State v Bais and Fimberi [2003] PGNC 95; N2416 (11 June 2003)

N2416

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1483 & 1529 of 2002

THE STATE

-V-

EMMANUEL BAIS AND FELIX FIMBERI

WEWAK: KANDAKASI, J.
2003: 10th and 11th June

CRIMINAL LAW - Verdict – Attempted murder or alternatively grievous bodily harm – Issues for trial as settled at pre-trial identification only – Before commencement of trial defence of alibi also raised – Oral indication of intention to kill but action not consistent with that intention – Charge of attempted murder dismissed but the charge of grievous bodily harm could be sustained – Prosecution’s evidence found credible – No reason to find prosecution’s witnesses evidence on identification mistaken – Defence evidence on alibi found containing inconsistency and not logical and not in line with any commonsense – Effect of – Corroborates State’s case - Guilty verdict on alternative charge of grievous bodily harm return – ss. 304 & 319 of the Criminal Code.

CRIMINAL LAW – PRACTICE & PROCEDURE – Identification an issue for trial – Witness recognising known person - Witness coming face to face with accused – Daylight just breaking – Accused not masked –No reason to falsely testify against accused – Raising alibi after conclusion of pre-trial and before trial – Evidence of alibi found incredible – Effect of - Supports prosecution case – Prosecution evidence on identification accepted as credible – Need to warn of dangers of purported identification - Court satisfied that the accused were positively identified as persons involved in the robbery – Guilty verdict returned - Criminal Code ss.386.

Cases Cited:
The State v Cosmos Kutau Kitawal & Anor (No 1) (15/05/02) N2266.
John Jaminan v. The State (No.2) [1983] PNGLR 318.
The State v. Tauvaru Avaka & Anor (2/11/00) N2024.
Gibson Gunure Ohizave v. The State (26/11/98) SC595.
John Beng v. The State [1977] PNGLR 115.
The State v. Raphael Kimba Aki (26/01/01) N2039.
John Beng v. The State [1977] PNGLR 115.
The State v. Raphael Kimba Aki (26/01/01) N2039.
Regina v. Joseph Kure [1965-66] PNGLR 161.

Counsel:
Mr. P. Kaluwin for the State
Mr. G. Korei for the Accused

11th June, 2003

KANDAKASI J: Emmanuel Bais and Felix Fimberi, both of you pleaded not guilty to a charge of attempted murder contrary to s. 304 and in the alternative, a charge of grievous bodily harm contrary to s. 319 of the Criminal Code. You were alleged to have committed the offence here in Wewak on 4th of June 2001 against a person called Patrick Lama.

Issues for Trial

At pre-trial both of you confirmed through your lawyer that the only issue for trial was identification. But before the trial commenced, you also raised the issue of alibi by filing a Notice of Alibi on the date of the trial. So the issues then for trial were both identification and alibi. Effectively, therefore you claimed that you were not at the scene of the crime at the time of its commission as you were elsewhere. The State thus had the obligation to prove that you were there at the scene of the crime at the time of the offence and committed the offence. All other aspects of the charge against you are not in dispute.

The Evidence

The State called Patrick Lama, the victim to establish the charge against you. In addition, it admitted into evidence your respective records of interview both in their English and Pidgin versions (exhibits "A1", "A2" and "B1" and "B2") and a medical report by Sister Joseph dated first July 2001 (exhibit "C") with your consent. On your part, both of you gave evidence under oath and called three witnesses in a bid to establish your claim of alibi.

Mr. Lama identified you two as the persons who committed the offence against him in revenge of his son, a Joshua stabbing your brother Caleb with a knife on the previous day. Your testimony is that you were not at the scene of the crime committing it but were in your respective houses. Then you headed to and were at Tony Bias’ house at the time of the alleged offence. From the evidence, there are some areas of agreement in that there is no dispute and I find them as undisputed facts.

