra bags. He said as they were there they heard David and the deceased shouting and swearing at each other. He said they ran over to them. He said when they arrived they stood and watched the two men fought in the sea next to the beach. He said he saw David hitting the deceased's hand because the deceased was holding a knife. He said when David hit the deceased's hand freeing the knife, the knife fell on the sand next to the sea. He said when he saw the deceased about to reach for the knife, he ran over and retrieved the knife and went and stood on the side to watch the two men who were still fighting. He said David saw him with the knife and David ran over to him, grabbed the knife off him, ran back and cut the deceased. He said he never saw exactly where David cut the deceased because the deceased was still in the sea. He said after that the area was filled with people so he said David and all the boys from their group walked back to the part of the beach where they had been before the fight started.

27. I think a better illustrative case to answer this question would be the case of Keko Aparo and Ors v. The State (1983) SC249.
28. The Appellant Keko Apara and others appealed against severity of their sentences. The National Court had found them all guilty of wilful murder of a man from Bougainville.

29. At the hearing of the appeal, the three Supreme Court judges amongst others addressed a confessional statement Keko had made during the record of interview. Justice Pratt summarised the confession when he said Keko says in his record of interview "Andane offered me K500 to join the murder plot. However I did not agree to this but said it is your own affair".

30. The prosecution tendered the record of interview as confession made by Keko and used that against Keko. The trial Judge held that Keko's admission to receiving K500 was the truth as Keko had admitted to that in the record of interview. The trial Judge went on to apply the evidence against Andane and said he was satisfied that Andane had made the offer to pay Keko K500. The trial Judge said the record of interview was tendered which he said formed part of the evidence that was before the Court for the Court to consider and apply for all purposes, and as such, he said no party could claim that the statement was made outside Court and should be evidence only against the person who made it. The trial judge made these findings despite the fact that both Keko and Andane gave sworn evidence at trial denying making the confession and offer as contained in the tendered record of interview.

31. Justice Pratt disagreed with the said ruling of the trial Judge on point. He noted that Keko made the statement in the record of interview and the record of interview was tendered before the trial Court. However, Justice Pratt noted that Keko denied making the confessional statement in his sworn evidence in Court. His Honour also noted that Andane also denied in his sworn evidence in Court that he made the offer to pay Keko K500 as alleged in the confessional statement. That being the case, Justice Pratt ruled that the confessional statement was inadmissible against Andane. Justice Pratt said the trial Court could treat Keko's denial and weigh that against Keko to make a ruling, but he said the trial Court, given Andane's denial that he ever made an offer to pay Keko, is disallowed from using Keko's confessional statement as good evidence or evidence at all against Andane. Justice Pratt said evidence to establish Andane's guilt on point has to come from other evidence not linked with the Keko's confessional statement.

32. Justice Pratt addressed the law on point in relation to tendering and use of confessional statements with examples and I read:

A confession of course is hearsay evidence but admitted under one of the exceptions. If the statements or part thereof do not amount to a confession then it is not strictly admissible although obviously there must be many parts of a confessional statement which of themselves are not confessions but are essential material for the understanding of the main confession. Likewise false denials may at times amount to a confession as in R. v. McKay (1965) Qld. R.2403. To that extent it may be said that in the case against Keko this statement has some relevance. But by itself it is certainly not a confession — in fact it is the reverse. As a statement in itself therefore it is inadmissible as proof of any fact contained therein. How then can it become evidence of a fact against another accused who not only denies the fact (i.e. offering payment), but where the maker himself denies that he ever made the statement in the first place. The point is the statement is inadmissible on any ground in the trial of Andane. Quite apart from the denials of both Keko, that the statement was made, and the accused Andane, that such an offer was ever tendered, the evidence is inadmissible on first premises. The Court may well disbelieve Andane's denial but that must arise out of factors distinctly and clearly independent of the statement contained in Keko's record of interview and the satisfaction beyond reasonable doubt that such an offer was in fact made by Andane can have no connection whatever with any material connected with this statement.

