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State v Tomugal [2016] PGNC 307; N6508 (1 November 2016)

N6508

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR Nos. 690, 691 & 692 OF 2015

THE STATE

V

TOM TOMUGAL, NORRIS PADIRU AND BOBBY NICK

Kokopo: Anis AJ
2016: 17, 18 & 19 May, 16 August,
21 September & 1st November

CRIMINAL LAW – Three (3) accused charged with wilful murder under section 299 of the Criminal Code Act Chapter No. 262 - identification the material issue - primary evidence inconsistent with each other- the time of killing was extended to 4am in the morning - identification dangers and risks were real and were not eliminated - the three (3) accused could not be identified - evidence of signs of bias with investigation - evidence of invention of events

Cases Cited:

Ilai Bate v. The State SC1216 (2012)
John Beng v. The State [1977] PNGLR 115

Counsel:

Mr L. Rangan, for the State
Mr J. Gesling, for the Accused

VERDICT

1st November, 2016

1. ANIS AJ: The State (prosecution) charged Tom Tomugal, Norris Padiru and Bobby Nick (3 accused) for the alleged wilful murder of one James Talman (deceased).

2. Their indictment states and I read in part:

TOM TOMUGAL, NORRIS PADIRU and BOBBY NICK all from VUNABAUR, KOKOPO, EAST NEW BRITAIN PROVINCE stand charged they the said TOM TOMUGAL, NORRIS PADIRU and BOBBY NICK on the 30th day of December 2014 at Ralubang village, Kokopo in Papua New Guinea, wilfully murdered one JAMES TALMAN.

3. The 3 accused have pleaded not guilty. On 21 September 2016, the Court reserved its ruling on verdict to a date to be advised.

4. This is my ruling.

FACTS

5. The prosecution alleged these: On 29 December 2014 between 11pm and 12 midnight the 3 accused and men from Sulka village in Kokopo, East New Britain Province went over to a plantation called Long Plantation. They attacked the deceased and other men who where there. The 3 accused with the group of men carried offensive weapons namely bush knives, spears, sticks and stones. During the attack, the 3 accused with the group of men were chased and they ran away. Not long and between 3am and 4am that morning on 30 September 2014, the 3 accused went back to Long Plantation with their weapons and attacked the deceased and other men who were there. The 3 accused with the group of men fought with the deceased and his group of men for some time. Between 4am and 6am, the 3 accused wilfully murdered the deceased using their weapons. The deceased was taken to Saint Mary's Vunapope Hospital early that morning. The deceased was pronounced dead on arrival.

CHARGE

6. The prosecution charged the 3 accused with one count each for wilful murder under section 299 of the Criminal Code Act Chapter No. 262 (Criminal Code Act). The prosecution also invoked section 7 and 8 of the Criminal Code Act. It said that the 3 accused went to Long Plantation (the plantation) for a common purpose in that they had aided and abetted each other when they assaulted the deceased with their weapons with the intention of causing his death.

ISSUES

7. The main issue is whether it was the 3 accused that wilfully murdered the deceased on 30 December 2014. There is no doubt that the deceased died from the wounds he received from the fight that morning. The main questions this Court must consider and answer are (i) whether the 3 accused have been clearly identified at the crime scene and (ii) whether the 3 accused had wilfully murdered the deceased as alleged based on the primary facts relied upon by the prosecution to charge the 3 accused.

8. Of course, if the prosecution establishes the identity of the 3 accused but is unable to prove wilful murder, the next issue would be whether the 3 accused may be found guilty of a lesser charge available under law based on the evidence adduced before this Court.

EVIDENCE

(i) EXIBITS

9. The parties tendered their evidence during the trial. I have put them down into a table format and I set it out herein:

(ii) WITNESSES

10. The prosecution called a total of six (6) witnesses. They are:

• Silas Yapo
• Eddie Turpa
• Bomai Kuno
• Bernard Lamur
• Dr Lisioth Wauleau
• Sergeant Harry Dale
  

