State v Wafi [2013] PGNC 109; N5237 (10 May 2013)

N5237

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 998 OF 2011

THE STATE

V

WILLIE WAFI

Lae : Gabi, J
2013 : 10 May

Facts

The son of the accused was murdered, and in the early hours of the following morning the mother of the man, rumoured by some to be responsible for the murder of the accused son, was murdered. The issue for trial was whether it was safe to accept the State witnesses' identification of the accused as the man who murdered the woman, against the accused's alibi that he spent the whole night at his house with the body of his son.

Held

1. The only evidence of light available to aid in identification was given by the two witnesses for the State, at [32];
2. A judicial officer is bound to accept the only evidence available unless there is some reason to find it not fit to be accepted, at [32 – 33];
3. Found as a fact that the area in which the crime was committed was well lit, at [34];
4. The identification evidence of one State witness rejected as he only had a back view, at [37];
5. The evidence of the other State witness, assessed on the tests laid down in the cases (cited at [38]) was strong, credible and capable of supporting a finding beyond reasonable doubt that the accused is the person who killed the deceased, at [40];
6. The alibi of the accused is false, the supporting witnesses evidence conflicting, at [41 – 47];
7. The accused is found guilty as charged.

Cases Cited

Alphonse Kopi vs. The State [1994] PNGLR 475
Bewa Gita vs. The State (1988-89) PNGLR 153
Ila Bate vs. The State (2012) SC1216
Jimmy Ono vs. The State (2002) SC698
John Beng vs. The State [1977] PNGLR 115
John Jaminan vs. The State (No.2) [1983] PNGLR 318
Rabaul Shipping Limited vs. Peter Aisi 2006) N3173
Re Fisherman's Island [1979] PNGLR 202
Regina vs. Holland [1974] PNGLR 7

Reference

Chalmers, Weisbrot, Injia and Andrew, Criminal Law and Practice of Papua New Guinea, 3rd edition (Law Book Co. Ltd 2001) page 638.

Counsel

L. Kleinig, for the State
M. Maburau, for the accused

VERDICT

10th May, 2013

1. GABI, J: Introduction: Willie Wafi, the accused, has been charged with one count of wilful murder contrary to s. 299 of the Criminal Code. The accused has pleaded not guilty.

2. It is alleged that on 16th May 2010, at about 3.40 am, the accused and a large group of men, went to the Dugumari house at Raicoast Compound and surrounded it seeking revenge for the death of the accused's son, Andy Marus. Wilma Dugumari, the forty-six (46) years old mother of the household, was approached by the group, and one of them asked where her own son was. Before she could answer, the accused swung a bush-knife at her head injuring her, and then did so again, this time chopping her fingers off. The accused pushed her to the ground and put his foot on her neck, holding her down. Then an unknown offender carrying a home-made gun entered the house where Sharon Dugumari was with her baby. He told her to hurry up and leave. Amongst the group, there was talk about burning the house and its contents. As Sharon Dugumari was leaving the house, carrying her baby, she saw and recognised the accused. She said to him "Hey, mi save long yu, ya!" He immediately swung his bush-knife at her. She twisted to avoid the bush-knife chopping her baby and lifted her left hand to shield the baby. His blow severed her left forearm, leaving it hanging by the skin. She ran into the nearby tall grass and lay on top of her baby, and the accused chopped her on the head, fracturing her skull, and on the back. He left her there to die. She eventually gathered her strength to stand up and seek help. She saw her house had been burnt to the ground. She got some first aid from a community member at about 5.00 am. She was then taken to hospital where her injuries were treated and recorded.

3. Wilma Dugumari's body was taken to the hospital. A post mortem was conducted and it was discovered that she died from severe multiple head injuries. In particular, the doctor noted a 17 cm long and 4 cm deep cut from the nose through the face to the right jawbone, and a 21 cm long and 4 cm deep cut to the rear of the skull, exposing brain tissue. Additionally, the deceased's right hand had two fingers amputated.

