State v Mark [2012] PGNC 50; N4727 (22 June 2012)

N4727

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 14 OF 2012

THE STATE

V

PIA MARK

Wabag: Gauli, AJ
2012: 13, 14, 20, 21, 22 June

CRIMINAL LAW – Trial – Wilful murder, section 299 (1) of the Criminal Code – Decision on verdict – Used dangerous weapon – Firearm – Killing by ambush – Alibi defence – No formal alibi notice filed –Alibi raised since police investigation as sufficient notice to police – Identification – Dangers of – Made in fleeting glance – Recognizance by close relatives at fleeting glance can be mistaken.

A man in company of others armed with firearms ambushed the deceased who was walking along the footpath with several others in a line when fired upon. The deceased was walking in front when he was shot.

Cases Cited:

SCR No.1 of 1980, Re s.22 of the Police Offences Act [1981] PNGLR 28.
SCR No.2 of the Summary Offences Act [1981] PNGLR 50
John Jaminan v. The State [1983] PNGLR 318
The State v. Paul Dimin Asilip (2011) N4197
John Beng v. The State [1977] PNGLR 115
The State v. Kobale Rau (1997) N1509.
The State v. Alex Ape (2004) N2703.
The State v. Richard Asabo Yandu (2009) N3798.

Text Book:

Criminal Law and Practice in Papua New Guinea by Chalmers, Wesbrot, Injia and Andrew at pp.642 – 643.

Councils:

Public Prosecutor, for the State
Paraka Lawyers, for the Accused

DECISION ON VERDICT

1. GAULI, AJ: The accused Pia Mark stands trial on a charge of wilful murder, pursuant to section 299 (1) of the Criminal Code Act. The accused in denying the charge raised a defence of alibi that he was not at the crime scene.
   

Brief Facts

2. On 26th of July 2010 at about 3.00 o'clock in the afternoon, the accused and 7 others were in a place called Agip in Baiyer area of the Western Highlands Province. The deceased, one Silo Kambao and 12 others were walking along a bush track in a single file at Agip. The deceased was walking in front of the others. The accused made a hissing sound. And as soon as the deceased and his party turned towards the direction of the sound, the accused fired his gun and shot the deceased Silo Kambao, he fell down and died. The rest of the group turned around and ran away in the same direction they came towards Lai River. While they were running away, the accused and his group continued to shoot and chase them until they reached Lai River. Most of them managed to swim across the river except for the two men and a woman who fell in the river and drowned.
   

The Law:

3. Section 299 (1) of the Criminal Code creates the offence of wilful murder and it is in the following terms:
   

"299 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 persons, is guilty of wilful murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death."

Elements of the Offence:

4. The elements of the offence of wilful murder are –
   
   • (i) That the accused killed the deceased.
     
   • (ii) That the killing was unlawful.
     
   • (iii) That the accused had the intention to kill.
     

Undisputed Facts

5. There is no dispute that the deceased Silo Kambao was shot dead with a gun on the road at Agip. And that the killing was unlawful.
   

Disputed Facts:

6. The facts in dispute are:
   
   • (1) The accused killed the deceased;
     
   • (2) The accused had the intention to kill.
     

Burden of Proof

7. It is trite law that in criminal proceedings the onus of proof rests entirely on the State from the beginning to the end. And the prosecution must prove every elements of the charge beyond reasonable doubt and the prosecution must disprove any defence or explanations raised by the defence: see SCR No.1 of 1980, Re s.22 of the Police Offences Act [1981] PNGLR 28; SCR No.2 of 1980, Re S.14 of the Summary Offences Act [1981] PNGLR 50.
   
8. It is a settled law in John Jaminan v. The State (No.2) [1983] PNGLR 318, that when the defence of alibi is raised, the burden of proof still remains with the prosecution and the prosecution has the burden to disprove the alibi and any explanations the defence might raise in defence. However, the accused must lead some evidence in support of the alibi that must be sufficiently convincing to create a reasonable doubt in the mind of the tribunal of fact: The State v. Paul Dimon Asilip (2011) N4197, applied.
   

Evidence for the State:

9. State called three witnesses namely Samson Lasak, Bui John and Mitchel Pylio. Basically their evidence is the same. They are the eye witnesses and they were with Silo Kambao when he was killed. They all said that they know the accused Mark Pia and they knew where his parents come from. There was a tribal fight at Pingpas in Baiyer, Western Highlands Province. After midday on 26th of July 2010, these witnesses with the deceased and others were at their Tipokoras village market in Wapenamanda District, Enga Province. They left the market and were walking to Pingpas village in Baiyer, WHP purposely to assist their women married there to bring their belongings because of the tribal fight. They were accompanied by Kumu one of their in-law from Pingpas.
   