11. The defence called only one witness who is Donnie Kurmou.

PROSECUTION'S WITNESSES

12. Let me summarise the testimonies of the prosecution's witnesses.

• Silas Yapo: He said he could recall the incident that occurred on 29 December 2014. He said Mark Lamur sent word that there was an incident at the plantation. He said Mark Lamur told them the Sulka people had threatened him and his family whilst they were working at their garden that day. He said he, Roli, Paul, Eddie and the deceased went and stayed at the plantation. He said they were told to look after the plantation and its properties. He said at around 11pm the Sulka people came to attack them. He said they fought and after some time, the Sulka people left. He said they later came back to attack the second time at 5am the next morning on 30 September 2014. He said they attacked them with stones, sticks and slingshots. He said the Sulka people surrounded them and they were outnumbered. He said they just stood there. He said the deceased tried to escape from their group and they cut his leg. He said when the deceased fell, Tom came from behind with an axe and cut his back. He said Oris came with a spear used for spearing fish and speared the deceased on his back. He said Vincent came, stood over the deceased and cut his two (2) shoulders. He said Eddie came and hit the deceased on his head as he was lying on the ground. He said after they had killed the deceased, they retreated with their group. He said he was standing on the other side of the road about 5 to 6 meters away when he observed the killing. He said the time was around 5am going towards 6am. He said the place was clear which was why he could recognise the 3 accused. He said the other two persons who were also involved in the killing who were not in Court were Eddie Guno and Vincent. He said the assault took about 30 minutes. He said he knew the 3 accused in person. He said he knew accused Bobby Nick. He said they do things together in the village. He said he lives at Bobby Nick's place. He said Bobby's mother was from Ralubang village and his father was from Sulka village. He said he also knew accused Norris Padiru. He said Norris Padiru was his uncle's son from his mother's side. He said his father was from Ralubang village and his mother was from Sulka village. He said he knew accused Tom Tomugal. He said his uncle Padiru was married to Tom Tomugal's elder sister. He said Norris Padiru's mother was Tom Tomugal's sister.
  
• Eddie Turpa: He said he could recall the incident that occurred on 29 December 2014. He said between 4am and 5am, some group of men from Sulka village including the 3 accused murdered the deceased. He said one of them Vincent Mungal was outside the Court House. He said Vincent was the first to throw the knife on the right leg of the deceased. He said when the deceased fell to the ground, Bobby Nick came with an axe and cut the deceased on his back bone. He said Tom Tomugal took a big stick and hit the deceased on his head. He said Norris Padiru came with a long spear and shot the deceased from his back and the spear came out from the front of the deceased. He said the four (4) of them stood there and their group came and surrounded the four (4). He said they all stood there and looked at the deceased and when the deceased passed away, the 3 accused and the Sulka people retreated and left. He said they went to check the deceased but he was dead. He said they put the deceased on a vehicle and drove to the hospital. He said the killing took about 30 minutes. He said at that time, he was standing beside the road. He said he was about 3 to 4 meters away from where he was observing. He said the attack occurred between 5am to 6am. He said the place was already clear and one could recognise a person. He said there was a group of men from Sulka village but he was able to recognise the 3 accused because they ran ahead of the group. He said he knew Vincent. He said they go to and from Vincent's village. He said he knew Tom Tomugal because like Vincent, they go to and from his village. He said as for Norris Padiru, he was like a son. He said Norris's father was like a brother to him because they called each other brothers. He said the owner of the plantation was William Langur who was from Ralubang village.
  
• Bomai Kuno: He said he could recall the incident that happened on 29 December 2014. He said at 2pm that day, Mark Lamur called and told them that some boys had attacked them. He said himself, Rollie, Silas and Eddie went there to the plantation and stayed there. He said between 11pm and 12am, the 3 accused came and attack them. He said later between 5am and 6am the next day the 3 accused returned and attacked them and killed the deceased. He said Bobby Nick cut the deceased on his back with an axe. He said Tom Tomugal cut the deceased on his shoulder with a knife. He said the actual killing took 7 minutes. He said Norris Padiru cut the deceased the second time on his leg. He said he recognised the 3 accused because they led the men by walking ahead of them. He said the time was between 5am and 6am and the place was already clear. He said the place was clear enough for him to recognise someone. He said he was standing about 5 meters away when the killing occurred. He said he knew the 3 accused. He said he knew Bobby Nick. He said his mother was from Ralubang and his father was from Sulka. He said he knew Tom Tomugal. He said Tom was the in-law of Padiru. He said Padiru was married to Tom Tomugal's sister. He said he knew Norris Padiru because his father was from Ralubang and his mother was from Sulka and Vunabur. He said the fight was over land namely the Long Plantation.
  
