State v Malken [2009] PGNC 230; N3836 (7 August 2009)

N3836

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 464 OF 2008

THE STATE

V

STEVEN MALKEN

Kimbe: Cannings J
2009: 24, 25, 26, 27, 30 March
Bialla: 13 May 2009
Kimbe: 21 May, 7 August 2009

VERDICT

CRIMINAL LAW – trial – wilful murder – Criminal Code, Section 299(1) – elements of the offence – whether the accused killed the deceased – identification evidence – whether the killing was unlawful – general denial rather than specific defences raised – whether the accused intended to kill the deceased – alternative verdicts, Criminal Code, Section 539(1).

The accused was charged with the wilful murder of a young man, allegedly committed outside his residence on the night of a party the accused was hosting. The State alleged that the accused stabbed the deceased with a bushknife. The State relied on the oral evidence of three witnesses who testified that they each saw the accused stab the deceased. The defence argued that the evidence of the State witnesses was inconsistent and unreliable and it was unsafe to enter a verdict based on their identification of the accused. The accused gave sworn evidence denying that he stabbed the deceased. Three other defence witnesses who were present at the party gave evidence about the events at the party.

Held:

(1). Under Section 299(1) of the Criminal Code the offence of wilful murder has three elements:

• the accused killed the deceased;
  
• the killing was unlawful; and
  
• the accused intended to cause the death of the deceased.
  

(2). Here, the identification evidence was strong. None of the witnesses who testified seeing the accused stab the deceased was shown to have any motive for lying. The accused was not a convincing witness. The evidence of other defence witnesses was insufficient to create a reasonable doubt as to acceptance of the evidence of the State witnesses. The State proved that the accused killed the deceased.

(3). As the accused did not attempt to set up any specific defence, the killing was unlawful by virtue of Section 289 of the Criminal Code.

(4). Given the circumstances in which the deceased was killed (the most likely scenario being that the accused was angered by the presence of the deceased and his friends outside the party) the State failed to prove that the accused intended to kill the accused but proved that he intended to do him grievous bodily harm.

(5). The accused was accordingly convicted of murder under Sections 539(1) and 300(1)(a) of the Criminal Code.

Cases cited

The following cases are cited in the judgment:

Biwa Geta v The State [1988-89] PNGLR 153
Jimmy Ono v The State (2002) SC698
John Beng v The State [1977] PNGLR 115
The State v David Yakuye Daniel (2005) N2869
The State v Ephraim Ria Boa (2008) N3436
The State v Moses Nasres (2008) N3302
The State v Paul Gambu Laore & 11 Others CR Nos 914-925/2005, 11.12.07
The State v Raphael Kuanande [1994] PNGLR 512

Abbreviations

The following abbreviations appear in the judgment:

cm – centimetres
Const – Constable
CR – criminal case
J – Justice
N – National Court judgment
No – number
PNGLR – Papua New Guinea Law Reports
SC – Supreme Court judgment
SCR – Supreme Court Reference
Snr – Senior
v – versus

TRIAL

This was the trial of an accused charged with wilful murder.

Counsel

A Kupmain for the State
S Maliaki for the accused

7 August, 2009

1. CANNINGS J: On the night of Monday 28 January 2008 the accused, Steven Malken, held a birthday party for his grandson at his residence at Woo settlement in Bialla. Mr Malken, a middle-aged East Sepik man, was a security supervisor with Hargy Oil Palms Limited. A number of Hargy staff attended the party as well as other friends and relatives of Mr Malken. At about 12 midnight an 18-year-old Duke of York Islands man, Steven Bori, who was a student at Bialla High School who had lived at Woo for a long time, was attacked on the street at the front of Mr Malken's residence. He was stabbed with a bushknife. He was taken immediately afterwards to Bialla health centre and later to Kimbe General Hospital, where he died at 4.45 pm the next day.

2. Steven Malken has been charged with the wilful murder of Steven Bori. The State's case is that Mr Malken became agitated by the presence of Steven Bori and other young men outside his residence. He had ejected some of them from his premises earlier in the night as they had not been invited to the party. He walked outside the fence, went to a pit toilet that was in the bushes on the other side of the road, walked back to where Seven Bori stood, then stabbed him in the back of the head with a bushknife, killing him.