Firstly, you and Mr. Lama all live in the same area here in Wewak, Perigo, with you living in the Tuonumbo camp whilst Mr. Lama lives at the DCA compound. There is a distance of about 400 meters apart. Secondly, Mr. Lama’s son, Joshua stabbed your brother Caleb on Sunday, the day before the commission of the offence you are charged with. Thirdly, there was a retaliatory attack by the Tuonumbu community in the morning of 4th of June 2001. Both of you and nearly all of your witnesses except for one, belonged to the Tuonumbu community. Fourthly, the attack resulted in injuries to Mr. Lama. His injuries consisted of a fracture of his left tibia and fibula and a fracture of olecranon (elbow bone area). Fifthly, there were attempts to resolve the matter amicably through mediation at the community level but you did not want to participate because of your claim that you were not involved. Finally, consistent with your attitude, you declined to answer all of the questions put to you about the incident by the Police in your respective records of interview. You also failed to put your claims of alibi to the Police during the record of interview as you chose to remain silent and tell only the Court about it. It is therefore a claim that has been introduced on the day of the trial.

A decision on your guilt or innocence is depended on which side’s evidence the Court accepts in relation to the disputed facts. That decision can only be arrived at after carefully considering the accounts of each of the witnesses’ evidence, testing against logic and commonsense and their demeanour in the witness box. Accordingly, I will now proceed to consider the evidence, assess them and decide which version I should accept.

State Witness – Patrick Lama

Mr. Patrick Lama’s testimony is the only oral testimony for the State. He said he has been living at Perigo for more than 30 years now. In the early morning hours of 4th of June 2001, he was sleeping in his house when he was disturbed by the sound of people cutting down his bettlenut and banana trees and breaking his house. He heard Felix Fimberi’s voice, which he knew well because of numerous contacts with him socially and as part of the community they were living in prior to the incident. Felix was heard saying "kill them, fight them". He could sense that you were serious and he was frightened upon hearing that. Then he got out of his sleep and came down from his house with his wife and a child following him. He went and sat on the veranda of his house. As he did, he was surrounded by a group of men led by you, Felix Fimberi. He therefore got up and you Felix asked, "Do you teach your child?" The witness responded "I used to teach him but the child is now big". Thereupon he said, you, Felix ordered your group of men to hit him. Emmanuel Bais complied by throwing a stick at him aiming for his head. He tried to avoid that with his hand resulting in a fracture of his hand. That was followed by an iron, which was pulled up by a Denis Sasaro, which landed on his right leg breaking it. Soon thereafter, you and your group of men left the scene leaving him in pain.

Mr. Lama stated that the attack on him happened as the day was breaking and the moon light was still on and he estimated the time was about 5:30 am and it lasted about 30 minutes when asked to estimate both the time of the attack and its duration. He also stated that the distance between him and you were about a meter away. He also said he knows Emmanuel Bais and Denis Sasaro well. Further, he said none of you wore any masks or anything like that to cover your faces. Therefore, he had no difficulty in identifying all of you. He further stated that he could not identify the others, as he does not know them well enough and that they were further away from him and you.

He said furthermore that the attack as far as he could gather, was in retaliation to his son, Joshua stabbing your brother Caleb with a knife. That started with Joshua having an argument with one of your relative’s wife Walina and him (Joshua) kicking her. So your relatives attacked Joshua and he responded with the stabbing of Caleb. Hence he said, if you had come and attacked Joshua, it would have been alright but your attacking him, an innocent man was not so.

Still further, this witness stated that further to the failed attempts to settle at the community level, Police also allowed time for you to settle the matter out of Court. You were initially given three months to find some money to make compensation payments but you were not able to within the period given. You then asked for more time but the victim told the Police that you were only playing for more time without a genuine heart to settle. Therefore he asked them to have you formally charged and be dealt with according to law. Consequently, the Police proceeded to have you two charged and you are now before this Court.

Finally, he identified the two of you correctly in Court by reference correctly to the colour of the shirts you were wearing and point at you respectively in the accused box.

Your cross-examination of this witness asked about how he could tell that the time of the attack on him was 5:30 am and the witness said he saw the time upon getting up. A number of questions were put to him in relation to the number of people chasing his son and attacking him, including a suggestion that because of the number of people involved, he could have mistaken you. The witness agreed there were a lot of men involved but he was certain about your identities because you came face to face with him about a meter apart. He was also asked about the duration of the fight and he said it took about 30 minutes between 5:30 and 6:30 am.