Perhaps it may help to approach the problem from another direction. I will assume that Keko said he would be very happy with the offer and as a direct result thereof he organised the murder. Undoubtedly this would amount to a confession, and be evidence of the fact that he was involved in the crime. But it is still not evidence against Andane. If Keko were to give similar evidence in the witness box it does so become and must then be weighed against any denial by Andane. If he however denies making the statement the trial judge can disbelieve the denial but the effect then is not that Andane made the offer but that Keko is a liar and thus may be guilty of murder. The next step is that the question is put to Andane by the police, namely that Andane made the offer to Keko, but that is also denied by Andane. The judge disbelieves the denial. The judge also disbelieves Andane's denial when the same question is put to him whilst he is in the witness box. What has the trial judge left before him — a bare assertion rom the bar table that the offer was in fact made. Both Keko and Andane denied it was made. How can an assertion from the bar table or in the police station amount to evidence. The judge must dismiss it, if for no other reason than that he could not possibly find beyond reasonable doubt that such offer was made and therefore Andane was guilty of counselling and procuring.

The second piece of evidence on the same point came from Keko Aparo himself who was a co-accused of Andane and who is one of the appellants in the case. Keko had given two confessional statements to the police and these were admitted into evidence in the State case before the trial judge. In each of those confessional statements Keko said Andane had offered him K500 to take part in the killing and that he had taken a knife and had participated in the killing. The learned trial judge rightly understood that these statements were, at that stage, inadmissible against Andane. The trial judge rightly referred to the fundamental rule that out-of-court statements by one accused are not admissible against a co-accused. Then Keko gave sworn evidence in his own defence. Naturally enough he was asked by the State Prosecutor in cross examination if Andane had offered him K500 to participate in the killing. He denied that Andane had made that offer. The result then was that there was no admissible evidence from Keko againt Andane on the K500 offer. If Keko had said on oath that Andane had offered him K500 etc., or that he was telling the truth when he said to the police that Andane had offered him K500 etc. then that would have been admissible evidence against Andane.

The trial judge weighed up the evidence against each accused separately and Pratt, J. has rightly pointed out the desirability of conducting that very important mental exercise in a joint trial lest in the complexity of a joint trial a piece of evidence, admissible against one accused, is wrongly treated as admissible against another accused. Performing this exercise on the evidence on the offer of K500 in relation to Keko and Andane leads to this result. In relation to Keko the trial judge preferred the admissions in his two confessional statements that Andane had offered him K500 to participate in the killing and disbelieved his denial of that fact on oath. He thus found as a fact in relation to Keko, and was entitled to do so, that Andane had offered Keko K500 to participate in the killing. Considering the case against Andane, there was no admissible evidence against him that he had offered Keko K500 to participate in the killing and the learned trial judge should have found that allegation not proved agaist Andane.

35. And Justice Gazewicz also provided valuable discussion on point. He stated and I read:

Keko Aparo was an accomplice of Andane Akwia and a co-accused in the trial before His Honour. In his confessional statement made on 22 February 1981 and in his record of interview conducted on 25 February 1981 Keko Aparo made statements to the effect that Andane Akwia organized several meetings at which a pay back killing was discussed and that he offered to pay Keko Aparo K500.00 if he would help in the killing. The killing of Dennis Vosivan was a pay-back killing. However, Keko Aparo gave sworn evidence at the trial and he denied having said that to the police. He even went so far as to say at p.94 of the appeal book that he never met Andane Akwia before, the first time he met him was at the District Court, obviously referring to the committal proceedings.

It is a well-established rule that an out-of-court statement made by co-accused is admissible only as evidence against the maker of the statement and it is not admissible against other co-accused if it is intended to use the statement to prove the truth of the matters contained in the statement. An out-of-court statement may be received in evidence against the other co-accused if the statement is not sought to prove the truth of what it contains. For example, in Mawaz Khan v. R. (1967) 1 A.C. 4548 it was held by the Privy Council that statements by each accused setting up identical false alibis could properly be admitted against each other as proof of a concerted action and a common guilt and that it was immaterial that the accused were not charged with conspiracy.

In Archbold's Criminal Pleading Evidence & Practice, 39th ed. the rule is stated in paragraph 1395 as follows:

"It is a fundamental rule of evidence that statements made by one defendant either to the police or to others ... are not evidence against a co-defendant unless the co-defendant either expressly or by implication adopts the statements and thereby makes them his own ... Nor is a plea of Guilty by one defendant in any sense to be regarded as evidence against a co-defendant."

"If, however, a defendant goes into the witness-box and gives evidence in the course of a joint trial, then what he says becomes evidence for all the purposes of the case including the purpose of being evidence against his co-defendant..."