3. The State's case was built upon the oral evidence of three witnesses, young men about the same age as the deceased who also live at Woo. Each one testified that he saw the accused stab the deceased. The police investigator gave oral evidence as to the conduct of the investigation. A post-mortem report and a medical certificate of death were adduced in evidence. Other documentary evidence included a record of interview of the accused and of a co-accused, Moses Rosman (acquitted following a no-case submission at the close of the State's case); and sketch maps of the crime scene prepared by the police investigator.

4. The accused accepts that Steven Bori was attacked with a bushknife outside his residence but has given sworn evidence denying that he was the attacker. Three other persons who were present at the party gave sworn evidence that they did not see the accused attack the deceased.

5. After closure of the defence case and before submissions, the court viewed the site at Bialla. Though it is called a settlement Woo Creek has the appearance of an established suburb. Steven Malken's residence is a permanent, two-level, weatherboard dwelling. There are established houses and associated trade stores set on clearly defined residential blocks on either side and at the back of the Malken residence. Standing on the road and looking at Mr Malken's house, Mr Mendi's house is to the immediate left and Mr So's house is to the immediate right and the next house on the right is Mr Tololo's. A one-lane gravel road is in front of the houses. A concrete drain about 60 cm deep runs parallel to the road on the side of the road closest to the houses. There are no houses on the side of the road opposite the Malken residence, just bush, vanilla trees and a few food gardens. Malken has a pit toilet there, which is referred to in the evidence.

ELEMENTS

6. The offence of wilful murder is created by Section 299(1) of the Criminal Code and has three elements. The prosecution has the onus of proving beyond reasonable doubt that:

• the accused killed the deceased;
  
• the killing was unlawful; and
  
• the accused intended to cause the death of the deceased.
  

ISSUES

7. The accused does not rely on any specific defence such as accident, compulsion, insanity, provocation or self-defence. He says simply that he did not kill the deceased. His defence is a general denial. The first issue is therefore whether the accused killed the deceased. If he did, the second issue – whether the killing was unlawful – will require only a quick examination.

8. The court will proceed to consider whether he intended to cause the death of the deceased. If he did not have that intention, an alternative conviction for murder or manslaughter will be considered.

9. The primary issues therefore are:

1. Did the accused kill the deceased?
   
2. If he did, was the killing unlawful?
   
3. Did the accused intend to kill the deceased?
   
4. If he did not intend to kill the deceased, should he be convicted of some other offence?
   

10. The first issue is critical. If the State fails to prove beyond reasonable doubt that the accused killed the deceased he will be acquitted and it will be unnecessary to consider the other issues.

1 DID THE ACCUSED KILL THE DECEASED?

11. Determination of this issue requires:

• a summary of the evidence for the State;
  
• a summary of the evidence for the defence;
  
• a preliminary assessment of the State's case in light of the evidence for the defence;
  
• a summary of the defence counsel's submissions;
  
• an assessment of the defence counsel's submissions; and then
  
• a final determination of the question whether the accused killed the deceased.
  

EVIDENCE FOR THE STATE

Evidence of the three key State eyewitnesses

12. Junior Gela is 16 years old and is doing grade 7 at Bialla Primary School. He said he was at the party as he had been invited. He went at about 7.00 pm. He was with his friend Martin Vincent. Most of the time they were in the kitchen house at the back of the main house. The party was held under the house. He was not drinking alcohol though he was handed beer at one stage and distributed it to others. He and Martin left the party after having some food. At 12 midnight he was standing with Martin under a frangipani tree a few metres from Malken's front fence, telling stories, watching people go into the party place. The place where they were standing was dark. Steven Bori and Peter Kauage came along.

13. He saw Malken run out from his pit toilet in the bush across the road from his house. Malken cut Bori in the back of the head with a knife, which looked big and shiny like it was new. He cut him just once, then kicked him. Bori fell into the drain in front of Malken's yard. There were plenty of fluorescent lights at Malken's house. Some were under the house and one was on the upstairs veranda. They shone light on to the road. There were no streetlights and there were some cars parked on the road but he could see clearly what happened. He knows Malken as they both live at Woo. Malken had left the pit toilet and was facing in his direction. When he cut Bori, Malken had his back to him. Malken was wearing a police uniform. He is a reserve policeman. Nothing was covering his face. He saw no one other than Malken cut Bori.

14. He and Martin immediately ran away. He had never seen anyone cut another person like that before. He was terrified. They later came back and helped Moses Rosman and a fellow called Mark carry Bori to the hospital.

