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State v Negga [2018] PGNC 172; N7264 (27 April 2018)

N7264

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1538 of 2015

THE STATE

V

STANLEY MICHAEL NEGGA
Accused

Kokopo: Higgins, J
2018: 04^th, 05^th, 06^th & 27^th April

CRIMINAL LAW – MURDER – s 300(1) Criminal Code Act –proof beyond reasonable doubt

ALIBI EVIDENCE – where apparently false – use as proof of guilt – only if from consciousness of guilt

IDENTIFICATION EVIDENCE – need for caution – of a stranger – verdict of acquittal

Cases Cited:
Papua New Guinea Cases

Beng v State [1977] PNGLR 115
State v Beng [1976] PNGLR 471
State v Malihombu [2003] PGNC 124
State v Noki [1993] PNGLR 426
Yandasingi v State [1995] PNGLR 268

Overseas Cases

Alexander v R [1981] HCA 17, (1981) 145 CLR 395
Domican v R [1992] HCA 13; (1992) 173

Counsel:

Ms L. Batil, for the State
Ms J. Ainui, for the Accused

27^th April, 2018

1. HIGGINS, J: The accused, Stanley Michael Negga stands charged before me that he:
   

“... on the 01^st day of August 2015 at Ralubang Plantation, Kokopo, East New Britain Province in Papua New Guinea, murdered Jackson Kokote Akel [the deceased].”

2. To this charge, he pleads “Not Guilty”. As Ms. Batil, for the State, rightly concedes, the onus is, therefore, upon the State to prove the accusation thus levelled at the accused and each essential element of it beyond reasonable doubt. The accused bears no onus of disproof or persuasion and, indeed, must be presumed innocent until and unless the contrary is established by the State to the level of persuasion that is beyond reasonable doubt. That onus never shifts to the accused whether or not he elects to give evidence. Indeed, if an accused remains silent, when accused, whether before or after being indicted, no adverse inference can be drawn from that fact. As Ms. Batil notes, an accused is granted that right by the Constitution.
   
3. A further consideration towards caution may arise where an accused or supporting witnesses appear to have told lies in giving exculpatory testimony. Two conditions need to be met. First that the Court is satisfied that the untruths were deliberate, and, second, that they betrayed a consciousness of guilt of the crime charged. A lie may, after all, be told to avoid or diminish the strength of a perceived false or mistaken accusation.
   
4. The elements of the offence of murder under s 300(1) of the Criminal Code Act 1974 are that the accused has caused the death of the deceased by an unlawful act intended to do, at least, grievous bodily harm to the deceased.
   
5. In this case, the State alleges that the accused, between 7 and 9pm, at a feast associated with a haus krai at Ralubang Plantation, Kokopo, attacked the deceased striking him on the body with a piece of timber. The deceased fell into unconsciousness. An autopsy attributed his death shortly thereafter to splenic rupture consequent upon that assault.
   
6. Dr. Tommy Walters examined the deceased supporting a finding of a left side assault with a piece of timber or similar weapon. In his report, he found that the only indications of trauma found were to the abdomen with an enlarged and ruptured spleen including “a penetrating upper chest wound”. Head and neck disclosed no sign of injury.
   
7. Two eye witnesses were called by the State.
   
8. Samuel Apaya, a relative of the deceased, gave evidence that, at the feast, the accused, whom he identified in court, complained, about 5pm, that the deceased had stolen his bottle of “coffee punch”. They fought. Those present separated them after some struggle. At least 5 people he identified took part. Then those present including the witness, went home but he returned after dark.
   
9. He heard a commotion and went outside. He was with Joe Noel who got a torch. With the aid of the torch light he said he saw the man he saw before, pointing to the accused, strike the deceased on his neck and ribs.
   
10. He went to assist the deceased who had fallen to the ground.
    
11. The assailant, he said, ran away “down to his relatives”.
    
12. In cross-examination, Mr. Apaya conceded that before the first fight he had no previous knowledge of the accused. He further agreed that he had lied about not drinking alcohol at the feast for fear that he might not be believed when he claimed to recognize the accused. He admitted that when he purported to recognize the accused he was drunk.
    
13. This evidence did little to support the witness’s credibility. He further purported to identify the timber, which was not taken to hand to police, as “teak”.
    