The learned trial judge treated the statement made by Keko Aparo in his record of interview about Andane Akwia's offer to pay K500 as proof that the offer had been made. As I said, in my view His Honour erred in doing that. I may add that during the trial everybody, and especially the State Prosecutor, forgot about Aparo's confessional statement.

36. I will now apply these principles to the two confessional statements and rule on them.

37. I firstly turn to the confessional statement of David Bani (Exhibit S9).

38. David was a co-accused over the said killing. He has since been convicted and is now serving time for the offence of wilful murder of the deceased.

39. I find David's 'confessional statement' not a confessional statement but a normal signed statement. I find not one word of admission by David therein that says he committed the offence, or that he was responsible for the death of the deceased. In-fact, in the said so-called confessional statement, David blames Raymond Kumaina for cutting the deceased and tries to portray that he was actually innocent. The content of David's statement is not relevant to the issue at hand. The issue this Court faces is this:-whether David's statement is hearsay evidence and should not have been tendered by consent by the parties in the first place. Based on the Supreme Court's decision in the case of Keko Aparo and Ors v. The State (supra), I would answer "yes" and rule that it is hearsay evidence. In my opinion, it was wrongly tendered by consent by the parties at trial under a misconceived presumption that because it was a confessional statement, it fell within one of the exceptions to the hearsay rule. And I note that the prosecution did not call David at trial to attest to it.

40. Well, this evidence is already before the Court. The next question I ask myself is what should this Court do with this evidence under the circumstances?

41. I think the Supreme Court neatly answers this question in the case of Ishmael Pavo Wrakuhan v. The State (2007) SC895.

12. We have considered the test as stated by Williams J in Maring Kataka and requirement as stated by the Supreme Court’s comments in Awoda. We reaffirm the principle that admission of hearsay evidence does not itself vitiate a conviction. The test is, however, modified to consolidate Awoda and Maring Kataka. The test should be whether or not it is reasonably probable that the evidence wrongly admitted influenced the decision to the extent that there was a miscarriage of justice. Thus, while hearsay evidence may be wrongly admitted and wrongly taken into account by a trial Judge, a conviction could still stand on evidence of admission by an accused or on the basis of other independent and or credible evidence.

43. With the support and implication derived from the Supreme Court's decision in Ishmael Pavo Wrakuhan v. The State (supra), I rule now that I will not give any regard or weight to Exhibit S9 in my consideration on verdict. In my opinion, it is too risky to give any weight to this evidence because it contains facts which are contentious and which have not been put to the test at trial. I will disregard or give no weight to this evidence. I will consider other or independent evidence concerning the issues that are before this Court.

44. I now turn to the second confessional statement of Raymond Kumaina (Exhibit S10). The exhibit was also tendered by consent of the parties. Upon perusing it, I also note that it is not a confessional statement. Raymond did not confess that he killed the deceased. Raymond gives his account of what he said happened that night and blames David for cutting the deceased. How can that be called a confession I wonder? Raymond's statement is a normal sworn statement. It was obviously admitted by consent by error by the parties under the impression that it was a confession allowable under one of the exceptions to the hearsay rule. And I note that the prosecution did not call Raymond to attest to his statement.

45. Like Exhibit S9, Exhibit S10 is also already in evidence before this Court. I will use the same reasons I gave in relation to my ruling on Exhibit S9 above, here. I rule that I will not give any regard or weight to Exhibit S10 in my consideration on verdict. I further note that this Court will rely on evidence independent from the exhibit to determine the material issues before the Court.

46. I must comment that I am at lost as to why the parties have decided to tender these two exhibits in the first place. They have not addressed them anywhere through to their respective witnesses or submissions. The parties tendered the two exhibits but 'left them in limbo' so to speak.

47. I refer to Exhibit S1 and Exhibit S2. The parties tendered these by consent.

48. Exhibit S1 is a statement of one Aloisia Warium. Her statement is in evidence before this Court. I rule that I will disregard or give no weight to this evidence because the content of her statement or facts alleged therein are contentious. Secondly, Aloisia did not sign her statement and, thirdly, she was not called in as a witness at trial to be examined in relation to what she has attested therein. I turn to Exhibit S2. It is a statement of one Tarman Tabu. His statement does not contain contentious facts but I will give no weight to it because his statement relates to earlier incidents between himself and David Bani which is irrelevant to this trial. He also did not sign his statement nor was he called at the trial to testify.