15. In cross-examination Junior Gela denied that there was any disturbance inside or outside the party. He does not know anything about Malken's house being stoned. Malken did not lock the gate to his premises. He denied drinking beer. He was not hiding or drinking under the frangipani tree. He was just telling stories. He and Martin were getting ready to go home when this incident happened. He denied that he could be mistaken about who he saw cut Bori. It was Malken, he said.

16. The second State witness was Martin Vincent. He does not know his age. He has been educated to grade 6 at Bialla Primary. I estimate his age to be about the same as Junior Gela: 16 or 17. He said he was invited to the party and went with Junior. He sat under the house with other guests. When it got late, at about 12 midnight, they came out and stood under the frangipani tree.

17. Malken came out. There were plenty of fluorescent lights shining from Malken's house. Lights were also on at the house of his neighbour, a Mussau man, Mr So, who was away in Lae. There was nothing blocking the light. Only one car was parked on the street. They could see it was Malken. He was holding a bushknife. It looked shiny and new. They thought he was going to his pit toilet to relieve himself. They were not too concerned. Then they saw Peter Kauage and Steven Bori. Malken ran out from his pit toilet and cut Bori. Then he kicked him into the drain. It was definitely Malken. He works at Hargy. He knows him. He was wearing a police uniform.

18. When he and Junior saw that, they ran away. It was their first time to see such a thing. They were shocked, frightened. They went to their house and told the people they were staying with about what happened. Then they went back to Malken's place. They helped Moses Rosman and Mark Gabi take Bori to the hospital.

19. In cross-examination Martin Vincent denied knowledge of any disturbance caused by outsiders or uninvited guests. He saw an argument between Morris Sepa and Malken's daughter, Felistas, but is not sure what that was about. He was also cross-examined on a written statement made to the police, which was admitted into evidence, in which he stated amongst other things:

We were surprised to see Steven Malken leap out from the toilet and stab Steven Bori (the deceased) at the back of his neck and he collapsed on the ground.

20. Morris Sepa was the third person presented by the State as an eyewitness. He is 16 years old and doing grade 8 at Bialla Primary. His evidence was that he was standing with his friend Isaiah Anga outside Malken's residence at about 12 midnight when he saw Malken run out of his pit toilet and cut Bori on the back of his head with a knife that was shiny. The fluorescent lights from underneath the house shone out on to the road. Malken was wearing a police uniform.

21. In cross-examination Morris Sepa denied that he gatecrashed the party. His small sister was invited so he had to follow her. He stayed a short time, then left. He admitted to an incident involving Malken's daughter, Felistas. When he walked in she was staring at him so he went up to her and asked if he had done anything wrong and she said no. He tried to shake hands with her but her father intervened, got cross, grabbed hold of his neck and kicked him out of the premises. There were some boys outside and he told them what Malken had done. He does not know if they were drunk.

22. He denied that Malken locked the gate and denied that he was cross with him. After Malken kicked him out he went around to Wendi's house, just around the block, stayed there for a while, then went back with some boys to Malken's place. He was with Isaiah standing in front of Tololo's house when he saw Malken cut Bori.

23. Morris Sepa was also cross-examined on a statement made to the police, which was admitted into evidence, in which he stated amongst other things that after being chased out of Malken's residence he told "the boys" about it. He continued:

We took off outside, all the boys we went down. And when we went from the gate, we saw ... Malken follow us outside with a bushknife in his hand and went into the dark to his vanilla patch.

We all walked down over to Wendi's place, from there Peter [Kauage] went back up to the accused's house. Seeing that, the deceased Steven Bori followed Peter up to go and play some music. And when we saw the two walk back, we all followed them back up to the accused's place. We went and stood at Tololo's place just some metres away and could clearly see from the light.

They walked back and at the concrete step to the gate the accused leapt from the dark and attacked the deceased with the bushknife and chopped him at the back of the head. The deceased collapsed and fell on to the gravel surface. The accused kicked him with his boots while he was lying on the ground and into the drain.

Police investigator's evidence.

24. First Const Benson Gope was the police investigator. He prepared two sketch maps of the crime scene that were admitted into evidence.

The medical evidence

25. A post-mortem examination was conducted by Dr Frank Kapipi at Kimbe General Hospital nine days after the date of death. The cause of death was "subdural haematoma and hypovolaemic shock due to blood loss".

