State v Yasause [2012] PGNC 248; N4871 (28 September 2012)

N4871

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 569 of 2011

THE STATE

V

THEO YASAUSE

Waigani: Kangwia AJ
2012: 16 to 25 July & 28 September

CRIMINAL LAW – WILFUL MURDER – accused pleaded not guilty – evidence of one state witness against evidence of accused considered - position of defence raised alibi defence – defence took issue with elements of identification and intention to cause death.

CRIMINAL LAW – DEFENCE – Defence of alibi– principles considered - alibi defence introduced at trial – belated alibi reduced weight - evidence of accused only of being elsewhere at the time of killing – perfect alibi to support defence of alibi not called - evidence of alibi not convincing.

CRIMINAL LAW - ELEMENTS OF IDENTIFICATION – principles discussed and applied – evidence of one witness against accused – demeanour of witnesses assessed – requirements of identification discussed and considered - accused positively identified.

CRIMINAL LAW - Element of intention to cause death not proved to required standard – verdict of not guilty for wilful murder but guilty for murder returned.

Cases cited:

John Beng v the State [1977] PNGLR 115;
Biwa Geta v the State [1988-89] PNGLR 153;
Jimmy Ono v the state (2002) SC 698;
The State v Francis Vau Kamo (2006) N2991;
SCR No. 01 of 1980; Re Section 22 of the Police Offences Act [1981] PNGLR 28; SCR No. 2 of 1981; Re Section 14 of the Summary Offences Act [1981] PNGLR 50; Woolmington v DPP [1935] AC 462;
John Jaminan v the State (No. 2) [1983] PNGLR 318;
Luingi Yandasingi v the State [1995] PNGLR 268;

Counsel:

D. Kuvi, for the State
C. Jaminan, for the accused

28th September, 2012

1. KANGWIA AJ: Theo Yasause the accused was the former Director General of the Office of Climate Change. He was charged with one count of wilful murder under s299 of the Criminal Code relating to the killing of late Aquilla Emil. He pleaded not guilty to the charge and a trial spanning two weeks was conducted. A no case submission at the close of the prosecution case was rejected and the defence called evidence. This is now the decision on verdict.

I) FACTS ALLEGED

2. On 4 February 2011, between 12 midnight and 3am the accused and the deceased were at the Lamana Club with their respective friends. They left the club and got into their respective vehicles. The vehicle the accused drove out in was described as a Toyota Fortuna – Metallic Brown in colour with registration number BCL 531. It was alleged that the accused drove along the road leading towards Holiday Inn. The deceased also drove along the same road but at the back of the vehicle driven by the accused. The deceased was accompanied by one Isobel Paissat who was the key witness for the State.

3. It was alleged that after passing the roundabout near the Lamana hotel the vehicle driven by the accused suddenly stopped. The deceased who was driving at the immediate back also stopped suddenly. It was alleged that the accused came out of his vehicle and confronted the deceased who was still seated in his vehicle. The accused then punched the deceased after accusing him of trying to bump his vehicle. The deceased got out of his vehicle to confront the accused. A moment later a gunshot was heard. The deceased fell down on the road. The accused drove away in his vehicle. The deceased gasped for breadth and was rushed to the hospital but was pronounced dead. It was alleged that the accused was the one who shot the deceased with a pistol.

II) EVIDENCE FOR THE STATE

A) DOCUMENTS and EXHIBITS

4. To prove its case the prosecution tendered in to evidence by consent the following documents and exhibits:

1. Statements of 6 witnesses whose evidence is briefly set out below.
2. The Record of Interview consisting of mostly unanswered questions.
3. The Post mortem report.
4. Firearms transfer application form with details of accused and former owner of a firearm.
5. Firearms renewal application form for accused.
6. Licence details of firearm owned by the accused.
7. MVIL registration details of motor vehicle registered as BCL 531.
8. Pro-forma used with details of identification parade involving accused.
9. A projectile found lodged in the deceased body.

10. Photos of the autopsy on the deceased body and crime scene.

11. Photos of ID parade

B) ORAL EVIDENCE

5. The State called 10 witnesses who gave oral evidence. Their evidence in brief is as follows:

1. Isobel Paissat

6. This person is the key witness for the State. Her evidence was that she went out with friends between 3rd and 4th February 2011. She started at the junction at 10 pm of 3rd February 2011 and then went to Lamana at 12 midnight and stayed there till 3am on 4th February 2011. She gave evidence of taking alcohol and having fun with her friends between those times. She stated that she saw the accused at Lamana standing with others. She accompanied the deceased out of Lamana to be dropped off at her home.

7. On the way the deceased stopped the vehicle because the vehicle in front of them had suddenly stopped. Then she saw the accused come out of the vehicle in front of them and blamed the deceased of trying to bump his vehicle. He then punched the deceased while the deceased was still seated in the vehicle. The deceased got out of the vehicle to confront the accused.

8. While she was getting out of the vehicle to investigate she heard a gunshot. She saw the deceased fall down. The accused got into his vehicle and drove away. The deceased was grasping for breadth so he was rushed to the hospital but was pronounced dead.

9. Sometime after the death, she was run through an identification parade by police where she identified the accused as the person she saw coming out of the Toyota Fortuna to confront the deceased at the time of the shooting and earlier that night at Lamana. The accused was among 8 males when she identified him.

10. When the Court visited Lamana Club to identify the position of the accused in the night of the incident this witness also indicated to where she was when she partly saw the accused face.

2. Dr. Jacob Morewaya

11. He was the doctor who conducted the autopsy on the deceased body. His findings were reduced to writing on a standard autopsy report form. His conclusion was that the deceased died through loss of blood through a bullet wound entry from the left chest that pierced his lungs. The bullet was found lodged inside the body of the deceased.

3. Mugana Ragawini

12. His evidence related to a Toyota Fortuna brown colour station wagon bearing registration number BCJ 435 which he saw parked under his cousin Tau Lau's house in February 2011. He gave evidence of being asked by his cousin Tau Lau to drive the said Toyota Fortuna to transport his daughter and other children to Kwikila High school which he did. When Tau Lau returned from the city he was told to take the vehicle with him to his house. Tau Lau did not pick up the vehicle and it was under his custody for two weeks. Tau Lau contacted him by phone and told him that his friends were trying to sell the vehicle. He then realised that the vehicle was stolen so he left it under his elder sister's house.

13. He learnt of the shooting death of the deceased and realised that the vehicle was involved during the commission of the crime. When police went to look for the vehicle he was in his village but did not reveal the vehicle to police out of fear. Police took the vehicle while he was in his uncle's house. He was arrested in Port Moresby and detained. He also gave evidence of being physically assaulted by police. Police also interviewed his wife.