49. Let me approach this issue by adopting what Justice Cannings has held in the case The State v. Michael Nuli (2011) N4198, which is and I read:

29. I have considered the inherent dangers of relying on the correctness of identification to support a conviction and caution myself, as the tribunal of fact, accordingly. If the quality of the identification evidence is good the matter should proceed to a consideration of the elements of the offence. However, if the quality of the evidence is poor an acquittal should be entered unless there is other evidence that goes to support the correctness of the identification.
(Underlining is mine)

50. It is important that I should caution myself with regard to the dangers of accepting evidence of a single witness who has testified that she actually saw the accused with the group of men who assaulted the deceased. I am mindful of the dangers of convicting an accused person based well for this case, on evidence of the sole witness for the prosecution who claims that she saw the accused attacking the deceased at night under moonlight.

51. The case law on point is the case of John Beng v. The State [1977] PNGLR 115. The principles held therein I thought were well summarised by the Supreme Court in the case of Ilai Bate v. The State SC1216 (2012). The Supreme Court held these:

10. It is settled law as explained by the Supreme Court in John Beng v The State [1977] PNGLR 115, Biwa Geta v The State [1988-89] PNGLR 153 and Jimmy Ono v The State (2002) SC698 that there is an inherent danger in convicting an accused on the basis of identification. The trial judge should by his or her reasons for decision demonstrate that that danger is recognised and heeded. This is done by administering a ‘self caution’. It is the sort of caution that a judge would give to a jury in jurisdictions that have trial by jury. In PNG we have no juries. The judge is the tribunal of fact as well as of law. So the judge is expected to caution himself or herself as a matter of self-discipline and as a means of demonstrating through his or her judgment that the principles on identification evidence have been applied.

11. The trial judge should indicate that the court is mindful of the risks involved but that if the quality of the identification evidence is good the matter should proceed to verdict; and if the quality of the evidence is poor an acquittal should be entered unless there is other evidence that goes to support the correctness of the identification. The judge’s reasons should show an awareness of the possibility that an honest witness can be mistaken and still be convincing. The court must be satisfied that the witness is both honest and accurate. In assessing the quality of the identification evidence relevant considerations include: whether the witness is purporting to identify a person who was a stranger or someone he recognised; the length of time that the witness observed the accused (eg a prolonged period or a fleeting glance); the emotional state of the witness at the time of the incident; the prevailing conditions (eg was it broad daylight or at dusk or dawn or inside or outside?); the line of sight (eg did the witness have a clear front-on view or was the line of sight interrupted or did the witness just see the accused from the side?). If there are discrepancies in the identification evidence the court should consider them and assess whether they are explicable in terms other than dishonesty or unreliability.

52. The principles held above are binding herein. I apply them to this case in my consideration.

53. I will discuss Lucy's evidence: She said she was at her house on the night in question on 14 July 2011. She said the deceased had gone out to sea to fish. She said at around 10pm she heard shouts and screams coming from the beach. She said she recognised the deceased's voice. She said she ran down to the beach and saw the boys who were assaulting the deceased. She said she stood 3 meters away from where the attack was happening and she said she saw and recognised David Bani, Raymond Kumaina, Minong Kelly, Raphael Purpur and Warda Karik. She said she walked closer to 2 meters from the fight to try to assist the deceased. She said Raymond Kumaina, Minong Kelly, Raphael Purpur, Warda Karik and some other men saw her and they left the deceased with David Bani and retreated to the beach. She said she knew David Bani, Raymond Kumaina, Minong Kelly, Raphael Purpur and Warda Karik because they were from the same village. She said Raymond Kumaina, Minong Kelly, Raphael Purpur, Warda Karik and the other men did not leave but they went and stood under a tree close-by to the beach. She said from there, they threw stones at their direction. She said one of the stones hit her leg and they kept shouting "kilim em, kilim em". She said the deceased was hurt because she saw his intestines floating on the seawater. She said David Bani also left shortly after. She said she tried to help the deceased by pulling him out of the water. She said after she had pulled out the deceased from the water onto the beach, David Bani ran back with a knife and tried to cut the deceased on his head. She said she stood in the way and the tip of the knife cut the deceased on his head. She said David left and join the other men and they all left together. When she was asked to describe the lighting at that time, she said it was a full moon that night and she said the moon was right up. She said that was why she was able to recognise the boys. She was asked to point to the witness and she pointed to the accused in the witness dock on the other side of the courtroom.