26. Significant, abnormal findings were:

Left temporo occipital shank (knife) wound about 12 cm long and linear fracture of the left temporal and occipital bones (involving the inner and outer table). Meninges breached with subdural and arachnoid haematoma.

27. Additional observations were:

Right temporal wounds (x 2) breaching the periosteum only (blunt).

EVIDENCE FOR THE DEFENCE

The accused's sworn evidence

28. Steven Malken said that he has lived in West New Britain, all the time at Woo, for 22 years. He invited plenty of people to the party, he cannot recall the exact number. Many of them were senior administrative staff from Hargy.

29. There were three disturbances during the course of the evening. The first was at 7.00 pm when some youths used slingshots to shoot stones into the house. A number of youths came into the yard but he removed them. They were led by Peter Tetang to whom he gave K50.00 to get them to go away. Morris Sepa was one of the youths he removed. He was not invited and he said some things to his daughter Felistas so he held him by the top of the arm and told him to go. He did not kick or slap him. After he removed Morris and the other youths he locked the main gate.

30. The youths came back outside his residence at 9.00 pm and again shot stones into the house. They came back the third time, at 11.00 pm, shouting and saying things like 'they are big shots, destroy the house' and shooting more stones. On this occasion the accused told Morris he should respect his guests and get his boys and leave. He was talking to them from inside his premises. Morris and other boys were outside on the road. He has a wire fence surrounding his house. He could not see which boys were there other than Morris and Peter as it was dark. He could not say if Steven Bori was there.

31. He was wearing light blue trousers and a grey, long-sleeve shirt. He denied wearing a police uniform. He had known the deceased, Steven Bori, for a long time as he also lived at Woo. He also knows the State witnesses, Junior Gela, Martin Vincent and Morris Sepa; and they know him well as he is a well known person, being a former member of the provincial assembly and a community leader and they have lived close to him for a long time.

32. In cross-examination he denied being armed with a bushknife or cutting the deceased. There was no light on the veranda of his house. The only lights were underneath the house and it was too dark to see anything on the road.

33. The accused was also cross-examined on his record of interview in which his version of events was along the same lines as his oral evidence: that there were three different disturbances caused by various youths, that they were stoning his house, that he asked them to stop and respect his guests, that he was not drunk, that he did not attack the deceased with a bushknife, that he did not have any problem with the deceased or his family and that he did not leave his premises. The prosecutor, Mr Kupmain, asked why he named the youths, including the deceased, who were causing the disturbances whereas in his oral evidence he was unable to name them. He replied that he could not see who all the youths were but he could recognise some of them by their voices.

Three other defence witnesses

34. Chris Kerry is a security guard at Hargy. The accused is his supervisor. He was at the party from 7.30 pm to midnight. There were a lot of people at the party. Some of them were senior Hargy staff. There were five vehicles parked on the road outside the house. On three occasions some uninvited boys came into the accused's residence. The accused removed them and locked the gate. He (the witness) did not see them as he was at the back of the house and the boys just came near the front gate.

35. He recalls that there were only three lights on: one underneath the house, one under a canvas tent that had been erected for the guests and one at the kitchen house. It was dark on the road as the lights did not reach it. He left the party at midnight and he believes that it was after this time that the deceased was attacked.

36. Felistas Malken is the accused's daughter. She is a grade 9 student. She was at the party and recalls Morris Sepa and his friend, David Anga, coming into the premises. Morris approached her and asked if she were cross with him. She replied no and then her father came along and asked Morris to leave as he had been drinking and he was not invited. Her father did not push or grab hold of Morris or slap or kick him. She was a little upset by this incident so she went to bed. That was at about 8.00 pm. Her father was wearing light blue trousers and a grey shirt.

37. Kenneth Malken, also known as Kennedy Malken, is the accused's eldest son. He is a transport supervisor at Hargy Oil Palms and he lives at the Hargy Mill Compound. He was at the party and recalls that there were three lights: one underneath the house, one under a canvas tent that had been erected for the guests and one at the kitchen house. There were plenty of people at the party. Some of them were senior Hargy staff. There were five vehicles parked on the road outside the house. On three occasions drunken youths caused disturbances in the settlement by stoning houses. This happened at 7.00 pm, 9.00 pm and 11.00 pm. It was at about 7.00 pm that Morris Sepa came into the yard and said something bad to his sister, Felistas, which led to his father removing Morris as he was not invited to the party. He made sure that the guests stayed safe as did his father who remained in the premises at all times. His father was wearing light blue trousers and a grey shirt.