4. Nancy Tali

14. Her evidence was also in relation to the vehicle which she said was given to her husband by her in law. She gave evidence of the vehicle being in her yard for two weeks before police took it away. She had no knowledge of who the owner of the vehicle was. Her husband took her to the police station to give her statement which she gave freely. She described the vehicle as a station wagon but she did not write down the registration number.

5. Margaret Mangai

15. This witness was employed as OIC in the firearms section at police headquarters. She gave evidence of keeping records of firearms both manually and computerised data.

16. She provided information to police including copies of firearms application form and transfer of firearm document. She also described the details on the application form as Smith & Wesson, serial number BSM 3200, revolver, .38 SPL capacity 5 rounds. She also identified a computer licence bearing number 80154 under the name of the accused as the owner. A copy of the licence details bearing the accused particulars as owner was also identified as part of the records kept at the firearms registry.

17. Upon cross examination she gave evidence that she only kept the records and did not deal with the actual firearms recorded as it was done by policemen. On questions relating to two types of firearms recorded on the documents she stated that their office relies on the serial number which was the same on all the documents. She also stated that there was no report of a missing firearm on the accused file.

6. Sgt. Joseph Numbos

18. This witness was the police forensics investigator who gave evidence about the examination he conducted on the projectile found on the deceased body during the autopsy. His evidence on the projectile was that he examined it through a microscope and found five Lands and Grooves with a right hand twist. He then discovered that a Smith and Wesson revolver could have fired the projectile.

19. In his explanation on lands and grooves he stated that in some firearms some are cut off and others not. Cut off grooves and lands steadied the bullet in the barrel. Lands and grooves were found on the projectile. He concluded that the projectile was from a 9mm bullet. Because of the lands and grooves on the projectile he concluded that a model 547 revolver could have fired the 9 mm bullet. He also stated that only one serial number was given to each gun.

20. Upon cross examination he stated that seven possible weapons could have fired the projectile but from his findings his estimated conclusion was that the projectile was fired from a Smith & Wesson revolver model 547 because the other five were semi automatic pistols. He further stated that this type of weapon can also fire 9mm luger bullet.

7. S/C Derrick Francis

21. The evidence of this witness was of being given a crime report of a missing firearm which had a copy of a firearm licence, a statutory declaration and a police statement by the accused. A laptop was also reported as missing with the Smith & Wesson firearm. He called the accused upon receipt of the report on his mobile. When the accused went to him they talked about it and he told the accused to bring the people he suspected for an interview. The accused left after that and never returned to him. He was told to make a statement to that effect after he heard on the news about the killing allegedly by the accused. He further stated that he never followed up with the report because the accused was not interested.

8. Noel Levi

22. This witness was the person who conducted an I.D. parade where the key witness for the State Isobel Paissat was run through a line of 12 males from which the witness identified the accused as the person she saw at Lamana and later coming out of the Toyota Fortuna at the crime scene. He gave evidence of how the I.D. parade was conducted. He also stated that the OIC for Boroko cells was responsible for organising participants who were all detainees and another person was the runner who escorted the witness along the line of participants. He met the accused at the parade only. He concluded by filling out a pro forma in which he entered the details of the parade.

9. Johana Kumun

23. This witness gave evidence as the runner in the I.D. parade. She gave evidence as the escort for the witness who walked along the row of participants. She stated that the witness missed the accused in the first run and they had to do second run until the witness identified the accused as the person. She could not remember the appearance of the participants. However she stated that the participants had varying clothes and looked similar.

10. Joe Puana

24. This witness was the investigator. He described how he investigated the alleged offence and charged the accused of wilful murder. His evidence was that he obtained the statement of the State's key witness and from there he obtained statements from others as well. He stated that the accused surrendered to police so he arrested and charged him. After the accused was charged the details of the Toyota Fortuna registered BCL 531 were obtained from one of his former wives. He confirmed the owner of the vehicle as the office of Climate Change from MVIL records.

25. He later received information of a similar vehicle in a village. He followed up on the information and found the vehicle at Tagana village with registration number BCJ 435 on it. The registration sticker showed the registration number to be BCL 531. The vehicle was brought to Boroko Police station and kept as exhibit. He described the vehicle as a Toyota Fortuna 4 doors with metallic brown colour. The vehicle was returned at the instruction of the accused.

26. His investigation showed that registration number BCJ 435 belonged to a Mercedes Benz which was given freely when the Toyota Fortuna in question was purchased at Freeway Motors.

27. He also gave evidence that the firearm described by witness Isobel Paissat was a revolver. Records from the fire arms registry showed that the accused owned a Smith & Wesson revolver.

28. He then stated that a raid at a residence at Rainbow could not retrieve the firearm as it was removed before the search. He was told that the person who took the gun to the property at Rainbow was one named Alphonse Silas or Alphie. Since then no attempts have been made to retrieve the firearm.

29. He further confirmed the record of interview conducted on the accused which the accused refused to sign.

30. Upon cross examination he told the court that he got no cooperation from the Office of Climate Change on his investigations but a staffer told him that the old management were still in custody of the vehicles owned by the office. The details of the vehicle in question were given by the accused former wife named Leila Fox which included the description of another vehicle she was using. The descriptions given by Leila Fox were cross checked with the registry and the owner on the record was the Office of climate Change.

C) STATEMENTS TENDERED BY STATE WITH CONSENT

31. The statements tendered into evidence by consent are as follows.

1. Agnes Sive

32. This person was a police photographer. Her evidence consists of 11 photos of the crime scene and 20 photos of the autopsy on the deceased body.

2. Samuel Koy

33. This person was also a police photographer at the forensic science services. His evidence contained 5 photos of the ID parade conducted where the key witness for the State Isobel Peni was run through 12 participants from which person number six was identified.

3. Samson Pantan

34. This person was a crime scene examiner at the National Forensic centre. His evidence consisted of his external examination of the deceased prior to the autopsy and during the autopsy. On his examination of the body he discovered some dried blood on the right side of his lips. He also stated that the deceased sustained a wound on the left side ribs just below his left armpit. The wound was measured and noted that it was 5mm in diameter. He saw black bruises on the right side of the deceased ribs just under his armpit.

35. During the actual autopsy on the body he noted the 6th rib to be fractured. He also noted the heart and lungs pierced. He saw the Doctor retrieve from the right side ribs a projectile that was coated in copper. The projectile was given to him and he marked it as item (1) and had it registered to be forwarded to the Firearm and Tool mark Technician for further testing.

4. Turai Elemi

36. This witness is married into the same family as the deceased. His evidence was that he was with the deceased and his cousin brother named as Joel at Lamana prior to the death. During their stay the deceased met up with a woman who the deceased said was his cousin brother's wife. Later the lady came to the table and introduced herself as Isobel. He continued to drink till the bar closed and everyone was told to leave. On the way out Joel suggested for them to go and continue drinking at Shooters club but the deceased wanted to go and drop off Isobel first.

