State v Bosco [2004] PGNC 11; N2777 (26 November 2004)

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CRIMINAL LAW – defendant’s failure to call a witness – inference available to be drawn – conditions precedent to drawing inference – evidence – cross examination of witness tribunal is asked to disbelieve – desirable to put to witness cannot be believed.

The Defendant was charged with wilful murder of a man in a coconut plantation, by the Defendant and others cutting the deceased with bush knives. The Defendant gave an alibi that he was some distance away with two named men watching the murder and not with the people committing the murder. The Defendant did not call the two persons he said he was with.

PNG Cases Cited:
The State v Ben Noel, Philip Noel and Richard Ereku (2002) N2253
Paulus Pawa v State [1981] PNGLR 498
David Kandakason v The State SC558
State v Ogadi Minjipi [1997] PNGLR 293

LAY, J. The Defendant was charged with one count of wilful murder contrary to s299 of the Criminal Code. I delivered a verdict of ‘guilty’ on 23rd November 2004 and advised I would deliver my reasons with some comments on the principle in Jones v Dunkel[1] at a later date, which I now do.

The State’s case was that during a customary ceremony drunken youths including the deceased, Ignatius Reu, incited a fight in Binunu sub village, Bamba near Talasea in West New Britain. Ignatius Reu cut one James Karoa with a bush knife and then the Defendant acted in concert with some of his village men and some others chased Ignatus Reu into the nearby plantation and wilfully murdered him by cutting him with bush knives.

Jones v Dunkel
During the trial the Defendant gave evidence of an alibi. The alibi was that the Defendant was not at the scene of the murder but some distance away watching what was happening at the scene and, that while he was watching he was standing with two named persons. Those persons were not called by the Defendant to give evidence in his defence.

The principle in Jones v Dunkel[2] can be shortly stated as, the failure of a defendant to call a witness who might reasonably be expected to support his defence, can give rise to an inference that the witness would not support the defence, unless the absence of the witness is adequately explained.

During submissions at the close of the evidence, mindful of the principle in Jones v Dunkel as explained in The State v Ben Noel, Philip Noel and Richard Erekue [3] I invited Counsel for the Defendant to make any submissions he wished upon the fact that the several witnesses who might have been expected to give material evidence, had not been called. Since doing so I have had the opportunity to read some of the more recent developments in the Commonwealth concerning the application of this particular principle.

As mentioned in The State v Ben Noel, Philip Noel and Richard Erekue the principle has been discussed mostly in the context of jury trials in criminal cases but is applied where jury trials are no longer available and in civil cases tried by a judge alone. Some difficulties arise with the application of the principle which have been discussed in more recent authorities. In Jason Aldridge v R[4] the United Kingdom Court of Appeal (Criminal Division) read the following passage from Archibold[5] with approval:

In R v Wheeler [reference given], the court appeared to come down against any comment. In R v Gallagher [reference given], the Court of Appeal regarded the views expressed in the two earlier cases as inconsistent. It said that in any event both cases were distinguishable because in those cases the witnesses in question had been equally well known and available to both sides, whereas in the instant case, the prosecution had no means of knowing that the witness had any relevant evidence to give until the defendant gave evidence. The court held that in such a case comment could be made, but the judge must avoid leaving the jury with the impression that failure to call a particular witness is something of importance when there may be a valid reason for not calling him." The line of authority is discussed further and finally the learned editor's note:

"Until the matter is further considered by the Court of Appeal, it is submitted that, in accordance with Wheeler, a judge should not comment adversely on the failure of the defence to call a particular witness unless that witness was not equally available to the prosecution: for example, where the prosecution could not have anticipated the relevance or identity of a potential witness until the defence case had commenced, or where the witness was always available to the defence but could not have been called by the prosecution at any time. Even then, adverse comment is probably only appropriate in a very strong case."

Later in the same year the issue came before the Court of Appeal of Queensland in the case of R v Brennan[6] where the President of the Court delivering the majority judgement approved a direction to a jury in terms that an inference can be drawn to the effect that 'nothing which these witnesses could say would assist the accused', but not one in terms which suggests or allows the inference that the witnesses would not have given evidence favourable to the accused.

