N2185

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 472 of 1999

THE STATE

-V-

TONY PANDAU HAHUAHORI

WEWAK: KANDAKASI, J.
2002: 12th, 13th, 19th February

JUDGEMENT ON VERDICT

CRIMINAL LAW – PRACTICE & PROCEDURE – Defence raising alibi in his evidence without giving notice of same to the State – Defence calling alleged co-accused to rebut State case without putting his evidence to the State’s witnesses – Effect of – Evidence rejected as unreliable and as recent inventions – Criminal Practice Rules 1987 O.4.r.4

CRIMINAL LAW – Verdict – Murder – Death resulting from failed or attempted robbery – State’s case circumstantial – Reasonable inference open on the evidence properly before the Court points to guilt of accused – Return of guilty verdict – Criminal Code sections 

Facts:

The Accused was seen with two other (co-accused) planning the robbery of a PMV the night before the intended date of the robbery. He was seen at the scene of the attempted robbery that failed resulting in death of one victim and serious gun shot injuries to several others. He was rounded up with his co-accused by village leaders or elders and handed over to police. His co-accused pleaded guilty and were convicted and sentence for murder.

At his trial the accused called one of his co-accused without putting his evidence in cross-examination to the State’s witnesses. He also gave evidence of being elsewhere at about the time of the committing of the offence without giving any notice of that to the State.

The accused cross-examination of the State’s witnesses failed to establish any basis to reject their evidence.

Held:
1.	Guilty of the accused was the only inference open to the Court on evidence presented. He was therefore, found guilty of murder.
2.	In the absence of any reason or satisfactory explanation provided for the rejection or ……. the correctness of village leaders identifying an accused as the offender, the Court should accept and act on such efforts or actions of the leaders. Doing so gives credence and responsibility to village or community leaders in the maintenance and enforcement of law and order.
3.	Evidence of a convicted prisoner should be treated with care and caution because of the dangers of either implicating or exonerating a co-accused.
4.	A defendant is under an obligation to give notice of any defence of alibi and put in cross-examination the existence of evidence that will directly contradict State evidence or complete exonerate him or her.
5.	Evidence of any alibi or evidence in rebuttal of a State case not put on notice or put to witnesses on cross-examination may be treated as recent inventions and are therefore unreliable.

Cases cited:
The State v. Wer [1988-89] PNGLR 447 at p 447
John Jaminan v. The State (No.2) [1983] PNGLR 318
Browne v. Dunn (1893) 6 R 67(HL)
The State v. Francis Natuwohala Laumadava [1994] PNGLR 29
The State v. Gigere Undamu [1990] PNGLR 151
The State v. Simon Ganga [1994] PNGLR 323
The State v. Yakoto Imbuni & 4 Ors N1558 
State v. Anis Noki [1993] PNGLR 426, at 427:
Pawa v. The State [1981] PNGLR 498
The State v. Tom Norris [1981] PNGLR 493
Garitau Bonu & Rosanna Bonu v. The State SC528

Counsel:
Mr. M. Ruari for the State
Mr. M. Mwawesi for the Accused

19th February 2002

KANDAKASI J:	You pleaded not guilty to one count of murder contrary to section 300(1)(a) of the Criminal Code. The only issue you took was one of identity as the offender. The State therefore called 6 witnesses and produced and admitted into evidence a number of documentary evidence with your consent.

Ronald Juale was the first State witness. He comes from Japaraka No. 1 village in the Kubalia area in the East Sepik Province. This witness was able to recall the incident as happening on the 9th of March 1999. He said he was at his village in the evening of the 8th of March 1999. He was with a group of men, which included you, a Ben and a Nick who were planning a robbery of a PMV the next day. At that time, Ben had a gun he described it has a rifle. You, Ben and Nick left his house at about 6:30 pm after having planned the robbery. 

He positively identified you in Court and told the Court that the other two men are at the Boram CIS. This witness is your brother-in-law as you are married to his sister. He said you come from a village called Nungori, which is next to his village. It is only a walking distance away.

He said he did not participate in the planned robbery and only learned of an attempted robbery resulting in the death of a person the next day, in the early hours of the 9th of March 1999. Later around 9:00am, on the same day, the police went to his village looking for you, Ben and Nick. However, you, Ben and Nick were not in the village, so the police left the village without any arrests. He said that eventually you and the two men were arrested in the village.