54. During cross-examination, the defence asked Lucy whether at the time of the assault there was already a crowd there. She said there was no one there at the time of the assault. She said the boys whom she saw had all gone before people came to assist. She said the reason for this was that the houses were far apart from each other. The defence asked Lucy whether she was scared because at that moment she was witnessing her brother being attacked. Lucy said 'yes'. The defence put to Lucy that she was fearing for her brother's life at that time. Lucy said 'yes'. The defence put to Lucy that she only witnessed David Bani attacking the deceased with a knife but because of her fears, her judgment or recollection was distracted. Lucy answered 'no' to the question. The defence put to Lucy that even when the moon was shining, she would not have seen clearly. Lucy said she stood there and saw the men. The defence put the allege facts in the alibi to Lucy. Lucy said she did not know about that. The defence put to Lucy that she saw the accused because he came to observe after the deceased had been killed. Lucy said she was there and she saw the accused commit the offence with the other men. The defence put to Lucy that the accused never assaulted her brother and that he went there after the killing to observe. Lucy said she saw him ran up the beach. The defence put to Lucy whether she agreed that sometimes even under the moon light people make mistakes. Lucy replied that she did see the accused. In re-examination, the prosecution asked Lucy whether she made a mistake that night in identifying the accused. Lucy said 'no'.

56. Her demeanour at trial was impressive. She was unmoved during cross-examination. She spoke softly but told her story without signs of confusion. She clearly identified the accused as one of the persons who attacked the deceased.

57. My immediate concern relates to the lightings or visibility at the beach at the time given that the attack on the deceased occurred after 10pm at night. Was the moon light bright that night and sufficient or safe for this Court to rely on to say that Lucy was able to see and recognise the accused? After hearing Lucy's evidence, I accept and find that the moonlight was bright that night at the beach. Because the moonlight was bright, I find and am satisfied that Lucy was able to see and recognise the accused, that is, both during the fight and during the time as he was leaving with the other men when she approached them from 2 meters away. I find that because the visibility was made clear by the moon light, Lucy was able to recognise and also call the names of some of the other men who were there as well namely David Bani, Raymond Kumaina, Raphael Purpur and Warda Karik.

58. I also note that these men come from the same village as Lucy. Lucy knows them and they are not strangers, which was why Lucy was able to, easily recognise them including the accused that night on 14 July 2011. During cross-examination, the accused told the Court the deceased was his maternal first cousin. This means that Lucy and the accused are first cousins or close blood relative, and it means the accused was no stranger and was known to Lucy at the time of the attack. So when Lucy identified the accused and the men, that was so because she was able to see, recognise and know that it was them.

59. I would have had some doubts on identification based on lightings alone if evidence had shown that Lucy was observing from a far or fair distance away from the time of the attack. This was not the case. When Lucy arrived at the scene, she stood 3 meters away from where the attack was happening. She was able to recognise and identify the men including the accused. She saw the accused and the others attacking the deceased in the water. She reached out to stop the fight and this time she was 2 meters away from the men. When the 4 men including the accused saw Lucy, they retreated onto the beach and onto a nearby tree where they stood there and threw stones and shouted towards her direction "kilim em, kilim em" which means "Kill him, kill him." I accept Lucy's account of her distances as stated in evidence.

60. Let us pause for a moment and look at the distance. At first, she was 3 meters away. Then 2 meters away. When you come to think of it, Lucy was practically standing close to the men who were assaulting the deceased. She must have taken two steps or less to be 2 meters closer, which, in my opinion, is very close to the attack. This means and makes sense to me that she was in a much better position to observe and see who was fighting and doing what to who, but most importantly that she was in a better position to recognise or see the accused as one of the assailants.

61. I find that the accused is not a stranger to Lucy. I find, as a matter of fact, that the accused is known to Lucy. I find that there was sufficient light at that time because the moon was bright that night. I find that Lucy was close to the attackers at the time and she was able to observe and recognise the accused as one of the participants in the attack.