In 2002 the High Court of Australia re-visited the principle in the case of Dyers v The Queen[7]. The Court summarised its view in the following way:

The second of the principal reasons for concluding that a Jones v Dunkel direction should not have been given is closely connected with the first. Any conclusion about who would be expected to call a person to give evidence must take account of the obligations of the prosecution. If persons are able to give credible evidence about matters directly in issue at the trial, those facts, standing alone, would ordinarily suggest that the prosecution should call them[9]. As has been pointed out in several decisions of this Court, a basic requirement of the adversary system of criminal justice is that the prosecution, representing the State, must act "with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one"[10] (emphasis added). That requires the prosecution to call all available material witnesses unless there is some good reason not to do so. The fact that a witness will give an account inconsistent with the prosecution case is not a sufficient reason for not calling that person[11]. (A third reason related to the specific facts of the case was also given)

"...The principles stated in Jones v Dunkel[12] presuppose that there is occasion for the calling of evidence by an accused. Such a presupposition is incompatible with the presumption of innocence, and the right of the accused neither to give, nor to call evidence at trial."

In a vigorous and passionate dissent to what he considered to be an uprooting of 200 years of what all criminal lawyers considered to be the law MCHUGHES J., who was with the majority in Azzopardi, said in part:

"Similarly, when an accused elects to put an affirmative evidentiary case, the jury is entitled to evaluate that case by all that the accused does or has done including the failure to call a witness who might have been expected to be called to support that affirmative case. Having elected to speak at his trial and assert that he was with Ms Tinkler appellant cannot coot complain if the jurors are permitted to evaluate his claim by his conduct in failing to call the witness that he could reasonably be expected to call."

Azzopardi was concerned with whether the trial judge could comment on the failure of the accused to give evidence. It is well settled in Papua New Guinea that no inference of guilt can be drawn from the accused’s decision not to give evidence but in some circumstances (such as when the truth is difficult for the State to establish but probably well known to the accused) an adverse inference can be drawn.[13]A reading of Azzopardi makes it clear that the High Court is not advocating that a judge can never comment upon the failure of an accused person to give or call evidence. The comments on the principles by the majority[14] are summed up on the following passage:

"It is to be emphasised that cases in which a judge may comment on the failure of an accused to offer an explanation will be both rare and exceptional. They will occur only if the evidence is capable of explanation by disclosure of additional facts known only to the accused. A comment will never be warranted merely because the accused has failed to contradict some aspect of the prosecution case."

I have not been able to find any dissent in the Code States or other States of Australia, to the principles laid down by the High Court in Dyer v R. Dyer v R was followed and applied and the appeal allowed, because of the nature of the direction given to the jury, in the South Australian case of R v Nylander [15].

"... In criminal proceedings, however, the making of a comment or the indication of the available inference will be attended by a marked degree of caution, inasmuch as in many cases the absence of a witness either for the Crown or the accused might well be explicable upon grounds not readily capable of proof."

Having regard to the circumstances of Papua New Guinea, the situations which could cause an accused not to call a witness may include, for example, such matters as a lack of resources, including transport and time to prepare the case, (given the pressures of time imposed on circuiting counsel), or suspicions that a potential witness may be aligned with a tribal enemy and not disposed to give truthful evidence.

With the greatest respect to the observations in The State v Ben Noel, Philip Noel and Richard Erekue I do not consider that the Jones v Dunkel principle as stated in R v Gallagher[17] and explained in Booth[18] was adopted by the Supreme Court in Paulus Pawa v. The State [19]. Kapi J (as he then was) noted the application of R v Gallagher by the trial judge, but subsequently said:

"Whether or not this is the proper inference to be drawn makes no difference..."

I conclude from his Honour’s words that he did not find it necessary to express a view on whether or not the inference could be properly drawn in the circumstances of the case. Neither of the other two judges in that appeal expressly adopted, approved or applied the principle. Re Wheeler [20]was distinguished on its facts in David Kandakason v The State[21] so that there is not a definitive Supreme Court decision on the issue. Of course it should be acknowledged that The State v Ben Noel, Philip Noel and Richard Ereku[22] was concerned with the failure of the prosecution to call a witness, and not the failure of the defendant to call a witness.

There is some relationship between the principles to be applied in respect of the failure of the accused to give evidence and the failure of the accused to call evidence, as was observed by the High Court of Australia in Dyers v The Queen. Neither the United Kingdom nor Australia has a Constitutional ‘right to silence’. Our constitution s37(10) provides:

"No person shall be compelled in the trial of an offence to be a witness against himself."

In Paulus Pawa v The State[23] the accused’s defence was of being with another person at a time and place inconsistent with the strong circumstantial evidence of the state’s case. Andrew J with whom Kearney J agreed, said:

"I agree with the conclusions of Professor O’Regan in his article "Adverse Inferences from Failure of an Accused Person to Testify" 1965 Crim. L.R. 711, that:

(a) whether the truth is not easily ascertainable by the Crown but probably well known to the accused;

(d) whether the accused has before trial given an explanation which the Crown has adduced in evidence.

