State v Ketu [2006] PGNC 171; N3393 (17 November 2006)

N3393

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1511 of 2006

THE STATE

-V-

JIMMY KETU

Tabubil: Kandakasi, J.
2006: 15th, 16th and 17th November

DECISION ON VERDICT

CRIMINAL LAW- Verdict – Murder charge – Identification main issue for trial – Prosecution case circumstantial - Most facts not in dispute – Deceased sustained bush knife wound to head and hands resulting in death - Record of interview admitted into evidence without objection from accused – Accused admitting in record of interview to killing deceased and later changing that in oral sworn testimony claiming police made up his answers – Accused failing to provide reasonable explanation or reason for that happening – Only reasonable inference open to the Court points to guilt of accused – Guilty verdict returned.

Papua New Guinea Cases Cited:
The State v Tolly Amindi (05/05/04) N2683.
The State v. Peter Malihombu (29/04/03) N2365.
The State v. Luke Sitban (No 1) (07/06/04) N2572.
The State v. Paul Yepei (No 1) (17/03/04) N2570.
The State v. Alphonse Aia Mohavila 25/10/06) N3385

Counsel:
D. Mark, for the State.
P. Kapi, for the Prisoner.

16 November, 2006

1. KANDAKASI J: On 15th of this instant, you pleaded not guilty to a charge of murdering one Heni Puse on 8th November 2005, contrary to s.300 (1) (a) of the Criminal Code. In a bid to establish the charge against you, the State tendered into evidence a number of witness statements and your record of interview with the police, without any serious contest from you. The State also called Orowa Singu who gave sworn testimony against you. In your defence, you gave sworn testimony.

Evidence and facts

2. The evidence adduced by the State, including your record of interview, discloses these facts. On 8th November 2005, some time between 6:00 and 8:00 pm, you were under your house at Menumgrup, Ningerum, in this Province, drinking beer with a brother of yours, Ivan. Ivan came with eight cans of beer. Out of the eight cans of beer, you drank four of them. That was in addition to four cans of beer you had earlier drunk. At the time, there were a lot of other boys also consuming alcohol.

3. While you were under your house drinking your beer, you heard your younger brother, Gordon, fighting with his two wives up in the house. You also heard him telling his wives to pack up and leave the house. So you went up to the house and tried to stop your brother from fighting his wives and force them to pack up and leave. Your brother did not accept your intervention. He became angry and threw a punch at you and you ended up in an argument and a fight with your brother. Your brother chased you and you ran into your neighbour, Simon Hun’s house.

4. When you were at your neighbour’s house, your brother challenged you to a fight and called you a woman. That made you angry. You therefore, armed yourself with a bush knife and returned to your house where Gordon was, with a view to cutting and causing harm to your brother. As you entered the house through the door, you saw Gordon and Ivan and swung the bush knife to cut Gordon. However, Ivan managed to get Gordon out of the house. At the same time, the deceased turned up and you cut him on his left arm and head. The deceased was eventually rushed to the hospital and he died from the injuries he sustained.

5. The deceased had been living in your house for a short while with Orowa Singu, the State witness, at your invitation for them to help build your house. Prior to you cutting the deceased, he and Orowa Singu were in the kitchen cooking food. They came out when they learned of the fighting. According to Orowa Singu’s testimony, he came out of the kitchen leaving the deceased behind. As he got to the verandah, you wildly swung a bush knife at him and he managed to jump onto the beam of the house and escaped any injuries. Then as you continued into the house, the witness went out of the house for sometime in fear of you attacking him. Later, after seeing you leave the house, the witness went back into the house. As he entered the house, he saw the deceased in a bend position. When he got to the deceased, the deceased asked the witness to hold him. The witness obliged and took him down the steps of the house. Eventually, the witness, Ivan and others took the deceased to the hospital. The next day, the hospital pronounced the death of the deceased.

6. The medical evidence states that, the deceased sustained serious bush knife wound injuries to his head, an injury to his left wrist and a relatively superficial injury to his shoulder and died from massive blunt head trauma. The injury to the head was the most serious, described as "massive right-sided frontal-temporal-parietal scalp laceration with underlying linear skull fracture measuring at least 15 cm in length" with "disrupted brain matter. There was bleeding into the brain. The medical doctors tried their very best to prevent the bleeding and save the deceased without much luck.

Arguments, Claims and Submissions of the Parties

7. Despite admissions in your record of interview, you denied the charge and decided to go into evidence. Before you went into evidence, you informed the Court through your lawyer that, the issue for trial was identification. In your oral testimony, you denied cutting and consequently killing the deceased. That was in direct contradiction of what you said to the police in your record of interview. Your record of interview was admitted into evidence without any objection from you. You admitted in your oral testimony that, the police did not threaten you or anything like that and that, you signed the record of interview out of your own free will. The only thing you said against the police was that, they rushed you and you did not have time to carefully read and understand the contents.