Your cross-examination of this witness only asked him to reconfirm his evidence and also state that the witness did not witness the murder being committed either by you or by any other person. No suggestion was put to him that you were not part of the group of men who planned the robbery and was not apart of the suspects the police were looking for. No reason was put forward as to why he was able to come into Court and testify against you, his brother in-law. He was not even asked to comment on your claims that, you were at your own village or was heading that way at about the time the murder took place. Similarly, you did not put to him the fact that you were going to call Ben Wango, a person already convicted of the crime to give evidence specifically stating that you were not involved. 

I find this witness truthful and I accept his evidence in its entirety. 

The State’s second witness was Sona Finga. She is the wife of Nick Sengi Pori who comes from Japaraka No. 1 as well. She confirmed her husband is at the Boram CIS in connection with the attempted robbery and murder at Japaraka No.1 on the 9th of March 1999. 

She said she was at Japaraka No.1 on the date of the murder. She woke up that morning between 4:00 and 5:00 am. She then went to the road to see your sister get on a PMV to go to town. When she got to the road she saw her husband, Nick with you. That was between 4:00 and 5:00 am. Your sister got on a vehicle and left for town. That is about the time she left you and Nick on the road and she returned to her house. 

She says she did not see her husband again until some three days later. Under further examination in chief, the witness was not able to say exactly when she saw her husband again as she was speaking of her husband going to Angoram and returning a week before the murder. 

Under cross-examination, this witness, admitted to it being still dark when she got to the road and saw your sister getting on a PMV to go to town. Because of that, she also admitted to not seeing persons clearly. However no suggestion was put to her that she was mistaken in her evidence that she saw you and her husband on the road and leaving you both there before returning to her house. Further, as with the first State witness, your claim of not being involved in the commission of the offence and Ben Wango coming into Court to testify in your defence were not put to this witness. Nothing was put to her or suggested that could form the foundation for me to find this witness otherwise than a truthful and credible witness. I therefore accept her evidence in full as being both truthful and credible.

Nokon Seri was the next State witness. He is married to your wife’s sister. He is therefore, your brother through marriage. His evidence is similar to the earlier witnesses. He too was at Japaraka No. 1 in the early morning hours about 5:00 am on the 9th of March 1999. He assumes you had seen your wife off to town and as not seen you again at the village. 

He also stated that, later that day, police went looking for the suspects of the robbery and returned without arresting anybody the same day. He also confirms seeing you on the road with your wife for your wife to catch a vehicle to town. 

This witness was not cross-examined in any respect. I therefore accept his evidence as truthful and uncontested. 

The fourth State witness was a Dominic Dupliwai. He is also from Japaraka No. 1. He too was at Japaraka No. 1 on the 9th of March 1999. He learned of the murder when police went looking for suspects on the same day of the murder but returned without arresting anybody.

A week later, the witness said, the police returned to the village. At that time, the police picked up a rifle. The rifle was Nick Sengi Pori’s and was recovered from the village bush. He said the gun was now with the police CID at Wewak. He was shown a gun (rifle) and he identified it, which was marked "MFI. 1" and is in Court.

He further said, there were three suspects namely, you Tony Pandua Hahuahori, Ben Wango and Nick Sengir Pori. He said Ben Wango and Nick Sengi Pori are at the Boram CIS. He positively identified you in Court when giving his evidence. 
He too was not cross-examined on his evidence. Nothing has been put forward before me not to believe and accept his evidence. I therefore accept his evidence as truthful and uncontested.
 
The second last witness for the State was a constable Willie Kasona of CID Wewak police. His specialty is police photography and securing of exhibits for cases police come to deal with for production in Court at a trial. He says he has been with the CID for about 23years.

He recalls being asked to go with a team of policeman to Japaraka No. 1 village on the 15th of March 1999. His job was to secure exhibits for the case. He was asked to search Ben (Benedict) Wango’s house and he did and found a gun in a black bag. He took the gun in the black bag and took it to the police station. At the police station, he labeled it and put it way for court exhibit. 

He recalls seeing you as one of two suspects (according to his recollection) being taken to the scene to indicate the positions you were at, at time of the offence. He says that was done but does not recall your exact position in relation to the commission of the offence, as he was more interested in securing the exhibits.

 He identified you in Court as Bennedict Wango. At the same time however, in response to cross-examination, he said he might be mistaken as to your name. This is because he says, that was the first time he had seen you and the second time was in Court when giving his evidence. He also stated that the other policemen were with the suspects and questioned the suspects and not him. He was however, certain that he saw you as one of the suspects police took to the scene to indicate their position in relation to the execution of the offence. 

