State v Tom; State v Bobi (No 1) [2009] PGNC 27; N3599 (12 March 2009)

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CRIMINAL LAW - Murder - Verdict - Two accused - Death arising from a night club drunken brawl - Defence of general denial & alibi raised - Alibi not established - Finding of guilt based on credibility of witnesses - Demeanour of witnesses - Logic and commonsense - Criminal Code - Sections 7(1)(a)&(b) & 300(1)(a).

Cases Cited:
Papua New Guinea Cases Cited:
John Beng -v- The State [1977] PNGLR 115
Koi Konom -v- Nelson Watai (1981) N297 (M)
The State -v- Larsen Talian (2003) N2381
The State -v- So’on Taroh (2004) N2675
The State -v- Jacob Dugura Roy (2007) N3137

Overseas Cases Cited:
Browne -v- Dunn [1894] 6 R. 67 H.L
R -v- Raymond Turnbull & Ors [1976] 63 CR. App. R. 132

1. MAKAIL J: On 4th March 2009, the State presented an indictment charging the two accused with one count of murder of one Ruben Arabe at Kamari village, Kutubu on the night of 27th September 2007 contrary to section 300(1)(a) of the Criminal Code. The two accused denied the charge and a 2 day- trial was conducted to determine their guilt.

At the completion of all evidence, I adjourned the hearing of submissions on verdict to 9th March 2009 to allow both counsel to prepare their respective submissions for presentation on that date. I have heard their respective submissions on that date and reserved my decision to 12th March 2009. This is my decision.

2. The allegations of fact put to the two accused during arraignment are these; on the night of 27th September 2007 between the hours of 10 and 11, the two accused and the deceased were drinking beer with a group of people at the Kamari Club at Kamari village in Kutubu.

3. An argument arose between the deceased and the two accused and other people. The accused Tupis Tom assaulted the deceased by punching him with his fist. Then the accused Nathan Bobi came and also punched the deceased on his left side between his chest and abdomen. The punch was so forceful that the deceased suffered respiratory failure as a result of a collapse of the left lung and a fractured rib. He fell down and died a few minutes later.

4. The State alleges that the two accused intended to cause grievous bodily harm to the deceased but unfortunately, he died and are held criminally liable as principal offenders for his death by virtue of sections 7(1)(a)&(b) and 300(1)(a) of the Criminal Code.

5. The State’s case consists of the following documentary evidence which were admitted into evidence by consent:

2. Record of Interview in the Pidgin and English versions of Tupis Tom dated 27th November 2007 - Exhibit "P2"; and

3. Record of Interview in the Pidgin and English versions of Nathan Bobi dated 27th November 2007 - Exhibit "P3".

6. Apart from the above documentary evidence, the State called one witness, named Faso Adoms. His evidence is as follows: He is unemployed and comes from Sisipia village in Kutubu. On the night of 27th September 2007 between 9 o’clock and 10 o’clock he was at Kamari village and heard a commotion at the Kamari club. The Kamari club is owned by Thompson Kimi. When he heard the commotion, he went over to have a look. When he arrived, he saw that there was a fight.

7. The fight started from an argument between the deceased and Tupis Tom. There were about 8 other people in the club and they were all drunk. Nathan Bobi was amongst them but it was Tupis Tom who argued with the deceased. Tupis Tom and the deceased swore at each other. The deceased was the first to swear by telling Tupis Tom to come and eat his penis. Tupis Tom replied by telling the deceased that "Your wife can eat your penis. Not all of us".

8. Tupis Tom was the one who started the fight by punching the deceased with his fist. Tupis Tom and the deceased then exchanged punches. While they exchanged punches, Nathan Bobi punched a nearby post 6 times very hard and yelled out, "People die from my hand because I got power from Koiari" but he did not sustain any injuries to his fist. The owner of the club pushed Tupis Tom out of the club and that was when Nathan closed in on the deceased. When the deceased saw Nathan Bobi closing in on him, he lifted both of his hands in surrender and told Nathan Bobi that he did not want to fight but Nathan Bobi punched him on his left side between his chest and abdomen. The blow was so strong that the deceased fell down.

9. When the deceased fell down, the others in the club ran away including Tupis Tom and Nathan Bobi. He came to the aid of the deceased by checking the deceased’s breath and told the other two boys who were present with him to keep an eye on the deceased while he went after Tupis Tom and Nathan Bobi. He woke up other village boys in their houses and they accompanied him to search for the two accused. They found Tupis Tom and Nathan Bobi at the main gate on the road and apprehended them. They then handed them over to the police.

10. He describes the club premises as an open space surrounded by a flower edge with one gate for entry and exit. That was where everyone including the deceased, Tupis Tom and Nathan Bobi were drinking that night. He was standing about 3 meters away from the deceased and Tupis Tom when they fought but the entire open space was as big as the Mendi National Court room. He also says that the lighting was bright enough to see clearly around the open space because the club had two florescent tubes outside which were powered by a generator generated electricity.

11. As such, he was able to see clearly and identify Tupis Tom and Nathan Bobi as the persons who assaulted the deceased.

