N4393

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1448 OF 2009

THE STATE

V

ALPHONSE ARUGANI

Madang: Cannings J
2011: 16, 17, 18, 23, 25 August, 15 September

VERDICT

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

The accused was charged with the wilful murder of the deceased, who had been stabbed in the heart and killed on a public street in an urban area at about 3.00 am. The State relied on identification evidence of a friend of the deceased who had been drinking with him shortly before the incident, who said that he went to the assistance of the deceased and recognised one of the two men who attacked him as the accused. The accused relied on alibi evidence: that he was at home, 500 metres away, asleep with his family, at the material time.

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)	As to the first element, the accused's alibi evidence was not of high quality, however the State's case depended almost entirely on identification evidence, which was, although not necessarily fabricated, not entirely convincing and required corroboration. There was insufficient corroboration in that the case for the accused having a motive for attacking the deceased was poorly developed, there was no other evidence that put the accused at the place of the incident at the material time, and three other persons who were with the deceased shortly before his death were not called to give evidence.

(3)	There was a reasonable doubt over correctness of the identification of the accused and therefore a reasonable doubt about whether the accused killed the deceased. The first element of the offence was unproven and the accused was acquitted.

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
John Jaminan v The State (No 2) [1983] PNGLR 318

Dates
The events referred to in this judgment occurred in 2009 unless otherwise indicated.

TRIAL

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

Counsel

J Wala & S Collins, for the State
D Joseph, for the accused

15 September, 2011

1. CANNINGS J: The accused, Alphonse Arugani, is charged with the wilful murder of a 26-year-old man, Brian Kati. The offence is said to have been committed on Finch Road in the Newtown area of Madang town in the early hours of Friday 13 February 2009. The accused pleaded not guilty so a trial was held. The State's case is that the accused intentionally killed the deceased by stabbing him or assisted the person who did so, the motive being long-running ill-feelings between the accused and the deceased arising from the deceased's adulterous affair with and eventual marriage to the accused's first wife. The State's case depended substantially on identification evidence of a friend of the deceased who had been drinking with him shortly before the incident, who said that he went to the assistance of the deceased and recognised one of the two men who attacked him as the accused. The defence relied on alibi evidence: the accused gave sworn evidence that he was at home, 500 metres away, asleep with his family, as did his wife and sister-in-law.

2. 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

3. The primary issues are:

•	Did the accused kill the deceased?
•	If yes, was the killing unlawful?
•	If yes, did the accused intend to kill the deceased?
•	If he did not intend to kill the deceased, should he be convicted of some other offence?

DID THE ACCUSED KILL THE DECEASED?

4. Resolution of this issue requires a summary of evidence for the State and the defence and the site visit undertaken at the close of the evidence and before submissions; followed by a preliminary assessment of the State's case, a summary of defence counsel's submissions and, finally, a formal determination of the question whether the accused killed the deceased.

Evidence for the State

5. It consisted of:
 
•	the accused's record of interview, in which he denied involvement in the stabbing incident;

•	a post-mortem report, showing that the deceased died from massive blood loss into the chest caused by a stab wound which penetrated the heart; and

•	oral testimony of three witnesses, summarised below.

(1)	Koniel Basil was living in Finch Road at the time of the incident. He has lived there most of his life. On Thursday 12 February between 9.00 and 10.00 pm the deceased, Brian Kati, a Goroka man, who was living in a house at the back of Koniel's place, came to his place with two plastic containers of yawa (home brew), which they commenced drinking. With them were Koniel's brother-in-law Jack Thomas (state witness No 3, who lived in the same house as Koniel). The yawa was mixed with some cordial and Brian started telling the group the problems he was having with his wife, Baiu, and her former husband, Alphonse Arugani. At about 11.00 pm Brian said he would go to his house and come back. Not long after, the group heard Baiu calling out so they went to Brian's house and discovered that Brian had assaulted Baiu who was lying on the concrete top of the septic tank so they comforted Baiu until she felt better and went in to her house to sleep.