Again as with the other witnesses, there were no suggestion put to this witness that he could be mistaken in saying you were one of the persons taken to the scene of the crime on the 15th of March 1999. Likewise, no suggestion was put to the witness that you were not involved in the commission of the offence and that you will call Ben Wango to testify in Court in those terms. Further, no reason has been presented to show that the witness could be lying under oath. I therefore accept his evidence in full as truthful and reliable.

The final State witness was a Joseph Hopwafe. Until the 15th of November last year, he was a policeman with the CID section of the police at Wewak. He positively identified you and the rest of his evidence is similar to Constable Kasona’s. He however, added a few additional information. First, you, Ben Wango and Nick Sengi Pori surrendered to the village leaders and the village leaders handed you over to the police. You were then taken to the scene of the crime to identify and collect exhibits for the case, which included two guns. You identified your positions but he was not able to recall what parts you played as other policemen were attending to that and he was not personally attending to note that. Secondly, he said, the all three of you were taken to the scene of the crime and none of you denied any involvement.

Cross-examination of this witness failed to put to him your evidence or you case, in terms of your evidence and that of Mr. Ben Wango’s. Similarly, there was no suggestion put to the witness that he could be mistaken in his recollection of what he did on the 15th of March, 1999, or that he could be mistaken on his identification of you both at the scene and again in Court. Also no suggestion was put to him that he was either lying or that he had a reason to testify against you. In these circumstances, I accept his evidence in full as both as truthful and reliable.

In addition to the above oral evidence the State admitted into evidence with your consent the following documentary evidence:

1.	Medical report by Dr. Vincent Atua dated 23rd June 1999 – Exhibit "B";
2.	Statement of Dick Akimoula dated 19th March 1999 – Exhibit "C";
3.	Statement of Danny Akimoula dated 10th March 1999 – Exhibit "D"
4.	Statement of Martin Drain dated 11th March 1999 – Exhibit "E";
5.	Statement of Martin Amos dated 11th March 1999 – Exhibit "F";
6.	Statement of Solomon Kulawere dated 15th June 1999 – Exhibit "G";
7.	Statement of Simon Gilikuman dated 20th March 1999 – Exhibit "H";
8.	Statement of Jason Kendo dated 20th Mary 1999 – Exhibit "I";
9.	Warrant of Commitment at CIS of Ben Wango – Exhibit "J"; and
10.	Warrant of Commitment at CIS of Nick Sengi Pori – Exhibit "K".

The statements (exhibits "C" to "I") are in similar terms they are from the driver, crew and passengers of a PMV truck owned by the "Hama" brothers of Maprik, East Sepik Province. They were heading for Wewak town on the 9th of March 1999 when masked gunmen shot them on the road. This happened in the morning around 8:30 am when the driver was negotiating a bend. Two-armed man in blue (black by one statement) suddenly appeared on the road and shot at them. 

The first shot penetrated from the front driver and crew cabin to the back, shattering the glasses. The driver though taken by surprise, continued to drive on and a second gun shot was fired from the back. The gun shots resulted in juries to a number of people who were seriously injured and taken to the Boram Hospital where they were treated. Included in the injured was an Assembly of God Pastor, Freddy Bill. He was shot just above the left eye resulting in internal bleeding and damage to his brain. Despite medical intervention, he died the next day, 10th of March 1999.

The States’ case, thus far on the evidence, which I have decided to accept for the reasons already given, is this. During the night of the 8th of March 1999, you were at Japaraka No. 1 village. You were with Ben Wango and Nick Sengi Pori at the time in Ronald Juale’s house. There you men planned the robbery of a PMV truck the next day. In the early morning between 4:00 and 5:00 am the next day being the 9th of March 1999, you went onto the road to leave your wife and sister to go to town. When you got to the road you were seen with Nick Sengi Pori. 

About 8:30 am an attempted robbery took place not far from Japaraka No. 1. Two guns were used to shoot at the driver and others in a PMV owned by the "Hama" brothers then loaded with passengers and was heading for Wewak town. Six people including the deceased sustained serious gun shot wounds. They were taken to the Boram Hospital for medical attention. The deceased despite medical intervention subsequently died from injuries he received to his head resulting in internal bleeding. Another person lost the use of one of his eyes completely.