37. He drove out with Joel in his car leaving the deceased to follow them later. He drove to Shooters club with Joel and waited for the deceased until closing time. The deceased did not go to them at Shooters club so he went and dropped off Joel at Rainbow village early the next day.

38. He then visited his family at the hospital and went to look for the deceased at his house. On the way he met Eddie a cousin brother of the deceased who lived with him and asked for the deceased but was told that the deceased did not go home that night. He was with Eddie when his wife called to inform him that the deceased was fatally shot.

39. He knew that the last person the deceased was with was Isobel so they drove to Joel's house who would lead them to where she lived. Joel could not be found so he drove to Paradise Hospital to find the deceased lying on the layout area. He enquired with the guards and relatives who were already present at the hospital who told him that the person who shot him was Dr. Theo Yasause.

40. The body was moved to the funeral home and he paid for the hospital expenses. On the next day being Saturday 5th February 2011, he drove to the deceased wife's village to inform of the death.

41. On 14th February 2011, his office clerk named Tau Lao told him of a visit from one Alphonse Silas Aka Alfie at his village and told him about the incident and wanted to talk to him. He told Tau Lao to arrange the meeting with Alfie that afternoon. In the afternoon he went with Tau Lao and met Alfie at the car park of Mutual Rumana Building. There Alfie told him that he was also at the Lamana Club on the night of the incident and stated further that late Aquila was shot by Dr. Theo Yasause.

42. Alfie explained the reason as being an affair during the day between the deceased and Isobel who he said was the third wife of the accused and that had infuriated the accused to do what he did. Alfie also told him that the woman was equally responsible for the death. He then urged Tau Lao and himself to report to police of this fact.

5. Ulagis Mantu

43. The evidence of this person was that on 13 March 2011 after conducting a raid at Gerehu he was briefed by the investigator on this offence that an informant had informed him of a Toyota Fortuna Metallic brown in colour bearing number plate BCJ 435 which was a false number plate parked under a house at Tagana village. It was hidden there after the shooting death of Acquila Emil. Upon receipt of that information he with other policemen went to the said village and found the vehicle under the house of the sister of Mugana who had driven it there. There was no one in the house so they removed the vehicle to Boroko Police Station.

6. Joe Nipal

44. This person was an uncle to the deceased and his statement covered what he saw and did in the night the deceased was shot. He was at Lamana. At 11:30pm he saw the deceased at the food bar. Later the deceased met him and they went into the pokies room and stayed one hour. The deceased and a lawyer friend of his went out of the room so he followed them to the far left corner of the bar. Some minutes later Isobel and Shona Tata came and stood some six meters from them.

45. The deceased saw Isobel and Shona told him that Isobel was his brother, Jerry's wife. The deceased went to where the ladies were. After a while the deceased and Isobel came to where they were and they offered her some drinks. The deceased went away to the pokies. A few minutes later a brawl took place where the girls were sitting but he did not know who was involved. When the bar closed he asked the deceased's lawyer friend for the deceased and was told that the deceased had walked to his car.

46. At the car park he saw the deceased standing in the car park across the road and Isobel was at the gate speaking on the phone.
He drove out with the lawyer expecting the deceased to follow them but that was the last time he saw him.

III) EVIDENCE FOR THE DEFENCE

A) DEFENCE POSITION.

47. Prior to calling its evidence the defence position was revealed as follows:

1. It was the defence argument that the accused was never at the scene of the crime.

2. That the accused was not in possession of the alleged .38 Smith & Wesson firearm that night.

3. That the accused was not in possession nor was he driving the Toyota Fortuna –Metallic brown in colour at the material time.

B) ORAL EVIDENCE

1. Theo Yasause

48. He is the accused and he gave evidence on his own behalf. His evidence briefly was that on 03 February he was at the golf club and then proceeded to the car club. On his way home from the car club he decided to call into Lamana Club. Upon arrival he parked his vehicle near the gate of Lamana.

49. During his travels he was driving his personal vehicle a Toyota Lexus bearing registration number BCM 704 and maroon in colour. He entered the Club and joined a group of friends towards the toilet and cashier section.

50. While inside he talked to Takale Tuna who was at the next table. Two tables away from where he was, he saw Emma Sengi with Francis Tanga and Sylvester Pokajam. He did not at any time talk to Emma Sengi. He could remember greeting Shona Tata who was going to where Takale Tuna was. He also described the various clothes some of the people were wearing that night. He described his physical appearance as shaved but hair on the head and wore brown jeans, striped shirt and sandals.

51. On examination by his counsel he stated that he did not witness any fight. The place was packed with people playing pokies and drinking. He was facing Michael Koni who was leaning against the post nearby.

52. At 1:30am he excused himself and left the others. He asked Michael Koni if he cared to join him for drinks at his house which he agreed so they left the Club together. On their way out he saw Mondo and Wendy near the roundabout and asked if they wanted a lift. They agreed and got into his vehicle. He then turned left of the roundabout and drove to his house at North Waigani. He stated that the only lighting there was from the Lamana security lights. He explained that Mondo was an employee at Personnel Management Department whom he knew. Upon arrival at his house they drank till dawn and he drove the two ladies to Gerehu and dropped them off. He returned to his house and slept.

53. On further examination, he told the court that he heard of the shooting death of Acquilla Emil on the 5 February 2011 through the radio. His wife also asked him of his whereabouts that night to which he told her that nothing happened at Lamana. He went to Lamana on Saturday 5th February 2011 and enquired with the guards as to who mentioned his name of the shooting but the guards did not know anything so he left. The news came up again on Sunday.

54. He was invited by Joe Tondop to go to the Boroko police station so he went there and explained to him that he wasn't at the scene and that he was mentioned for no reason. Tondop called policemen Yangen and Mantu over to his office and he was asked to go to MOCIT office for an interview on 7 February 2011 after 2 pm.

55. When Mantu asked him whether he had any idea about the crime as police suspected him of the killing he told him that he had no knowledge of it as he wasn't there. Prior to that when Mantu asked him to surrender his gun and car he replied by asking Mantu which car and gun he was referring to. Mantu then told him that he was referring to the car and gun used on Thursday and Friday. When he asked Mantu to be specific, Mantu mentioned vehicle number BCF 536. He told Mantu that he had no idea of the number and the type of vehicle described. As to the gun he told Mantu that he reported the gun as stolen. He was then arrested, photos taken and locked in the cells. He appeared in Court the next day.

56. At the end of March he was told of an identification parade at the Boroko police station. He described how he was lined up with other detainees where the key witness for the State was paraded. The key witness passed him in the first parade and on the second time she pointed at him as the one. He was then 6th in line in the parade. He tried to raise objection but did not get any response.