• Bernard Lamur: He said he could recall the incident that occurred on 29 December 2014. He said he was in town when his elder brother Mark Lamur called him. He said Mark told him that the Sulka people had gone up to where Mark was planting peanuts and they had attacked them. He said he used his elder brother's vehicle and drove to check Mark. He said when he arrived there, the Sulka people had left. He said he and the boys spent the night there at Long Plantation guarding the house and equipments. He said between 2am to 3am the Sulka people came to attack them at the house. He said the others left to fight them outside whilst he stayed back at the house. He said at about 5am in the morning he was surprised to see another group of Sulka people who appeared at the house through a short cut road. He said he left the house. He said he went on to start the vehicle to try to escape. He said just then he saw their security guard crying. He said the security guard pointed to where the deceased was lying on the ground on the road. He said he used the vehicle to chase the Sulka people back. He said he drove back to collect the body of the deceased and drove to the hospital. He said he did not witness the actual killing.
  
• Dr Lisioth Wauleau: He said he examined the body of the deceased. He said he prepared a post mortem report after his examination. He was shown with his earlier affidavit which he had deposed to which had the said report. He identified it and it was tendered in Court as Exhibit P1. He explained his findings in his report to the Court.
  
• Sergeant Harry Dale: He said he was in charge of the matter. He said it was he who arrested the 3 accused. He said he arrested the 3 accused because they committed the crime. He was first shown his prior written statement and it was tendered as Exhibit P2. He was also shown with the three (3) records of interview documents and they were tendered in Court as Exhibit P3, Exhibit P4 and Exhibit P5. He said the written statements of the 3 accused and Bernard Lamur, were taken by other policemen who had assisted him at that time and not by him. He said he was the lead investigator so he never visited the crime scene or talked to witnesses or anyone regarding the matter. He said the 3 accused were brought in with the others to the police station where an identification parade was conducted. He said the 3 accused were identified and the others were not so they were released.
  

DEFENCE WITNESS

13. The defence's sole witness Donnie Kurmou states as follows:

• Donnie Kurmou: He said could recall the incident that occurred on 29 December 2014. He said at 7pm, the Ralubang people, in fours (4) truck loads went to Sulka village. He said they captured a youth there and they took him back to their village. He said the Sulka people went to Ralubang to seek the release of the captive youth. He said the Ralubang people refused to release the youth. He said that was when the fight started, that is, between 3am and 4am at Long Plantation. He said in the afternoon of the same day of the killing, the mobile unit came to his house and told him and others there that someone had died from the fight. He said police threatened him and his people, to look for those that were responsible for the killing and hand them over to the police. He said there were many policemen at that time from the Mobile Squad A team. He said the next day on 31 December 2014 the police came back his house. He said police threatened him to look for the people who were involved in the fight that had led to the death of the deceased. He said police told them that if they fail to locate those that were responsible, they would break their heads and burn down their houses. He said because it was a group fight, they did not know who was directly responsible for the death of the deceased. He said after the police had issued the threats, he and the community were scared so they rounded up 12 innocent boys and brought them down to the police station. He said at the police station, 9 of the boys were released. He said it was at the police station that the Ralubang people identified the 3 accused. He said prior to that and when the police went to their village, the police did not ask for or called the names of the 3 accused. He said prior to the identification of the 3 accused, no one from the Ralubang village including Mark Lamur came and gave him the name of or identified the 3 accused. He said none of the prosecution witnesses came and gave him the names of the 3 accused. He said the 3 accused were only identified at the police station. He said the accused were not involved in the fight. But he said he never actually participated or was involved in the fight. He said he only heard the fight from his house, which was far away. He said his knowledge of the fight was based on what other people had told him. He said because he was never there, he did not know whether the 3 accused were involved in the fight.
  

KNOWLEDGE OF THE 3 ACCUSED

14. The prosecution's three (3) key witnesses namely Silas Yapo, Eddie Turpa and Bomai Kuno (the 3 key witnesses) all gave evidence, which in effect says that they know the 3 accused. I find sufficient evidence, which proves that the 3 key witnesses actually know the 3 accused. They all come from the same village. Evidence shows that the two villages are not far apart and there is inter marriages between them namely the Ralubang and the Sulka villages.