Police were informed of the incident the same day. So about 9:00 am, they went to the village Japaraka No.1 looking for three suspects namely Ben Wango, Nick Sengi Pori and you. As you and your co-suspects were not in the village at that time, police returned without effecting any arrests that day. By that time, you were no where to be seen at the village. Later on the 15th of March 1999, the police returned to Japaraka No.1, this time with the three of you who were handed over to the police by the village leaders as those responsible for the crime. This police trip back to Japaraka No. 1 with you was to get hold of the guns and other items for exhibit purposes. Subsequently, Nick Sengi Pori and Ben Wango, pleaded guilty and are now serving their sentences at the Boram CIS.

You went into evidence to rebut the State’s evidence. You admit to being at Japaraka No. 1 during the night of the 8th of March 1999, where you had gone to see your wife and children. You woke up early the next morning between 4:00 and 5:00 am and got to the road to see your wife and sister off to town on a PMV. After seeing them off, you say you left for your village by foot. You got to your own village Nungori at about 11:00 am. You did not notify the State of these facts and in any case you did not put these facts to the State’s witnesses in cross-examination.

You did not say what happened to your children. Whether, they all left with their mother or they went with you or were being cared for by someone else. You also do not say why it was necessary to get up so early in the morning and go to your village with your wife and possibly your children going separate ways that day. 
You say you returned to Japaraka No. 1 on the 15th of March 1999, and that is when you found out that your name was in a list of suspects for the attempted robbery and the murder of the deceased. So you decided to stay back and asked the village elders to take you to the police so you could provide them with an explanation. You did go to the police and told your story or gave your explanation but decided to shut your mouth when you were given your "constitutional rights." Despite your explanation, you say the police arrested and charged you on Ronald Juale’s false evidence. You maintain that you are innocent of the charge against you.

You then called Ben Wango, who has been convicted in relation to the same offence. He gave evidence in terms of you not being involved in the commission of the offence at all in any way. He said Nick Sengi Pori and two others but not you, were responsible for the offence. Then under further cross-examination this witness spoke only of himself and Nick Sengi Pori being the only ones involved, thereby contradicting his own earlier evidence of two other persons also being involved. 

I find it difficult to accept your evidence for a number of reasons. First in your own evidence you said you went to your own village and arrived there at about 11:00 am after leaving Japaraka No. 1 early in the morning. You failed to give notice of this to the State and failed to call any evidence to confirm this. The law requires an accused person, who claims to have been else where then the scene of a crime, must give notice of that to the State. This is a well-established requirement in our criminal trial justice system. The requirement is expressed in these terms in Order 4 Rule 4: 

"4.	An accused person shall not upon his trial on indictment, without the leave of the Court, adduce evidence of an alibi unless, before the expiration of the prescribed period, he gives to the Prosecutor written notice of particulars of the alibi and unless the notice contains the name and address of any person whom he claims can support the alibi or, if such name or address is not known to him at the time he gave the notice—

(a)	he gives in the notice all information in his possession that may be of material assistance in locating that person; and
(b)	the Court is satisfied that before giving that notice he had made all reasonable attempts to obtain that name and address and that thereafter he continued to make all reasonable attempts to obtain and to inform the Public Prosecutor of that name and address."

The reason for this is simple, if it is indeed true that an accused person was at the place he or she claims he or she was at, and if that can be verified by the State, there would be no need to proceed against such a person. This follows on from the fact that our system of criminal justice is one in which fairness to both sides of a case must prevail. There is therefore, no room for surprises. Brunton AJ considered Order 4 Rule 4 and said these of the rational or purpose behind that rule in The State v Wer [1988-89] PNGLR 447 at p 447:

"But against the rights of the accused, there are the Criminal Practice Rules 1987. They make it very clear that when an accused person relies on a defence by alibi, then proper notice must be given. That is the law. Order 4, rule 4 and rule 5. These rules ensure that the State is not caught by surprise, and that the public interest in seeing a criminal case fairly and properly prosecuted, does not suffer.

"On the one hand, there are the interests of individuals, the interest of the accused, the right to a fair trial, and the right to have one’s day in Court. On the other hand, there is the public interest in the lawful and proper prosecution of offenders. Further, the public have an interest in the economic and efficient operation of the criminal justice system, and the courts."