8. You claimed that, the police fabricated the answers. The relevant questions are questions 37 to 42, in which you admitted to arming yourself with a bush knife and cutting the deceased on his hand and the deceased being taken to the hospital. You did not provide any reason as to why the police fabricated your answers to these questions or what stopped you from refusing to sign the record of interview if it was not a correct representation of what you told the police. You demonstrated clearly to me in the course of giving your evidence in Court that, you understand the English language well. That is possible because you have reached grade ten high school education level. Hence, if on reading the record of interview, there was something wrong or not right, you could have declined to sign it. However, you signed it. In the circumstances, I reject your suggestion of fabrication by police. I find your claim is baseless and accept the contents of the record of interview as a correct record and reflection of your interview with the police.

9. The State submits and I accept that, the record of interview is evidence against you. You were warned more than once in the course of the record of interview that, whatever you say in answer would be recorded in writing and could be used as evidence against you. You were advised of your right to remain silent. You exercised your right to answer questions that were put to you, and you answered them without any threat or force from the police.

10. In The State v Tolly Amindi,[1] the State adduced as part of its case, the accused record of interview with the police. The record of interview contradicted the other evidence called by the State, which the State was not able to satisfactorily explain. I referred to my earlier decision in The State v. Peter Malihombu,[2] where I had a similar situation and held that:

"To the extent that the State admitted into evidence your record of interview it made the contents of the record of interview part of its case. In the face of the obvious inconsistencies in the State’s case particularly in relation to the defence you have raised, the benefit of the doubt must go to you."

11. Then in the case before me, I found that the prosecution acknowledged the inconsistency in its evidence. Yet, counsel for the prosecution argued that, the State made out its case and that, there was a prima facie case for the accused to answer. I found the inconsistency very serious as they went into the very issue for trial. I noted that, the prosecution did not try to get the witness it called to comment on this apparent inconsistency in its case, after having already admitted into evidence the record of interview as part of the State’s case. In the end, I held that, the State failed to establish a prima facie case against the accused for her to answer.

12. In your case, your record of interview is part of the State’s case. What this means is that, I must take the record of interview into account as part of the State’s case and give its proper weight and consideration along with the State’s other evidence. Considering your record of interview in that light, it clearly points to you being responsible for the death of the deceased.

13. You argued however, that, there are serious inconsistencies in the State’s evidence, as between the oral testimony of Orowa Singu and the statements of the other witnesses, admitted into evidence with your consent. Your claim of inconsistency centred only on two aspects. The first concerned the people that may have been in the house at the time of the witness, Orowa Singu coming out of the kitchen and meeting you armed with a bush knife, which you swung wildly. You point out the other witnesses, namely your brother, Gordon and his wife Arto Ude and Baba Dabi all speak of Gordon and his two wives being in the house. You therefore, argued that, if the witness, Orowa Singu was in the kitchen and came out as he claims, he could have seen the others in the house but he did not.

14. There is no dispute that, the incident took place in the night. There were only two candle lights. Candle lights do not normally cover a large area. Given the kind of lighting, one could not see afar, save only for objects or human beings that are very close to him or her. The witness, Orowa Singu said he was able to see you coming up into the house with a bush knife which you swung wildly and almost cut him. He said, he was sure that, it was you who passed him on or near the steps. Further, he said, apart from hearing Gordon’s voice, he saw nobody else also armed with and using a bush knife in or entering the house at the relevant time. Besides, at all relevant times, the witness and the deceased, according to the witness’s testimony, were in the kitchen busy cooking food. Furthermore, there is no contest that, the kitchen was separate from the house. In the circumstances, I find that, the witness, Orowa Singu was telling the truth when he said, he saw nobody else apart from you because, he was in no position to see anybody else, and since no body else came closer to him as you did. The argument that, this witness could have seen the others has the effect of forcing the witness to give a false testimony by claiming he also saw other people when he was in no position to see any other person, apart from you, who came into close contact with him. Accordingly, I find that, there are no serious inconsistencies as you submitted.

15. The second area in which you say in your submissions, there is inconsistency is based on Arto Ude’s statement that, after she had gone down from the house, with Gordon and "another boy brought this young man who was killed." You submitted that, this shows that, the deceased could have been killed somewhere else and was later brought to where Arto Ude and the others were. That submission effectively, asks this Court to create evidence or infer something without any primary facts supporting such an inference. All of the evidence shows that, the fight between your brother, Gordon and his wives took place up in the house. The fight between you and your brother also took place up in your house. There is no evidence of a fight taking place elsewhere. Considering all of these factors, I find that, the statement of Arto Ude is consistent with other evidence before me and is in fact consistent with Orowa Singu’s testimony that, he brought the deceased down from the house to where the others were before the deceased was taken to the hospital. Accordingly, I reject this part of your claim too.