PRELIMINARY ASSESSMENT OF THE STATE'S CASE IN LIGHT OF THE EVIDENCE FOR THE DEFENCE

38. None of the three key State witnesses was obviously lying. Their demeanour in the witness box was reasonably sound. They each stuck to their story and the story was in each case generally the same: that the accused came out from the pit toilet on the other side of the road, approached the deceased, cut him on the back of the head with a bushknife, then kicked him into the drain.

39. The post-mortem report shows that the deceased received injuries that are consistent with their evidence. He received a 12 cm long cut to the left side of the head in the temporal-occipital area, ie the bones forming part of the skull around the temple and the posterior (back) part of the skull. The cut breached the meninges (the three membranes surrounding the brain), which indicates that he suffered a severe knife penetration of the skull, accompanied by a subdural and arachnoid haematoma (blood clots over the brain). He also received two blunt wounds on the right side of his skull, which breached the periosteum (the outer layer of the skull).

40. As I said when rejecting a no-case submission on behalf of the accused the evidence presented by the State was not so obviously weak, inconsistent or unreliable that it deserved no further attention. The State has presented three eyewitnesses and the medical evidence is consistent with the incident that they described. The defence did not present any contradictory eyewitness evidence: none of the defence witnesses including the deceased said that they saw who cut the deceased. It is therefore necessary to subject the State's case to close scrutiny and this is done by first outlining and then considering in detail the defence counsel's submissions.

DEFENCE COUNSEL'S SUBMISSIONS

41. Ms Maliaki submitted that the State had fallen short of proving that the accused killed the deceased for a number of reasons.

42. First, the evidence of the three key State witnesses was inconsistent and not credible, in that:

• Junior Gela said that he sat with Martin Vincent at the party but Martin said that he did not sit with Junior;
  
• Martin gave inconsistent evidence about where the accused cut the deceased;
  
• Junior's and Martin's evidence about leaving the party and then going back and standing outside the party to observe the guests is not credible;
  
• Martin and Morris Sepa made prior inconsistent statements to the police;
  
• Morris Sepa had a motive to be angry with the accused and to lie as the accused had removed him from the party and his demeanour was poor highlighted by his pretending that he could not read when his police statement was shown to him.
  

43. Secondly, the circumstances did not permit a reliable identification of the accused as the incident was said to have occurred at midnight when it was dark and there was insufficient lighting to make a clear identification. The defence witnesses gave consistent evidence that there were only three lights. Also there was a fence around the house and flowers, plants and trees that would have prevented light shining onto the road and there were vehicles parked on the road. None of the State witnesses said that there was any moonlight so it must be presumed that it was a dark night. If they have not fabricated their evidence, there is nonetheless a real possibility that they are mistaken as to who they saw cut the deceased.

44. Thirdly, the description of distances by the witnesses makes their evidence unreliable. They gave different descriptions of the distances between where they were standing and where the deceased was cut, making it difficult to say where exactly he was cut.

45. Fourthly, the evidence of the three key State witnesses about what the accused was wearing was a recent fabrication as it is not mentioned in the police statements of Martin or Morris. Their evidence about the accused wearing a police uniform was ridiculous.

46. Fifthly, there is a real possibility that the three key State witnesses gave false evidence to cover up involvement of the actual perpetrator of the crime; and that person might be Peter Kauage, the person who the deceased was said to be with but who appears to have vanished after the incident and was not interviewed by the police.

ASSESSMENT OF DEFENCE COUNSEL'S SUBMISSIONS

1 Evidence not consistent or credible

47. I reject the submission that the evidence of the three key State witnesses was inconsistent. Junior said that he sat with Martin at the party. Martin said he sat with other guests. This is not a direct inconsistency but even if it is, it is not material. What is much more significant is their description of themselves standing under the frangipani tree and seeing the accused cut the deceased. I do not agree that Martin gave inconsistent evidence about where the accused cut the deceased. I also do not agree that Martin and Morris made prior inconsistent statements to the police. There were no material differences in their versions of events.