It is also clear law that, a failure to observe this can have a detrimental effect on an accused person’s case. The Supreme Court decision in John Jaminan v The State (No.2) [1983] PNGLR 318 is a demonstration of what can happen to a defendant who fails to meet the requirements of this rule. In that case, Mr. Jaminan was convicted on four charges of rape and was sentenced to 4 years imprisonment on each charge to be served concurrently. He raised the defence of alibi at his trial. He maintained that he was not present in the room in a hotel where the offences were allegedly committed at the time but was somewhere else. He failed to give notice of this to the State. The National Court rejected the alibi defence and convicted and sentenced him in the way it did.

On appeal, Bredmeyer J agreeing with Amet J (as he then was) said on his part Mr. Jaminan’s failure to give early notice of his alibi that the notice of:

" … the alibi was delayed or belated and that reduces the weight that should be given to it. The accused failed to give it when questioned by the police initially or later at the District Court committal. A trial judge should not infer guilt because the accused remained silent on those earlier occasions. The accused has a right of silence, but mindful of that, a trial judge is entitled to say that the lateness of the alibi reduces its weight: see Ryan (1964) 50 Cr. App. R. 144 at 148 and Hoare [1966] 50 Cr. App. R. 166. As a matter of law he has a right of silence on both occasions but as a matter of fact — and here we are dealing with facts — its belatedness reduces its weight. If the accused is telling the truth that he was not at the hotel with the prosecutrix, that he was with Akai Kup going to and from Kelua village, why not tell that to the police so that they can check out the story when memories are fresh. In a judge and jury jurisdiction it is permissible for the prosecutor and the judge to comment on a belated alibi in distinctly unfavourable terms. In our jurisdiction it is permissible for a judge to say that one of the reasons why he disbelieved an alibi is that it was belated. The trial judge in this case did not say that, but on the appeal, in considering whether the trial judge’s decision on guilt was "unsafe and unsatisfactory," it is a factor against the accused."

Going by these authorities I attach no weight to your claim of either heading for or being at your village at Nungori on the day and about the time the offence was committed. I also find it hard to accept that, you returned to your village so early in the morning after having gone to your wife’s village purposely to be with your wife and children. On the day of the offence, your wife went to town but there is no evidence that she went with your children. Naturally therefore, you would have taken care of the children. There is simply no mention of the children in your evidence or any other evidence, particularly as to what happened to them when you went back to your village and the mother went to town.

Further, if indeed, what you say is correct, I do not see what was the reason for you choosing not to place your claims on the record. You could have done that in your record of interview or during the committal hearings or anytime prior to coming into court and give such evidence in court following a rejection of a no case submission. Of course, I note that, whilst you have the right to remain silent and that no negative inference should be drawn from that, as a matter of law, as a matter of fact however, your side of the story should be placed on record at the earliest opportunity. This could have been easily done if indeed what you have just claimed in Court was true. 

It is also settled law that a party’s case must in fairness be put to the other side’s witnesses in cross-examination. A failure to do so amounts to a conclusion that any evidence introduced which has not been put to the prosecution as one being invented and therefore unreliable. This is based on what is known as the rule in Browne v Dunn (1893) 6 R 67 (HL). For examples of authorities on this see The State v. Francis Natuwohala Laumadava [1994] PNGLR 29; The State v. Gigere Undamu [1990] PNGLR 151 and The State v. Simon Ganga [1994] PNGLR 323.

In your case, your claim of trying to explain your position to the police and the police choosing to act only on the false evidence of Ronald Juale, were not put to any of the State’s witnesses. Similarly, it was incumbent upon you to discredit the State’s witness if they were giving false evidence against you but you did not do that. In much the same way, you failed to put to any of the State witnesses that, you will call Mr. Ben Wango to testify that you were not involved in the crime for which he has already been convicted and is serving time on his admission. 

I find these stories to be of recent invention after having failed in your application for a no case submission. I therefore reject both your claims and that of your witness, Ben Wango. I find them both unreliable and of no weight. At the same time, I find that you corroborate the evidence of the State at the least to the extent that you were at the scene of the crime or closer to it on the day and at about the time the offence was committed. I also find that your own evidence corroborates the State’s evidence at the least to the extent that you admit to being in the village, where a group of men who were planning a robbery on the 8th of March 1999, for execution the next day, at least the fact of being in the village that day. Indeed I find that by your failure to cross-examine the State witnesses, more particularly, Ronald Juale, on this aspect, you accepted that evidence. 