57. In conclusion he stated that he was the wrong guy; that he did not drive the Toyota Metallic brown car; that he had no gun in his possession; that he never talked to Emma Sengi and he did not surrender to police but went there to clear his name. He stated that he had no reason to kill an innocent guy from Niugini Islands.

58. Upon cross examination he admitted he was the former Director of Climate Change and the official car that he used was a Toyota Fortuna bearing registration number BCL 531, with pale yellow colour that was bought from Freeway Motors. He stated that he returned the vehicle including all other assets to climate change on the day he vacated office in a handover/takeover with his successor after the NEC changed him as the head of the office. He denied giving instructions for the vehicle to be released from the Boroko police station to Thomas Harry the office driver.

59. He admitted owning a .38 special but it was not capable of firing 9mm bullet. He further stated in cross examination that he reported his firearm as missing in January 2010. When put to him that he did not return to follow up on his missing firearm because he had recovered it, he said he followed up three times to no avail and that no one acted upon his complaint.

60. He did not take any alcohol at car club but at Lamana he drank red wine. He said he was not drunk at Lamana. He could recall a lot of the clothing his friends wore that night.

61. He denied ever driving the Toyota Fortuna or confronting the deceased along the road as alleged.When asked in cross examination as to why he did not make the denials at the record of interview to avoid being charged he stated that the police distorted statements and asked incriminating questions so he refused to give the statements.

2. Michael Koni

62. This witness was an employee of Petroleum PNG Holdings. He was withdrawn from giving evidence for the defence after he indicated that he could not recall dates of the alleged crime.

3. Nicholas Manihoru

63. This witness was a businessman. His evidence was that he was a licensed owner of a .38 special and a single shot Winchester shotgun. He showed in court what he described as a .38 special which could fire .38 bullets only.

64. He displayed 6 bullets of what he described as .38 special and demonstrated how they could fit into the chambers of his .38 special. He also displayed a single bullet that he described as a 9mm and demonstrated how it could not fit into the chambers of his .38 special.

65. In cross examination he told the court that he was asked by defence counsel to demonstrate for the court the .38 special that he owned. He however stated that he had no training in identification of firearms and bullets or ballistics. Of the two bullets he showed to court he stated that he knew the 9mm bullet as such because it did not fit into his .38 special. He further stated that manufacturers have their own labels but bullets fitted into their own chambers. When put to him that a 9mm can be fired from a .38 special he maintained that it cannot.

66. Through this witness two live bullets were tendered into evidence for the defence without objections. The bullet identified as .38 special was marked as exhibit "BB" and the bullet identified as 9mm bullet was marked as exhibit "CC".

4. Mathew Huambi

67. This witness was formerly employed in various companies. His evidence related to how he sold a .38 revolver to the accused when his former company ceased operations. Upon examination on the bullets used on the revolver he stated that for the .38 revolver .38 special bullets only were used. In cross examination he stated that he had basic training to handle firearms but no ballistic training. He stressed that a .38 special bullet cannot be used in any other firearm as it cannot fit. He also disagreed that a .38 was .38 of an inch which was the same as a 9mm. When put to him that a ballistics expert thought otherwise he refuted it.

5. Tarcisius Ambrua

68. This person was a retired policeman. He gave evidence as a former 2IC for arms and ammunition armoury at the divisional headquarters for 26 years where he looked after the police armoury which had different types of firearms including .38 special. He stated that the .38 specials were used by commissioned officers. He also stated in examination that .38 special can fire only .38 special bullets while Sig. Pistols can fire 9mm bullets. He also stated that 9mm bullets can be fired from sub machine guns, F1 submachine guns and sig sower pistols but a .38 bullet can be fired only by a .38 revolver. He refuted the statement of state witness Sergeant Numbos about the 9mm being fired from a .38 special as it was not in line with the calibre of the weapon.

69. When showed the firearm belonging to defence witness Nicholas Manihoru the witness identified it as a Smith and Wesson revolver. He also identified the two bullets and stated that the .38 special fitted the Smith and Wesson whereas the 9mm bullet would fit a sig pistol.

70. Upon cross examination he stated that he gave his opinion of the bullets as a specialist. He however admitted that he did not know about Lands and grooves on a fired bullet but if he saw one he could describe the firearm that it was fired from. He maintained that from his experience with firearms and ammunitions the forensic statement was incorrect.

IV) DEFENCE SUBMISSION

71. On behalf of the accused Mr. Jaminan produced a written submission and spoke on it.

72. Mr. Jaminan submitted that the State bears the onus of proving all the elements of the offence beyond any reasonable doubt. In this case the State had to prove the elements of identification of the accused as the offender and intention to kill under s 299 of the Criminal Code. The other two elements were not contested.

73. It was submitted that to prove the two elements the evidence adduced by the State must establish or at least allow for reasonable inference the following:

"Identification of the accused at Lamana, at the crime scene, at the identification parade, that the accused was driving the vehicle Toyota Fortuna Metallic brown in colour at the material time, and that the accused fired a 9mm bullet from a .38 pistol revolver killing the accused at the material time."

74. Mr. Jaminan referred to the principles on identification evidence in the 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 as relevant guides. Mr Jaminan also referred to the principles on "identification" and "alibi" as summarized by his Honour Cannings J in the case of The State v Francis Vau Kamo (2006) N2991 as a guide. As to the evidence of Ms Paissat the key witness for the State, it was submitted that under the circumstances she was in, she could not have identified the accused as the offender.

75. Firstly it was submitted that the witness had consumed Moscow drinks at the two clubs prior to the crime. She could have been drunk and her perception affected by alcohol. Her evidence of seeing one Emma talking to the accused inside Lamana while he was leaning against a post was refuted by the accused. It was not corroborated in evidence. The post obstructed her view and she could not clearly recognise the accused inside Lamana as she did not know the accused prior to that night. It could have been a fleeting glance as there was no certainty and some of her evidence was contradicted.

76. Secondly it was submitted that the circumstances under which she travelled with the deceased was sudden. The Toyota Fortuna suddenly stopped and the vehicle she travelled in also stopped suddenly such that the distance was very close. In that situation it was submitted that she could not have a clear view as the light from her vehicle would have been concentrated at the rear of the vehicle in the front and not spread out.

77. She was also uncertain as to the lights from Lagatoi Haus and Lamana. According to her there was no light from the Aids Council Office. A mobile phone was used to identify the deceased. All these aspects of lighting, it was suggested, created doubts and uncertainty as to visibility by the witness which had a direct impact of her evidence that she saw the accused come out of the Toyota Fortuna. It was also submitted that it had direct impact on her entire evidence of what occurred at the crime scene.