62. There is one other point I think is important to mention. During cross-examination of Lucy, the defence tried to impress upon her and to the Court that because Lucy, at that moment, was witnessing her brother being attacked by men and was being killed, the incident could have impaired her judgment or her capacity to see and identify clearly who was present at that time. The defence put to Lucy that she could have made a mistake and identified the accused.

63. But Lucy strongly denied that and said she was able to see clearly and identify the accused as one of the assailants. I must say that Lucy, based on her evidence and despite her size or small slim built, appeared strong and brave at that time. She approached the men who were attacking her brother. She did admit in cross-examination that she felt scared. However, scared or not, she did not back away. She confronted them after she recognised who they were, which in my view was why the 4 men including the accused had to back away when they saw her approaching. She actually stood up for her helpless brother. Evidence showed that she defended her brother when David ran back and tried to cut the deceased. Lucy stood in his way when he swung his knife and only the edge of the knife cut the deceased's head. David then left the deceased and Lucy. I note that despite evidence that the deceased's intestines had poured out and were floating on the seawater, Lucy managed to pull the deceased out of the sea in the bid to save his life. As it was, help arrived too late for her brother.

64. When I look at all these, I do not think that such a person like Lucy can be termed as a frightened, scared or traumatised person at the material time. In my view, Lucy acted rationally throughout as demonstrated by her actions that night. Her actions showed that her mind was normal or focussed at the time before, during and after the attack on the deceased.

65. I draw my attention as well here to Exhibit S4, which consists of a drawn-up sketch map of the crime scene area. The evidence was tendered without any objection. Based on the sketch map and photos taken of the beach, that is Exhibit S5, I note that the beach is stretched and clear. There are no barriers in between so whether it be on the right side or the left side of the beach, it is easy for someone to see or easily hear as well as run straight without obstruction. The sketch also shows just one house nearby which is Lucy's house. The two exhibits corroborate Lucy's evidence generally but more so to the scenery and the location of her house to the beach.

66. I note that the accused's evidence is solely based on the alibi he filed. Simon Marava and Peter Toku gave evidence to support the accused's alibi.

67. If I uphold the alibi, I will acquit the accused. If I dismiss the alibi, this does not mean that the accused will be convicted straight away. The prosecution still has to prove and I have to be satisfied beyond reasonable doubt that the accused was the person that committed the crime of wilful murder.

68. Let me consider the evidence. I will firstly list down the consistencies and inconsistencies.

69. The accused, Simon and Peter gave consistent evidence and I summarise them herein:

Q18 I have information that you and Raphael were seen with David Bani. What have you to say about this?

Ans: Raymond ran in and slashed him with a knife and ran away and Valala fought with David.

Q28 Is it correct that if you all should stop them Valavala would not have died?

71. I find many serious inconsistencies in the evidence supporting the alibi. I have already set them above in my judgment. In my opinion, the inconsistencies themselves have effectively tarnished the defence's alibi.

72. Secondly, I find the demeanour of the accused, Simon, and Peter lacking from the truth. They all appear very slow and careful in their responses to the questions both during examination in chief and cross-examination. I also note that almost all questions by the prosecution to them were carefully thought-out. They were hesitant in their responses, and the impressions I got from each of them were as if they were worried that the prosecution would catch them telling something which they were perhaps not supposed to tell. The whole reason why the matter has come this far and to trial is for the Court to extract the truth in relation to a death of a person. If the accused, Simon and Peter have a story to tell, they should tell that to the Court. Being hesitant, calculative or treating every question with caution in my view, did not make them reliable or good witnesses. I therefore have every reason to doubt their evidence.

73. Peter's demeanour was the worst of the three and I thought I should discuss that in some detail. His demeanour was very poor and suspicious. He took time to respond. He gave an impression to me that he was careful not to give an answer that would be favourable to the prosecution's case. He did not simply tell the Court what he knew or his story. He was thinking hard or carefully through before and whilst giving evidence. His story or account of what happened appeared congested in his own mind.

74. Let me give an example of a striking inconsistency he made. During cross-examination, the prosecution asked Peter whether he knew someone called Laku. Before that and during examination in chief, Peter never mentioned Laku's name as one of the persons they were with on the beach guarding the copra bags. So when the prosecution first asked the question, Peter raised his voice and said "We were at the road side, who is Laku?" But when the prosecution repeated the question and put to Peter that Laku was with them, Peter must have thought that he gave a wrong answer so he answered "yes". In doing so, Peter contradicted himself.

