State v Talangahin (No 1) [2004] PGNC 198; N2581 (11 June 2004)

N2581

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1403 of 2000

THE STATE

-V-

OKATA TALANGAHIN
(No.1)

WEWAK: KANDAKASI, J.
2004: 8th and 11th June

CRIMINAL LAW – PRACTICE & PROCEDURE – Identification only issue for trial – Effect of - All other elements of the offence not in issue – Need to warn of dangers of mistaken identification –Close examination of circumstances in which identification was made required – Identification save to act on if circumstances in which identification made is good.

CRIMINAL LAW – PRACTICE & PROCEDURE – Claim of Alibi – No prior notice - Claim not put to prosecution witnesses – Effect of - Recent inventions and therefore unreliable.

CRIMINAL LAW - Verdict – Killing unborn child – Attack on 9 months old pregnant mother – Strong kick to the abdomen area causing victim to fall – Dragging victim whilst on the ground and on her stomach - Attempted rape – Dead child delivered same day of attack - Identification only issue for trial – Positive identification of accused by victim and witness – Identification by recognition during broad daylight – No disguises or face masks – No serious contest on prosecution evidence – Prima facie case established against accused - Defence claiming alibi without any prior notice - Claim of alibi not put to prosecution witnesses – Effect of - Recent inventions and therefore unreliable – Defence evidence inconsistent – Defence evidence rejected - Guilty verdict return - Criminal Code ss. 347(1).

Cases cited:
SCR No. 1 of 1980; Re s. 22A (b) of the Police Offences Act (Papua) [1981] PNGLR 28.
The State v. Ben Noel & Ors (Unreported judgment delivered on 31/05/02) N2253
The State v Peter Malihombu (Unreported judgment delivered on 29/04/03) N2365.
The State v. Kevin Anis and Martin Ningigan (Unreported judgment delivered on 7/04/03) N2360.
The State v. Onjawe Tunamai (Unreported judgment delivered on 29/04/03) N2365.
Jimmy Ono v. The State. (Unreported judgment delivered on 04/10/02) SC698.
The State v. Eki Kondi & Ors. (Unreported judgment delivered on 24/03/04) N2542.
The State v. Cosmos Kutau Kitawal & Anor (No 1) (Unreported judgment delivered on 15/05/02) N2266.
The State v. Gari Bonu Garitau and Rossana Bonu 1996] PNGLR 48.
Garitau Bonu & Rosanna Bonu v. The State (Unreported judgment delivered on 24/07/97) SC528
Paulus Pawa v. The State [1981] PNGLR 498
The State v. Tauvaru Avaka & Anor (Unreported judgment delivered on 2/11/00) N2024.
Gibson Gunure Ohizave v. The State (Unreported judgment delivered on 26/11/98) SC595.
John Jaminan v. The State (N0.2) [1983] PNGLR 318.
The State v. Luke Sitban (Unreported judgment delivered on 07/06/04) N2572.
The State v. Marety Ame Gaidi, (Unreported judgment delivered on 01/08/02) N2256.

Counsels:
J. Walai for the State
L. Siminji for the Accused

11th June 2004

KANDAKASI J: You pleaded not guilty to one charge of killing an unborn child on 11th August 2000 by attacking the mother, Evelyn Samson, who was then 9 months pregnant at Mamalimbi village in the Wosera District of this Province. This resulted in a trial on 7th this instant. The State called two witnesses in addition to some documentary evidence, and you called two witnesses as well in your defence.

The Offence and its Elements

The Charge against you was under s.300 (1) (b) of the Criminal Code, which reads as follows:

"300. Murder.

(1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:—

...

(b) if death was caused by means of an act—

(i) done in the prosecution of an unlawful purpose; and

(ii) of such a nature as to be likely to endanger human life;"

This presents a number of elements, which the State must establish beyond any reasonable doubt to secure a conviction against an accused person like you. These are:

1. A person who;
2. kills another person;
3. by means of prosecuting an unlawful purpose; and
4. of such a nature to endanger human life.
   

The State always has the burden to prove beyond any reasonable doubt every element of an offence with which an accused is charged. The Supreme Court, per Greville Smith J, at page 34, confirmed this in SCR No. 1 of 1980; Re s. 22A (b) of the Police Offences Act (Papua).[1] In a number of cases as in The State v.Ben Noel & Ors,[2] I referred to the relevant passage and applied it.