48. As to the credibility of the evidence I do not find it hard to believe Junior's and Martin's evidence about leaving the party and then going back and standing outside the party to observe the guests. What I do find hard to believe is their evidence and also Morris's evidence that they do not know anything about any disturbances during the course of the party. Given the circumstances in which Morris was ejected from the party I agree that he had a motive to be angry with the accused. I consider that there would have been some disquiet on the part of Morris and his friends and that this would have led to some disturbance.

49. Subject to that qualification I found the demeanour of the three key State witnesses satisfactory and this includes Morris Sepa. I do not accept that he was pretending he could not read his witness statement even though he has a grade 8 education. They were each subject to intense cross-examination and stuck to their story that they saw the accused cut the deceased with a bushknife and kick him into the drain. It was not demonstrated that any of them had any motive to lie. I agree that Morris Sepa had a motive to be angry with the accused but I do not accept that it gave him a motive to lie under oath about who he saw attack the deceased. The key State witnesses seemed to be intelligent and alert young men with a firm grasp of the importance of telling the truth. With a few exceptions they answered the questions put to them both in examination-in-chief and in cross-examination directly and firmly. Each was emphatic that he saw the accused cut the deceased. Each of them appreciated the significance of the evidence that he was giving.

50. I therefore reject the submission that considered individually or collectively the evidence of the key State witness was not consistent or reliable.

2 Identification evidence not reliable

51. In assessing the identification evidence I will apply the principles set out by the Supreme Court in John Beng v The State [1977] PNGLR 115, Biwa Geta v The State [1988-89] PNGLR 153 and Jimmy Ono v The State (2002) SC698. Thus:

• I have considered the inherent dangers of relying on the correctness of identification to support a conviction and caution myself, as the tribunal of fact, accordingly.
  
• It is particularly dangerous to rely on the correctness of identification where there is only one witness giving evidence of identification. However, provided the evidence is carefully examined the evidence of one witness can suffice. The corollary of that principle, in my view, is that where more than one witness has identified the accused as the perpetrator and if that evidence is consistent and reliable the quality of the identification evidence is enhanced considerably. That is the situation here. Three witnesses have identified the accused as the perpetrator so the natural question to ask is: can they all be mistaken?
  
• It is not necessary to have an identification parade. There was no ID parade in this case as the witnesses told the police who they saw cut the deceased and that person (the accused) was well known to them.
  
• In assessing the quality of the identification evidence relevant considerations include: whether the witness is purporting to identify a person who was a stranger or someone he or she recognised; the length of time that the witness observed the accused (eg a prolonged period or a fleeting glance); the emotional state of the witness at the time of the incident; the prevailing conditions (eg was it broad daylight or at dusk or dawn or inside or outside?) the line of sight (eg did the witness have a clear front-on view or was the line of sight interrupted or did the witness just see the accused from the side?). As Mr Kupmain emphasised, the three key State witnesses all knew the accused very well. The accused is a big man in the local community and they have lived in close proximity to him for a number of years. They know him and he knows them. They were not identifying a stranger. Their evidence is that they had sufficient time to make a positive identification. They each say that they saw the accused come out of the pit toilet area and approach the deceased from the back and cut him in the back of the head and kick him into the drain. That was not a fleeting glance. As to their emotional state, though they were shocked, indeed terrified, by what they saw I do not think it was such that they would not be able remember who they saw attack the deceased. All of those factors suggest that they were able to make a clear identification. On the other hand, was there sufficient light and did they have a clear line of sight? The State witnesses say there were plenty of fluorescent lights inside the party area plus a light shining from the next door neighbour's place and that they could see clearly. The defence witnesses say that there were only three lights and the road was dark. This is where the court's visit to the site was very useful. Having examined the area of the yard and the set-up of the house on the block and the area underneath the house where there was at least one fluorescent light and seen where the canvas was for the guests, I have no difficulty in concluding, even if the defence witnesses' evidence about the number of lights is accepted and the State witnesses' evidence about the lighting is rejected, that there was sufficient light to allow the State witnesses to see who attacked the deceased. I have drawn this conclusion even though the time at which the court visited the scene was 11.30 am on a bright, sunny day. Even the attacker's silhouette – especially here, where the person being identified was well known to the witnesses – can be sufficient to allow a positive identification. As to the line of site, it is possible that it could have been obstructed by vehicles parked on the road. But whether there was one vehicle on the road or five (as the defence witnesses testified) it would still be possible for the State witnesses to move themselves to get a clear view of what was happening. I conclude that the prevailing circumstances allowed for a clear identification.
  