The witness was also asked in relation to you not willing to participate in the mediations. He said, this was because you were frightened. He was also asked about his relationship particularly with Felix prior to the incident and the witness said, it was very good. He said, he and Felix are good friends as he and you would go around together, drinking beer and doing other things. He also confirmed under cross-examination that neither the two of you nor he had any grudges against each other before the attack on him. Despite that, you attacked him because his son had stabbed your brother Caleb the day before. He disagreed with a suggestion in cross-examination that Walina was of no relation to you two. The evidence you called in your defence confirms Walina is related to you, which is confirmed by Caleb your brother responding to the assault on her by Joshua.

Defence - (a) Felix Fimberi

In your defence, Felix Fimbri first took the stand. You said you are a long time resident of Perigo. You are married with children but your wife is now deceased. She died on the 26th of March 2000. Following that, you had your mother come to stay with you to look after her grand children. So she has been living with you for more than a year before the date of the alleged offence.

On the day of the offence and at about the time of its commission, you were in your house sleeping. The only other persons in your house at that time were your parents. Your mother woke you up saying, "wake up it is already day break". So you woke up and got down and had your mouth washed. Then you went and had a taro your mother had prepared for you. You also said, your mother is used to waking you up on some occasions. On this occasion, you had specifically asked her to wake you up as you wanted to go and see Mrs. Tony Bias so she could give a statement in relation to your claim against the State over the death of your wife.

After having your taro, you told your mother, you were going to see Tony Bias’s wife because she was going to help you in relation to your claim against the State. You then headed for Tony Bais’ house. Mr. Bais’ house is between the DCA camp where Mr. Lama leaves and the Tuonombu camp. On the way, you saw Aromo Morika and his brother Jack Morika. They asked where were you headed and you told them that you were going to see Mrs. Bais. You continued your journey telling them of the reasons for going to Mrs. Bais.

You reached Mr. Bais’ house at about 7:30 am. You got this timing by asking and getting it from Mrs. Bais for no apparent reason. You also spoke of a wall clock in your house which you consulted before leaving your house. Whilst at Mr. Bais’ place, you saw the people who caused the trouble returning. You asked them about the trouble and they told you that the Police dispersed them and so they were going away. You knew these people were returning from the fight because your small brother told you. But when asked as to when was the fight, you answered it was on Sunday. On further questioning by your lawyer, you said the fight was on Sunday and that you were home on Monday. You were also asked to identify those people who returned from the fight and you simply answered the community. On further questioning you named, Emmanuel Bais, Nicko Freddie and Rudolf as going ahead from the direct of the fight.

Also under your lawyer’s questioning, you stated that you know the victim, Mr. Patrick Lama as someone living in the same area as you were. But you denied any dealing or contact with him at any time prior to the incident. Likewise, you have had no occasion to be angry or fight with him or create any reason for him to come to Court and falsely accuse you of being involved in the commission of this offence.

On the Court’s questioning, you stated that the compound in which you live is big with 20 houses and about 100 people. In answer to another question from the Court, you stated that Caleb was your brother. On further question by the State’s lawyer, following on from that of the Court, you stated that you did not go anywhere else on the Monday morning which is the day of the incident. Furthermore, when asked as to your feelings on learning of the stabbing of your brother, Caleb, you said you were in mourning and in a state of sorrow over the death of your wife. A similar question was put to you in relation to the assault on Walina. You answered that in terms of that being a family problem and had nothing to do with you.

(b) Emmanuel Bais

You, Emmanuel Bais also took the stand and gave a sworn testimony. You also live in the Tuonombu settlement at Perigo and know Patrick as one of those persons living in the Perigo area. You came to know him as you grew up. You are now 22 years old. You are a cousin brother to Caleb, who was assaulted in your presence by Patrick Lama and his son, Joshua on Sunday. You were angry over the incident but did not do anything. Some of the boys tried to retaliate but they were stopped. The next day you were no longer angry.

You said you were sleeping in your house between 5:30 and 7:00 am. When you woke up, (without stating when you got up), you went to the road and met up with two boys, Nicko Freddie and Rudolf next to a bridge after the Police Barracks junction. You shared some stories with them and continued your way without specifying where you were headed and what for. You then met another group of boys who were returning. That was about 7.00 and 7:30 am assessing from the people going to work.