There is a further reason to reject Mr. Ben Wango’s evidence apart from failing to put his evidence in cross-examination to the State’s witnesses, I observed that you were making signs and gestures to the witness as he was giving his evidence. This clearly gave me the impression that the witness was not giving his own evidence but the evidence you wanted him to give in your defence. This witness showed his preparedness to give evidence that was only favourable to you. He even went on to make allegations of police beating your co-accused, Nick Sengi Pori, something you did not speak of or about. Further, neither this witness nor yourself gave any explanation as to why the village leaders rounded you up with Ben Wango and Nick Sengi Pori and handed you over to the police if indeed you were not involved as this witness was and your claimed in your evidence.

The circumstances of your case call for the application of another principal. That has to do with the role community leaders or elders play and should be encouraged to continue to play in the enforcement of law and order in their communities and the handing over of offenders to police to be dealt with appropriately. The law is that, if the leaders in the village or community round up offenders and hand them over to the police, the Court should place weight to that fact. They can not be treated as mere conjecture supported by proper evidence: see The State v. Yakoto Imbuni & 4 Ors N 1558. 

The reason for this is simple. Mr. Justice Woods succinctly put it in these terms in State v Anis Noki [1993] PNGLR 426, at 427:

"The Constitution has clearly recognised the overriding importance of the traditional village and community as the main viable asset in the country. The government and other authorities have continually reiterated the consensus nature of PNG society, the communal attitude to ownership or use of assets and land and the communal responsibility for problems. But rarely have the courts been able to give full recognition of this, as the court must always be careful of the rights of the individual, as set out in the Constitution.

"When the community works to participate in the legal process, the courts must accept this participation and not disregard it. When anything happens in a traditional community, that community appears, as a rule, to face the event together. They are all entitled to participate in the benefits, and they all have to share in the losses. So, in a dispute, they all feel involved.

"This is where the coming forward of the leaders and people of the community to hand over the suspects must be duly recognised. Of course, it should be seen in and with the evidence. There must be other evidence. It becomes a matter of evidence which must be admissible, it is very relevant in the eyes of the people and must, therefore, be considered.

"Again, the communal nature of PNG society makes one realise that there can be very few secrets. When something happens everyone soon knows. There are no strangers in the night.

"So, if village leaders have come forward with their own knowledge and "made" people surrender there must be some weight in that. Surely, in such a communal society, elders are not going to blame their own line for something the neighbouring lines have done - if the neighbouring lines did it, people would know.

"The fear of a police raid and subsequent damage and loss of face cannot be so strong that leaders would turn in their own people for nothing if it was known to all the guilty party was from the other line or village.

"The government wants to put more responsibility into the hands of the people over law and order and social control. If so, then the courts must assist by recognising the relevance and knowledge of the leaders of the village and community. Of course, just because the leaders turn in some suspects should not be the end of the case. Criminal charges must be supported by the evidence. The turning in supports and corroborates the other evidence. One must be sure that the leaders are not just marking some trouble makers to get them out of the way. Also, one must be sure that the victims did not merely identify the accused after they learnt the leaders and community had handed over the suspects, thus identifying by suggestion."

As Mr. Justice Akuram said in The State v. Yakoto Iumbuni & 4 Ors (supra) the courts are under a constitutional duty and power to develop the underlying law. Prior to coming of the white man and the eventual attainment of independence, most of PNG society turned to their leaders for almost everything, from personal security to enforcement of law and order and resolution of disputes. They therefore, played a very important role in society without a police force and a prison system. Independence and before that, being exposed to western influences diminished the role of our community leaders. That is why I believe, there is no respect for authority and law and order in nearly all societies in the country. Police job is made more difficult when suspects run into their villages and the villagers with their leaderships allow them to or even facilitate their hidings or escapes. It is time now for the formal introduced law and order system to give prominence to some of our good old traditional forms of law and order subject to the qualifications under the Constitution.

In your case, you did not put to the relevant State witnesses that the community leaders made a mistake in handing you over to the police. You even failed to cross-examine the State’s witnesses on this aspect in a bid to cast some doubt on this part of the evidence. At the same time, the two other persons who were handed in at the same time with you for the same offence have been convicted on their own admission. This in my view, in the absence of any evidence to the contrary points, to a conclusion that the village leaders made no mistake in handing you over to the police. 