What this means in your case is that, the State is under an obligation to prove each of the elements outlined above beyond any reasonable doubt. The question then for this Court to resolve is, has the prosecution proved all of the elements of the charge of murder against you beyond any reasonable doubt? However, this question has to be in the context of the issue for trial in your case, which was one of identification.

In view of the issue for trial, you do not dispute a number of essential facts. Firstly, Evelyn Samson was pregnant with a 9 month old baby which was and due for delivery any time. Secondly, in the morning of 11th August 2000, she felt her baby move in her womb and so therefore well and alive. Later that morning, she went to her coffee garden and was picking coffee cherries with her earlier 2 children and a nephew, Raphael Samson. Thirdly, between 1:00 and 2:00pm, a man armed with a bush knife attacked her by threatening her with placing the knife on her neck while the nephew was in the creek washing. Fourthly, a struggle ensued between her and her assailant and in the process, the assailant kicked her so hard on her abdomen area, causing her to go out of break temporarily and then fall on the ground. Fifthly, her assailant then pulled and dragged her down a hill whilst she was on her stomach. Next, her assailant pulled his zipper down and tried to rape her. However, her shouting and screaming for help alerted Raphael Samson and he came to her rescue. Further, on seeing that there was another person, the assailant fled the scene after having cut his victim several times on both her hands. Furthermore, she was eventually taken to the Maprik Health Centre where she received medical treatment and delivered a dead male child. According to the medical reports, which are not in dispute and admitted by your consent, confirms the death of the child was attributable to the attack on the mother earlier that day. The medical reports also confirm that the victim sustained serious knife wound injuries to both her hands which required, suturing and appropriate other treatment. The hospital discharged her on 18th August 2000.

The only issue is whether, you or somebody else was the assailant and therefore the one responsible for the death of the child. The evidence called by both the prosecution and you in your defence will help answer that question. It is therefore, necessary to turn to a consideration of the evidence and facts emerging from them now.

The Evidence

(i) Evelyn Samson

The first State witness was Evelyn Samson. In addition to the uncontested evidence as noted above, she testified that, as she was picking coffee cherries, you came from behind and then moved in front of her and placed a bush knife you came with on her neck. As you did that, she started struggling with you and in the process; you kicked her so hard on her abdomen area. That caused her to be out of breath for a while and at the same time caused her to fall on the ground. As she lay on the ground, you proceeded to pull and dragged her down a hill. During this time, she was face down on her stomach on the ground. After pulling and dragging her for a while at a distance, you unzipped the zipper of the short you wore at the time and tried to rape her. By this time, she called out or screamed. This alerted the Raphael Samson, who was by then at a creek taking a wash and he came for her help. On seeing Raphael, you fled from the scene. By the time you left, you had already effected a number of knife cut wounds to both of Evelyn’s hands.

Later, on the same day of the offence, her relatives took her to the Maprik Health Centre. There, she received appropriate medical treatment for the injuries she sustained. It was also at the hospital about 10:00pm that, she delivered a dead baby boy.

This witness said she knew you well prior to the incident as someone from the neighbouring village. She also said, your small sister is married to her husband’s cousin brother. Given that, you used go to and from her village Mamalimbi quiet often. That is how she says she knows you well enough. She also says, when you attacked her, she could clearly recognize you as you stood in front of her and were in the struggle with her. She further said you had some charcoal over your facial area but not covering your face completely. Furthermore, she said the attack on her was during broad day light between 1:00 and 2:00pm. Based on this, she says she is sure it was you who attacked her and correctly identified you in Court amongst other accused persons in the dock with you during your trial and her testimony.

(ii) Raphael Samson

The second State witness was Raphael Samson. He supports Evelyn’s testimony from the point when he got to the scene upon hearing her screams or call for help. He went on to say that when he got to the scene, he saw you attacking Evelyn. As he got there, you turned and saw him and he saw you. You were about 5-10 meters away from each other. On seeing him, you fled from the scene. He too says, he knew you well before the incident and on this occasion, he is sure that he saw you.