The evidence

The witnesses for the prosecution

4. Sharon Dugumari is the daughter of Wilma Dugumari, the deceased. She said that in 2010 she lived at Raicoast Compound towards the back of Malahang Industrial Centre in a high post house with her family. On 15th May 2010, at about 7.00 pm, she was at home with her mother when two boys, from Busu Compound, came to the house looking for Shane Dugumari. The boys told Sharon and her mother that Shane had taken their radio so they came to collect it. Shane was not home at that time so her mother told them to go back and return in the morning.

5. Later that evening, some people came by their house and yelled out that they should run away as there had been a fight and Shane had killed someone. After having heard that news, Sharon took her baby and her mother and went to the gate of the Malahang Industrial Centre and stayed there until the early hours of the next morning. They walked back to the house. Shane was in the house when Sharon and her mother arrived. She took her baby to the girls' bedroom to lay him down. While she was in the bedroom she heard some men talking in Kubalia language outside the house. This was about 3.40 am according to her mobile phone. She picked up her baby and went to the window opening in the girls' bedroom to observe.

6. She looked down and saw the accused and a group of men, asking her mother Wilma Dugumari where Shane was. Her mother did not answer. The accused swung the bush knife he was holding and cut Wilma Dugumari's head. Wilma knelt down and raised her hands, and the accused struck her again, with the bush knife cutting in between the fingers down to the palm. The accused then pushed her to the ground and stepped on her neck.

7. Soon after a man with a homemade gun went up the house to set it on fire and told Sharon to leave. Sharon came down and saw and recognised the accused. She called his name and said to him, "Hey, mi save long yu, ya!!" Immediately the accused swung his bush knife at her and her baby. She switched her baby to her right hand and held up her left hand in a defensive position. The accused struck her left hand with the knife, severing it through the forearm above the wrist. The left hand was held by a piece of skin.

8. Sharon ran into the kunai grass near the house and lay down on top of her baby. The accused ran after her and struck her two more times with his knife on the back of her head and on the rear of her left shoulder. At that point, someone in the group said in pidgin "yu kilim mama pinis, nau yu laik kilim pikinini, nau yumi go." The accused then left her. Her left hand and forearm fell off at that time.

9. The accused and others set fire to the house and went away. She saw the house burnt to the ground. Eventually she got up and walked to Malahang Compound where she got assistance to go to the hospital.

10. Sharon knew the accused since 1997 as they were drinking mates or friends at Seth Daniel's beer garden in Lae and had seen him at Malahang market since that time. She also knew that he lived at Busu Compound, that he was from the Kubalia area of East Sepik Province, that he was married to a Markham woman who worked at Trukai Industries, and that he wore a green Trukai shirt that night.

11. Sharon's evidence with regards to the light was that the light pole with
two (2) sets of light from the Industrial Centre shone on the house. The light pole was higher than the fence and the trees near the house were small. She was able to see clearly what was happening that night.

12. In cross-examination, Sharon said she recognised the person who attacked her and her mother as Willie Wafi, that Willie Wafi was wearing green Trukai shirt, that she was not afraid of the group of men that night, that there was a group of men around the house but it was Willie Wafi who attacked her while she was on the third step of the ladder and that there was sufficient light around the house and she was able to see clearly.

13. Shane Dugumari is the son of Wilma Dugumari. In May 2010 he lived in an incomplete high post house at Raicoast Compound in the Malahang area with his parents and big sister Sharon and her baby. Shane recalled 15th May 2010, he was in the house. He went to the toilet and felt that someone was coming to the house. The toilet, which was about 10 to 15 metres away from the house, faced the house. He looked up and saw a man with a bush knife coming to the house. The man argued with his mother and cut her with the bush knife. He saw the man cutting his mother from the back and identified him to be Willie Wafi. She yelled out saying "Jesus" and called Stanley's name three (3) times. Stanley lived in a kunai house nearby. Shane ran to his mother to see what was happening and to assist, but stopped because there were 20 to 30 armed men around the house. He ran to Stanley's house, but Stanley was not there, so he then ran to the Industrial Centre gate to get the security guards to call the police. While he was running to the gate he noticed the house on fire. When he returned to his house, he saw that it had burnt down. He believed that the people who killed his mother thought that he was involved in the fighting and stole a radio.