78. Her evidence of seeing a silver weapon with holes in it in the accused left hand was not possible or unlikely against the backdrop of her being under the influence of alcohol together with poor lighting at the crime scene. She could identify details of the gun but not the accused clothing at the same time which raised doubts in her observation. Her evidence was not corroborated by any other witness.

79. As to the ID parade it was submitted that the parade was corrupted from the outset. The key witness for the State admitted reading in the papers with a photo of the accused prior to the parade. It was therefore not unreasonable to say that she saw the face before the parade.

80. The Post Mortem report could not indicate the position of shooting and it therefore was only hypothesis and contentious.

81. The firearms registry records showed two different descriptions of firearms under the accused name. One described as a PSA semi automatic while the other described a .38 revolver. There was no investigation into the missing firearm and the missing firearm was not recovered.

82. On the ballistic evidence there was no evidence that the weapon was test fired. The only evidence was that the projectile found in the deceased body was determined to be from a .38 revolver out of seven prospective weapons. Therefore it was hypothetical to put a missing weapon to a projectile and construct the prosecution case.

83. The two vehicles alleged by the State were both registered to the Office of Climate Change and not the accused. The source of information on the vehicles was one Leila Fox but she was not called to give evidence to confirm it. Much of the evidence in the statements tendered into evidence was not corroborated.

84. Given the shortfalls in the evidence for the State Mr. Jaminan submitted that the State case was conjecture only i.e.; the accused was at Lamana that night so he must have killed the deceased.

85. The circumstances surrounding the accused as the offender could have been supported by one Emma Sengi but she was not called to give evidence. Witness Joe Puana's evidence was hearsay only. Witness Derrick Francis gave evidence to clear his name because he failed in his investigation into the missing firearm.

86. Finally it was submitted that the state had not been able to prove the element of identifying the accused as the offender and the element of intention to kill, beyond any reasonable doubt and therefore the accused should be acquitted. It was also submitted that there was no room for the case to be considered on grounds of circumstantial evidence as to the guilt of the accused of the offence he was charged with.

V) PROSECUTION SUBMISSION

87. On behalf of the State Mr. Kuvi submitted that the factual issue was whether the accused shot and killed Aquilla Emil? To answer that question it was the state case that the accused was at Lamana. After the accused left Lamana, the deceased with Isobel Paissat drove at the back of his vehicle. The accused suddenly stopped and the deceased followed suit. The accused came out and hit the deceased while he was sitting in the car. The deceased went out of his vehicle. A few moments later the accused shot the deceased.

88. It was submitted for the state that the accused had not informed police at the first opportunity of where he was and what he did as a basis of his alleged innocence to avoid charges being laid against him. He did not do that and chose to refrain from answering questions during the record of interview.

89. He caught the State by surprise to say he went home and stayed in his house on the night the offence was committed. He did not produce any evidence to support his contentions although he maintained a defence of alibi.

90. As for the State witness Ms. Paissat her demeanour made her to be more believable than the accused. The evidence of the accused did not appear to be from an honest person as his demeanour throughout the trial was displayed by exchanging notes with bar table and murmurings during testimony of State witnesses.

91. As for the gun it was submitted that the accused had not lost his firearm. It was recovered by the accused and that was why he did not follow up with his report of the missing fire arm. The type of gun used was described well by the key witness for the state and further identified by the forensic expert who did ballistic examination of the projectile lodged in the body of the deceased. The ballistic expert was more believable than the other witnesses who were called by the defence to give evidence as his evidence was more credible.

92. The state was unaware of the two defence witnesses who gave evidence refuting the ballistics expert and could not in turn refute, confirm or offer any explanation.

93. As to the vehicle in question it was submitted that the accused never returned it after he was removed from the Office of Climate Change as confirmed by the investigator's evidence. He kept it and continued to use it until the offence was committed.

94. The defence of alibi had failed as no witnesses were called by the defence to produce alibi evidence. A failed alibi went to weaken the defence case and strengthen the state case further. As held in the case of the State v John Jaminan (supra) alibi was relevant only if there was evidence as opposed to speculation. It was further submitted that the principles relating to the defence of alibi were settled in that case which the defence had failed to satisfy.

95. On the issue of identification Mr. Kuvi submitted that the key witness for the state Ms Paissat saw the accused on three occasions; i.e. at Lamana club, at the crime scene and at the identification parade. On the first two occasions the witness could not be mistaken because there was adequate lighting and the period of observation was long enough to be remembered. The identification parade was conducted properly where the accused was positively identified. All three occasions confirmed the physical identity of the accused as the person who committed the offence and none other.
It was therefore submitted that the state had proven its case beyond reasonable doubt and a verdict of guilty should be returned.

VI) THE LAW

96. The offence of wilful murder is prescribed under s 229 (1) of the Criminal Code as follows:

229 wilful murder

(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person intending to cause his death or that of some other person is guilty of wilful murder.

(2)...

97. The main elements of the offence are as follows:

a) a person

b) unlawfully kills

c) another person

d) with intent to cause the death

98. It is a general principle of law that the one who alleges bears the onus to prove the allegation. It is also settled in this jurisdiction that the prosecution as the alleger bears the onus of proving a criminal offence. See for example SCR No. 1 of 1980; Re; Section 22 of the Police Offences Act [1981] PNGLR 28 and SCR No. 2 of 1981; Re Section 14 of the Summary Offences Act [1981] PNGLR 50.

99. In the present case the State as the alleger bears the onus of proving that the accused wilfully murdered one Aquila Emil pursuant to s 299 of the Criminal Code. The standard of proof is beyond any reasonable doubt. The State therefore bears the burden of proving all elements of the offence beyond any reasonable doubt.

100. The burden of proving every element of the offence is derived from the Constitutional requirements under s 37 (4) (a) which provides as follows:

37 Protection of the Law

(4) A person charged with an offence

(a) shall be presumed innocent until proven guilty according to Law, but a law may place upon a person charged with an offence, the burden of proving particular facts which are or would be peculiarly within his knowledge.

101: In SCR No. 2 of 1980 (supra) the Supreme Court in relation to s. 37 (4) said:

"The main thrust of the Constitution section 37 (4) is to place upon the prosecutor the burden of proving the guilt of a person charged with an offence. By the underlying law that burden is to be discharged only when he proves beyond a reasonable doubt that the defendant is guilty; that is that the defendant is criminally responsible for the offence charged."

102. In like terms the s 37 (4) provision would also demand that the prosecution disproves each defence or explanation put forth by an accused.

103. In the case of Woolmington v DPP [1935] AC 462 which has been cited in numerous cases in this jurisdiction the rule on the burden of proof in criminal cases was covetously explained by Viscount Sankey LC as follows:

"Throughout the web of English Criminal Law one golden thread is always to be seen; that it is the duty of the prosecution to prove the prisoners guilt... If at the end and on the whole of the case there is a reasonable doubt created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal."