75. The second striking inconsistency, which defies common sense, was when Peter said that when they arrived, he could see the deceased, already lying on the side of the beach. Yet Peter said he could not see anyone else there because it was dark. To me, this does not make logical sense. If it was dark, I ask myself how Peter could only see the deceased lying on the beach from a distance. This evidence also contravenes the sworn evidence of the accused and Simon where they both stated that there were other people on the beach as well when they arrived and these people briefly told them what had happened. Peter's evidence also contravenes the accounts recalled by the accused in the RoI.

76. I now discuss on and rule on the RoI and the sworn evidence given by the accused at trial. It is clear that the accused's sworn evidence contradicts statements he gave to the police in the RoI. They are both before me and I will have to decide whether to accept one of them, give more or less weight to one or whether I should reject them or give no weight at all to them.

77. I rule that the inconsistencies showed that the accused's cannot be trusted. I find that he told partial truth when he gave evidence in the RoI. I said partial truth because he admitted that he was at the crime scene at the time the deceased was being attacked and Lucy's evidence puts him there. He however told a lie when he said in his RoI that he was watching as the crime was taking place. I accept Lucy's evidence that the accused was an active participant in the assault or attack on the deceased at the material time. I believe and rule that he lied about this part to the police to save himself.

79. I find that Lucy gave her story based on what she saw that night. I find that Lucy was the first person to arrive at the beach when she heard the screams. I find that there was no other person at the beach at the time Lucy ran down. I accept Lucy's evidence that village houses there were scattered, which explained why no one else were there at that time after the shouts or screams to the time the attackers had left Lucy and the deceased. I accept Lucy's evidence that the place was clear with good lightings because the moon was shining bright that night. I accept Lucy's evidence that she was 3 meters away from the attack and she saw and recognised the accused as one of the persons who was there and was attacking the deceased out at sea. I also accept Lucy's evidence that when she moved in closer to 2 meters she saw and was able to recognise and identify the accused and the others, as they left the crime scene leaving behind David Bani and the deceased.

80. I am satisfied beyond reasonable doubt that Lucy has clearly identified the accused at the crime scene. I am satisfied beyond reasonable doubt that the accused was at the crime scene at the material time or at the time Lucy said she saw him. The accused and the others whom Lucy said she saw were not strangers but persons who live with her together in the same village. The accused is Lucy's first cousin. I find that because Lucy and the accused are closely related it was easier for Lucy to identify the accused at that time.

81. I find the accused, Simon and Peter as untruthful witnesses. Their evidence has many fatal inconsistencies. I rule that they have given false evidence to the Court.

82. I am therefore satisfied overall that the prosecution has disproved the defence of alibi beyond reasonable doubt. In making that finding, I have accepted Lucy's evidence and rejected the evidence of the accused, Simon and Peter on point.

(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.

(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

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

(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—

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

87. In the present case, the accused was alleged to have, with other men, fatally assaulted the deceased.

88. The accused's alleged role was the actual assault on the deceased or alternatively that he allegedly aided and abetted in the killing of the deceased.

89. In the National Court case of The State v. Stanis Gala (2005) N2846, Justice Cannings sets out the other elements in a case where the accused is said to have aided or abated a killing in a wilful murder charge.

91. I adopt and apply these stated tests for the offence of wilful murder in the above case herein.

92. I adopt the issues identified by Justice Cannings in the case The State v. Stanis Gala (supra), and I set them out herein:

1 Did some person(s) kill the deceased? If yes, the first element of wilful murder is established. If no, the accused must be acquitted.

2 Did the first person(s) kill the deceased unlawfully? If yes, the second element of wilful murder is established. If no, the accused must be acquitted.

3 Did the first person(s) intend to cause the death of the deceased? If yes, the third element of wilful murder is established. If no, the accused must be acquitted.

4 Did the accused aid, counsel or procure the first person(s) to kill the deceased? If yes, the final element of wilful murder will in the circumstances of this case be established and the accused will be convicted. If no, the court will consider issue (5).

5 Did the accused form a common intention with the first person(s) or any other person to prosecute an unlawful purpose and prosecute that purpose and commit wilful murder, that being a probable consequence of the prosecution of their purpose? If yes, the final element of wilful murder will in the circumstances of this case be established and the accused will be convicted. If no, the court will consider issue (6).