Shortly thereafter, you said, you saw Felix Fimberi with Jack and Aromo Morika talking to Mrs. Bais at her guesthouse which is next to her house. When asked to comment on how Felix appeared when you first saw him, you said he appeared normal, as he was dressed as if he was going to work.

You denied hitting Patrick Lama. When asked as to why he could have called your name for nothing, you said, he was not able to call the names of his assailants so he called your name.

(c) Sophiana Pariguma

The third witness was Sophiana Pariguma. She is the mother of Felix Fimberi. She was called to corroborated Felix Fimberi’s alibi. She started her evidence with answering in the affirmative a question for her to recall 4th of June 2001. But under cross-examination, it was made clear that she could not tell dates or even recall what she did in the recent or past after the incident, for example, she was not able to recall what she did last Monday.

She also spoke of having heard of a fight in which Caleb sustained knife wound injuries and she also heard of a fight on Monday but was not able to say whom she heard it from. Her evidence corroborates almost word for word, particularly as to what she and Felix Fimberi respectively did on the day and about the time of the offence. At the same time, she gave some additional evidence and in so doing, contradicted Felix’s evidence in terms of the following:

1. Caleb, Felix’s brother, who was stabbed the previous day was in Felix’s house and so was his younger brother;
2. she could not confirm there being a wall clock in the house or that Felix was still in mourning over the death of his wife, even after the passage of more than one year;
3. She said, she had never woken up Felix before. So this was the first time she had woken Felix, without specifying why she did so;
   

(e) Jack Morika

This witness comes from the Passam area but lives at Sawari village here in Wewak. He said, he and his brother Aromo were on their way to see their brother, who is the deputy lord mayor here. That was about 6.00 am. On the way, they met Felix. That was about 7.00 am. He asked Felix as to where he was headed and Felix told him that he was going to see Mrs. Bais to help him with is claim over his wife’s death. Then they continued talking and arrived at Mr. Bais’ guesthouse.

When they got to the guesthouse, Mrs. Bais came down. At the same time the party that went to the fight came back with Police escort. He learned about the fight because the Police told them. He and his brother left Felix. He also stated that Emmanuel asked him early last week to come to Court and give evidence. Prior to that, he has not been approached or has discussed this case with either Felix or Emmanuel.

This witness was not able to recall what he did on days after the incident, for example he was not able to recall what he did on the 2nd of January or 1st of April this year. He explained this was due to an inability on his part to recall dates. But he says, he was able to recall the 4th of June 2001 because of the fight, which he described as big and most people became aware of it.

He said, he was aware that Patrick Lama was injured in the fight. When asked as to who injured him, he said the community did. Nevertheless, he was not able to name the people involved. He also testified that he knows both Felix and Patrick as good friends of his. But of the too, Patrick is closer because of a marriage relation.

(f) Nicko Freddie

This witness is in fact the half brother of Felix and therefore a brother of Caleb as well. He and Felix come from the same mother. Him, Felix, Caleb and Sophiana all live in the same house. He confirmed that Caleb sustained knife stab injuries from Joshua and was in the house during the night before and at the time of the incident. Emmanuel Bais’ is his and therefore Felix’s younger brother from their uncle.

He said he was at his house when the fight resulting in injuries to Felix took place. At about 5:30 am he was still at the house doing nothing in particular. Then he left the house around 6:45 am. He says, he met Emmanuel Bais at the bridge and they walked along the road. At the Police Barracks junction, they saw the people who had gone to fight returning. So they turned around and walked back toward Mr. Bais’ guesthouse. There, at the guesthouse, they saw Felix, Jack and Aromo talking to Mrs. Bais. That was around 7:30 am. He said, he did not have a watch but he knows the time estimated.

When the witness was asked to identify the people who had gone to fight and were returning, he simply said "the community". Upon further questioning, he said the community meant the whole of the Tuonombu people excluding him, Emmanuel and Felix who are part of the Tuonombu community or people. The Court asked if him, Emmauel and Felix did not lead the fight in retaliation over the stabbing of Caleb, their blood relation who did. He was not able to give any names and simply maintained that it was the community.