104. Upon adoption of the Common law as part of our law the rule on the burden of proof as described above has been maintained and strictly applied in this jurisdiction. The standard at which the burden of proof is discharged is very high and the onus also rests with the prosecution to discharge it at that level.

105. Those positions of the law are the basis upon which the issues in the present case shall be considered.

VII) ISSUES

106. At the outset I must point out that a considerable amount of time revolved around attempts by the prosecution to prove and by the defence to disprove the type of firearm and ammunition that the state alleged was used in the commission of the offence. One witness for the prosecution and three witnesses for the defence gave evidence on firearms. The advantage to be gained from such exercise remains unknown.

107. It is an undisputed fact that the deceased died of a wound caused by a shot from a firearm. The Doctor's report attests to this fact. The question is what significant purpose would it serve to go further and identify the type of firearm or the type of ammunition that was the cause of the fatal wound. Even if it was established that the firearm licensed to the accused was not the one that was used to cause the fatality, it does not change the fact that the deceased died as a result of a wound caused by the use of a firearm.

108. Secondly the defence position was that the accused was never at the crime scene. The accused gave evidence that he was elsewhere at the time the offence was allegedly committed. I perceive that position of the defence to raise the defence of alibi. Therefore it is necessary to consider the defence of alibi. If the alibi is established the accused is entitled to an acquittal. If on the other hand the alibi fails the case will proceed to verdict.

109. Thirdly the defence also took issue with the element of identification of the accused as the offender and the element of intention to cause death under s 299 of the Criminal Code. It was conceded that the deceased was unlawfully killed and the defence took no issue with the balance of the elements of wilful murder. Therefore I shall deal only with the two elements relating to the issue of identification and intention to cause death apart from the defence of alibi.

110. The identification of the person who committed the offence became the issue of contention given the position of the defence case that the accused was elsewhere and not at the crime scene at the time the crime was committed. It naturally follows therefore that the person alleged as the one who committed the offence must be positively identified. If the alleged offender is positively identified or that the identification evidence is good the matter should proceed to verdict. Conversely if the identification evidence is poor an acquittal should follow unless there is other evidence to support the correctness of the identification. In both instances it would not be necessary to prove or disprove the type of firearm or ammunition allegedly used.

111. Further to that, if I find that the accused was positively identified as the offender then it will be necessary to consider whether the element of intention to cause death was also proved. If on the other hand the identification issue is found in favour of the accused, then the element of intention to cause death becomes a non issue.

A) DEFENCE OF ALIBI

112. The defence of alibi was ascertained from the defence position introduced at trial.
The defence position was that the accused was never at the scene of the crime at the material time. Secondly he was not in possession of the .38 Smith & Wesson firearm at the material time. Thirdly he was not in possession nor was he driving the Toyota Fortuna – Metallic Brown at the material time.

113. The defence did not introduce alibi evidence apart from the accused himself who gave evidence as a witness at his trial of his whereabouts at the time the offence was committed. His alibi evidence was not put to the prosecution witnesses in breach of the rule in Brown v Dunn (1893) 06 R 67 (HL). The introduction of alibi evidence at trial was a belated alibi as it denied the State the opportunity to refute, confirm or offer any explanation on the alibi defence.

114. The alibi evidence of the accused is restated briefly as follows:

On 03 February 2011 he left the Car Club at 12 midnight. He drove his personal car described as a Toyota Lexus bearing registration number BCM 704 to Lamana Club. He joined a group of men at Lamana. The place was packed with people playing pokies and at the bar table. He did not witness any fight.

At 1:30 a.m. or so he excused himself and left. He asked Michael Koni to join him and they went out together to the car park. At the roundabout which was past the gate into Lamana he saw two ladies he named as Mondo and Wendy. He asked if they wanted a lift. They agreed so he picked them up and the four of them drove to his house at North Waigani. They stayed at his house and drank till morning when he went and dropped off the two women at Gerehu.

After dropping off the ladies he returned and rested. He heard of the shooting death on 5 February 2011 through the radio where his name was mentioned. His wife also told him of it. He went to Lamana on 5 February 2011 and enquired with the guards but none of them knew anything so he left. He stated that he had no reason to kill an innocent guy from the Niugini Islands.

115. His other evidence related to the alleged vehicle described as a Toyota Fortuna which he said was returned to his former employer when he was replaced. He also gave evidence of owning a pistol which he reported to police as lost and had not been recovered.

116. The above is basically his alibi against the evidence of Ms. Paissat who testified of seeing him on two occasions at two different locations in the night of the shooting death of late Aquilla Emil.

117. The principles governing the defence of alibi are settled in the case of John Jaminan v the State (No 2) [1983] PNGLR 318. It is not necessary to state them here fully but it would be remiss of me not to mention here that a defence of alibi is a complete negation as it puts every matter in issue, unlike the defence of provocation or self defence which are excusatory. The risk of setting up an alibi is that if it is not convincing or false then the accused is left with no answer.

118. The accused must lead evidence of alibi and it must be of sufficient weight, sufficiently credible and sufficiently convincing to create a doubt in order to gain an acquittal. This would depend more on the strength of the prosecution evidence as the accused is not required to prove alibi.

119. Firstly, his alibi was never mentioned to police at the initial stages of the investigation so that police could check out his story when memories were fresh. In his denials to police he stated telling police that he did not commit the offence as he was not present then. He did not disclose his actual alibi to police. He did not disclose it either in the record of interview or at the committal hearing. Had he mentioned his alibi during the investigations or at committal hearings, it would blend strong support to his evidence in Court as being consistent and believable. Failure to tell police or at committal hearings when the opportunity first became available is telling against the accused that his explanations are recent inventions.
120. Secondly it accords with commonsense and also logical that a person faced with a very serious offence which carried the death penalty would seize the first opportunity to save himself if he was truly innocent. He would go out of his way to distance himself from the accusations. He was a father of many children and as a responsible father he would naturally be very concerned about their welfare and do everything at his disposal to get out of the mess he was placed in. There is nothing in his evidence to show that he tried to save himself apart from the numerous denials.

121. It was his right to remain silent but it does not assist in his defence to raise each and every denial at the trial only. Although the accused could not be compelled to say anything in his defence, it nonetheless left an incomplete picture. It seems his alibi was only introduced into court at the trial. Therefore his belated alibi goes to reduce its weight.

122. Thirdly, he testified of being with three people namely Michael Koni, Mondo and Wendy whom he had picked up at Lamana Club. Michael Koni was called as a defence witness but was aborted when he could not recall the dates. The other two were not called to verify his alibi. The accused had the perfect alibi in Michael Koni, Mondo and Wendy to vouch for him if he was truly with them as stated in his evidence. He had more than a year to arrange these witnesses in his defence. I find no reason why he could not call them as his alibi when he could easily call three witnesses who wasted a lot of time trying to disprove the type of gun and ammunition alleged in the prosecution evidence from which little advantage was to be gained. It raises doubts on the truthfulness of the alibi raised. It also goes to support the notion of a recent invention.