12. Prior to the fight and death of the deceased at Kamari club, he knew Tupis Tom and Nathan Bobi by their first names only. But he is able to identify them by pointing to each one of them in the dock when asked by the State prosecutor.

13. The two accused gave evidence for themselves. Nathan Bobi gave evidence first. He is from Tubage village in Kutubu. The distance between Tubage village and Kamari village is like from Mendi town to Buihebi. He is an employee of Airlines PNG Limited. He said that on the night of 27th September 2007, he went to Kamari club to drink beer. He arrived at the club premises at 9:30 pm and went straight to buy his beer. Then he went to the back of the club and drank them by himself beside a fire. There were other people in the club but they were in the front in an open space and he saw the owner of the club drinking with them but he did not join them.

14. At the back, there were other boys who came and warmed themselves by the fire but he did not know their names. From 11:00pm to 12:00 midnight, he fell asleep and did not know what had happened. That is, he did not know that there was a fight and the deceased had died. The light was not bright enough to see around the place as there was only one long florescent tube which was hanging on a timber outside the club. The club area was as big as the whole of Mendi District and National Court premises.

15. He was awoken by the police when they kicked him beside the fire. The police arrested him and brought him to Mendi Police Station where he was arrested and charged with the murder of the deceased. That was when he came to know the reasons for his arrest and detention.

16. As for accused Tupis Tom, he is from Nipa but lives and work at Kutubu as a chef with a local company contracted to Oil Search Limited called Awano Limited. On 27th September 2007, he had some money and decided to go to Kamari club to have some beer. The Kamari club is owned by Thompson Kini. He went to the club at around 8:00 pm. Upon his arrival at the club, he saw a lot of people. According to his head count, about 12 people were there drinking beer.

17. He also saw his cousin, the deceased drinking beer. He bought his beer and drank. Then the deceased came over to him and asked him for some money. He told the deceased that he had no money left because he had spent them all on beer. The deceased persisted with his demand. The deceased also told him that he (deceased) had just arrived for a field break yesterday and needed money but the accused told him that he had no money and insisted that he drank the beer he had bought but the deceased refused.

18. The deceased swore at him by saying, "You come and eat my penis". The accused replied, "You are a married man with 2 children and I am a young man". They argued but he did not throw any punches at the deceased. He only argued with the deceased. It was the deceased who attacked him. The security guard of the club came and other people there separated them and with the assistance of other people removed him out of the club.

19. Outside the gate of the club, he saw four men but did not know their names. He did not hear any people cry or make any noise. At that point, he decided to call it a night and go home. He walked to the side of the road and urinated and as he was returning to the road, he saw police and people coming towards him calling out, "That’s him, that’s him". He still had a bottle of beer on him and thought that the police were coming to arrest him for drinking and would be released the next day as it was a minor matter. Instead, at the police station he was charged for murder of the deceased and sent to Mendi Police Station where he was detained.

20. According to this accused, the lighting at the club was not that bright as there was only one florescent tube which was hanging on the post outside the club. The club area is an open space and surrounded by an edge of flowers and had one gate but it was as big as the Mendi District and National Courts premise.

21. Bearing in mind the two versions of the incident, can it be said that the State has proven the elements of murder beyond reasonable doubt against the two accused. In other words, the issue is one of whether the two accused were responsible for the injuries sustained by the deceased. This in turn raises the issue of which version should the Court accept as the evidence from either side contradicts each other to a greater extent in so far as to how the deceased died. This is dependant on which side the Court finds more credible and accepts.

22. As His Honour Kandakasi J, said in the case of The State -v- So’on Taroh (2004) N2675 at p 5 of the Judgment:

"Finding of credibility is in turn dependent on matters of logic and commonsense as well as the demeanor of the witnesses and consistencies in their evidence: See The State v Emmanuel Bais & Felix Fimberi (11/06/03) N2416 and The State v Peter Malihombu (29/04/03) N2365. Accordingly, I carefully observed the demeanor of each of the witnesses called. I must say I could clearly tell that each of the witness were protective and supportive of the version of the party that called them. I sensed therefore that, their respective testimonies were not entirely the truth. There were some truths and some tailored evidence on both sides".

23. I respectfully adopt these principles and will apply them here. I will base the findings of this Court on the credibility of each witnesses through their demeanour and also on logic and commonsense as well as inconsistencies in their evidence.

24. The other issue is one of identification of the two accused. Did the State’s witness, Faso Adoms properly identify the two accused? I must remind and did remind myself as a Judge of fact that there are dangers inherent in eye witnesses’ identification evidence.

25. I begin with a consideration of the issue of identification. I apply the Supreme Court decision in John Beng -v- The State [1977] PNGLR 115 at 122-123 where it followed the House of Lords’ decision in R -v- Raymond Turnbull & Ors [1976] 63 CR. App. R. 132, that:

"Whenever the case against an accused person depends wholly or substantially on the correctness of one or more identifications of the accused which the defence allege to be mistaken, the trial judge should warn the jury of the special need for caution before convicting in reliance on the correctness of the identification. He should make some reference to the possibility that a mistaken witness could be a convincing one and that a number of such witnesses could all be mistaken. Provided such a warning is given, no particular form of words need to be used.

Further, the trial judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made...

Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made. All these matters go to the quality of the identification evidence. When the quality is good, the jury can be safely left to assess the value of the identifying evidence even though there is no other evidence to support: Provided always, however that an adequate warning has been given about the special need for caution.

When the quality of the identifying evidence is poor - i.e. a fleeting glance or a longer observation made in difficult conditions - the judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification.

The trial judge should identify to the jury the evidence which he adjudges is capable of supporting the evidence of identification. If there is any evidence or circumstances which the jury might think was supporting when it did not have this quality, the judge should say so...".

"Having regard to public disquiet about the possibility of miscarriages of justice in this class of case, some explanation of the jurisdiction of this Court may be opportune. That jurisdiction is statutory: we can do no more than the Criminal Appeal Act 1968 authorises us to do. It does not authorise us to re-try cases. It is for the jury in each case to decide which witnesses should be believed. On matters of credibility this Court will only interfere in three circumstances; secondly, if there has been no direction at all when there should have been one; and thirdly, if on the whole of the evidence the jury must have taken a perverse view of a witness but this is rare".

27. So in this case, after warning myself, I also am of the view that, what the witness, Faso Adoms saw was not in a matter of a fleeting glance. There was a group of people in the club when he entered. He was able to identify clearly the deceased and the two accused although there were about two other persons who were fair skin at the club that night and it was suggested that he could have mistaken one of them for Nathan Bobi since Nathan Bobi is also a fair skin person. But the two accused did not cover their faces. The fight between the deceased and Tupis Tom took about 3 minutes which is long enough for some one to have a good look at a person and not forget his face, especially in a fighting situation. In a typical fighting situation, it would arouse people and on lookers to take a closer look at the people involved in the fight, hence I am satisfied that Faso Adoms did have a good look at the deceased and Tupis Tom fight and am sure that he saw clearly Tupis Tom fight with the deceased at that time. So in the above circumstances, I am of the view that the quality of the State witnesses is very good. If the quality is good, I can safely say that the witness’ identification is good and I can believe him.

28. I have reached this decision because I am also satisfied that the lighting at the club premises was bright enough for the State’s witness, Faso Adoms to properly identify the two accused. But I will discuss this aspect of the evidence later on when I evaluate the evidence of each witness below. Proceeding on this premise, I also have no hesitation to find that Faso Adoms is a witness of truth. I have reached this decision based on a number of factors. They are:

29. First, according to my careful observation of his demeanour as a witness in the witness box, I find him an impressive witness. He was confident. When he spoke and answered questions in cross examination, he spoke confidently. He did not evade or avoid questions put to him during cross examination. For example, when asked the following questions in relation to the identification of Tupis Tom and Nathan Bobi, these were his answers:

30. Apart from the direct and frank answers to the above questions, I believe this witness because he says that he did not know the two accused until the incident at the club that night. Even though he had not seen them before, I am satisfied that he was able to identify them that night. This is because the lighting at the club was bright enough to see around the club premises clearly as there were two long florescent tube lights and the club premises was not big. It has the size of Mendi National Court room.

31. Another example of his impressiveness as a witness is that when suggested to him during cross examination that Nathan Bobi was sitting at the back of the club by the fire drinking beer alone, he replies, "Why should I make an allegation against him if he was not there. I saw him at the fight". When it was further suggested that he saw Nathan Bobi at the gate and apprehended Nathan Bobi because Nathan Bobi was responsible for the death of the deceased, he replies, "He attacked Ruben and I put Ruben on the bed and then went after him".

32. He was also firm with his answers during cross examination and did not contradict himself. For example:

"Q: You came to the club because you heard noise and arguments going on, is that correct?

Q: How long were you at the club when you heard Ruben using the obscene language on Tupis Tom?

Ans: When Ruben swore at Tupis, Tupis attacked Ruben and the fight started.
Q: So swearing started the argument and then the fight?

Ans: I do not know what happened before that but the fight started after swearing".

33. Secondly, I find his oral evidence logical and sensible. He says that Tupis Tom and the deceased swore at each other. The deceased was the first to swear by telling Tupis Tom to come and eat his penis. Tupis Tom replied by telling the deceased that "Your wife can eat your penis. Not all of us". Tupis Tom was the one who started the fight by punching the deceased with his fist. Tupis Tom and the deceased then exchanged punches. Logically, such an obscene language would have made Tupis Tom upset and provoked him to assault the deceased.

34. In other words, in a typical night club setting, one’s sense of self control and temperament would have been reduced when in a state of intoxication, hence resorting to physical aggression if provoked by another by use of obscene language is very real. So, it is hard to believe that Tupis Tom being in a state of intoxication did nothing at all or simply gets belted up by the accused without any form of resistance.

35. While they exchanged punches, Nathan Bobi punched a nearby post 6 times very hard and yelled out, "People die from my hand because I got power from Koiari" but he did not sustain any injuries to his fist. The owner of the club pushed Tupis Tom out of the club and that was when Nathan closed in on the deceased. When the deceased saw Nathan Bobi closing in on him, he lifted both of his hands in surrender and told Nathan Bobi that he did not want to fight but Nathan Bobi punched him on his left side between his chest and abdomen. The blow was so strong that the deceased fell down.