He described you as person of lighter complex, as opposed to a much darker complexion. He also described you as a person not so tall or not so short but somewhere in between the two. At the time of the attack on Evelyn, he says you had some charcoal around your face but did not completely had your face covered.

(iii) Your Evidence

Your evidence is simply that on the day of the offence you were in your own village of Elahita No. 3, working on two new houses belonging to Noel Olamus with your fellow villagers. This included your village court magistrate, Tom Atambo. At that time, you wore a long sleeve white shirt.

The work on the houses started at 7:00am and finished at 6:00pm. You did not leave the village at any time that day. You therefore, deny going to the victim’s village or garden and committing the offence as described in the prosecution’s evidence.

You also deny having any knowledge of the victim or the witness, Raphael Samson. An elaboration of this is that, you do not have a sister and that, from the time of your birth to the present, you have not left your village. You have not even gone to either Maprik, the nearest town in your area or your provincial capital, Wewak. For the whole of your live, you say you and your village people had no dealings or connection with the victim’s village. Yet you say your village is further away from the victim’s village. You were not able to give a direct answer to a question in cross-examination, if you have never gone out of your village, how do you know that your village is further away from that of the victim. Given this evidence, you say the victim and her witness do not know you.

In relation to when you became aware of the offence, you say, you came to learn of it when the police arrested you for this offence about 1 week and 3 days after the date of the offence. You denied suggestions that the victim’s people came and tried to spear you at your village the same day of the offence. Police questioned you about this offence and there is a record of interview with police. Your record of interview does not have your claim of being in your village working on the two houses. You say you tried to tell the police that story but they told you to keep it to yourself and tell the Court.

Further, you say that there is no enmity between you and the victim and her witness’ or her people. Yet, you say they came to lie in Court against you for no reason.

(iv) Tom Atambo

You called this witness, Tom Atambo to support your evidence. He is your village court magistrate, a position he held since 1976. At the same time, he is your uncle. He tried to do that by confirming that, you were in your village with him and others on the day of the offence. He said, you were in his sight the entire day and did not see you leave the village at anyone time, even between 1:00 and 2:00pm. However, he did not have a watch and said, if you had gone to the toilet or something like that, he would not have known that. He also added that, you were all busy on the job at hand. He gave an estimate of about 40 to 50 people working on community houses. That is where a number of inconsistencies between your evidence and his emerged.

You said you and the witness with others worked on a Noel Olambus’ houses at the relevant time. This witness, who said you worked on community buildings, which is not the same as building Olambus’ house. Next, the witness said you finished working on the buildings at about 4:00pm as opposed to you saying finishing about 6:00pm. The other point of contrast is that, this witness said later on the day of the offence, the people from Mamalimbi came up to your village armed with bush knives and things like that looking for your brother saying he raped one of their women. He said, he told them that, your brother was away in Wosera. Thereupon, they left for the Koiruo Police Station without saying or doing anything against you. You were there with him when these people came looking for your brother. These evidence contrasts with yours, where you denied having any idea about this trouble until 1 week and 3 days later.

Further, this witness said, your village people and the Mamalimbi people do exchange customary obligations or ceremonies with intermarriages. Indeed, he said you have a sister who is married to a cousin brother of Evelyn’s husband, whereas you deny having a sister and or she being married in the way described. Therefore, unlike you, he knows Evelyn and her husband well.

Finally, this witness said, you wore a short sleeve "T" shirt. This contrasts with your own evidence of wearing a long sleeve shirt. He also said, you had with you a bush knife to cut vines. You did not make any mention of having a bush knife.

Submissions of the Parties

Both parties submit that a determination of the issue for trial in your case is dependant on which version of the evidence the Court accepts. In your submissions, you do not take any significant issue against the evidence the State brought against you. Initially, you tried to demonstrate an inconsistency in the description of you by Raphael Samson. His evidence was that you were a person of light skinned colour. However, during submissions, you abandoned it because you accepted that this refer to a person of lighter skin colour or complexion as opposed to a much darker colour. The only argument you make against the State’s evidence is that, if you were identified as the person responsible, why did it take the police 1 week and 3 days to arrest you? Based on this, you say there is doubt in the State’s case. You therefore asked the Court to reject the States evidence and accept your evidence. If this argument is viewed in the context of the other evidence, the delay was necessary and reasonable. It is clear that your victim was discharged from hospital on 18th August 2000, which was a week after the attack on her. Then it is reasonable to allow some time for grieving over the loss of the child before police could take a full statement from her and complete their investigations.