123. Finally, he gave evidence of returning all assets belonging to his former employer which included the metallic brown Toyota Fortuna that was named in the prosecution evidence. The prosecution made very serious accusations against him of using that vehicle at the time he allegedly committed the offence. In such a situation it would greatly enhance his case to obtain confirmation from his former employer that the vehicle was returned and that it could not have been him that drove the vehicle on the night of the killing. It was in his interest to seek such assistance to avoid a very serious charge. He did not seek assistance from his former employer to absolve him of the offence. It would have adequately supported his alibi.

124. It seems to be a coincidence that two vehicles owned by his former employer had the number plates changed and the metallic brown Toyota Fortuna hidden in Tagana village in February 2011, the same month the killing occurred. That required an explanation from his successors to exonerate him of the allegations. In the absence of any support for his alibi, his alibi cannot stand as having any truth or credibility that would create a dent in the prosecution evidence or a reasonable doubt that he was wrongly identified as the offender.

125. Given the above observations I find that the evidence of alibi was neither convincing nor credible to be capable of creating a reasonable doubt that would attract an acquittal.

B) ISSUE OF IDENTIFICATION

126. The issue of identification arises on the basis of the truthfulness or otherwise of two opposing witnesses. They are Ms Paissat as the eye witness for the State and the accused himself. It raises the question of who is to be believed as truthful.

127. The evidence of identification came from Ms Paissat who testified of seeing the accused on two occasions on the night of the offence. First was at Lamana Club and the second was at the crime scene. She also identified the accused from an identification parade organised by the police.

128. The accused on the other hand gave evidence that he left the Lamana Club with one male named Michael Koni and two females named as Mondo and Wendy and was with them the whole night that the alleged offence was committed. He testified to driving his personal vehicle that night which he described as a Toyota Lexus registered as BCM 704 and not the vehicle described by State witnesses. He vehemently denied having a gun or killing the deceased as alleged. He maintained that he was not at the crime scene as alleged and was falsely identified as the alleged offender.

129. The principles on identification are settled in the case of The State v John Beng [1976] PNGLR 471. At the outset I remind myself of the inherent dangers of identification evidence.

130. The only relevant matter of law relating to the dangers of identification evidence is as stated by the Supreme Court in the John Beng case (supra) where the Court held that:

"In proceedings where evidence of identification is relevant, the Court should be mindful of the inherent dangers. There is no rule of law that the evidence of one witness is insufficient, nor is there a rule of law that there must be a police parade for purpose of identification, nor is there any rule of law that in every case a warning ought to be given (to the jury); it all depends upon the circumstances of the case before the Court."

131. In the same case while adopting what was stated in R v Preston [1961] VicRp 115; [1961] VR 761 it was further held that;

"where the identification relied upon is that of a single witness, it is proper to be mindful that the identification was critical and that mistakes have in the past occurred in regard to identification thereby occasioning a miscarriage of Justice and the Court must be satisfied that the witness was not only honest but accurate in the evidence given. Matters to be taken into account are what opportunities the person identifying had to form a Judgment of the identity of the person who committed the crime, the position of the parties when the identification was made, the lighting, the opportunities to form a Judgment and generally the circumstances in which the identifying witness formed his judgment as to identification"

132. As to the quality of identification, the Supreme Court in Luingi Yandasingi v The State [1995] PNGLR 268 stated various factors that established quality of identification. As they are relevant for the present case I restate them and they are as follows:

a) whether the witness knew the accused before the trouble.

b) the lighting condition at the time of the offence

c) the distance between the witness and the accused at the time of the incident.

d) whether there was any object which may have obstructed the view of the witness.

133. In applying the Luingi Yandasingi (supra) factors to the circumstances of the present case, I find that the accused and Ms Paissat did not know each other prior to the day the offence was committed.

134. It cannot be said that because they were strangers to each other Ms Paissat's recognition could be mistaken. She gave evidence as an eyewitness of seeing the accused at two locations at close intervals and confirmed it at the ID parade. The first recognition at Lamana was confirmed with the second recognition at the crime scene with close proximity in time. It was further confirmed at the ID parade. I am unable to find that Ms Paissat made a mistake in her recognition of the accused on the basis that they did not know each other previously.

135. As to the lighting condition at Lamana Club it is obvious from the evidence of Ms Paissat and the accused that there was sufficient lighting from which they could easily recognise others in the club including the clothes worn by them. In that respect lighting posed no difficulty to Ms Paissat's recognition inside the Lamana Club.

136. According to the evidence of Ms Paissat the lighting at the crime scene was from three sources. The obvious one was from the headlights of the vehicle the deceased drove in which Ms Paissat was seated in the front. The second source was from the Lagatoi Haus and the third was from the security lights at Lamana Club. Although the light from the deceased's car was more directed at the rear of the car in the front, such position could not prevent reflection of light from which a person could be seen walking towards the deceased's car.

137. The sources of lighting at the crime scene was sufficient to provide adequate illumination from which a person or object could be clearly recognised. I find that Ms. Paissat would have no difficulty with lighting at the crime scene under those circumstances.

138. The third place of identification was at the ID parade. The parade was conducted in the daytime and there was no difficulty with lighting for identification purposes.

139. Given the lighting situation at Lamana Club, the Crime scene and at the ID parade alluded to above it is evident that all those three locations were adequately illuminated for purposes of recognition. Recognition of a person under those lighting situations was not difficult. I find that Ms Paissat had no difficulty in recognising the accused with lighting at all the three locations that she said she saw him.

140. As to the distance between the accused and Ms Paissat at Lamana Club it was in my view not more than four meters. The distance is an estimate from the positions indicated by the accused and Ms Paissat during the site visit. At the site visit the accused showed that his back was towards the bar and faced the direction where Ms Paissat said she stood. It can be safely described as quite close. The recognition by Ms Paissat from a close distance at the Lamana Club could not be mistaken.

141. The distance between the accused and Ms Paissat at the crime scene as described ranged in the vicinity of two meters. The closest was when the accused allegedly came towards the vehicle Ms. Paissat was seated in and hit the deceased who was also seated in the car. The furthest was after the deceased fell down and the accused entered his vehicle to drive away. It is safe to describe the distance between the accused and Ms Paissat at the crime scene as close proximity to each other. The recognition from such close proximity could not be mistaken.

142. The distance between them at the ID parade was very close. Ms Paissat touched the accused to identify him from the parade line up. No error of identification could arise from close up distance as in the ID parade.

143. Given the distance between the accused and Ms Paissat on the three locations cited in evidence I find that Ms. Paissat had no difficulty nor was she mistaken in her recognition of the accused from such close proximity.