36. To my mind, this evidence is not only logical but also commonsense. Of course, Nathan Bobi would not be just standing around watching his drinking mate get belted up by the deceased. Surely, he would have come to the defence of his mate, Tupis Tom. This is why I believe Faso Adoms.

37. Thirdly, I have read the Medical Report of Dr Nolpi Tawang dated 5th October 2007 (Exhibit "P1") which describes the type of injuries sustained by the deceased. They seem to be consistent with the type of attack on the deceased described by Faso Adoms during his oral evidence. He says that Tupis Tom was the first person to punch the deceased with his fist and Nathan Bobi was the second and last person to punch the deceased. It was the blow from Nathan Bobi on the deceased’s left side of the body that proved fatal. According to the Medical Report, the deceased was examined on 2nd October 2007 and the relevant parts of the report under the heading "Findings" states:

"Corpse of adult male of about 30 years old. No external injuries/abrasions/lacerations seen.

Local exams:
Chest dissection	bruised traumatized lung left lower lobe with haematoa.
	Fractured 8th rib
	No free blood in it pleural cavity
Heart	No free fluid/blood in pericardium
	No bruising/trauma
Abdomen Dissection	No free fluid/blood in peritoneal cavity.
Spleen	no bruising/trauma
Liver	- no bruising/trauma".

38. It also states in its summary that the deceased sustained a fractured 8th rib and bruised traumatized left lung with haematoma and collapsed left lung. In conclusion, it states that the deceased died of respiratory failure due to collapse left lung from a trauma and fractured 8th rib as a result of direct trauma.

39. Based on the Medical Report and from the evidence of Faso Adoms of the kind of injuries sustained by the deceased, I am of the opinion that the Medical Report confirms Faso Adoms’ oral evidence of the type of injuries the deceased sustained that fatal night and also goes to support my conclusion that Faso Adoms is a witness of truth. Further, in my opinion, the injuries of the deceased are very serious and that is why he died.

40. As I have accepted the evidence of Faso Adoms, it means I do not accept the evidence of Tupis Tom and Nathan Bobi that they were not involved in the fight with the deceased or did not attack or punch the deceased. Their evidence leaves a lot to be desired as far as I am concern. This is because Tupis Tom and Nathan Bobi were clearly identified by Faso Adoms that night. As I said, since I have accepted the evidence of Faso Adoms, that means that I have also accepted his evidence that there were two florescent tube lights at the club as opposed to one as stated by Tupis Tom and Nathan Bobi, that means that the lighting at the club was bright enough to see clearly around the club premises. Hence, Faso Adoms was able to see them drinking with the deceased that night.

41. I give the following reasons for rejecting the evidence of Nathan Bobi where says that he went to the club that night, bought beer and went to the back of the club and drank them all by himself beside the fire and then slept. First, if that was the case, how comes the deceased died or how comes he did not know that there was a fight at the club while he was asleep and the deceased died? Surely logic and common sense would dictate that, he would not be drinking alone at the back of the club especially where there was Tupis Tom and the deceased also drinking in the club and were related to him. In any case, logic and commonsense would also dictate that anyone in a night club would not be hiding himself or herself in a corner and drink so to speak. After all, going to a night club is to socialize and enjoy a night out with friends, relatives and meet new people and of course have beer and other drinks. He might as well stay at home and drink his beer alone. So it does not make sense at all to me that Nathan Bobi would hide himself in a corner so to speak and drink all the beer alone.

42. Secondly, even if I am wrong to say that he was drinking with the deceased and Tupis Tom when the fight broke out, logic and commonsense would also dictate that if he was sleeping at the time, there would have been a lot of noise and he would have been awoken by the commotion. In a typical night club setting, there is usually a lot of noise caused by loud talking and laugh from people especially drunkards. People are usually in high spirits and jolly good mood given the large amount of alcohol they consume and if there is a fight, the noise gets even louder because of screams and shouts from people. Applying this kind of setting in this case, surely, the noise from all these activities would have awoken Nathan Bobi. Yet he says that he was fast asleep. To me, it just defies all logic and commonsense.

43. Thirdly, if what he says is true in that, it was his first time to go and drink at Kamari club, hence he drank beer all alone, why would he fall asleep and forget about his own personal safety since he was in a new and strange place and amongst strangers? Didn’t it occur to him that he could have been robbed, assaulted or even killed whilst he was fast asleep? To my mind, it defies all logic and commonsense for someone like him, being a total stranger in a place full of strangers and drunkards to act without regard or concern for his own personal safety. Conversely, I also find it illogical and hard to believe that there were no people from his Tubage village at the club that night let alone the deceased who is an uncle of his when Tubage village to Kamari village is like from Mendi town to Buihebi which is about 30-40 minutes drive. Surely, if that is the distance, then there would have been people from Tubage village living at Kamari village and would have been hanging around at the club that night. Hence, it makes me hard to believe his story that he was alone in a strange place that night.

44. Fourthly, if it is true that he was not involved in the fight with the deceased but was fast asleep and did not know about the fight between the deceased and others, I am pretty sure others around at that time or someone might have seen him fast asleep that night at the back of the club and would have come forward to testify for him. This is where the defence of alibi is of relevance. In this respect, I accept the submissions of Mr Waine that if Nathan Bobi says that he was asleep that night and did not know that there was a fight and the deceased died, then he should have produced a witness or witnesses to independently verify his claim that he was not involved in the fight with the deceased but was asleep that night at the back of the club.