14. With regards to light, Shane said a spotlight on a long pole from the Industrial Centre shone towards the house. A candle tree that was near the house blocked the light but the shadow of the tree was not long or big and did not fall across the mother or the person attacking her. All the trees around the house were small and did not affect the lighting.

15. Jerry Nelson is a policeman and he was on duty at night on 15th May 2010. Between 9.00 am and 10.00 am, he and his men received a call on police radio that there was a big fight at Busu Compound. They attended the fight scene and went to the accused's residential area. They then took the accused's son, Andy Marcus, and rushed him to Angau Hospital, where he was pronounced dead. Some minutes later the accused arrived in a Mitsubishi bus driven by Francis Wanda. Francis Wanda is the owner of a trade store known as the Whitehouse Store at the back road. The accused on seeing his deceased son spoke in an angry manner condemning his son's death. He stated that his son was a student, had a bright future, and now he is dead. He was under the influence of alcohol, his speech was slurred and he was unsteady on his feet and smell of liquor. He spoke in a loud and deep voice. At about 11.00 pm, he jumped on the same vehicle and drove out, leaving the body behind at the hospital. Jerry and his men left the hospital at about 11.30 pm.

The witnesses for the accused

16. Willie Wafi gave sworn evidence. He said he was unemployed and lived at Busu Compound with his wife and two (2) daughters. On 15th May 2010, between 7.00 pm and 8.00 pm, he was at Whitehouse Store charging his mobile phone. He received a call from his daughter Elizabeth saying that some youths had killed his son Andy Marus and that Task Force had picked up his body and taken him to the Accident and Emergency Ward. He then asked Francis Wanda, the owner of the store, to drive him in a Mitstubishi 10-seater bus to Busu Compound. At the Compound, he was told by the community leaders and others that Task Force had taken the body to the hospital already.

17. Francis Wanda then drove him and four (4) community leaders, namely John Kais, Wasa Yaeng, John Yaeng and Yaeng Kunti, to the hospital. Wafi went inside the hospital and saw his son lying dead on the bed. He cried and ran out again. The community leaders talked to him and he felt better. He then took the body and all of them returned to his house. All church groups, including the prayer warriors, came and prayed over his body.

18. When they arrived at the house, the body was taken to the living room. Wafi cried and laid on the same bed besides his son's body. In the living room with Wafi were his wife, children and the prayer warriors. The community leaders together with others were outside the house. At daybreak the body was taken downstairs.

19. In cross-examination, he named the prayer warriors as Pastor Yapi, Tai Kaim, Pastor Yapi's wife and others from the Lutheran Renewal Church. When asked what kind of prayers were being offered he was dismissive and could not give a clear response, and answered "I do not quite know." He continued and said he had two (2) wives and the one in Lae is from Markham, and she worked previously for Trukai Industries and through her employment got a green shirt but wore it at work only, that he spoke Kubalia and Yangoru languages, that Sharon Dugumari knew him because he is a community leader, that he went to the Whitehouse Shop to tell the Wasang Community of a meeting, that he drank two (2) beers at the Whitehouse Shop, that after he was told of the death of his son by his daughter Elizabeth he went to the house before going to the hospital and that he never asked and never knew who killed his son until the next morning.

20. John Kais is a resident of Yarus Block in Busu Compound and is related to Willie Wafi through marriage in that his aunt is married to the accused. He is from Markham in Morobe Province. On 15th May 2010, Willie Wafi's son died so he and others were picked up by Willie Wafi and taken to the hospital to see the body. The others were John Yaeng, Wasa Yaeng and Yaeng Kunti. They arrived at the hospital between 9.00 pm and 10.00 pm. At the hospital, the doctors confirmed death and Willie Wafi fainted and fell. There were no policemen around when they arrived at the hospital and they took the body home at about 11.00 pm to 12.00 midnight that night. When they arrived at Busu Compound he and the young boys took the body to the living room.

21. After taking the body upstairs, he then took the prayer warriors up to where the body was to pray over the body but there was no sign of revival or life. He was with the prayer warriors in the living room and they prayed from about midnight until about 2.00 am. The body was in the house until 4.00 am to 5.00 am when they took it down again. Willie Wafi was with the body in the living room the whole time. The public were sitting in front of the house facing the door.

