State v Mark [2011] PGNC 183; N4458 (16 November 2011)

N4458

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 576 OF 2009

STATE

V

KERENG MARK
Lorengau: Manuhu, J 2011:7,8,9,10 & 16 November

CRIMINAL LAW – Particular offence – Wilful murder – Identification evidence – Consideration of evidence

Case cited:

John Beng v State [1977] PNGLR 115.

Counsel:
P. Kaluwin & S. Collins, for the State. G. Haumu, for the Accused.

16 November 2011

1. MANUHU, J: Kereng Mark was charged for the wilful murder of Ndrawii Menuhun on 21 December 2008 at Mundrau Village. There was a fundraising dance at Mundrau on 21 December 2008. Kereng's wife, Cathy Andrew, was allegedly spat at by Ndrawii at the dance place. Upset by that, Cathy and Kereng planned for Cathy to lure Ndrawii to a spot where Kereng would attack him. Eventually, when Ndrawii came out of the dance, Kereng followed him and stabbed him on his left thigh with the intention to kill him. Ndrawii suffered severe loss of blood and died as a result.

2. It is not disputed that there was a fundraising dance in Mundrau on 21 December 2008. It is not disputed that Ndrawii was stabbed and died from that stab wound. His body was discovered in the morning of 22 December 2008. The only issue is whether Kereng was the person that inflicted the injury.

3. The leading case on identification evidence is John Beng v State [1977] PNGLR 115. Essentially, the Court needs to warn itself, and I so do, of the dangers of identification evidence. I note that a convincing identification witness could still be mistaken. I note also that identifying a known person is more reliable than identifying a stranger but the witness could still be mistaken. I must also bear in mind that the onus is on the prosecution to establish all the elements of an offence beyond reasonable.

4. In this case, Kereng's guilt or innocence depends on whether the Court believes the State witnesses or the defence witnesses. Crucial to the prosecution's case is Lucy Sasah Kihan's testimony. Lucy was Ndrawii's girlfriend. She witnessed the stabbing. She was at the dance when she was told that her baby had awoken and was crying. This was in the early hours of 22 December 2008. She went to Kareu Wa'oh's house to breast-feed the baby. While she was there, Teresia Mueh told her that Ndrawii wanted to see her so both women approached Ndrawii on the road. Lucy saw that Cathy was there with Ndrawii. Teresia left for the dance. Cathy complained to Lucy that she was disturbing but Lucy did not respond.

5. Ndrawii and Lucy then walked in the direction of Kari Village but they heard sounds of footsteps following them. They tried to hide so they went towards Yowah's house. They walked into what looked like a kitchen. It was a moonlit night. The person following was too close to them by then so they turned to face him. The person came closer to them and flashed his match torch into Ndrawii's face. Lucy was standing with Ndrawii and saw Kereng through the light in Kereng's left hand. Kereng then said "You!" as he proceeded to drive a knife into Ndrawii's left thigh with his right hand. Lucy was afraid and rushed into the safety of Yowah's house. There she told Melian Kaor that Kereng had just stabbed Ndrawii. She told Kure'eu Wa'oh the same story when he came to investigate.

6. Defence counsel submitted that Lucy should not be believed because she, during cross-examination, could not say what Kereng was wearing, whether he had a beard, whether he had long hair or not. She, for that reason, could be mistaken. I do not agree. My impression is that Lucy did not understand the question. In any case, the mind's eye does not usually enquire into other features if the subject is a known person. In fact, I find the identification evidence of Lucy to be good, quality and credible for the following reasons.

7. Firstly, apart from Dr Leonard Kaleh, she was the best witness in the entire trial. She was confident. She had a good recollection of what took place. Her demeanor was impressive. Her answers were straight forward. She was not distracted by the crowd in the court room. She confidently stood up and pointed at Kereng when she was asked to identify Ndrawii's attacker.

8. Secondly, as I have mentioned, Kereng was not a stranger to Lucy. She had known Kereng for a long time. She was with Ndrawii at the time Kereng stabbed him. There was enough light from the match torch in Kereng's left hand which was assisted by the moonlight. The match light was held up by the assailant for him to confirm Ndrawii's identity before he could stab him. It was not a random attack. If the attacker was able to see Ndrawii before stabbing him, Lucy, aided by the same light, must have seen the attacker. Lucy clearly saw and identified the attacker as Kereng.