Assessment of the Evidence

A number of factors or principles assist in the task of determining whether or not a witness and his or her evidence should be believed and accepted. One of these principles is that the evidence given must be tested against logic and commonsense. I restated the law in The State v Cosmos Kutau Kitawal & Anor (No 1) (15/05/02) N2266 in these terms:

"Logic and commonsense does play an important part in either the rejection or otherwise of evidence before a Court of Law and whether or not an accused person should be found guilty. In The State v. Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48, applying a logical and commonsense approach, the National Court found the defendants guilty of murder even when there was no evidence directly showing that the defendants had killed the deceased. The Court proceeded to convict them, when the defendant’s failed to provide a reasonable explanation for the appearance of the badly wounded deceased body in their house. On appeal, the Supreme Court affirmed the National Court’s approach and dismissed the appeal: see Garitau Bonu & Rosanna Bonu v. The State (24/07/97) SC528 and Paulus Pawa v. The State [1981] PNGLR 498 for an earlier authority on point."

Another is what the Supreme Court said in John Jaminan v. The State (No. 2) [1983] PNGLR 318 at pp. 332-333 per Bredmeyer J. That was in the context of a belated claim of alibi where the Court said:

"...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."

From this, it is clear that a belated claim of alibi reduces the weight that should be given to it. In other words, if an accused delays in giving notice and or raising a claim that he or she was not at the scene and therefore not the one that committed the offence that reduces the weight that should be given his evidence in the assessment of all the evidence.

The demeanour and or the performance of a witness in the witness box is also a relevant consideration. Numerous cases have been decided upon a consideration and application of this factor. Examples being done are cases like that of The State v. Tauvaru Avaka & Anor (2/11/00) N2024 and Gibson Gunure Ohizave v. The State (26/11/98) SC595.

Bearing these principles in mind I now proceed to assess the evidence before me. In this context, it is important to note and take into account the undisputed facts. Since the prosecution has the burden throughout to establish a charge against an accused beyond any reasonable doubt, I will start the process with the State’s evidence.

Your arguments against an acceptance of the State’s only witness’s evidence are premised on two main reasons. Firstly, if he was able to identify you two and Denis Sasaro, as his assailants, he would have also identified the others but he did not. Secondly, you put to the witness and he agreed to a suggestion that he concocted the story against you. The rest of your arguments proceed on the basis that your evidence is credible and that it should be accepted. I will leave this to be considered when assessing your evidence.

I do not find anything wrong without more of the witness’ ability to identify others that may have been involved in the fight. There is no dispute that the fight took place in the early hours of the morning on the relevant day, just as dawn was breaking. The time is estimated around 5:30 am. So it was somewhat not clear all around for the witness to clearly see who else was in the group that attacked him. Indeed, this is what he said in his evidence. So he was only able to identify those that were very close to him. I therefore, find that the first reason does not support the argument. As such, I reject it.

In relation to the second reason, I am of the view that what was suggested to the witness must be considered in its total and not on a piecemeal approach. This includes the quality of translation. Both counsel, and on occasions, the Court was forced to correctly translate what was put to and what was coming back from the witnesses. This is not unusual because interpretation is a very difficult task and the interpreter in this case did his very best as he usually does to assist the Court and counsel. It also includes the totality of the witness’s evidence, including what was put to him in re-examination and his responses.

I note that what the witness said under cross-examination in relation to the suggestion was corrected under re-examination in terms of, if the two of you were not involved, and or he did not see you two, he could not have named you. He reiterated that you were right in front of him at the time of the commission of the offence and he made no mistake in identifying you. He was also asked in re-examination whether the story he told the Court was made up and he answered no and said he told the Court what actually happened.

In relation to the totality of the State’s witness’ evidence, I am not able to identify anything about this witness or his testimony that casts any doubt on the evidence he has given to this Court. The witness has no grudges or an animosity against you two. You also have nothing against him. He says he knows both of you well and has had on occasions socialised with you before, particularly with Felix Fimberi. He gave his evidence confidently. He did not hesitate or take more time than necessary to answer questions put to him apart form some problems on account of the quality of translation. There is nothing in the State’s witness’ evidence that is illogical or defies common sense. Indeed, I note that the defence did not point to any part of the witness’ account that goes against any logic or commonsense. Similarly, nothing adverse against the witness in terms of his demeanour was pointed out that could form the basis to reject his evidence. Your cross-examination of the witness failed to create a dent or a doubt in his testimony.