None of these conclusions, in my opinion, detract from the trial judge’s finding that he could not believe the appellant’s explanations and it was reasonably open as a matter of common sense for the trial judge to remark that the accused failed to call his friend (whom he said was with him) as to the alleged break-in to the vehicle."

As the judges of the Supreme Court noted, the trial judge had weighed the evidence without reference to any inference to be drawn and found the case proven. The friend in that case was part of the alibi the accused had given, and when he drew the inference in respect of the failure of the friend to give evidence, the trial judge was weighing that alibi to decide whether it raised a reasonable doubt. It cannot be ascertained from the report whether or not the name of the friend was known to the State prior to trial. There is an inference that the name was known and that this person was the witness the State did not call although mentioned in the State’s opening. However it was clear to the Supreme Court that the inference drawn from the failure to call the witness was not to bolster the State case but to demonstrate the lack of evidence to support the inherently improbable alibi.

"Second, no accused person may be compelled to testify. He may choose not to do so. In that event, the court may well be left with an incomplete picture. In such circumstances, the court may draw inferences which properly flow from the evidence, and reach its conclusions thereon, without being deterred from so doing by the incomplete state of the evidence, or by speculation as to what the accused might have said had he testified: see R. v. Sharmpal Singh[24]. Only in that sense may an accused by not testifying "strengthen" the State case."

Kapi J said, in relation to the failure of the accused to give evidence and to call evidence:

"Whether an accused person is guilty or not of an offence must be determined on the evidence of the prosecution alone and no inference of guilt by the failure of the accused to call evidence should improve a prosecution case which may be unsafe.

In other words, if at the close of the prosecution case, the prosecution case does not measure up to a standard beyond reasonable doubt, the case cannot be improved by any inference from the failure of the accused to call evidence. All that can be said is that the court will determine the case solely on the evidence of the prosecution."

Having considered the persuasive United Kingdom and Australian authorities I have come to the conclusion that the logical and compelling extension of the principles enunciated in Paulus Powa v State that no inference of guilt can be drawn from an accused’s failure to testify, as stated by Kapi J, is that generally no inference can be drawn from an accused’s failure to call evidence in his defence. Where a defence is presented by an accused great care should be exercised in drawing a Jones v Dunkel inference in a criminal trial. No inference should be drawn from the failure of an accused person to call a witness unless:

The Most direct route to establish point 5 is to simply ask the accused in the witness box whether the witness is available and willing to give evidence.[25]

As not all of those facts and circumstances were present in this case I have not drawn any inference from the fact that the two witnesses said to have been standing with the Defendant some distance from where the murder was occurring, were not called by him.

The State called three witnesses. The first was Larencia Dende from Bamba village. She is the wife of the deceased’s elder brother. She said that on 13th October 2001 there was a customary ceremony at the village. About 4 pm a group who had been consuming alcohol came among them during the ceremony. Youths from Bamba and Dire fought. Ignatius Reu cut James Karoa with a knife. John Bosco jumped down from the haus boi where the big men for the ceremony were and tried to stop the fighting but it was hard because they were all drunk, so he joined the fight. Larencia was afraid and she left the ceremony area and went to Gerard Marenge’s house nearby. While she was going to the house Gerard Marenge ran after her and up to the house and got some bullets from a plastic container. He then went down to the ground and put the bullets into a gun he took from his small store and gathered his relatives Rockus, John Bosco( the Defendant) Banovo, Darius Dede, Valentine, who was then drunk and is the Defendant’s in-law and Paul Loi. Ignatius Reu used to go after Paul Loi’s wife (was attempting to seduce her). When the fighting had started they had all run to the two houses nearby and obtained bush knives. Apart from Gerard who was holding a gun all of the others were armed with bush knives. John Bosco was drunk. He was carrying a long bush knife with a wooden handle. The six men then chased Ignatius Reu into the adjacent plantation. The plantation had been recently cleaned and she could see into the plantation from the house. She saw Paul Loi cut Ignatius Reu on his arm with a bush knife and Ignatius Reu then fell down. Larencia then left where she had been standing and did not see what happened in the plantation thereafter.