9. Thirdly, Lucy's evidence is supported by Gei Silih's evidence. Gei gave credible evidence that Cathy had told her that Ndrawii spat on her and she and Kereng planned to lure Ndrawii to a spot where Kereng would attack him. Simsem Ndrowou heard about the same plan from Kereng at the gate. Kereng told him that he told Cathy to take Ndrawii to a place outside so he could attack him. Cathy did not carry out those instructions so Kereng told her that she was a chicken.

10. Fourth, Kure'eu Wa'oh's evidence also supports Lucy's evidence. He had seen someone moving in the dark from a balcony and onto the main road. Then he went to the toilet. While he was relieving himself, he heard someone said "You!" He pulled up his trousers and walked back to the main highway. He saw someone flashing a torch upward. He approached the torch light and came across Lucy and Melien. He asked Lucy if she was alright. Lucy told him that Kereng had just stabbed Ndrawii. What he heard from the toilet also supports Lucy's evidence that when Kereng stabbed Ndrawii, he said "You!"

11. Furthermore, Lucy's identification evidence is strengthened by Kereng's unconvincing performance as a witness. Kereng was evasive and gave calculated answers. He is undoubtedly an intelligent person and he tried to use that to his advantage except that he was not telling the truth.

12. Kereng started his evidence with unnecessary details about sale of buai and how unlucky he and Cathy were in not securing a stall within the dance area. Then they decided to go to the house at about 10:00pm but Agnes Mueh persuaded them to go back to the dance. Kereng was asked to help provide security. He drank tea, got his spears (rolled tobacco) and went around the fenced area once. When he returned to the gate, Cathy told him to check on their children. So he abandoned his role as security guard and went to the house at about 10:30pm. He decided to sleep with the children even when there was a dance, his wife Cathy was still at the dance place, and when he was supposed to be helping out provide security. His story does not make sense.

13. Kereng said he was awoken by his children's cries between 2:00am and 3:00am. It's interesting that children of 4 and 6 years would wake up crying at such prime sleep time. He called to his uncle, Nau, to get Cathy from the dance area. Cathy came over and attended to the children and they all slept till day break. Nau was not called by the defence to give evidence. Neither was Agnes called to give evidence. This does not assist Kereng's cause.

14. Lucy's identification evidence is further strengthened by Cathy's inability to impress me as a witness. Cathy gave evidence for her husband. She was not an impressive witness. She was not a confident witness. She supported her head by resting it on her left hand as she gave evidence, a clear sign of nervousness because she was not telling the truth. As Kereng's wife, she was not an independent witness.

15. Finally, there are certain aspects of Kereng and Cathy's evidence that corroborate Lucy's identification of Kereng as Ndrawii's attacker. Kereng and Cathy testified about a large number of men that were armed with weapons who called Kereng's name aloud as they tried to launch an attack on Kereng in the morning of 22 December 2008. People are not stupid. I do not think that they would attack Kereng without a reason. Lucy had told Melian and Kure'eu that Kereng stabbed Ndrawii. That was the basis for the people to retaliate especially when Kereng did not have any good reason to stab Ndrawii.

16. I am ultimately satisfied that the identification evidence of Lucy is credible. The evidence against Kereng as the person who drove a knife into Ndrawii's left thigh is of good quality. I am satisfied beyond reasonable doubt therefore that Kereng stabbed Ndrawii in the presence of Lucy on his left thigh in the early hours of 22 December 2008 at Mundrau Village when the dance was on. The stab wound was 4x4 cm in size and 2 cm in depth. There was a complete laceration of both the long saphenous vein and femoral vein. Severe blood loss is the cause of death.

17. On the evidence, however, as indicted by the prosecution, it is not clear if Kereng intended to kill Ndrawii. It is therefore unsafe to convict on wilful murder. I find Kereng not guilty of wilful murder. But there is sufficient evidence establishing an intention to do grievous bodily harm. Accordingly, I find Kereng guilty of murder pursuant to section 300 (1) (a) of the Criminal Code.
_____________________

Camillus J. Sambua, Acting Public Prosecutor: Lawyer for the State
Haumu Lawyers: Lawyer for the Accused