For these reasons, I reject your arguments and I find that the State’s witness, Mr. Patrick Lama to be a truthful witness. I therefore accept his evidence.

The same can not be said about your own testimony and that of your witnesses. I find there are serious inconsistencies, accounts that are illogical and defying commonsense and or a natural reaction to a situation on hand and traces of the story being made up.

The inconsistencies are in number of respects. Firstly, Caleb your brother, who was stabbed the previous day, was in Felix’s house on the day of the fight or incident and after having sustained knife wound or stabs from Joshua. This is according to the evidence of Sophiana and Nicko. Felix’s own evidence makes no mention of Caleb being in his house that day. His evidence is that there were only he and his parents. Similarly, Nicko and Sohiana speak of Nicko also being in Felix’s house on the day of the fight. Nicko says he was asleep when you, Felix left. Felix does not make any mention of Nicko staying in his house. His evidence instead is that there was only he and his parents.

Secondly, neither Sophiana nor Nicko speak of there being a wall clock in Felix’s house. Sophiana was specifically asked about the wall clock and she said she could not recall seeing one. This runs contrary, or if not, it fails to confirm Felix’s claim of there being a wall clock, which he consulted that morning.

Thirdly, contrary to Felix’s evidence, Sophiana said, she had never woken up Felix before. She woke him up for the first time on the day of the fight, without specifying why she did so.

Fourthly, Felix gave inconsistent accounts in his own evidence. He spoke in one part of going and seeing Mrs. Bais. But in the later part of his evidence, he said he did not go anywhere on Monday and was home.

Fifthly, Felix created the impression that Walina was no relation of his but other evidence shows that she is related to him. This is because there was an attack on her by Joshua and Felix’s brother, Caleb and others went to her aid and fought with Joshua.

Now turning to the illogical and nonsensical accounts, I note firstly, that all of your evidence confirms that Caleb is your blood relative, a brother and a cousin brother respectively. According to Nicko and Sophiana, Caleb, after being stabbed the previous day, was sleeping in Felix’s house. There appears to be no concern shown over his condition when Felix, Sophiana and Nicko went about doing what they claim to have done that morning. Naturally and commonsense and logic dictates that something must have been said and done about Caleb’s condition before leaving the house. It seems rather odd that Sophiana saw it necessary for reasons not specified by her, to wake up Felix and prepare his breakfast without a similar or no concern or a mention of what she did for Caleb who was injured. Likewise, Felix being the eldest and the father of the house could have taken charge and could have given directions as to what should happen that day, which would have necessarily included an attention to Caleb’s condition. There is no evidence of him doing any such thing. Instead, the impression he wants the Court to get is that Caleb was not in his house and so therefore such a consideration could not have arisen. The same can be said about Nicko’s attitude.

The second area is in the area of lack of any involvement or knowledge of who might have led the fight in revenge of the attack on Caleb on the part of Felix, Sophiana, and Nicko. As the fight was because of the injuries to Caleb, commonsense, logical and reasonable human reaction to a situation dictates that these people have done or known something about it. Yet, they simply say the community carried out the fight without any involvement on their part. It is not unusual in most of PNG societies and indeed is a natural human reaction that only close relations can react either violently or peacefully over something being done to one of their relatives. It is almost a fact of life in most of PNG that nobody else can react to such a situation if those who are close or more affected fail to take the lead. So the question in this case is, if you, Felix, Emmanuel and Nicko being more closer through blood relations to Caleb did not do a thing or did not have any idea about who was fighting for Caleb, then who fulfilled the roles you would have? You have failed to provide any answer to that, when in all probabilities you would have known.

Thirdly, when Felix was asked about your feelings upon your brother, Caleb being injured, you said you were in mourning over the death of your wife. As such, you were in a state of sorrow, thereby suggesting the stabbing of Caleb did not concern you. But your wife had passed away more than a year ago on the 26th of March 2000. You could not have been mourning for that long. Indeed, your evidence in chief says nothing about being in mourning. You simply chose to put Caleb and the condition he was in, totally out of the picture. I find this is unnatural and not logical especially when he is your brother and he was living under your roof.