From these evidence, the State has asked me to find that there is only one inference open to the Court. That inference is that, you were part of the gang that attempted to hold up a PMV, which went wrong and ended up in the death of the deceased and serious injuries to 5 others who have recovered. I am also urged to find that you left Japaraka No. 1 to avoid being arrested. Eventually, however the village leaders had you and your accomplices rounded up and handed you over to the police. All of you did not deny your involvement. Your accomplices maintained their admissions of and both of them have been convicted and sentenced on their guilty pleas. You changed your position and denied your involvement and that forced the State to establish its case against you. 

The law on where a State’s case is based purely on circumstantial evidence is clearly established in this jurisdiction. The Supreme Court in Pawa v. The State [1981] PNGLR 498 at 501, in the words of Andrew J stated the relevant principles who quoted with agreement the words of Miles J in The State v. Tom Norris [1981] PNGLR 493 at p 495 who said:

"I take the law as to circumstantial evidence in Papua New Guinea to coincide with what was said in the High Court of Australia in Barca v. The Queen (1975) 50 ALJR 108 at p 117:

‘When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than guilt of the accused’; Peacock v The King (1911), 13 CLR 619 at p 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’: Plomp v The Queen (1963), 110 CLR 234, at p 252; see also Thomas v The Queen (1960), 102 CLR 584, at pp 605-606. However, ‘an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence’: Peacock v The Queen at p 661. These principles are well settled in Australia. It was recently held by the House of Lords in McGreevy v Director of Public Prosecutions, [1973] 1 WLR 276, that there is no duty on a trial judge to direct the jury in express terms that before they could find the accused guilty they should be satisfied that the facts proved were inconsistent with any other reasonable conclusion than that the accused had committed the crime. That decision goes only to the form of direction necessary to be given to the jury, and although its effect may be that the practice in this respect is less rigid in England than in Australia, it does not reflect upon the correctness of the principles stated, which are really principles of logic and common sense.’"

This principles have been consistently adopted and applied in a large number of cases, by both the Supreme and National Courts. An example of this Garitau & Rosanna Tau v. The State (1997) SC528. In that case the National Court convicted and sentence the Taus of murder purely on the evidence of the deceased badly stabbed body being found in their house and there was no explanation as to how that came to be at their house. On appeal, the Supreme Court found that the learned trial judge did not err in applying the above principles and finding the Taus guilty. It therefore, dismissed the appeal.

In your case, I warn myself that unless I am satisfied beyond any reasonable doubt that your guilt is the only inference open to the Court, I must return a verdict of not guilty in relation to the charge against you. To determine what is the only reasonable and logical inference open to be drawn from the facts properly in evidence before me, I consider these factors very important. You were part of a group of men who planned the robbery of a PMV on the highway in the night before the offence was committed. You were seen with one of the members of the group a few hours before the plan was executed unsuccessfully. You disappeared from the scene to your own village without any explanation has to why that was necessary given your own evidence of having gone the night before the offence to be with your wife and children at Japaraka No. 1. You were one of three men the village leaders handed over to the police as being responsible for the offence. The other two handed over to police pleaded guilty to a murder of the deceased. You claim the police proceeded against you on the false evidence of your brother in-law who had no reason to falsely accuse you. If the village leaders made a mistake, you failed to produce any credible evidence to demonstrate that. Further by reason of your failure to cross-examine most of the State witnesses and put your case to them, you accepted their evidence against you. By reason of that, and your failure to give notice of a possible alibi, I rejected both you and your witnesses’ evidence insofar has they seek to contradict the State’s case.

In the circumstance, I can not see how I could return a not guilty verdict. But I am satisfied beyond any reasonable doubt that you committed the offence. I find this is a very strong inference available on the facts before me because of the undisputed fact that you were a part of a group of three men who planned to carry out an armed robbery of a PMV. Section 7 and 8 of the Criminal Code are wide enough, in my view to make you guilty even if you did not actually form part of the group who executed the plan and failed very badly. Also in the absence of any evidence to the contrary, the fact that the village leaders rounded up you with Ben Wango and Nick Sengi Pori both of whom pleaded guilty, point to your guilty more then not.

In the end result, I return a verdict of guilty against you on the charge of murder contrary to section 300(1)(a) of the Criminal Code and accordingly convict you on that charge for the murder of one Freddy Bill on the 9th of March 1999 at Japaraka No. 1. You are now a prisoner of the State and shall be held in custody, awaiting your sentence.
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Lawyers for the State:				Public Prosecutor
Lawyers for the Accused:			Public Solicitor