14. The torch Mr Noel had, he said, was 40cm long and held 4 batteries.
    
15. Joe Noel was another relative of the deceased. He gave evidence of the first fight over the bottle of coffee punch. Another lady, also a relative he said, gave K150 to the person identified by him as the accused, for compensation.
    
16. That was around 5pm. Around 6 pm, he left the area coming back at 8pm. When he arrived, “they”, ie the deceased and the accused, were fighting. He had a torch in his bag, he said. It was about 9” long (ie about 25cm). The accused got a piece of timber, about 1 metre in length from the haus kuk and hit the deceased twice, once on the back of the head and once on the right side of the body.
    
17. He said the timber was big and heavy. He identified it as teak. He caught the assailant who had dropped the timber and they fought. Someone restrained him and the accused ran away again.
    
18. He conceded that he assumed it was the same person who fought earlier with the deceased. He could not identify anyone else present “because it was dark”.
    
19. He did not attempt to preserve the timber for police to examine – “we were too busy”.
    
20. Mr. Noel further asserted that he saw the accused with “one of his relatives” ie one of his ‘fathers’. He asserted that Lumbu Lapua, one of the accused’s fathers, was at the feast earlier, when re-examined by Ms. Batil. He agreed he had no prior knowledge of the accused.
    
21. I note that this was after the belated alibi Notice was served on the State.
    
22. A record of Interview with the accused, conducted by Sergeant Joe Bimaru and Senior Constable Beline Tololo, was tendered. The accused chose not to respond to questions. No adverse inference follows from this.
    
23. The issue immediately apparent on the State case was that of the sufficiency of the identification evidence.
    
24. The two eye witnesses were strangers to the accused, had been drinking and had opportunity to identify him as the assailant only in turbulent circumstances. In particular, the assumption was made that it was the same person fighting the deceased on the two occasions referred to, despite the compensation earlier accepted by the aggrieved participant in the first altercation. The second occasion, when the deceased was struck was in darkness.
    
25. Identification evidence, in such circumstances, is notoriously prone to error. The sobriety of the two witnesses was, at least, open to doubt. The fact that no other eye witnesses were called is a further cause for caution. To that may be added my impression assisted by their demeanour that the two witnesses called were anxious to avenge the death of their relative and believed it was the accused who was the guilty party.
    
26. Of further concern was Mr. Apaya’s evidence that the accused struck the deceased on the left side and the back of the head in the neck area. There was no sign of any injury as might be expected from the latter blow and the medical report suggests the splenic injury was on the right side.
    
27. These are serious inconsistencies in a case depending on the accuracy of identification evidence – see eg. State v Malihombu [2003] PGNC 124 per Kandakasi J.
    
28. Furthermore, although the inherent risks have been adverted to (see State v Beng [1976] PNGLR 471; [1977] Beng v State [1977] PNGLR 115 and Yandasingi v State [1995] PNGLR 268), it should not be assumed that failure to hold identification parades or use photographic identification board can be lightly overlooked.
    
29. In Alexander v R [1981] HCA 17, (1981) 145 CLR 395, the proper process for holding an identification parade is explained in some detail, particularly in a relationship to photo-board identification.
    
30. The issue was further explored in Domican v R [1992] HCA 13; (1992) 173, where the terms of a warning which should be given to and heeded by a tribunal of fact were considered. In particular, the weaknesses in that evidence must be identified and considered.
    
31. I have adverted to those weaknesses as affecting this case. They are such that, at the conclusion of the State case, I could not have safely found a verdict against this accused.
    
32. Nevertheless, the accused has given and called evidence asserting that he was not present at the feast and hence could not be the person who quarrelled with and subsequently struck the deceased.
    
33. The accused gave sworn evidence. He said he had that day been at Kokopo Business College. He went to the Market where he met his father Lumbu Lapua who had gone there to sell tobacco. His father told him to go with him to Tabuna. He did so. He arrived at the home about 6pm leaving the Markets about 20 past 5pm.
    
34. He was arrested the next day.
    
35. He denied any involvement in the events at Ralubang. He said, in any event, he did not consume alcohol.
    
36. In cross-examination, he asserted that when they arrived at Tabuna, he and his father cooked a meal then went to sleep. They had singapore noodles and pumpkin pips. He slept in his father’s room. There were two rooms, the other was used by persons he did not know.
    
37. It was put to him that he did not tell police about this alibi and possible witnesses. He agreed but stated, quite reasonably, that he was told he had the right to remain silent.
    