Koniel and Jack went back to their area, joined again by Brian, and by a Morobe couple who lived at Brian's house, Sima Dei and his wife; and the drinking of yawa resumed. At about 1.00 or 2.00 am Brian left the group and headed in the direction of Finch Road without saying anything. After a while Koniel went down to the road (about 40 metres away) and saw that two men were fighting with Brian. He called out for help and ran in to assist Brian, then the two who were fighting Brian turned on him. He got cut on the back with a knife and fell and when he got up he could see Brian lying on the other side of the road. Then one of the two attackers came towards him from the front. He was wearing a cap. He did not get a clear view of his face but from his build and height he could tell that it was Alphonse Arugani. Light was coming from the house of Wilfred Peter (State witness No 2), as well as from a street light. Alphonse was trying to fight him but there was a lot of noise and people came out of their houses to see what was going on and the two attackers fled. He did not get to see who the other one was but he is sure that one of them was Alphonse. Jack had come out also by this stage and he ran up the road chasing the attackers but they escaped. Koniel was referred to a witness statement that he signed on 20 February 2009, a week after the incident, in which he names Alphonse Arugani as one of the two attackers, the one who approached him from the front. He tried to help Brian but they could see that he had lost a lot of blood. He called out for Wilfred and told him that Brian had been stabbed. They rushed him to Modilon Hospital but he was already dead.

Koniel said that he knew Alphonse very well, having known him for about 10 years. Alphonse used to live in the house with Baiu where Brian lived, which was very close by. Alphonse was living in Bukbuk St in 2009. He had not been in conflict with Alphonse.

In cross-examination Koniel Basil said that he does not know why Brian assaulted his wife that night. Koniel denied that he was drunk. He and the others were drinking steadily and he could remember what happened. It was not too dark for him to see who it was. He admitted that he did not get a clear view of the face but said that he could tell it was Alphonse from his build and height. He agreed that he knows Baiu very well and treats her like his own sister and that he and Jack were concerned for her when they heard her calling out, so they went to help and comfort her. He agreed that he was not happy with Brian for hitting Baiu but denied having an argument with him, who was like a brother to him. Jack also did not argue with Brian. No one argued with Brian before he went out to the road. He agreed that he and Jack were suspects in Brian's murder and spent 14 days in the police cell before being released but denied making up the story about Alphonse to shift the blame away from himself and Jack. It was put to him that Alphonse had no reason to be at Finch Road as he had no grievance against Brian as Alphonse and Brian's wife had divorced five years earlier. Koniel replied that Alphonse and Brian would still argue whenever they met.

(2)	Wilfred Peter lives in Finch Road. He runs his own consultancy firm. The spot on the road where the deceased was found was in front of his house. He and his family were fast asleep when at some time between 3.00 and 5.00 am on 13 February they heard what sounded like a brawl on the road. Someone called out 'Bai! Bai! Bai!' in the Takia language, which means 'Father! Father! Father!' The people in the street call him Father so he knew that someone was calling him and something was wrong. He went outside and saw that it was his neighbour, Koniel, who had been calling him. Koniel said that there was someone on the road who needed help. He went to the road and saw that it was another of his neighbours, Brian Kati. Koniel used a tap in his (Wilfred's) yard to wash off blood that was on his hands. A lot of people arrived on the scene. He ran up the street to the Ambassadors for Christ Church and woke up the pastor to get a car to take Brian to the hospital. By the time they got him to the hospital he was dead.

In cross-examination Wilfred Peter said that he had no reason to hide Koniel's participation in Brian's death and that he had no intention of hiding anyone's guilt. Koniel did not tell him at the time who was responsible for Brian's death. He does not know who was responsible.

(3)	Jack Thomas is the brother-in-law of State witness No 1, Koniel Basil, and was living in the same house as Koniel in Finch Road. On the night of Thursday 12 February, Jack was in the drinking group with Brian and Koniel. At one stage Brian left the group and went to his house. About 15 minutes later they heard his wife, Baiu, shouting. He and Koniel went to investigate and found that Brian had assaulted Baiu so he put some water on her head and chest and after she recovered and had gone inside her house to sleep, returned to the back of his and Koniel's house and continued drinking. Late that night or early the next morning Brian went out to the road. Six or seven minutes later Koniel followed him, and then Koniel called out that there were two men fighting Brian, so he went out to the road. Koniel said that the two men had killed Brian. He caught a glimpse of them and chased them down the road but they escaped. He went back to where Brian was lying on the road and by this time a lot of people were there. He put his shirt under Brian's head but Brian had stopped breathing. The police later took him and Koniel to the police cell as they were suspects in the killing; the police also said that it was for their own safety that they should go in the cell. They stayed for 14 days. He knew Brian very well. They were good friends. He also knows the accused Alphonse who lived in Finch Road for a number of years.

6. In cross-examination Jack Thomas said he had nothing to hide from the court. Alphonse was not with them at any time that night. Even though it was not in his witness statement he is sure that Koniel told him that there were two men who had attacked Brian. He forgot to tell the police this part of his story. He denied being drunk, he was still sensible. He does not suspect Koniel of being involved in Brian's death. There was light shed on the road from a fluorescent light at Wilfred Peter's house. He was very close to his brother-in-law, Koniel, and would do anything to protect him except lie to the court to cover up responsibility for Brian's death. He will not cover up anybody's wrong. He denied that he and Koniel argued with Brian over who would buy more yawa or that Brian was jealous of him when he was comforting Baiu.