45. For it is trite law that if an accused raises a defence of alibi, it is incumbent upon him to produce independent witness or witnesses to corroborate it. This is because Order 4, rule 8 of the Criminal Practice Rules states that "evidence of alibi" means evidence tending to show that by reason of the presence of the accused person at a particular place or in a particular area at a particular time he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission". Evidence from an independent witness or witnesses to corroborate the defence of alibi is important because it goes to support the evidence of the accused that he or she was not at the scene of the crime, therefore not responsible for the crime.

46. In this case, I note Nathan Bobi did not produce an independent witness or witnesses to corroborate his evidence of alibi. So how can I believe his evidence that he was not involved in the fight which resulted in the death of the deceased that night? In the absence of an independent witness or witnesses to corroborate his evidence, I am left to conclude that his defence of alibi is a fabrication. In other words, I find that he was not asleep at the back of the club but was drinking with the deceased and Tupis Tom and at some stage, involved in the fight with the deceased that night.

47. At this juncture too, let me point out that in the present case, Nathan Bobi through their counsel, failed to serve a notice of alibi on the State Prosecutor within 14 days as required by Order 4, rule 4 of Criminal Practice Rules. That rule begins:

"An accused person shall not upon his trial on indictment, without the leave of the Court, adduce evidence of an alibi unless, before the expiration of the prescribed period, he gives to the prosecutor written notice of particulars of the alibi and ...".

48. And I also note that neither counsel referred to Order 4, rule 4 in their submissions on the question of alibi, especially Mr Kumo who did not address me as to why he did not give notice of alibi to the State before the trial, hence I do not know the reasons. But it is explicit in its terms that Nathan Bobi was required to give notice of alibi before the trial. Since he has not given such notice, he has failed to comply with Order 4, rule 4 and whilst his failure to give the notice of alibi is not a determinative factor of his guilt, I can infer that the defence of alibi is a fabrication. Thus, it only confirms my doubt as to his defence of alibi.

49. This reinforces my view that Nathan Bobi is not a credible witness. I find that he did not tell the entire truth about the fight which resulted in the death of the deceased that night. Although he attempts to explain his non involvement, there are three or four discrepancies in his evidence which have exposed him as one of the culprits involved in the assault of the deceased. For example, when he was drinking at the back of the club beside the fire, he says that there were other people who came to light their cigarettes using the fire. Surely, they would have recognized him and talked to him, especially where he says that he remained at that location until he fell asleep at about 11 o’clock that night. Conversely, how comes he was unable to recognize any of these people that night?

50. Then, there is his denial of drinking beer with the deceased and Tupis Tom at the club that night. Yet he says in his evidence that the deceased is related to him as an uncle and was drinking at the club that night. How comes he saw the deceased and Tupis Tom drinking beer together and yet did not join them? Instead he went to the back and drank beer alone. Further, whilst he says in cross examination that the deceased is from Yalenda village, Nipa and related to him, he could not recall the last time he met the deceased. Surely, if Nathan Bobi is related to the deceased, the least he could have recalled and told the Court is the last time he met the deceased.

51. Finally, if what he says is true that he arrived at the club at 9:30 pm and drank beer until 11:00 pm and then fell asleep between 11:00 pm and 12 midnight, how comes he did not hear that there was a fight involving the deceased which occurred between 9:00 pm and 10:00 pm according to Faso Adoms’ evidence? If the fight occurred between 9:00 pm and 10:00 pm, he was still awake and would have seen it.

52. To my mind, these discrepancies go to show that he is prepared to avoid the truth. They also go to support the evidence of Faso Adoms that Nathan Bobi was one of the persons who was drinking with the deceased and Tupis Tom and assaulted the deceased during the fight that night.

53. My other reason to say that Nathan Bobi is not a credible witness is further confirmed by his evasiveness as well as giving of answers that were illogical and nonsensical during cross examination. As a result, he did not satisfactorily explain how the deceased died. For example, when asked very simple questions to describe how strong he is, these were his answers:

54. From these answers to the questions in cross examination, I say that it would be most unusual and illogical for a person, especially for a person who works at Airlines PNG Limited as a baggage handler to be a weak person and yet is employed to handle heavy work. Common sense and logic would dictate that he would be a strong person to be working in that kind of job. Further, it would be most unusual and illogical for a person who is related to the deceased as a nephew to say that he did not know where the deceased worked. Common sense and family ties would dictate that he would have known where the deceased worked.
There is another reason for me to find that Nathan Bobi is not a witness of truth. His demeanour from the witness box is something that did not impress me at all. When he gave oral evidence, he did not look at me but shied away. His eyes were fixed to the front of the witness box all through out his evidence in chief and cross examination. He raised his voice at some stages of cross examination by Mr Waine. To me, his demeanour leaves a lot to be desired of a witness who claims that he was not responsible for the death of the deceased. In a usual case, witnesses like him would be calm and relaxed if they want the Court to believe their evidence. To act in such manner does not enhance their cause. And so, I find his demeanour has left doubts in my mind as to whether I should believe him and for this reason, I have to say that I do not believe him.