38. With respect, I agree. No adverse inference can be drawn from the fact, if it be so, that the accused failed, when questioned, to mention something later relied upon in his defence particularly when he was warned of his right to remain silent. That is not to say that a more favourable inference could have been drawn from an earlier disclosure.
    
39. It was also put to the accused that he had been taken from Ralubang Plantation to a Councillor for his safety. He denied it but it was surprising, if it was so, that no evidence was called by the State to corroborate this. It might have confirmed his presence at the feast.
    
40. Mr. Lumbu Lapua gave evidence. He is the accused’s uncle/father. He grows tobacco, cocoa and copra. On 01 August, 2015, he attended the markets at Kokopo to sell tobacco. His nephew/son came and did some marketing and came with him back to his house. He did not go to or know of the feast at Ralubang.
    
41. He knew nothing about the alleged crime until the accused was arrested at “one in the morning”.
    
42. It was unclear whether this meant 1am or 1pm on 2 August 2015. The information in this matter was laid on 20 August 2015 by Sergeant Bimaru. However, the information alleged that the murder occurred on 2 August 2015 and it was dated 18 August 2015.
    
43. The Charge Sheet records 1 August 2015 as the date of offence and 2 August 2015 at 1”P” or “A”M as the time of arrest at Kokopo.
    
44. Curiously the Police Summary of Facts alleges:
    

“ That on the 2^nd of August 2015 at about 9pm the defendant namely, Stanley Michael Negga was at Ralubang Coconut Products Limited Labourers’ compound, Bitapaka, East New Britain Province.”

It is alleged that the defendant and the victim (now deceased) were there for a feast [and] that during the day someone went into the house of the defendant and stole four bottles of Coffee Punch Liquor.

The defendant was angry and he suspected the deceased (Jackson Kokote Akel(sic)) and mobilised two of his wantoks and attacked the diseased (sic). The defendant and his two accomplices hit the deceased on his body with tress (sic) branches and [a] piece of timber and caused the death of Jackson Kokote AKEL that same night.

...”

45. This is not, of course, any evidence of the facts but the details so given by Sergeant Bimaru do not match the evidence later called.

46. All that demonstrates is that it is not unreasonable to conclude that there was some confusion in the minds of those reporting the matter to police.

47. Some discrepancies in Mr. Lapua’s evidence did emerge in cross-examination.
    

48. He said his house had only one room, not two. He said that they cooked kaukau and rice, (not Singapore (noodles?) and pumpkin pips).

49. He did not have, he said, any knowledge of the charge against the accused, even as to what it was. He did agree that he felt sorry for his son, loved him and, presumably, had a motive to assist him even if untruthfully.

50. Had the State evidence been more persuasive than it was, this evidence would not have dissuaded me from accepting it.

51. Ms. Ainui, for the accused, stressed the unsatisfactory nature of the identification evidence. They were strangers to the accused, the identification of the accused as the assailant with the timber was in darkness alleviated only by the bright but unsteady beam of a torch. In each case, the interaction was in circumstances of great turmoil. The assailant was not held until presented to police as was the case in State v Noki [1993] PNGLR 426 per Woods J. Nor was the accused a member of the same community as those with whom he might have been held or, indeed, be otherwise known to those present at the feast. The witnesses who were called had been intoxicated.

52. From 10 April 2018, the matter resumed on 24 April 2018 for submissions from the prosecution.

53. Ms. Batil defended the evidence of identification of the accused as the assailant. However, those submissions, though cogent and well-presented, cannot overcome the inherent weakness in that evidence referred to earlier.

54. The criticism made by Ms. Batil of the alibi evidence does carry considerable weight. Having regard to the discrepancies, I have referred to in that evidence, I am not persuaded by it. However, as I have noted, the mere fact that alibi evidence is or probably is, concocted does not prove the accused’s guilt. In the circumstances of this case, it is not unlikely that the accused and his father/uncle could have decided to embellish his defence to avoid a wrongful conviction should I have accepted the identification evidence otherwise.

55. I am left with a reasonable doubt as to whether it was the accused who struck the fatal blow to the deceased.

56. I record a verdict of ‘Not Guilty’. The accused is discharged from custody.
________________________________________________________________
Public Prosecutor’s Office: Lawyers for the State
Public Solicitor’s Office : Lawyers for the Accused