Aaron Nuli from Bamba village was the second witness for the State. He is a cousin the deceased. He gave his age as 18 years but my estimate is that he is closer to 16 than 18 years which would make him 13 or 14 at the time. He was running through the plantation to go to the store to buy biscuits. He saw some men chasing a man towards him. He stood beside a mango tree concealing himself from them. The man being chased was Ignatius Reu. Ignatius fell and the others stood around him cutting him with the bush knives they were carrying. He was 6 or 7 metres away from them at the time. He heard Paul Loi say "This is our chance, we will kill him." Paul Loi cut the deceased first then they all chopped Ignatius and when they had finished they went away. Paul Loi continued cutting and was the last to stop chopping the deceased. The people in the group were Darius Dede, John Bosco, Paul Loi, Valentine Reu, Rockus. The knife John Bosco was holding wasn’t too short and it wasn’t too long. Paul Loi was holding a long knife. John Bosco was wearing a cap and short trousers. Its about 300 metres from where he deceased was killed to Aaron’s house. Aaron didn’t see where on the deceased’s body each of the men landed blows with their knives.

The third and last State witness was Baru Reu. On 13th October 2001 he as at a customary ceremony at a small village at Bamba. H was at John Bosco’s brother Fidelis Vuvur’s house preparing shell money for the ceremony. He heard women calling out as if a fight had broken out and went out to see. It was a fight between people at Bamba and people from Dire. He saw Rokas, John Bosco, Banogo, Darius Dede, Paul Loi and Valentine Reu chasing Ignatius Reu into the coconut plantation. He ran after them. John Bosco was wearing a black cap and he was holding a knife. Baru saw Paul Loi cut Ignatius’s arm, Ignatius then fell down and they all cut him. He saw all of them swinging their knives. Ignatius Reu is Baru’s younger brother.

John Bosco gave sworn evidence in his defence. He said that he went for a customary ceremony at Binunu, Bamba on afternoon of 13th October 2001. He was in the haus boi. He heard noise coming from behind the haus boi. He jumped down. He saw youths armed with knives and one armed with a shot gun. He saw Ignatius Reu throw a knife at James Kavoa. He saw Fidelis Rokas and Joe try to stop the youths from cutting James, but it was hard because they were drunk. Alphone Tangole was holding a home made gun. He lifted the gun and tried to shoot Rokas Waluka because Rokas was pushing him back and trying to stop him from taking part in cutting James. Charles Reu got a stone and struck Alphonse Tangole on his hand and Alphonse dropped the shotgun to the ground. Darius Dende and another chased him out of the village. Everyone was then urging the youths to go away and fight at their own village. They listened and went out. Later sounds of fighting could be heard from the block, the plantation between Binunu and Goa villages. The fight was between Paul Loi on the one part and Ignatius Reu and Benjamin Tuka. All the villagers including the Defendant were standing at the edge of the village watching the three fight with bush knives 50 to 60 metres away and they were cutting each other. The Defendant was standing with Sam Aloni from Pangalu village and Kevin Moses from Dire. He saw Ignatius Reu cut Paul Loi’s right arm. Then Paul Loi retaliated and chased the other two. One followed the main road from Binunu to Bamba. Paul Loi stuck to Ignatius Reu who ran around a coconut tree. Paul Loi cut Ignatius’s hand off and the knife fell. Ignatius ran way then fell, he got up and ran up a pile of waste coconut shells. There was grass and beans growing on it. Paul Loi tripped Ignatius Reu’s legs and Ignatius fell. Paul Loi using a lot of force with the knife cut Ignatius 5 times. While standing on the right hand side of the body he swung the knife 3 times then he jumped over the body to the left hand side, stood for 2 to 3 seconds then swung the knife at the body another 2 times. All the people at the edge of the village and in the village shouted and said "Don’t go a death has occurred." So he and the others walked back, the Defendant went back to the house he had been at. He doesn’t know what happened in the plantation after that. He returned to under the haus boi. About 10 minutes later the elder brother of the deceased, Alphonse Simon came to him holding a home made gun. He loaded the gun with a bullet and said "Have you seen Paul Loi." And the Defendant and those with him replied "We don’t know." Alphonse walked away. The defendant stayed and in the afternoon walked back to his village. The Defendant is not related to Ignatus Reu nor to Paul Loi.