6 Has it been proven that the accused should be convicted of an alternative offence under Section 539 of the Criminal Code? If yes, the accused will be convicted of that alternative offence. If no, the accused must be acquitted.

94. Based on the prosecution's sworn evidence of Lucy, I am satisfied beyond reasonable doubt that the accused killed the deceased. I am also satisfied beyond reasonable doubt if the accused did not actually use the knife to cut the deceased during the attack, that he was with the group of men namely David Bani, Raymond Kumaina, Raphael Purpur, and Warda Karik and they all participated in the brutal attack of the deceased at Nodup beach on the night of 14 July 2011 which directly caused his death.

95. I refer to Exhibit 7 and Exhibit 8. Exhibit 7 consists of an affidavit dated 2 September 2011 of Dr H T Abraham of the Nonga Based Hospital. His affidavit attaches a report or post mortem report of the deceased, which is Exhibit 8. I also refer to and use Exhibit 5 namely photographs 1, 2, 3, 4, 5, 6, 7 and 8. The photographs show the body of the deceased and the wounds he received from the attack on 14 July 2011. The 3 exhibits were tendered by consent of the parties. They are in evidence and I am therefore entitled to use them. According to the post mortem report, the deceased died at 1am on 15 July 2011. The deceased died of loss of blood from a large horizontal wound carved on his left loin that measured 17cm by a width of 8cm. The report said a sharp object penetrated the left loin and severed the left renal artery, which had caused massive blood-loss resulting in the death of the deceased.

96. This is what I conclude happened: The deceased returned from his fishing trip to Nodup beach at about 10pm on the fateful night on 14 July 2011. The accused and the others attacked him at the seashores. Lucy heard the screams and recognised his brother's voice. She ran down to the beach shortly after. When she arrived, she stood 3 meters away and she saw her brother being attacked by more than 5 men. Lucy was able to identify 5 of the men which were the accused, David Bani, Raymond Kumaina, Raphael Purpur, and WardaKarik. The moon was up and bright and Lucy was able to see these men attacking her brother. The deceased was already cut and fatally wounded when she tried to help. Lucy approached the attackers at a distance of about 2 meters, which was when the accused and the other 3 men plus others backed away. David Bani fought with the accused but he too left shortly when Lucy arrived. Lucy could see her brother's intestine floating on the seawater. Lucy pulled the deceased to the beach but not before David Bani approached and tried to cut the deceased. Lucy blocked off David and David was only able to slightly cut the deceased's head with the tip of the knife. The accused and the 3 men did not run away. They stood under a tree near the beach and shouted "kilim em, kilim em" and threw stones at the deceased and Lucy. When David left, he met up with these men including the accused and they all left together.

98. The answer to that is "Yes, the killing was unlawful" unless of course there is a law that permits a person to kill another because the other person is about to return home after fishing out at sea at night. I find no legal justification or basis for the said killing.

99. Before I go on to discuss whether there was intention to kill, let me look at the case law for some guidance. I think a good illustrative case is the case of The State –v- Raphael Kuanande [1994] PNGLR 512. Injia AJ, (as he then was) said and I read:

“Intention is a matter which goes to the state of mind of the accused at the time he acted. It may be proved by direct evidence of the accused’s expression of intention followed by the act itself or by circumstantial evidence. In either situation, it is necessary to examine the course of conduct of the accused prior, at the time and subsequent to the act constituting the offence.”

100. Examining the course of conduct of the accused, prior to, during and after the act constituting the offence are perhaps key factors to apply for this case. I note that in the present case, Lucy's evidence, which is the only testimony at trial in relation to the killing, starts during the time of commission of the offence to after the time of commission of the offence. I will consider whether there is sufficient evidence to establish the element of intention, that is, during and after the time of the attack.

(ii) the accused, David Bani, Raymond Kumaina, Raphael Purpur, Warda Karik and other men who where there that night, had formed a common intention to prosecute an unlawful purpose and they prosecuted that purpose and committed wilful murder on Hubert Valaval on 14 July 2011.

103. I find that this was a planned killing by the accused and the other men involved. I summarise the evidence to support why I say it was a planned killing, herein:

105. I am therefore satisfied that the prosecution has proven beyond reasonable doubt that the accused Kelly Minong committed the offence of wilful murder.

National Court of Papua New Guinea

State v Minong [2016] PGNC 139; N6271 (10 May 2016)