144. As to obstructions there were no obstructions that would impair Ms Paissat's view at the crime scene and ID parade. At Lamana Club although there was a post between the accused and Ms Paissat it could not completely obstruct Ms Paissat's view from where she said she stood. Her view was further enhanced by the observations from the site visit where the accused showed that his back was towards the bar and faced the direction where Ms Paissat said she stood. In that respect Ms Paissat's recognition was not a fleeting glance. She was able to recognise the accused from her position at Lamana Club.

145. Given the findings discerned from the evidence I have no doubt on the quality of the identification evidence Ms Paissat presented. The evidence in total does not demonstrate a fleeting glance or as seen from a far off distance that would mar recognition by Ms. Paissat. She gave a detailed account of what she saw and did. All factors required for establishing quality identification as alluded to above operate in favour of Ms Paissat providing credible identification evidence despite her not knowing the accused previously.

146. The unobstructed views, the number of times the accused was seen by Ms. Paissat, the close proximity of Ms. Paissat to the accused and the adequacy of the lighting at the three locations that the recognition occurred, were all circumstances that sway in favour of Ms. Paissat giving quality and unmistaken evidence of identification.

147. The accused face was not covered or obstructed in any way on the two earlier occasions that he was recognised. Ms Paissat's description of the accused was fair and not extravagant. Her memory from the first recognition to the second recognition was still fresh given the close proximity in time. In total the evidence as to the recognition and identification of the accused by Ms. Paissat was credible and not discredited in cross examination.

148. Any suggestion that Ms. Paissat could have been mistaken on the basis that she took alcoholic beverages falls into insignificance because the two earlier recognitions were described in detail and corroborated with the positive identification at the ID parade.

149. The ID parade although not necessary was necessary to further confirm the identification of the accused as the person who Ms Paissat recognised on the two earlier occasions of that fateful night. The recognition of the accused in the papers prior to the ID parade did not affect the two earlier times that the accused was recognised. The ID parade was not the sole identification relied on by the prosecution. It was only a further confirmation of the accused identity. I am unable to find any impropriety or unfairness in the conduct of the ID parade despite it being conducted more than a month later. There is nothing in evidence to show that the ID parade was false or fabricated. I therefore find the evidence of the ID parade credible.

150. To give credibility to the identification by Ms. Paissat she displayed a strong impression of an honest and more truthful witness. She was honest in her description of the accused and others. She did not exaggerate descriptions to fit into her evidence.

151. As to the demeanour of Ms. Paissat it is not altogether complex when viewed in the overall context of the case. She was composed, confident and quite natural in the way she presented herself. She gave no impression in any way to suggest that she lied in the substance of her evidence. She had the perfect opportunity to lie and testify that she saw the accused shoot the deceased but she did not do that. She was truthful when she testified that she did not see the actual shooting but only heard the gunshot and saw the accused later with a pistol in his hands. Given the totality of her evidence on the identity of the accused, it remained very much intact and undisturbed or discredited in cross examination.

152. On the other hand the accused presented himself as a confident witness, however he seemed to be calculated, evasive and readily filling in gaps with the type of evidence he gave. An example was the colour of the Toyota Fortuna which he described as pale yellow beech colour while everyone else described it as metallic brown. He was inclined to give answers to questions that he thought should be given. His demeanour suggested that he was giving the type of evidence that he thought was necessary to get an acquittal. The demeanour of the accused was that of an unimpressive witness as he seemed to communicate too often with his counsel at the bar table and utter murmurings during the testimony of witnesses.

153. From the various conclusions reached on the quality of identification including the demeanour of Ms. Paissat and the accused, I have no hesitation in holding that Ms. Paissat gave positive identification evidence of the accused as the person who committed the offence.

C) INTENTION TO CAUSE DEATH.

154. I have found that the defence of alibi was not convincing or credible to create a reasonable doubt.

155. I have also found that the accused was positively identified as having committed the offence he was charged with. The next issue is whether the element of intention to cause death has been proved to the required standard.

156. Both sides have not dwelt much on this element of the offence although it was the defence position that the element of intention to cause death was in issue. The only reference to this element of the offence came from Mr. Kuvi who suggested in submission that the Court had recourse to section 539 of the Criminal Code. This section deals with the discretion that a court had where a person charged with wilful murder can be convicted of the lesser offence of murder or manslaughter.

157. In order to establish whether there was an intention to cause death it is necessary to consider the evidence giving rise to the circumstances of the offence. In my view the relevant part of the evidence were those that related to the events at the crime scene.

158. There is no eyewitness evidence of the actual shooting. The only evidence of a shooting is of Ms. Paissat. She saw the accused confront the deceased and assault him while the deceased was still seated in the car. The deceased then went out of the vehicle to confront the accused. She then heard the gunshot and soon after saw the accused with a firearm. When the accused left in his car she saw the deceased on the ground gasping for air. Given her evidence it is obvious that she did not see the actual shooting. There is no evidence that anyone else saw the actual shooting of the deceased.

159. The post mortem examination report revealed that the deceased was shot at the left side of the breast. The evidence of Dr. Morewaya on cross examination stated that the bullet entry looked like it was from a straight line. He further stated that if the bullet entry was elevated it would have travelled towards the leg. It can be concluded that the shot was fired from a straight line.

160. The evidence revealed only two persons at the time of the alleged shooting. They were the accused and the deceased. Bystanders joined in after the shooting.

161. The evidence in the present form raises questions as to whether there was a struggle from which the shot was fired or fired by mistake or fired to cause injury only, or fired in self defence or deliberately fired at the deceased. Given the possibilities that are open for assumption there is room to doubt that the shot was intentionally fired to cause death. There is also no evidence of any motive as to why the cause of death could have been intended.

162. It is quite possible that the accused intended to do grievous bodily harm. It is also possible that the death was caused by means of an unlawful purpose that was likely to endanger human life with the use of a firearm. However, the bottom line is that the deceased was killed and the killing was from the use of a firearm by the accused.

163. Despite the shot being fired from a straight line position, there is no evidence which showed that the accused intended to cause the death of the deceased. The element of intention to cause death has not been proven to the required standard.

VIII) CONCLUSION

164. At the close of the prosecution case, I ruled that the accused had a case to answer on the basis that the accused was identified as the person who committed the offence he was charged for. After that it was open to the accused to either discredit the prosecution evidence or create a doubt or a reasonable doubt in order to secure an acquittal. Unfortunately that has not happened despite a valiant effort in his vehement denials.

Pursuant to s 539 of the Criminal Code, I return a verdict of not guilty for wilful murder but guilty for murder and convict him accordingly.
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Public Prosecutor: Lawyers for the State
Jaminan Lawyers: Lawyers for the Accused