The customary ceremony was to collect shell money for the bride of Fidelus Vuko’s son. Fidelis is the Defendant’s elder brother. Rokas Waluka attended because he is a "first born" of the Defendant. Fidelis lives in Binunu. The Defendant goes to Binunu often, regards it as a second home. Francis Banono from Dire is related to the Defendant. The ceremony was being headed by Francis and Fidelis. The ceremony was disrupted by the drunken youths from Bamba and the Defendant was not happy. The Defendant’s line at the haus boi involved in the custom were not drinking. Before the interruption it had been a good, peaceful and well attended ceremony. The drunkard were removed and the ceremony resumed. Finally in cross examination the Defendant agreed the State witnesses had no reason to make up stories. The Defendant does not know where Alphonse Simon is because he is from the deceased’s line. Sam Alini is at Pangalu village.

Buka Vaka gave evidence for the Defendant. He is 56 years old, a retired CIS officer. Omitting the part of his evidence which in hind sight must have been hearsay, he was in the haus boi when he heard the women singing out. He and other big men from the haus boi came out to stop the fight and chased them away from the area of the ceremony. Ignatius Reu ran into the witnesses coconut block. The friends of James ran after Ignatius into the block. Ignatius saw Paul Loi running close to him, he turned and faced Paul Loi. Paul Loi cut Ignatius on his arm and his bush knife fell. Ignatius ran but fell. Paul Loi swung his knife and cut Ignatius’ leg. Lasi Stanis and Kevin Buko who had been hiding behind a tree stump came out and also cut Ignatius. The witness was at his house, about 50 metres from where the deceased as murdered when he was observing the fighting. The deceased was a cousin of the witness. The only beer at the ceremony was one 12 pack because Fidelis Vuko’s son is a ‘7 day’ and did not buy beer. After the fighting stopped the custom ceremony did not continue because they were finished. After the fight they went back to their villages. During the fighting the witness did not see Aaron Nalu nor John Bosco. He had not been drinking.

Exhibit Number	Description
A1	Unwitnessed Affidavit of Dr Nora Dai dated 17th October 2001
A2	Post mortem report
A3	Chart of injuries to the deceased.
B	Medical certificate of death of Dr Nora Dai dated 17th October 2001
Ca to CH	8 photographs taken by John Anthony Owen of the deceased
C1	Statement by John Anthony Owen
D1-4	4 photographs taken by D/C Francis on 25th October 2004 of the scene
D5	Sketch of the scene by D/C Francis
D6	Statement by D/C Francis
E1	Record of Interview of John Bosco - pidgin
E2	Record of interview of John Bosco – English translation

There is some need to be careful with the evidence of this witness, she has a tendency to state as fact matters she believed to be true but which she had not personally seen. I accept that she did see the Defendant armed with a bush knife chase off into the coconut block. I reject her evidence that she saw Paul Loi land the first cut on Ignatius Reu because that is inconsistent with statement she gave to Police which in MFI 1. She may now believe that she saw Paul Loi cut the deceased but I think it is safer to rely on her statement given closer to the events, both because of the prior inconsistent statement and because, for the reasons I give below in relation the Defendant’s evidence, I do not accept that she had a proper view of the scene from where she stood at a house on the edge of the village. Apart from that point I accept her evidence.

Aaron Nali was quite young at the time of the murder. On his evidence he have been 15 but my assessment is he would have been closer to 13. There was a shocking scene involving a close relative taking place only 6 or 7 metres away. He says he was not frightened. I think it most likely he was in a state of shock. I would have been hesitant to accept his evidence by itself. However, all of the major aspects are corroborated by the evidence of the BARU REU, so that I find it safe to accept Aaron’s evidence.

Baru Reu gave logical evidence. He is a mature and serious person who gave the impression of being a responsible member of the community. He was not damaged in cross examination. I consider him to be a witness of truth. The Defence says that as a close relative of the deceased he has a reason to lie but it has not shown that he has lied. Apart from Aaron, Baru was the nearest witness to the scene of the murder.

John Bosco’s evidence I accept as partly true and partly what he wishes to be true. I accept that some of what he said about the fight in the village is true. It is not really necessary to try and work out what it is true and what is not true in regard to the village fight. Where his evidence conflicts with Larencia Reu’s evidence I prefer Larencia’s evidence.

The critical time is when the deceased was in the plantation. The Defendant said he only saw Paul Loi cut the deceased. He saw Paul Loi cut the deceased 5 times. EXH A3 shows 17 cuts to the deceased. The only explanation for that, on the Defendant’s version of events, would be that some others came along at a later time and cut the deceased. This is a highly improbable scenario. This was a crime of rage as can be inferred from the photographs of the body depicting the injuries (Exh CA to CH).

The logical and likely explanation is that all the cuts to the body were inflicted at the same time.