7. That was the evidence for the State.

Evidence for the defence

8. Three witnesses gave evidence, as summarised below.

(1)	The accused, Alphonse Arugani, said that he is from Bogia. He lives at Bukbuk settlement and works at the MST Modilon Supermarket in the butchery department. He has been married to his present wife, Devalyn, for seven years and they have two children. He was until 2004 living at Finch Road and married to the deceased's wife, Baiu, and they had four children. He still sees his children, they come and visit him and he is on good terms with them, but he no longer has anything to do with Baiu. On Thursday 12 February he went to work, as usual, then returned home between 5.30 and 6.00 pm. His wife cooked dinner and he remained at the house until 10.00 pm when he and the others went to sleep. He did not leave the house during the night and got up on Friday morning and went to work, as usual.

9. In cross-examination Alphonse Arugani said that he bore no grudges against Koniel Basil or Jack Thomas; and he bore none against the deceased, Brian Kati. He agreed that following his separation from his first wife, there was a mediation conducted but he said that this was at the instigation of Brian's first wife, Dili, who was aggrieved by the then adulterous relationship between Brian and Baiu. He denied ever threatening to harm Brian. He denied leaving his house and going to Finch Road in the early hours of 13 February. He denied drinking alcohol that night and said that since he started going to church some time ago he no longer drinks.

(2) 	Eson Joseph is the accused's sister-in-law and lives with the accused and his wife and children. She is a widow. On 12 February Alphonse went to work and came home at the normal time. The family had a meal together and they all slept at 10.00 pm. Alphonse was in the house all night as he would have to wake her up if he wanted to go out due to her mosquito net which hangs on to his bedroom door.

(3) 	Devalyn Alphonse is the accused's wife. She comes from Goroka and has been married to Alphonse since 2004. On 12 February Alphonse went to work and came home at the normal time. The family had a meal together and they all slept at 10.00 pm. Alphonse was in the house all night. He was sleeping next to her. She does not allow him out of the house at night and does not let him socialise with other people. She does not allow him to go back to his village, which is a long way away. Alphonse never had any conflict with his ex-wife, Baiu.

That was the close of the defence case.

Site visit

10. The court party first went to Bukbuk St and inspected the accused's house, a small three-room dwelling, then went to Finch Road and observed the following places referred to in the evidence: the spot on the road where the deceased lay, the area of road where Koniel said the fighting took place, the deceased's house and yard including the concrete top of the septic tank (40-50 metres from Finch Road), the house and yard of Koniel and Jack, including the drinking area (20-30 metres from Finch Road), Wilfred Peter's house and yard, including the tap at which Koniel washed his hands of blood, the Ambassador's Church (120 metres from where the deceased lay on the road).

Preliminary assessment of the State's case

11. The identification evidence of Koniel Basil is critical. If it is rejected or there is a reasonable doubt as to its credibility or accuracy there is no other evidence such as circumstantial or forensic evidence that would warrant a finding that the accused killed the deceased.

Defence counsel's submissions

12. Mr Joseph submitted that the State had fallen short of proving that the accused killed the deceased for the following reasons:

1	the accused had an alibi: he was at home asleep with his family;
2	the identification evidence was deficient;
3	the evidence creates suspicion over Koniel's role in the death;
4	no evidence has been given by three other persons who were with the deceased shortly before his death;
5	there was insufficient evidence that the accused had a motive for killing the deceased;
6	there was no other evidence to corroborate the State's case that the accused was at Finch Road at the material time.

1	Alibi evidence

13. I have considered the alibi evidence in light of the leading Supreme Court case of John Jaminan v The State (No 2) [1983] PNGLR 318. I agree with Mr Wala's submission that it is not of high quality. The accused's wife and sister-in-law were not convincing witnesses. They were unable to explain how or why they would recall the movements of the accused on a particular night two and a half years ago. The accused's wife's testimony of the high degree of control that she has over her husband, which went as far as agreeing that she kept him like a prisoner in his own house, not letting him socialise, not letting him go to his village, not allowing him out of the bedroom to urinate during the night, was not believable and created the impression that she was just giving evidence that she thought was necessary to see her husband escape conviction. As for the accused, his evidence seemed temperate by comparison. The police interviewed him on 2 March, a little over two weeks after the incident, and he told them that in the early hours of 13 February he was at home asleep with his family and he does not know what happened. It is easy to believe, in his case, that he would recall where he was and what he was doing at the material time. His demeanour in the witness box did not reveal that he was obviously lying but nor was it such as to make his evidence compelling. Assessed as a whole the alibi evidence was not very convincing. Having said that, it was not so poor as to warrant outright rejection. So although it does not assist the defence case, it also does not lend support to the State's case (which can happen if the alibi evidence is rejected outright).