16. In your own oral testimony, you admitted arming yourself with a bush knife from your aunt’s house, which is next to yours and went back into your house, taking up a challenge from your brother, Gordon to fight him. As you entered your house, you saw your brother with his wives and Ivan. You claimed for the first time that, Gordon and his wives were armed with a bush knife each. On seeing you, Gordon chased you down with the bush knife he had, and you ran all the way downstairs and went for good. You feared for your safety, and went and slept the night out and returned the next morning. You did not mention these facts to the police in your record of interview. You did not also put these facts to the State’s witness in your cross-examination. Accordingly, I accept the State’s submission that these are very recent inventions.

17. The law on this point is very clear. I have discussed the position in a number of cases as in the case of The State v. Luke Sitban (No 1).[3] There, I said:

"... 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 (...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 introduced 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. It follows therefore that, when a party raises in cross-examination his own version of the facts or a claim in a bid to rebut the other’s claim, he is expected to follow it through with the relevant evidence."

18. What this means is that, I cannot attach any credibility and or weight to your recent inventions. Accordingly, I reject them and find that, the correct version is as per your record of interview. I find also that, you came up with the new claims in a bid to avoid being found guilty on the charge for which, you stand trial before this Court.

Decision

19. Minus your record of interview, the State’s case would be purely circumstantial. Also your identification as the person who killed the deceased would be an issue for this Court to determine. The law on a case built around circumstantial evidence is trite. Before the Court returns a verdict of guilty, it must be satisfied that, guilt of an accused is the only inference reasonably available on the primary facts before the Court. I discussed the relevant authorities[4] from which these principles are derived in a number of decisions as in The State v. Paul Yepei (No 1).[5]

20. In relation to the issue of identification, the law is also clear. Recently in my decision in the case of The State v. Alphonse Aia Mohavila,[6] I noted the relevant principles in the following way:

"With the subsequent endorsements of the Supreme Court in its decisions in Jimmy Ono v. The State ... and Masolyau Piakali v. The State,... I summarized the relevant principles in The State v. Marety Ame Gaidi ... as follows:

‘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.’"

21. I find that, the evidence adduced by the State forms the foundation for only one reasonable inference in this case. That inference is that, you are responsible for the death of the deceased. The evidence shows that, you are the only person that was armed with a bush knife who used it wildly. There is no evidence of any other person present at the time being armed and or using a bush knife. There is no evidence of the deceased having a separate fight well away from where you were fighting with your brother. Your oral testimony supports the case against you in that, you confirmed being armed with a bush knife and getting up to the house ready to fight with your brother. In a bid to avoid the inference that is reasonably open and available against you, you invented new stories that are not credible.

22. Following on from the forgoing, the evidence against you, especially the evidence of Orowa Singu clearly identifies you. Nevertheless, I warn myself that the witness could be mistaken. This calls for a careful examination of the circumstances or conditions in which you have been allegedly identified. You were seen from a very close range. The witness had been living with you under your roof for some time well before the incident. He was positive in his identification of you. I find that, even though it was dark with two candle lights being used, the witness came into contact with you from a very close range. He avoided being attacked by you and went down to the ground and waited until you came out after the fight up in the house. He saw you then as well. In these circumstances, I find that, the witness could not have possibly made a mistake in his identification of you.

23. Your record of interview puts beyond any reasonable doubt you are the person that injured the deceased with the use of a bush knife. This puts to rest in the State’s favour the issue of identification of you as the person who killed the deceased and that, that is the only conclusion open on the evidence before this Court. I am thus, satisfied beyond any reasonable doubt that, you killed the deceased as alleged by the State. Accordingly, I return a verdict of guilty on the charge of murder as presented by the State. You shall be remanded in custody pending your sentence.

___________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyer for the Accused

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^[1] (05/05/04) N2683.
^[2] (29/04/03) N2365.
^[3] (07/06/04) N2572.
^[4] The leading authorities are the Supreme Court decisions in Pawa v. The State, [1981] PNGLR 498 at p.501 in the words of Andrew J quoting with agreement the words of Miles J in The State v. Tom Morris [1981] PNGLR 493 at p.49.
^[5] (17/03/04) N2570.
^[6] (unreported and yet to be numbered judgment delivered on 25/10/06) CR 915 of 2004