You also submit that, the victim’s side came looking for your brother and not you, in a bid to explain some of the inconsistencies that exists as between your own testimony and that of your witness, Tom Atambo. You also point out that, if you were the one who committed the offence, they could have attacked you but they did not. These submissions proceed on the assumption that, your evidence is credible and the Court accepts it.

The State argues that, you do not correctly attack its evidence because there is no basis for you to do that. It then submits for the Court to reject your evidence for a number of reasons. The first is that, you have raised an alibi without disclosing that in the record of interview, or giving the State the required notice, in relation to your story of being at your village working on two buildings. Secondly, your evidence has many inconsistencies as I have outlined above. Further, counsel for the State submits that, your evidence has some incredible accounts such as the witness, Tom Atambo saying, he kept his eye on you throughout the entire day, whilst stating at the same time that, if you had gone to the toilet or something like that, he would not have known that.

The State submits further that, Evelyn and her witness had no reason to come and lie against you, as they have no personal grudges against you. Counsel for the State further submits that, the evidence against you is clear and credible. The witnesses identified you as a known person and not a stranger. Your identification was during broad day light, there were no obstruction, you did not wear any facial mask or disguises and that, the identification was not a fleeting glance of a stranger.

In the circumstances, the State argues for an acceptance of its evidence and a finding that it established the charge against you on the required standard of prove beyond any reasonable doubt.

Assessment of Evidence

Whose evidence, the Court should accept is dependant on a finding of whose evidence the Court finds is credible. A number of important principles or tests assist the Courts to come to a decision on this. In so far as is relevant here, the first applicable test is consistencies in a witness’ own evidence and other evidence called by a party.

In The State v Peter Malihombu[3], I found amongst others that there were a number of inconsistencies in the prosecution’s evidence. I found those inconsistencies serious enough to cast a serious doubt on the case against the accused. Accordingly, I found that, the prosecution did not establish its case beyond any reasonable doubt. Many other cases have considered and applied this test. Some of the examples are the judgments in The State v Kevin Anis & Martin Ningigan[4], The State v. Onjawe Tunamai[5] and Jimmy Ono v. The State.[6] I recently applied this test in The State v. Eki Kondi & Ors.[7]

The clear import of these and other authorities is that, where serious inconsistencies exist, there is the possibility of false testimony and therefore unsafe to act on.

The second test is similar to the consistencies test but focused on testing the evidence given in Court against logic and commonsense. I restated the relevant principles and therefore the law in The State v Cosmos Kutau Kitawal & Anor (No 1)[8] 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."

The National Court formally stated and applied this test in The State v. Gari Bonu Garitau and Rossana Bonu.[9] The Supreme Court affirmed this in Garitau Bonu & Rosanna Bonu v. The State[10] on appeal to the National Court. An earlier statement and an application of this principle is represented by the case of Paulus Pawa v. The State.[11]

The third test is the demeanour of a witness in the witness box. The Courts have decided many cases in the past on an application of this principle or test. Examples of cases that readily come to mind are cases like that of The State v. Tauvaru Avaka & Anor[12] and Gibson Gunure Ohizave v. The State.[13]

The fourth principle or test concerns belated claims of alibi. The Supreme Court in John Jaminan v. The State (N0.2),[14] stated the relevant principles in these terms:

"...[T]he 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."

I applied this in many cases with the latest in this circuit in The State v. Luke Sitban.[15]

In the case just cited, I also considered and applied another important test. That has to do with the need to put the defence to the prosecution’s witnesses during cross-examination. There, I said at pp. 11-12 that:

"The law clearly is that, in order for a party’s claim to have credibility, he must in fairness, put his case or claim to the other side’s witnesses by way of cross-examination. In a number of cases such as The State v. Cherobim Kani Peso (Unreported judgment delivered on 13/06/03) N2412, I noted that, that was in effect what is meant by a fair hearing in s. 37 (3) of the Constitution, which I considered was a codification of the rule in Browne v. Dunn (1893) 6 R 67 (HL). In that context, I further observed that where a party fails to do that, his or her subsequent claim loses credibility and is therefore not reliable. I noted that the Supreme Court in John Jaminan v. The State (N0.2) [1983] PNGLR 318 at pp. 332-333 per Bredmeyer J made that clear in the context of a belated claim of alibi.