55. There is a further reason for me to find that Nathan Bobi is not a credible and truthful witness. He says that he did not give any answers to the police investigating officers during the interview at Mendi Police Station on 27th November 2007 because he did not trust them. He says that police are always on the side of the complainants and fabricate stories to make alleged offenders guilty of the offence as charged. For that reason, he chose not to tell the police his side of the story by exercising his right of silence under section 42(2) of the Constitution. I find he did have the opportunity to tell his side of the story at the interview and if he did, it would have been recorded in the record of interview. But he did not and that is why there is no information in the record of interview to tell us that if he was involved in the fight with the deceased that night. The only information available to the Court is what he told the Court during his oral evidence at trial.

56. Of course he may elect to remain silent during the interview. That is his Constitutional guaranteed right under section 42(2) of the Constitution, but it is said that it would be of some advantage to him or any accused for that matter as well as an opportunity to erase any doubts in the mind of the judge if he gives his side of the story at the first given opportunity. In the case of The State -v- Larsen Talian (2003) N2381, the late His Honour Jalina J, when pondering which side he should believe in an unlawful grievous bodily harm case said:

"As I ponder over the evidence from both sides in light of the submissions put to me by both counsel, I am guided by the statement of Andrew J (as he then was) in Paulus Pawa -v- The State [1981] PNGLR 498 at 504:

"An innocent man charged with a crime or with any conduct reflecting upon his reputation, can be expected to refute the allegation as soon as he can by giving his own version of what happened".

A person who claims to be completely innocent should give his explanation early as it could exculpate him notwithstanding his constitutional right to silence. A witness who seeks to have his evidence accepted as credible should also give his statement to the relevant authorities such as the police at the first available opportunity where a criminal charge is involved unless he has a very good reason not to do so". (Emphasis is mine).

57. And so, according to the Record of Interview of 27th November 2007 (Exhibit "P2"), Detective Sergeant Epara Piuk conducted the interview with Nathan Bobi on that date at Mendi Police Station and in my view that was the opportune time for him to give his side of the story to the police but he did not. Thus, I am sceptical of the evidence he gave to the Court of his non involvement in the commission of the crime.

58. And the situation looks more gloomy for him because what makes me more sceptical of him is that, if the allegations against him are that serious, in that he was accused of killing the deceased, I would have thought that it would have been in his best interest to tell the police his side of the story to clear any uncertainty or doubts that may appear. He did not and this makes me more sceptical of him. It also makes the State’s case stronger and convincing that he was one of the persons responsible for the death of the deceased in this case. This leads me to accept the submission of Mr Waine that what he told the Court during trial is a recent invention; just to paint a picture that he is innocent or not responsible for the death of the deceased.

59. My other reason to accept Mr Waine’s submission that his evidence that he was not involved in the fight with the deceased a recent invention is because his answers in his Record of Interviews (Exhibits "P2") is identical to answers in the Record of Interview of Tupis Tom (Exhibit "P3"). For example, the answers given by Nathan Bobi to Q23-Q46 are identical to answers given by Tupis Tom to Q22-Q45. For those questions, there were no answers. In other words, both accused remained silent when asked those questions during the interview. Is this a coincidence? I do not think so. Here are two accused having no knowledge as to why they have been detained at the Mendi Police Station cells and did not even know that they were being charged with the same offence, that is for the murder of the deceased.

60. Yet they have been in custody for 2 months since their arrest on 27th September 2007 before they were interviewed. How convenient for them to say the same story to the police investigators and yet were held in custody at the same place. I am baffled by their story. That is why I accept Mr Waine’s submission that what Nathan Bobi has told the Court at trial is a recent invention to suit his defence of alibi to the charge.

61. Finally, for Nathan Bobi to say that he was not involved in the fight with the deceased but was asleep at the back of the club that night, the rule in Browne -v- Dunn [1894]6 R. 67 HL on cross examination of witnesses essentially says that the other side must put its case to the witnesses of the other side so that the other side’s witnesses are given the opportunity to rebut or explain his or her side of the story to the Court. In the present case, I note Mr Kumo did not put to Faso Adoms during cross examination Nathan Bobi’s claim that he (Nathan Bobi) was asleep at the back of the club when the fight occurred. This is in clear breach of the rule in Browne -v- Dunn’s case (supra). Further, Mr Kumo did not put to Faso Adoms during cross examination Nathan Bobi’s claim that he (Nathan Bobi) was drinking beer with the deceased and Tupis Tom at the club that night. Again, this is a breach of the rule in Browne -v- Dunn’s case (supra). As a result, the State’s witness was not given the opportunity to rebut or explain those aspects of Nathan Bobi’s evidence.

62. What these all omissions mean is that, it makes me to seriously consider whether or not to place weight on the evidence of Nathan Bobi where he says that he was asleep at the back of the club when the fight occurred. In so doing, I have decided to place no weight on the evidence of Nathan Bobi as far as his claim of being asleep at the time of the fight is concern because these aspects of his evidence were not tested in cross examination by Mr Kumo. That being the case, this leaves the evidence of Faso Adoms which I have earlier accepted, as the true account of the events that occurred that night to determine the guilt or otherwise of Nathan Bobi.