• If there are discrepancies in the identification evidence the court should consider them and assess whether they are explicable in terms other than dishonesty or unreliability. In this case I do not think that there are any significant discrepancies in the evidence.
  
• There is always the possibility that an honest witness can be mistaken and still be a convincing witness. The court must be satisfied that the witness is both honest and accurate. I am satisfied that both of those requirements have been met in this case. I reiterate that the demeanour of the three key State witnesses was sound. They were not shown to have any motive to lie and I do not consider that they have deliberately given false evidence. The chance of three honest witnesses being mistaken about the person they saw is very remote. I am satisfied that they have made an accurate identification.
  
• If the quality of the identification evidence is good the matter should proceed to verdict. However, if the quality of the evidence is poor an acquittal should be entered unless there is other evidence that goes to support the correctness of the identification. I consider that the identification evidence is of good quality and that it strongly supports the conclusion that the accused was the person who attacked the deceased with a bushknife.
  

3 Different descriptions of distances

52. The defence counsel highlighted the different distances that had been estimated by the State witnesses between where they were standing and where they said the accused cut the deceased and submitted that these were significant discrepancies in the evidence. It is correct that different estimates of distances were made but I do not accept that this was a significant aspect of the evidence. The uncertainty about distances was resolved when the court visited the site. The distance from the front fence of the accused's yard to the pit toilet is no more than 20 metres. The road is narrow. The distance from the frangipani tree to the point where the witnesses say that they saw the accused stab the deceased is also no more than 20 metres. All relevant events described by the State witnesses occurred within close proximity.

4 Description of accused's clothing a recent fabrication

53. I agree with the defence counsel's submission that it seems strange that the accused would be wearing a police uniform to his grandson's birthday party. However, I do not agree that the fact that it was not mentioned in the police statements of Martin or Morris makes it a recent fabrication. Neither witness said in his police statement what the accused was wearing and this may be because they were not asked that question by the police or because the police did not include that information when the statements were drafted. Also, the accused and the defence witnesses Felistas Malken and Kenneth Malken said that he was wearing light blue trousers and a grey shirt. It is conceivable that the State witnesses mistook that apparel for a police uniform. Whatever the case, their evidence cannot be branded 'ridiculous'. It was consistent evidence and it does not render their evidence unreliable.

5 State witnesses were covering up involvement of the actual perpetrator

54. This submission was highly speculative. It does seem unusual that the person whom the deceased was with immediately before he was attacked, Peter Kauage, has not given evidence and that no good explanation has been made available to the court as to why he was not called to give evidence. However, this does not lead to the conclusion that he was the actual perpetrator. There is no evidence that he was involved in the attack or that he had any motive to attack the deceased, who presumably was his friend.

FINAL DETERMINATION OF FIRST ISSUE: DID THE ACCUSED KILL THE DECEASED?

55. None of the defence counsel's submissions convince me that the State's version of events should not be believed. The State has presented three witnesses who have given what appears to be honest and credible evidence about what happened. Given the high quality of the identification evidence the defence needed to present strong evidence of non-involvement of the accused in what happened to the deceased. I do not consider that the defence has done that. In saying that I am not suggesting that the accused carries any onus of proving his innocence. This is a criminal trial and the burden of proving the elements of the offence never shifts from the State.

56. The accused was not a convincing witness. His demeanour was not that of a witness of truth. In particular his explanation in cross-examination for not being able to name the youths who were outside his fence, despite having named them in his police statement, was suspect. The three other defence witnesses were also not convincing and none of them can be regarded as independent. They gave the impression that they had been coached as to what to say. If that is too harsh an assessment of the worth of their evidence, the final, telling, consideration is that none of them gave evidence that directly contradicted the evidence of the State witnesses. Chris Kerry's evidence was very general: he was in the back yard and did not see what happened out the front. Felistas Malken went to sleep at 8.00 pm: she was in no position to say what happened later in the night. Kenneth Malken said that the accused stayed in his premises at all times but gave no evidence about the actual incident in which the deceased was stabbed. None of the defence witnesses said what the accused was doing at the critical time, midnight. None of them saw who cut the deceased, so the State's case was left largely unaffected by their evidence. The evidence of the defence witnesses does not create a reasonable doubt as to acceptance of the evidence of the State witnesses.