Another aspect of the Defendant’s evidence not supported by the body of evidence is the story of the deceased running up a pile of old coconut shells. None of the other witnesses mention it. None of the photo’s of the scene admitted into evidence by consent depict a pile of old coconut shells, so it raised the question has the Defendant simply included a detail in his evidence to make it sound more believable? This was an aspect not put to the State witnesses.

Another point of the Defendants evidence I wish to comment upon is his evidence that he was standing at the edge of the village and that there was a clear view into the coconut block. The same was said by other witnesses (Larencia Reu and Buka Vaka). The photographs show that there was a reasonable absence of undergrowth from the place where the deceased lay back towards the village. But the village was not visible nor any of the houses in it. I cannot accept that any one standing at the edge of the village or the edge of the coconut block would have a clear view. They would have a view not obstructed by under growth but the view would be obstructed firstly by the trunks of coconut trees and several other large trees. Secondly where the body lay appears to be just before where the coconuts were under planted with cocoa and where the undergrowth appears not to have been cleaned. There were places there where people could conceal themselves and running in and out of the trees they would be concealed from time to time, particularly from as far away as the village. Secondly from the sketch of the scene EXH D5 the deceased’s body lay very close to a dirt track through the block. There were trees, one 5 metres to his right another 3 metres to his left. There was a coconut tree 6 metres from the body where a cap, jacket and a beer bottle were found. Behind this coconut tree and on the other side of the body were cocoa trees and coconut undergrowth. No pile of old coconut is depicted on the sketch.

The objective physical evidence does not support the events having occurred as the Defendant has stated. Nor does the photographic evidence support the claims by those at the edge of the village that they had a clear view of the murder scene, although that part of the block was generally free of undergrowth.

Finally there is the evidence of Buka Vaka who said he observed the events in the plantation from his home. I repeat the comments made above. In photograph EXH D4 taken from the murder scene looking back to the village no houses are visible. How then could the murder scene have been visible to the witness?

Secondly Buka Vaka says he saw Lasi Stanis and Kevin Buko attack the deceased and that they with Paul Li were the only people to attack the deceased. I make two observations about this evidence. Firstly this witness was the only witness to give evidence that Lasi Stanis and Kevin Buko were seen in the coconut block. Not even the Defendant places them there. Secondly, this evidence which completely contradicts the State case was not put to any if the State witnesses, so Aaron Nalu and Baru Reu had no opportunity to comment upon it. I can only assume that this allegation is not really part of the defence case. Mr. Geita was clearly aware of the principle in Browne v- Dunn [1894] 6 R 67 (HL) and opened his clients general defence with the relevant State witnesses, but not that allegation concerning Stanis and Buko. It goes to weight when the State’s witnesses have had no opportunity to comment. I do not believe Buka Vaka and I put no weight on this evidence.

"If this prosecution intends to ask the tribunal to disbelieve a witness, it is right and proper he is challenged in the witness box in cross examination and it made plain that his evidence is not accepted."

In cross examination of this witness the State could and should have been more robust. It should have been put plainly to the witness that he could not see the scene of the murder from his house, that he put persons at the scene and involved in the murder that no other witness mentioned and that for these reasons he should not be believed. It is also regrettable that neither counsel put the scene sketches or photographs to the witnesses.

My conclusion is that I cannot accept the defendant’s version of events nor that of his witness. I accept the evidence of the State witnesses with the reservations noted. Therefore I find that the State has proven beyond reasonable doubt that the Defendant while armed with a bush knife was a member of the gang which attacked and killed Ignatius Reu. I infer from the weapons used, the number of cuts inflicted, the depth of the cuts and the statement of Paul Loi as repeated by Aaron Nalu, that there was an intention to kill Ignatius Reu when he was attacked and grievous bodily harm caused, which lead directly to his death.

I therefore convict the Defendant of the wilful murder of Ignatius Reu.
Lawyers:
For the State : State Prosecutor
For the Defendant : Public Solicitor

^[1] 101 CLR 298
^[2] Supra
^[3] (2002) N2253 Kandakasi J.
^[4] [1998] EWCA Crim 581 (17th February, 1998) LORD JUSTICE OTTON ,MR JUSTICE WRIGHT ,And ,MR JUSTICE DYSON PER Lord Justice Otton

^[6] [1998] QCA 163 (26 June 1998) Before McPherson J.A. Thomas J. Ambrose J. per McPherson JA

National Court of Papua New Guinea

State v Bosco [2004] PGNC 11; N2777 (26 November 2004)