15. I note that although I have made this finding, it does not in any way prove identifications of the 3 accused at the material time of the killing. Whether the 3 accused, whom the 3 key witnesses knew, were the persons who were present at the crime scene and whether they were the persons who actually killed the deceased, has not yet been determined by this Court, which I will do so below.

TIME OF KILLING

16. The 3 key witnesses gave inconsistent times on when the deceased was killed. In their sworn statements, they all said the killing occurred between 3am and 4am in the morning on 30 December 2014. In their oral evidence, they said the killing occurred sometime between 5am and 6am. The inconsistencies were tested in cross-examination. I also note that the prosecution, in during evidence in chief, had sought clarifications from the 3 key witnesses regarding the time of killing. The 3 key witnesses were given the opportunity to explain the inconsistent statements in Court at the trial. In my opinion, this now becomes a question of weighing the evidence based on the credibility of each witness on this point (i.e., the time of killing).

17. I will consider this point (i.e., the time of killing) in more detail when I examine the consistencies and inconsistencies of the evidence of the prosecution.

CONFLICTING FACTS

18. In my opinion, the following facts are crucial for the present case:

• Facts that explained what the 3 key witnesses were doing immediately before they witnessed the killing
• The time when the deceased was killed
• Facts that described how the deceased was killed
  

19. In regard to the first set of facts, that is, Facts that explained what the 3 key witnesses were doing immediately before they witnessed the killing, I find that the 3 key witnesses have given different accounts. Let me explain: Witness Silas Yapo said the Sulka people surrounded them at the plantation. He said they had no place to run so they all stood and surrendered themselves to the Sulka people. He said from there, the deceased tried to escape which was when he was killed. I find that Witness Silas Yapo's account is consistent with what he has said in his signed statement and in his response during cross-examination. Witness Eddie Turpa said in his sworn statement that the Sulka people surrounded the plantation and started chasing them. He said himself with Silas Yapo, Bomai Kuno and Ronnie Kaliai ran along the main road. He said the deceased was running at the back of them as well. He said they heard a cry and when he turned around, he saw the deceased being killed. In examination in chief, he told a different story to the Court. He did not mention being chased but said he stood on the side of the road about 3 to 4 meters away and he witnessed the killing. He again told a different story when he was cross-examined. He said when the Sulka people attacked them, they all including the deceased ran away. He said they ran and split up into two groups and ran into bush tracks in the plantation. He said as for him, he ran over into the plantation and he went and sat on the trunk of a fallen coconut tree. He said he sat there and from there, he observed the killing. He never said in any of his evidence that they were surrounded or they surrendered to the Sulka people. His evidence is firstly inconsistent with and does not corroborate what Silas Yapo had said. I find that Eddie Turpa gave contradictory evidence against his own evidence. Secondly, I find that his evidence on point did not corroborate with Silas Yapo's evidence. Witness Bomai Kuno, in his sworn statement, said the Sulka people attacked them and later killed the deceased. In his examination in chief, he said he stood 5 meters on the side of the road and witnessed the killing. When he was cross-examined, he agreed that the Sulka people caught up with the deceased and killed him whilst they were all being chased. I find that Bomai Kuno's evidence on point is not clear, vague and is inconsistent with the material facts as alleged by Silas Yapo and Eddie Turpa.

20. In regard to the second set of facts, that is, The time when the deceased was killed, I find that the 3 key witnesses gave different accounts of the time when the killing occurred. Their evidence was tested in cross-examination but they maintained their stands. In the end, the prosecution maintained that the killing occurred between 5am and 6am. I find that the 3 key witnesses gave consistent evidence on timing through their oral testimonies and in cross-examinations, despite their earlier sworn statements where they each had put down the time of death as between 3am and 4am. Having said that, I am not sure whether I can also say that the place was totally clear or that the sun was already up. Witness Bernard Lamur gave evidence on this point. I find his evidence to be credible. I find that he has given consistent evidence both written and oral and I did not find evidence that would suggest that he might be an untruthful witness. He did not actually see the actual killing. In re-examination, he was asked when he saw the deceased body outside on the road and he said around 5am. This, to me, suggests that the killing could have occurred around 4am going towards 5am. I note that based on the primary facts, the killing was said to have occurred sometime between 4am and 6am, and Witness Bernard Lamur's evidence on point brings the killing time back from 5am to sometimes between 4am and 5am. In my opinion, this makes the timing range for killing quite wide. It also casts doubt as to whether the place was clear with good amount of sunlight at the material time as alleged by the prosecution's witnesses, or whether the place was still dark.