This principle applies against evidence introduce for the first time in court, without first raising it in a proper notice of an alibi, in the case of an alibi, and in his record of interview, or otherwise, an accused person’s response to a charge. The whole purpose of this is to ensure fairness to both parties prevail and thereby avoid a trial by ambush. The rational behind this rule is for a party conducting the cross-examination, to lay the foundation for the calling of his or her own evidence in rebuttal of the one called by his or her opponent."

If upon an application of these tests or principles, the Court accepts the State’s case, it needs to apply a further test before proceeding to act on States evidence where the issue for trial is one of identification as in this case. The question in that regard is usually, whether the evidence purporting to identify an accused as the offender is sufficient and safe, for the Court to proceed to convict on? With the endorsement of the Supreme Court in Jimmy Ono v. The State,[16] I summarized the relevant principles in The State v. Marety Ame Gaidi,[17] in this way:

"In summary the principles are these:

1. It has been long recognized 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."
   

Your Case

Bearing these principles in mind, I now proceed to consider the evidence in your case. I start that process with the consistencies test. As noted, there are no inconsistencies in the State’s evidence. That is why you do not challenge it in any meaningful and serious way. The same does not apply to the evidence you called in your defence. There are, serious inconsistencies as noted above, exists in the evidence you adduced in your defence. If indeed, you and Tom Atambo were together throughout the whole of 11th August 2000, no such inconsistencies should exist, but there is. Some of these inconsistencies in your evidence support the States evidence such as your sister being married to Evelyn’s husband’s cousin brother and being a regular visitor to Evelyn’s village.

Secondly, I find that the State’s witnesses’ testimony is not only consistent but I find also that, no traces of illogical or an out of commonsense accounts. Contrasting that with your case, you do have a number of illogical and out of commonsense accounts. You say for example that, you have never been out of your own village since birth. I find this rather strange. Unless a person is crippled, human beings normally move around. These days most able persons like you, freely move around and in most cases, end up in their district headquarters or towns and provincial headquarters. You do not give any evidence as to how was it possible for you to remain all of your live in your village only.

Further, normally, human beings in one village would share or do some things in common with the neighbouring village unless they are bitter enemies. There is no evidence from you of a serious enmity between your people and the victims of your offences people. Therefore, you could have had some dealing with the victim’s people but you deny it. Tom Atambo, your witness gives an account that is consistent with ordinary human beings behaviours in the PNG settings. According to his evidence, you had a more direct reason to have some dealings with the victim’s people. Your sister was married to one of the Samsons. Yet to support your claims, you deny this and in so doing, you give inconsistent evidence.

Another instance of an illogical or out of commonsense account is your witness’s claim of him constantly having an eye on you. I note that your second witness tried to explain this by saying you and others were up on the roof while he was on the ground passing sago palm leaves for the thatching of the roof. According to his evidence, there were about 40 to 50 of you working from early in the morning and finished at about 4:00pm. You say it was from 7:00am to 6:00pm. Throughout this period, both of you appear to suggest that, neither of you took any break, thereby suggesting that you worked like a machine with no rest or a break for lunch or just for a little rest. This is unbelievable, even the hard worker takes a break. You wished the Court to believe you did not.

Thirdly, consistent with your inconsistent and illogical accounts, you did not give me the clear impression that, you were telling the truth. You appeared set to maintain a denial of the charge against you at all costs, and in so doing, you mechanically answered in the native all questions that could render you knowing the victim and going to her village. By doing that, you gave a testimony that was clearly inconsistent with your witness’ testimony. Once again, a clear illustration of this was your sister being married to Evelyn’s husband’s cousin brother and you going to and from their village because of that marriage.

Further, I notice that, when Tom Atambo gave his evidence that was clearly in contrast with yours, you expressed disappointment and hid your face from him by bowing your head so low to bring it down and have it hid behind the wall portioning the dock.