63. For these reasons, I find Nathan Bobi is not a witness of truth. I reject his evidence that he was not involved in the fight that led to the death of the deceased.

64. As for Tupis Tom, I find some aspects of his evidence to be true as they are consistent with the evidence of Faso Adoms. At the same time, I find some aspects of his evidence false. First, I accept that he went to the club that night, bought beer and drank. At the club there were a lot of people. According to his head count, about 12 people were in the club drinking beer. Secondly, I accept his evidence that he saw his cousin, the deceased drinking beer. I also accept that the deceased came over to him and asked him for some money. He told the deceased that he had no money because he had spent them all on beer. The deceased persisted with his demand. The deceased also told him that he (deceased) had just arrived for a field break yesterday and needed money. He told the deceased that he had no money and told the deceased to drink the beer he had bought.

65. Finally, I accept that the deceased refused and swore at him, saying, "You come and eat my penis". This accused replied, "You are a married man with 2 children and I am a young man".

66. As I have said above, these aspects of his evidence are consistent with the evidence of Faso Adoms because Faso Adoms saw this accused arguing with the deceased and also saw the deceased swore at this accused as he (Faso Adoms) entered the club to find for himself what the commotion was about.

67. But first, I reject his evidence that during the argument, the deceased punched him but he did not punch the deceased. In my view, it would be unusual that he did not punch the deceased during the argument. Surely, if the deceased swore at him, especially the words uttered, "Come and eat my penis", which in my view are degrading of another fellow human being, surely Tupis Tom would have reacted angrily and would have punched the deceased. Yet he says that he did not throw any punches at the deceased. I find it very hard to believe this.

68. Secondly, why would people step in and pull them apart? Why would Tupis Tom be removed from the club premises? To my mind, these events show that there must have been a very bad heated argument and fight with powerful exchange of punches between the deceased and Tupis Tom. Otherwise, people would not have stepped in to break off the fight. That is why I do not believe that Tupis Tom’s story that he did not punch the deceased.

69. Thirdly, I do not believe his evidence that when he was outside the gate of the club, he did not hear any people cry or make any noise. At that point, he decided to call it a night and go home. He walked to the side of the road and urinated and as he was returning to the road, he saw police and people coming towards him calling out, "That’s him, that’s him". He still had a bottle of beer on him and thought that the police were coming to arrest him for drinking and would be released the next day as it was a minor matter. Instead, at the police station he was charged with the murder of the deceased and sent to Mendi Police Station where he was detained.

70. If that was what had happened, how comes he did not hear the commotion at the club? As I said, there would have been a lot of noise and he would have heard it. Further, if he was apprehended at the road outside the club, that aspect of his evidence would be consistent with the evidence of Faso Adoms because Faso Adoms says that Tupis Tom was apprehended at the road. It is also consistent with Faso Adom’s evidence that Tupis Tom fled the scene with Nathan Bobi.
71. Fourthly, during cross examination by Mr Waine in relation to whether he did discuss this case with Nathan Bobi, these were his answers:

"Q: You spent 2 months in custody before Record of Interview on 27th November 2007?

Ans: I did not know why he was put in there. At CIS I was told Nathan Bopi was my co-accused.

72. From these answers, I can see that Tupis Tom denies knowing Nathan Bobi, let alone the reason for being detained with Nathan Bobi. But I do believe what he says. It is so unreal or too good to be true that he did not know Nathan Bobi and the reason for being detained with Nathan Bobi, especially where they were in custody for 2 months prior to their interview with the police. Surely, he would have found out that Nathan Bobi was detained for the same reason. Common sense and logic would dictate here that he would have asked Nathan Bobi why he (Nathan Bobi) was detained by the police if he did not know Nathan Bobi was prior to the incident.

73. This leads me to the next reason for not believing his evidence that he did not fight with the deceased at the club that night and that is, as I have observed earlier, the answers in his Record of Interview (Exhibit "P3") are identical to the answers in the Record of Interview of Nathan Bobi (Exhibit "P2"). For example, the answers given by Tupis Tom to Q22-Q45 are identical to answers given by Nathan Bobi to Q23-Q46. For those questions, there were no answers. In other words, both accused remained silent when asked those questions during the interview. Is this a coincidence? I do not wish to repeat myself here but my reasons are the same as the ones I gave for not believing the evidence of Nathan Bobi as far as the Record of Interview is concerned.

74. For these reasons, I find Tupis Tom is not a truthful witness. I reject his evidence that he was not involved in the fight that led to the death of the deceased.

75. Having evaluated the evidence of each witness, I also remind myself that the onus of proof of the charge lies with the State. The law is clear. The State bears the onus of proof and must prove the charge beyond reasonable doubt. Where there is a doubt, the Court must give the benefit of the doubt to the accused. As Her Honour Davani J, said in The State -v- Jacob Dugura Roy (2007) N3137, a case where the accused was charged with two counts of arson and acquitted as there were doubts in the State’s case at pp 13 and 14:

"34. Which of the two versions is the true story is also dependent very much on the credibility of the witness. Authorities warn that extreme caution must be exercised when the judge is dealing with the issue of the lying and truthful witness. There is no rule of law that says that a party that calls for more witnesses and who gives consistent and almost identical stories must be believed and a party who calls only one witness must not be believed.