21. In regard to the third set of facts, that is, Facts that described how the deceased was killed, I find many conflicting evidence. Let me start with witness Silas Yapo. In his sworn statement, he said Norris Padiru cut the deceased on his backside. But in his evidence in chief, he said Tom Tomugal was the one who cut the deceased on his back with an axe and he said Norris Padiru speared the deceased. This is clearly giving contradictory evidence to the Court. Witness Eddie Turpa, in his sworn statement, said he saw Tom Tomugal cut the deceased's leg. He said Norris Padiru cut the deceased on his back using an axe. He said Bobby Nick speared the deceased. But in his examination in chief, he said Vincent cut the deceased on his leg. He said when the deceased fell to the ground, Bobby Nick cut the deceased on his back using an axe. He said Norris Padiru speared the deceased with a spear from the back and the spear came out the front of the deceased's body. Witness Bomai Kuno, in his sworn statement, said Norris Padiru cut the deceased from the back. He said Bobby Nick shot the deceased on his side and later Bobby Nick put his leg on the neck of the deceased and hit the deceased's head with a tree stump. But in examination in chief, he changed his story and said Bobby Nick was the one who cut the deceased on his back with an axe. He said Tom Tomugal cut the deceased on his shoulder with a knife and Norris Padiru cut the deceased the second time on the deceased's leg.

22. In my opinion, there are simply too many inconsistencies uncovered under these three (3) sets of facts.

LAW - IDENTIFICATION

23. Following on from the above, I must turn my attention now to the issue of identification. The leading case law concerning the Court's role when identification is an issue 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.

24. The principles held above are binding herein. I adopt and apply them herein.

25. I note that the quality of identification is paramount. If it is good then a conviction may be possible. If however, the quality of identification is poor, the Court should be hesitant and unless there are other evidence adduced that can assist on point, the Court should acquit an accused. I note that if there are discrepancies in the identification evidence, it is important to consider whether they are explicable, or whether it could also mean something more serious such as dishonesty or unreliability.

DID THE PROSECUTION IDENTIFY THE 3 ACCUSED?

26. The prosecution has the burden and must establish beyond reasonable doubt through its evidence that the 3 accused were seen at the crime scene and that it was them that killed the deceased that morning on 30 December 2014.

27. Let me start with the evidence of Sergeant Harry Dale. I find two things about this witness. Firstly, I find that although he was the lead investigator in the matter, he did a very poor job. I say this deliberately because as evidence has shown, the only thing he did was arrest the 3 accused. He did not clearly explain how the identification parade was conducted. He did not adduce evidence to show to the Court how the other suspects were released. The second thing I want to say about this witness is that he has shown signs that he may have been biased with his so-called investigation and arrests. He revealed that in Court himself when he gave evidence in chief. When he was asked this question "Why did you arrest the 3 accused?", his answer was "They committed the crime". During the hearing, it was revealed that he never, after the arrest of the 3 accused, visited the crime scene or talked to anyone whether from the Ralubang village or from the Sulka village. It seems that he was satisfied that the 3 accused committed the crime as he himself puts it, based on the three (3) signed statements he had obtained from the 3 key witnesses.

28. In relation to the evidence of the 3 key witnesses, I note that I have discussed them above in my judgment. In summary, because I have found many inconsistencies in their evidence, it has created serious doubts and this Court is now wondering whether these 3 key witnesses namely Silas Yapo, Eddie Turpa and Bomai Kuno can be trusted. Are they reliable witnesses? Did they actually see the 3 accused at the crime scene and did they actually witness the killing of the deceased by the 3 accused? Or did they identify and blame the 3 accused simply because they knew them in person?