10. They crossed Lai River and as they were walking along the foot path at Agip, they heard someone made a hissing sound. As soon as they turned towards the direction of that sound, the accused fired a gun and shot Silo Kambao who was walking in front of them. They were only about 10 metres from the accused when he first fired at them. The accused was wearing army trousers and army cap. Samson Lasak and the rest of the group turned around and they all ran back to where they were coming from for safety. The accused and his group kept shooting at them as they chased them to Lai River. They crossed to the other side of the river except for two men and a woman who drown in the river.
    
11. The witness Simon Lasak in examination in-chief said: "When someone made a 'sshh' sound and when we were about to see, he shot us". During the cross-examination, he said he was the second person walking behind the deceased at the time of the shooting. In Re-Examination he was asked:
    

Q3. You turned around when the accused made a "sshh" sound, which direction did you turn to?

A. I turned to my side.

Q4. Where was the accused at that time?

A. In front of us when he signalled to us.

Q10. Did the accused and Sai hide behind the trees or anything?

A. They put camouflage over their faces with grass.

12. The witness Bui John in examination in-chief said: "When someone made a "sshh" sound to us, we turned around to see who he was. When we turned around they fired at us". He said when the accused fired at them, they all ran back. Bui John said he just ran for his life. The area where the incident happened had bushes, trees and grassland but the accused stood in the grassland area. The accused covered his face with grass. During Cross-Examination he was asked the following questions:
    

Q27. Did accused cover his face with any object?"

A. "No".

Q28. Witness Samson Lasak said he covered his face with grass. You said he did not cover his face?

A. I am telling the truth the way I saw him.

13. The witness Bui John's evidence was inconsistent to his statement to police. His statement to police was declared as prior inconsistent evidence (Marked Exhibit "E"), pursuant to section 213 of the Evidence Act.
    
14. The witness Mitchel Pilyo was 14 years old at the time of the incident. When she was asked if the accused covered his face with grass, she said "No, he just wore a cap".
    

Evidence for the Defence

15. The defence has only the accused Pia Mark who gave evidence. His father is from Lembem village, Kompiam district, Enga Province. His mother is from Keimanda village, Lumusa district, Western Highlands Province. The deceased Silo Kambao is his father's sister's son while the witness Samson Lasak is Kambao's younger brother's son.
    
16. That on Monday 26th of July 2010, he was in his mother's Keimanda village. In the afternoon about 2.00pm he went to their village market and he was at the market until night fall. He denied being at Agip where the deceased Silo Kambao was killed. No witness for alibi evidence had been called.
    

Issues

17. From the facts in dispute, the only issues before this Court are:
    
    • (1) Was the deceased killed by the accused?
      
    • (2) Did the accused have the intention?
      

Issue No. 1: Was the deceased killed by the accused?

18. The State has to prove beyond reasonable doubt that the accused was the person who shot and killed the deceased. And that requires a clear and proper identification of the accused. There is no doubt in my mind that the accused is known to the witnesses Samson Lasak and Bui John because they are relatives. And witness Mitchel Pilyo said she always sees the accused when he comes around to their Tipokoras market. These witnesses were identifying the accused by recognition of someone they know and not identifying a stranger.
    
19. The principles of law in relation to identification is well settled in the case of The State v. John Beng [1977] PNGLR 115, where it said:
    

"When identification relied upon is that of a single witness it is proper that a jury should be informed that the identification was critical, and that the mistakes have in the past have occurred in regard to identification thereby occasioning a miscarriage of justice, and that they should be satisfied that the witness was not only honest but also accurate in the evidence he gave. Matters to be taken into account are: what opportunity the person identifying had to form a judgement on the identity of the person who committed the crime – the position of the parties when the identification was made, the lighting, the opportunity to form the judgement, and generally the circumstances as to the identification."

20. I do remind myself that with the issue on identification evidence, that a mistaken witness can be a convincing one just as well any number of witnesses can be mistaken: The State v. Kobale Rau (1977) N1509 applied.
    
21. In the case of The State v. Alex Ape (2004) N2703, the Late Jalina J, applied the above principle where he said:
    

"Recognition may be more reliable than identification of a stranger, but even when the witness is purporting to recognize someone whom he knows, I remind myself that mistakes in recognition of close relatives are sometimes made. All these matters go to the quality of identification evidence. When the quality is good, the value and the strength of identification evidence is enhances. When the quality of identification evidence is poor – that is a fleeting glance, or a longer observation made in difficult conditions – the evidence is of little or no value".