35. There is no rule of law that says that where two or more persons tell the same story, that story is the truth as opposed to a single witness. And in a criminal case where there is only one witness in his own trial, that makes his chances of being believed non-existent. However, the authorities say that ten people giving the same story who appear to be quite convincing could all be lying. On the converse, an accused may be the only witness in the defence case and may not be as smart or convincing as the prosecution witness, yet he could be telling the truth.

36. The truth is not so easy to find and the court has to always do the best it can in all the circumstances of a given case to try and strike a balance between what is logical and more probable of human comprehension than what is illogical or plain fallacy. That is why there is an added safety valve in the criminal law, which requires that the court must be satisfied beyond reasonable doubt of a guilt of the accused before it can convict. And where there is any doubt the court must give the benefit of the doubt to the accused (see Woolmington -v- DPP [1935] AC 462)".

76. In the present case, there is only one witness for the State as oppose to two for the defence, namely the two accused. But as the law says, one witness maybe telling the truth but the other two may not. It is not so easy to work out the truth. This is why the law has safety valves for the Court to turn to. One example is the demeanour of witnesses. The other is logical and commonsense. Another one is discrepancies in the evidence. I have evaluated the evidence of each witnesses based on these safety valves so to speak and must now make appropriate findings of fact since the two accused have denied the charge and I have disregarded the brief allegations of fact read out by the State during their arraignment. See Koi Konom -v- Nelson Watai (1981) N297 (M).

77. Proceeding on this premise, I accept the proposed facts as submitted by Mr Waine as representing the events that occurred on the night of 27th September 2007. This is because what he submits is supported by sufficient evidence. To my mind, the death of the deceased is a result of a typical night club drunken brawl. It is a case of a mob attack on one of their own mate, in fact a relative.

78. I find as a fact, the deceased, Tupis Tom and Nathan Bobi were drinking beer together with some other people at the club that night. An argument arose between the deceased and Tupis Tom. The argument was over money. The deceased demanded Tupis Tom to give him money but Tupis Tom told him that he had no money left because he had spent it all on beer. I also find as a fact that the deceased swore at Tupis Tom by telling him to come and eat his penis. Tupis Tom being provoked by the deceased’s use of the foul or obscene language punched the deceased. This resulted in further exchanges of punches and wrestling between them. By the time the fight erupted, Faso Adoms had arrived at the club and saw it. This lasted for about 3 minutes when other people including the club owner and Faso Adoms intervened and broke up the fight. Tupis Tom was removed from the club premises.

79. Whilst all these were happening, Nathan Bobi also wanted to take part in the fight. He punched a nearby post 6 times and called out, "People die from my hands because I got power from Koiari". It was a sign of declaration of some kind of super natural power he possessed. The opportunity to attack the deceased came when Tupis Tom was removed out of the club and the deceased was standing alone. That was the time Nathan Bobi closed in on him. On seeing Nathan Bobi closing in on him, the deceased raised his hands in surrender and told Nathan Bobi that he did not want to fight anymore but Nathan Bobi punched him on his left side between his chest and abdomen. The blow was very strong as Nathan Bobi is big in stature from my observation of him in the dock and would have possessed that incredible strength because he also worked as a baggage handler with Airlines PNG Limited prior to the commission of the alleged offence.

80. It is no wonder the blow was very strong. Because of the blow, I find it left the deceased gasping for air and received a broken rib. The deceased fell down to the ground. I also find Nathan Bobi ran out of the gate and met Tupis Tom and they ran away. I further find Faso Adoms came to the assistance of the deceased. He checked the deceased to find out if the deceased was well and then left him with the others at the club and went after Tupis Tom and Nathan Bobi. With the assistance of other boys, they were able to apprehend Tupis Tom and Nathan Bobi further up the road from the club and handed them over to the police where they were arrested and detained for the death of the deceased.

81. In the circumstances, I find Tupis Tom started the fight. He was the first to punch the deceased followed by further exchanges of punches and wresting between them. I find, by his actions, he intended to cause grievous bodily harm to the deceased. He set the motion in action. But I do not find that there was a break in the chain of motion because as soon he was removed outside the club, Nathan Bobi took the opportunity when he closed in on the deceased and struck the deceased with one mighty blow with his fist.

82. I find Nathan Bobi assisted Tupis Tom to fight the deceased. By his actions, I also find that he also intended to cause grievous bodily harm to the deceased but unfortunately the deceased died. I find both of them are principal offenders by virtue of section 7(1)(a)&(b) of the Criminal Code for the murder of the deceased on the night of 27th September 2007 at Kamari club. Accordingly, I return a verdict of guilty against each of them.

I will hear submissions on sentence on 16th March 2009 at 9:00 am. In the meantime, the two accused shall be further remanded until then.

_________________________________________
Acting Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the two Accused

National Court of Papua New Guinea

State v Tom; State v Bobi (No 1) [2009] PGNC 27; N3599 (12 March 2009)