57. I am therefore satisfied that the State has proven beyond reasonable doubt that the accused was the person who around midnight on 28 January 2008 outside his residence at Bialla cut Steven Bori on the side and back of his head and kicked him into a nearby drain. By attacking him in this way the accused directly caused the death of the deceased. According to the definition of killing in Section 291 of the Criminal Code he is deemed to have killed the deceased. The first element of the offence of wilful murder has been proven.

2 WAS THE KILLING UNLAWFUL?

58. Section 289 (homicide) of the Criminal Code states:

It is unlawful to kill a person unless the killing is authorised or justified or excused by law.

59. Because the accused did not rely on any specific defence, he has not argued that his killing of the deceased was authorised, justified or excused. No defences are available from the evidence that has been presented. Therefore the killing was not authorised, justified or excused. It was an unlawful killing and the second element of the offence of wilful murder has therefore been satisfied.

3 DID THE ACCUSED INTEND TO KILL THE DECEASED?

60. It is at this point of a wilful murder trial that the Court is required to consider the accused's state of mind:

• Did he intend to kill the deceased? If yes, the third element of wilful murder is proven and the accused will be guilty as charged (eg The State v Moses Nasres (2008) N3302).
  
• If he did not intend to kill him did he intend to inflict grievous bodily harm? Or did one of the other circumstances prescribed by Section 300(1) of the Criminal Code apply? If yes, the accused would be convicted of murder, not wilful murder (eg The State v David Yakuye Daniel (2005) N2869; The State v Ephraim Ria Boa (2008) N3436). If no, the accused would be guilty of manslaughter, not wilful murder or murder (eg The State v Paul Gambu Laore & 11 Others CR Nos 914-925/2005, 11.12.07).
  

61. As Injia AJ, as he then was, highlighted in The State v Raphael Kuanande [1994] PNGLR 512 the relevant time at which to assess the accused's state of mind is when he committed the act that constitutes or is an element of the offence:

Intention is a matter which goes to the state of mind of the accused at the time he acted. It may be proven by direct evidence of the accused's expression of intention followed by the act itself or by circumstantial evidence. In either situation, it is necessary to examine the course of conduct of the accused prior to, at the time and subsequent to the act constituting the offence. [Emphasis added]

62. Having examined the course of conduct of the accused before, when and after he stabbed the deceased, I am not satisfied that the prosecution has proven beyond reasonable doubt that he intended to kill him. Mr Kupmain has submitted that the nature and force of the attack on the deceased demonstrate an intention to kill. That is not an unreasonable proposition however it has not been proven beyond reasonable doubt. There is no evidence that the accused expressed any intention to kill or injure the deceased or any of the other youths who were disturbing the party. There is no evidence that he bore any ill-will towards the deceased prior to the night of the incident that might provide a motive for killing him. Though the cut with the knife was lethal and kicking the deceased into the drain also seems to have led to a serious head injury, the accused did not suffer instant death. Also, there was only one cut, not repeated cuts, to the head. There is no evidence as to how the accused behaved after the incident to support the proposition that he intended to kill the deceased. The best explanation of what happened is that the accused became angered by the continued presence of the deceased and his friends and the disturbances that had occurred, lost control of himself and attacked the deceased out of frustration. This was not a premeditated attack. I find that the accused did not intend to kill the deceased. The third element of wilful murder is not proven.

4 SHOULD THE ACCUSED BE CONVICTED OF SOME OTHER OFFENCE?

63. Two provisions of the Criminal Code are relevant here. Section 539(1) (charge of murder or manslaughter) states:

On an indictment charging a person with the crime of wilful murder, he may be convicted of the crime of murder or of the crime of manslaughter but not, except as is expressly provided in this Code, of any other offence other than that with which he is charged.

64. Section 300(1)(a) (murder) states:

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

if the offender intended to do grievous bodily harm to the person killed or to some other person.

65. The nature and extent of the wounds suffered by Steven Bori show beyond reasonable doubt that the accused intended to do him grievous bodily harm. The appropriate alternative verdict available under Section 539(1) is therefore that Steven Malken is guilty of murder under Section 300(1)(a) of the Criminal Code.

VERDICT

66. Steven Malken, having been indicted on a charge of wilful murder under Section 299(1) of the Criminal Code, is found not guilty of wilful murder but guilty of the murder of Steven Bori under Section 300(1)(a) of the Criminal Code.

Verdict accordingly.

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