29. Other then the inconsistencies as I have already discussed above in my judgment, I wish to also make mention of two things here. The first point is to do with common sense or logic. That is, if the 3 key witnesses knew very well all the 3 accused and they said they saw them kill the deceased at the crime scene and they gave detailed accounts of how each one of them had attacked the deceased, then I ask myself this. Why did they not immediately report the matter and give the names of the 3 accused to the police on the same day or the next? Why did they not put in a complaint or statement to that effect naming the 3 accused? Why did the police had to issue threats or demand the Sulka people to round up those people suspected of fighting on that day and bring them over to the police station? Why conduct an identification parade if the 3 key witnesses already knew of the names of the 3 accused?

30. The second point is this. The 3 key witnesses signed their statements only after the arrest or after the identification of the 3 accused at the police station. There is therefore a real danger that because they all knew each other, it is possible that the 3 key witnesses may call or blame these 3 accused as scapegoats, for the death of their fellow villager or wantok.

31. When I apply the considerations held in the case of John Beng v. The State (supra), I am not satisfied:

(i) that the risks associated with identification were eliminated or significantly reduced from the evidence that was adduced by the prosecution;

(ii) that the quality of identification was good nor that there was sufficient evidence which had corrected the identification of the 3 accused herein;

(iii) that the 3 key witnesses were honest and accurate;

(iv) that there was sufficient lightings at the material time;

(v) that the 3 key witnesses were in a stable condition or position to be able to have a clear view to identify the 3 accused at the material time.

32. I note that the prosecution's own evidence has discredited its case against the 3 accused. The damning evidence in my opinion under the issue of identification is in two (2) folds:

(i) The first relates to the different versions of the facts as re-told by the 3 key witnesses. The first version was that the 3 key witnesses were surrounded by the Sulka people. They said they had no place to run to so the 3 key witnesses and others with them there surrendered themselves to the Sulka people. They said they just stood there which was how they said they were able to recognise, identify and witness how the 3 accused killed the deceased when he tried to escape from their group. The second version of their story is this: They were chased by the Sulka people. They all ran up the road of the plantation. The deceased also ran with them from the back. They heard the deceased screamed and when they turned and looked they were able to recognise, identify and see what each of the 3 accused did to the deceased. The third version of their story is this: They were chased by the Sulka people up the road. They split into two groups and ran into the plantation where they hid and observed the killing, which was how they were able to recognise, identify and know who did what to the deceased.

(ii) The second is to do with the lightings at the material time. The evidence of the prosecution established that the deceased could have been killed anytime between 4am and 6am that day on 30 December 2014. Bernard Lamur, whom I have found to be a credible witness, said he saw the dead body of the deceased at around 5am in the morning. I note that I found that to imply that the deceased could have been murdered sometimes before 5am on that day. So with that evidence coming from the prosecution, it puts the estimated time of the killing between 4am and 5am. That being the case, it draws or creates the possibility that the deceased could have also been killed sometimes between 4am and 5am. Four (4) am and 5am would obviously be still dark. Dawn or the sun usually rises at 6am. This therefore casts doubts on the credibility or accuracy of the evidence given by the 3 key witnesses particularly given the fact that these was a group fight between two villages namely the Ralubang and the Sulka. I also note that the parties did not dispute that there were many people involved in the fight throughout the night and into the next morning.

FINDINGS

33. I find that the prosecution has failed to prove beyond reasonable doubt the element of identification. That is, I find that the prosecution failed to prove beyond reasonable doubt that the 3 accused were present at the crime scene and that it was them that killed the deceased.

34. I also find that the prosecution's evidence did not establish the primary facts as read out in support of the charges against the 3 accused. I make this finding after this Court has found many inconsistencies in regard to evidence deposed to by the 3 key witnesses particularly in regard to facts that had existed immediately before and after the killing of the deceased.

35. I find that the 3 key witnesses were dishonest and unreliable witnesses. With inconsistent evidence given by the 3 key witnesses, I find that they did not actually witness the killing or saw how the deceased had been killed. I find that they had given false evidence to the Court.

36. I find that without being satisfied that the prosecution has identified the 3 accused as the persons at the crime scene and as persons who could have killed the deceased, this Court cannot proceed any further but to acquit all 3 accused of the charge of wilful murder.

SUMMARY

37. The 3 accused are to be immediately discharged forthwith from the charges of wilful murder.

ORDERS OF THE COURT

Verdict: Not guilty

________________________________________________________________

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