22. I apply the warnings late Jalina J, reiterated above. Having considered the evidence of the three witnesses for the State, it is very clear that when they heard someone made a hissing sound, they turned towards the direction where that sound was coming from. And as soon as they turned towards that direction, a shot was fired hitting the deceased Silo Kambao who was walking in front of them. That occurred in a spur of moment. And they all made a turn around and ran for their lives. The witness Samson Lasak said: "When someone made a 'sshh' sound and when we were about to see, he shot us". This clearly means that there was no time for them to see and identify the person who fired the shot that killed the deceased because when that shot was fired, they all turned and ran for their safety. Their observation of the person who fired the first shot was no doubt made in a fleeting glance that they did not have sufficient time to make that observation.
    
23. The position of the witnesses and the accused. The witnesses said that when the hissing sound was made, they turned around to see who it was. If it is true that they turned around, then that would mean that the person who made that sound must be standing behind them or towards their side. And if that person was standing somewhere on their side, then it must be made clear at what angle the accused was standing so that the witnesses were able to get a clear view of him. But the witnesses all said that the accused was standing in front of them. If he was standing in front of them then why do they have to turn towards their back or towards their side. That is illogical. There is no evidence that the place the incident occurred was on a flat land or on a slope. And if it was on a slope, was the accused standing up on the slope. A person standing up on a slope in a grass land can be easily seen than a person standing on a flat land.
    
24. The witness Samson Lasak said the accused camouflaged his face with grass. The witness Bui John said he did not cover his face with grass while witness Mitchel Pilyo said the accused only wore army cap. They all gave conflicting evidence.
    
25. I find that the State witnesses made a fleeting glance of the person who fired the first shot that killed the deceased. They did not have sufficient time to make accurate and good observation of the man who killed the deceased. Even though the killing took place about 3.00 o'clock in the afternoon in a broad day light, the circumstances in which the observation made was not sufficiently accurate though the witnesses claimed to be recognizing a relative they know. Having said that I could not be satisfied nor convinced that the identification of the accused was of good quality. And that follows that the accused is not the person who shot and killed the deceased.
    

Issue No.2: Did accused have the intention?

26. In the light of my finding that the quality of the witness' identification of the accused was poor that the accused was not the person who killed the deceased, it is not appropriate to determine this issue on whether the accused had intention to kill the deceased.
    

Alibi Defence

27. Alibi is a common law defence which is incorporated in the Criminal Law Practice Rules under Order 4 Rule 4, which provides that an accused shall not without the leave of the court, adduce evidence on alibi unless notice is first given to the prosecution within the specific time.
    
28. In the present case there was no formal notice given to the prosecution by the defence. Therefore by the provision of O.4 r.4 of the Criminal Practice Rules, the accused could not be allowed to lead evidence on alibi. However, the accused has raised the alibi defence during the record of interview. Although no formal notice was given to the prosecution, the alibi been raised during the record of interview in my view was a sufficient notice to the prosecution. It cannot be said that the alibi defence is belated, as in The State v. John Jaminan (No.2) [1983] PNGLR 318.
    
29. It was expressed in a more recent case in The State v. Richard Wasabo Yandu (2009) N3798, that: "A belated alibi, not revealed on an earlier occasion prior to trial, should be given less weight than an alibi consistently given over a long period, eg; since the beginning of the police investigation, in the record of interview or in the committal proceedings. The court should consider whether the alibi evidence contains convincing detail or whether it is vague and short on detail. The court should also consider the demeanour of the witnesses and whether there are any inconsistencies in their evidence".
    
30. It was held in one of the cases in PNG, which is cited in the text book – "Criminal Law and Practice in Papua New Guinea" by Charlmers, Weisbrot, Injia and Andrew, at page 642 – 643, that:
    

"The discretion of the court under O.4, r.4, of the Criminal Practice Rules, is to be exercised judicially. The mere fact that the necessary information was not given within the prescribed period does not, of itself, as a general rule, justify the court in refusing permission for the evidence to be called. R v. Sullivani [1970] 2 All, ER 681, adopted and applied."

31. Although there was no formal notice given to the prosecution for alibi defence, the prosecution did not object the defence from adducing evidence on alibi. Where the prosecutor fails to object the defence of alibi at the commencement of the defence case, then the prosecution may rebut it by adducing evidence against it. Failure to rebut the alibi evidence by the prosecution should add weight to the defence case.
    
32. In the present case there is no independent alibi witness called except the accused himself. Considering that the identification of the accused by the State witnesses was of poor quality, I find that the defence alibi evidence has weight. Accordingly I find that the accused was never at the crime scene nor was he involved in the killing of the deceased. He was in his mother's village Keimanda in Lumusa District, Western Highlands Province.
    
33. Accordingly, I return a verdict of not guilty against the accused. And I dismiss the case and discharge the accused forthwith.
    

Verdict: Not guilty.

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