2	Identification evidence

14. I have considered the principles on identification evidence in the leading Supreme Court cases of 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. 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. If the quality of the identification evidence is good the matter should proceed to conviction. 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 remind myself 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. 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?). Having considered those matters, I record the following relevant considerations:

(a)	Koniel Basil was identifying someone who he knew well, as Alphonse lived for a number of years in the house very close to his own house in Finch Road.

(b)	Koniel was not an obviously dishonest witness. His demeanour was not so poor as to reveal that he was lying.

(c)	It was dark, as the incident happened at about 2.00 am and although some light would have been provided by a streetlight and light coming from Wilfred Peter's premises, it would have been difficult to make a definite identification.

(d)	Koniel had been drinking yawa for three or four hours. In cross-examination he denied being drunk but this is too difficult to believe. In the course of the drinking session the deceased left for a while and went to his yard and assaulted his wife, causing Koniel and Jack to go and comfort her before the drinking resumed. This sounds more like a hard drinking session than a couple of quiet drinks with friends. An atmosphere of violence had developed and the reasonable inference that must be drawn from the evidence is that Koniel was drunk. I agree with Mr Joseph's submission that this makes the reliability of his identification suspect.

(e)	If Koniel's evidence is accepted as otherwise being truthful, the fact remains that he only caught a fleeting glance at the person (who he identified as Alphonse) who attacked him from the front. He had very little time in which to make a positive identification.
 
15. In the final analysis the identification evidence is not strong. Even if Koniel is regarded as an honest witness the possibility that this was a case of mistaken identity cannot be ruled out.

3	Suspicion over Koniel's role in the death

16. It was legitimately put to Koniel in cross-examination that he was directly involved in Brian's death and that he had fabricated evidence for the purpose of shifting blame from himself and Jack Thomas to the accused. The fact that Koniel and Jack were held in custody for two weeks straight after the death and that they were only released when the accused was arrested and put in custody lend some support to this theory. But at the end of the case it remains an unproven proposition that Koniel was the person who stabbed the deceased or that he was in some way involved in the death.

4	No evidence by three other persons

17. I uphold Mr Joseph's submission that the State's failure, without explanation, to call three persons who were with the deceased in the hours leading up to his death means that there are gaps in the State's case and gives rise to the inference that their evidence may have contradicted that of the two key State witnesses, Koniel Basil and Jack Thomas. The three persons who were not called were the deceased's wife 
(who was assaulted by the deceased a couple of hours before he was killed) and the Morobe man, Sima Dei, and his wife, who were present at the drinking party.

5	Evidence re motive

18. I uphold Mr Joseph's submission that there was insufficient evidence of bad blood between the accused and the deceased. The accused was adamant that he bore no grudge against the deceased. The evidence that he gave about the mediation that took place following the separation, in about 2004, from his first wife (who then became the deceased's wife) was believable, and it was consistent with the story he told to the police that appears in the record of interview. The evidence of Koniel Basil and Jack Thomas about the accused and the deceased not being on good terms was vague and uncorroborated.

6	Lack of corroboration

19. I uphold Mr Joseph's submission that there was no evidence to corroborate the State's case, which was based almost entirely on identification evidence, that the accused was at Finch Road in the early hours of Friday 13 February. In light of the deficiencies in the identification evidence, some corroboration was required. There was none, so the State's case has inevitably collapsed.

Final determination of the question: did the accused kill the deceased?

20. Although the alibi evidence was not of high quality, this has not been ultimately significant as the identification evidence, on which the State's case depended, was, although not necessarily fabricated, not entirely convincing and required corroboration. There was insufficient corroboration in that the case for the accused having a motive for attacking the deceased was poorly developed, three other persons who were with the deceased shortly before his death were not called to give evidence and there was no other evidence that put the accused at the place of the incident at the material time. This means that there is a reasonable doubt over correctness of the identification of the accused and therefore a reasonable doubt about whether he killed the deceased. The first element of the offence of wilful murder has not been proven. It is unnecessary to consider the other issues. The accused is entitled to an acquittal.

VERDICT

21. Alphonse Arugani, having been indicted on a charge of wilful murder under Section 299(1) of the Criminal Code, is found not guilty of wilful murder and not guilty of any other offence.

Verdict accordingly.
____________________________

Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the Accused