With regard to the traces of a possible case of your stories being made, I first mention the commonality to the answer to the question of who was involved or carried out the fight in revenge of Caleb. You and your witnesses came and gave the standard answer, it was "the community" meaning the whole of the Tuonombu community. You and your witnesses are all Tuonombuans so those who were involved in the fight were your own people. As such, you would have known but were all not able to give a single name away. This standard answer could not have been given unless you all planned to what evidence to give. For if you had not planned or made up your story, you could have answered the question in a number of ways for example, one of you could have simply said "boys or men from Tuonombu", or "our other brothers or other relatives", or simply say "I do not know".

Secondly, each of you gave an account of seeing those who went to fight returning. The observations I have just made above apply here.

Thirdly, both yourselves and your witnesses started the main part of your evidence with a ready recollection of the date, 4th June 2001. But when pressed under cross-examination to recall what Sophiana and Jack Morika might have done in the recent past, it became clearer that they could not do that. Sophiana could not tell dates and that Mr. Morika could neither tell the dates, nor could he recall what he did on the 1st of April this year for example.

In addition to these, your demeanor is the other factor operating against you. I carefully observed and noted you and your respective witnesses’ demeanor in Court just as I did in relation to the witness called for the State box. You did not answer questions put to you confidently but I sensed that you all hesitated as if to look for the right words without saying so. Further, you were evasive in your answers to questions put to you in cross-examination and more clearly demonstrated in your responses to questions, asking you to identify the people who were involved in the fight in revenge of Caleb’s stabbing. It was also evidenced in your ready resort to your evidence in chief, a clearest example of which is Sophiana’s performance.

Finally, you raised your defence of alibi belatedly. The issues for trial in your case was settled at the pre-trial conference conducted last month. Both parties agreed then and the Court confirmed that the only issue for trial was identification. Despite that, you have raised the defence of alibi, formal notice of which was given on the day of the trial. You failed to raise your claim of alibi in your respective records of interview. Going by the evidence of Jack Morika, it seems you came up with the idea of calling alibi evidence early last week. That is the first time Emmanuel approached him to come and give evidence in your defence.

As noted earlier on, the law as represented by the Supreme Court judgement in John Jaminan v. The State (No.2), such a belated claim has the effect of reducing the weight that should be given to your evidence. This does not mean that you are automatically guilty. But what it does mean is that, when I weigh the competing evidence, I should give lesser weight to your alibi evidence. The reason for this is as the Supreme Court said in that case, if you and your witnesses were telling the truth that you were else where and did not commit the offence, "why not tell that to the police so that they can check out the story when memories are fresh".

In your case, you chose to remain silent even when not so contentious questions were put to you. Whilst you were entitled to remain silent, it denied the State the opportunity to check out your claim. The criminal practice rules require alibi notices to be given 14 days prior to the date of trial. In your case, you did not give such a notice until the day of trial. What this means is that the weight of your evidence is reduced.

A combination of all of these factors makes your claims and evidence less weightier and more so incredible. I therefore, find your evidence incredible. Accordingly, I reject your evidence except to the extent that they support the State’s case.

This is not however, the end of the matter. The law requires me to have a closer look at the evidence that I have now decided to accept and then decide whether the evidence is sufficient for the purpose of the charge against you. The issue in this case as already noted in the beginning of this judgement, is identification. Where identification is an issue, specific principles of law govern the treatment of the evidence on the issue.