Fourthly, you did not raise your alibi of being at you village for the whole of 11th August 2000, working on two houses. You did not raise that in your record of interview with the police. You claim that, you wanted to tell the police that story but they told you to keep it for the Court. If this is true, you should have objected to the record of interview going into evidence. You did not do that and instead consented to its admission. It is now in evidence against you.

Further, the law requires you to give notice in writing, of having in your possession such evidence, 14 days before the trial but you did not do that.[18] As the Supreme Court said in the John Jaminan case, the purpose of this rule is to enable the State sufficient time and opportunity to check out your claims of being elsewhere. Then based on its inquires, the State could make a decision whether to purse a charge against you or abandon the proposed charge. Our system of justice allows for fair play by rules such as this and not trials by ambush. Coming into Court and claiming an alibi as you did in this case, amounts to a recent invention. Therefore, the law is that little or no weight should be placed on such evidence. Accordingly, I place little or no weight on your evidence.

Finally, following on from the failure to give notice of your alibi, you also failed to put in cross-examination, your claim of being in your village the whole day working on the two houses to the prosecution witnesses. Similarly, the claim by your witness, Tom Atambo that the Mamalimbi people came looking for your brother and not you was not put to the prosecution witnesses. The law, as noted above, requires the defence case to be put to the prosecution’s witnesses so that in fairness they have an opportunity to comment on and if need be, retract. You did not give the State witnesses that opportunity. The legal effect of this is that, the Court should not and I do not place much weight on this claim.

For these reasons, I do not find your evidence credible. I therefore reject your evidence. This leaves the Court with the State’s evidence, which I find is credible. Nevertheless, before acting on it, I need to be satisfied that this evidence is safe to act on. In accordance to the relevant principles, as noted above, I warn myself of the dangers associated with identification. In other words, I warn myself that the State witnesses could have made a mistake in their identification of you as the offender. I will therefore need to carefully, and closely examine the circumstances in which they say they identified you.

The circumstances in which you were identified are these. It was broad daylight, with the sun still up. The time estimated is between 1:00 and 2:00pm. This was a close physical encounter with the witness, Evelyn for some time and as such, it was not a quick fleeting glance. Similarly, Raphael’s identification of you was also not a fleeting glance. He had seen you for a while before you saw him and you ran away. You come from a village that neighbours that of the victim and her witness. Indeed, on the evidence, before me, I find that your sister is married to Evelyn’s husband’s cousin. Because of that, you used to go back and forth from their village. You were therefore, not a stranger but a person known to the victim and her witness. You tried to disguise yourself with charcoal but that did not completely cover you. Your face was essentially unmasked or not covered thereby making identification easy. Given these factors, I find that the State witnesses could not have and did not make any mistake in your identification.

For these reasons, I am satisfied on the required standard of prove beyond any reasonable doubt that, the State has established your identification and the charge of you murdering an unborn child on 11th August 2000, at Mamalimbi. I therefore, return a verdict of guilty against you on the charge of murder contrary to s. 300 of Criminal Code. Accordingly, I order that, you be remanded in custody pending your sentence. I further order that, a warrant of commitment in those terms be issued forthwith.
_______________________________________________________________________
Lawyers for the State: Public Prosecutor
Lawyers for the Accused: Public Solicitor

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^[1] [1981] PNGLR 28.
^[2] (Unreported judgment delivered on 31/05/02) N2253.
^[3] (Unreported judgment delivered on 29/04/03) N2365.
^[4] (Unreported judgment 07/04/03) N2360.
^[5] (Unreported judgment delivered on 15/02/00) N1989
^[6] (Unreported judgment delivered on 04/10/02) SC698.
^[7] (Unreported judgment delivered on 24/03/04) N2542.
^[8] (Unreported judgment delivered on 15/05/02) N2266.
^[9] [1996] PNGLR 48.
^[10] (unreported judgment delivered on 24/07/97) SC528
^[11] [1981] PNGLR 498
^[12] (Unreported judgment delivered on 2/11/00) N2024.
^[13] (Unreported judgment delivered on 26/11/98) SC595.
^[14] [1983] PNGLR 318 at pp. 332-333 per Bredmeyer J.
^[15] (Unreported judgment delivered on 07/06/04) N2572.
^[16] Op ct n 6.
^[17] (Unreported judgment delivered on 01/08/02) N2256.
^[18] Order 2, Criminal Practice Rules.