The Supreme Court stated the principles in John Beng v. The State [1977] PNGLR 115, at pp. 122 –123. I set out the relevant part of that judgement in my judgement in The State v. Raphael Kimba Aki (unreported judgement delivered on 26/01/01) N2039, at p.6. In summary, the principles are these:

"1. it has been long recognised that, there are dangers inherent in eye-witness identification evidence;

2. a trial judge should warn the jury in the case of a jury trial system or himself as in our case, of the special need for caution before convicting in reliance on the correctness of the identification because for example:

(a). a convincing witness may be mistaken; or

(b). a number of witnesses could be mistaken;

3. provided such a warning is given, no particular form of word need be used;
4. there should be a specific direction to closely examine the circumstances in which the identification was made;
5. identification by recognition may be reliable but one need to be cautious because there can be mistakes in trying to identify close relatives and friends;
6. all these go to the quality of evidence – if the quality of evidence is good, the identification may be reliable. If however, the quality of evidence is bad, the identification will be bad;
7. the quality of the evidence may be poor if there is a fleeting glance or a longer observation made in poor conditions; and
8. there should be an acquittal if the quality of the evidence is bad."
   

In line with these principles, I warn myself that Mr. Patrick Lama may have been mistaken in his observation and hence his identification of you. So I need to carefully consider the circumstances in which he says he identified you.

The attack on Patrick took place in the early morning hours between 5:30 and 6:30 am. At that time, dawn was breaking with the moon with its lights still remaining and the witness came face to face with you prior to you fighting or hitting him. The distance between him and you was about a meter apart. That is not very far apart. There was an exchange of words first before he was hit. Further, the witness knows you two well and you know him well too. Your own evidence confirms that he knows you and you know him though not in any close manner. It is clear therefore, that this is not a case of a fleeting glance of a stranger. Instead, it is a case of recognising a known person from within a very close range after having exchanged some words when dawn was breaking.

Further, no issue was taken on the witness’ eye sight, and whether or not there was an obstruction. I take it that these factors were accepted to be operating in favour of the witness.

A careful consideration of all of these leads me to only one conclusion. The quality of State’s witness’ evidence is good. I have no reason to doubt his credibility and truthfulness. I am therefore, satisfied beyond any doubt that you both of you were been identified at the scene committing the offence.

Having arrived at that view, I now need to determine which of the alternative charges with which you have been charged with has been established. The charges you face are attempted murder under s. 304 and alternatively, causing grievous bodily harm s. 319.

I note that Felix was clearly heard by the State’s witness as saying "Kill them, fight them." But the question is, did he or the two of you execute the words uttered? It is settled law and is commonsense that one can not know the mind of the other unless expressed or is acted out. So intention is something that can be inferred from one’s conduct or behaviour: See Regina v. Joseph Kure [1965-66] PNGLR 161. I applied this approach to infer an intention to kill from the number of blows or hits executed by the prisoner in The State v. Jackson Bairom (a decision I handed down 4/6/03) CR 546 of 2000.

I note that the expression "kilim em" in Pidgin or "kill him" in English is commonly used generally in the context of fighting with someone not necessary with an intention to bring about the victim’s death. It is a common expression in almost every household in the country. Parents often use the expression against their children. What they mean infact is that they will hit them or just give some pain to them without even contemplating an intention to bring about death.

I therefore consider that it is very unsafe to infer intention, where it is an element purely on the expression of such an intention, particularly in the particular circumstance of our country as briefly mentioned. Instead, the issue of intention must be inferred from the conduct of the offender. Hence if an offender has expressed such an intention, the Court must go a step further and determine whether the conduct or act adopted is consistent with the intention. If it is not, then, in my view intention should be readily inferred.

Applying this to the case at hand, I am not satisfied that striking the victim with a stick by Emmanuel at Felix’s order and breaking the victims right leg and then leaving him, is indicative of an intention to kill him. If indeed you had the intention and wanted to kill him, I am of the view that you could have continued to hit him until he was rendered unconscious or fell dead on the spot. You could have done that, as there is no evidence of anyone coming to stop you or coming to the victim’s aid. But you did not do that. Given these, I am not persuaded to return a guilty verdict on the charge of attempted murder. But I am satisfied that you did have the necessary intention and did act out your intention to cause the victim grievous bodily harm. I therefore return a verdict of not guilty on the charge of attempted murder but I do return a guilty verdict on the grievous bodily harm charge contrary to s. 319 of the Criminal Code against the both of you. I order that your respective bails be revoked and that you be remanded in custody pending your sentence. A Warrant of Commitment in those terms shall be issued forthwith.
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Lawyers for the State: The Public Prosecutor
Lawyers for the Accused: The Public Solicitor