22. In cross-examination, John Kais acknowledged that he was one of the two (2) guarantors for Willie Wafi, and that he volunteered to act as a guarantor because the accused is an uncle and also their community leader. John Kais also acknowledged that he felt sorry for the accused's wife while he was in custody on remand, and he wanted to re-unite the family. John Kais went on to say that he did not know who killed Andy until the next morning, that Andy's body was brought to his house from Raicoast Compound and was picked up by police from there and taken to the hospital, that it was dark so he did not know who brought the body to his house nor did he speak to them, that the people who brought the body to his house said "they fought at Raicoast Compound and he was killed", that Willie Wafi was angry and he asked to know who killed his son, that he was in the living room with the prayer warriors who numbered about 9 to 10 people and were led by Pastor Yapi and that at about 2.00 am or 2.30 am he came down to tell the community that Andy was dead and would not come back to life.

23. Wasa Yaeng is from Markham and is a resident of Yarus Block in Busu Compound. He is Willie Wafi's brother in- law and was one of the guarantors for the accused. He said on 15th May 2010, he was at his house when he heard news that there had been a fight at Raicoast Compound market and Andy was killed. The news was given to him and John Kais by Timon Shilling and John Timon, who are also residents of Yarus Block. The boys did not tell them who had killed Andy at Raicoast Compound market. The family then waited for the body. Waiting for the body at Busu Compound were Wasa Yaeng and his wife, John Kais and his wife, Yaieng Gunti, Marcus Wana, Robert Kelly, Robert Kam, Lulu Robert, Pastor Yapi and his wife and John Madang and his wife.

24. Some boys brought Andy's body and left it under Willie Wafi's house.
It was dark and the boys who brought the body did not tell them who had killed Andy. They wanted to find out who the killer was after police had completed their investigations because police had told them not to take the law into their own hands as they would investigate. The Task Force arrived and picked up the body and took him to the hospital.

25. Soon after Willie Wafi arrived at the compound with a vehicle and they all got on and went to the hospital. When they arrived at the hospital, they walked to where the body was and Willie got shocked and fainted. There were no policemen around as they had already left. They then took the body to the house.

26. On arrival, the body was taken upstairs until daybreak. Willie Wafi, his wife and the prayer warriors were upstairs. The prayer warriors in the house with the body were Taigan Amos, Sandra Yapi, Nawa Dami and Giamsi Wana. After praying the prayer warriors confirmed that Andy was dead and so they sat and cried over the dead body. He sat under Willie's house facing the steps. John Kais was also on the ground facing the steps.

27. In cross-examination, Wasa Yaieng said that Willie Wafi was with him the whole time at the hospital. He denied that Willie Wafi was behaving in a drunken and angry manner. He also denied that Willie Wafi was speaking out strongly about the death of his son. He was adamant that the police had left and were not at the hospital when he, Willie Wafi and others arrived to see the body at the hospital.

Identification and Alibi

28. The accused raised the defence of alibi. A defence of alibi puts every matter in issue and if the evidence creates a reasonable doubt in the mind of the trial judge the accused should be acquitted (see John Jaminan v The State (No.2) [1983] PNGLR 318).

29. Dangers inherent in accepting or relying on eye witness identification evidence are well recognized in Papua New Guinea (see John Beng v The State [1977] PNGLR 115 and Bewa Gita v The State (1988-89) PNGLR 153). A judge is required to warn himself that mistakes had been made in the past in regard to identification of an accused and that he should be very careful in accepting such evidence. There is no rule of law that requires that in every case a warning must be given. It is, however, a good practice to warn oneself and be cautious and extra careful when considering the guilt or otherwise of an accused person.

30. The alleged offence occurred at 3.40 am on 16th May 2010 and so the question of light is relevant. The evidence on light was provided by Sharon and Shane Dugumari. Sharon's evidence was that the light pole, which was taller than the Industrial Centre fence, had two (2) lots of spot lights and shone right on the house. The light pole was about 15 to 20 metres from the fence and about another 40 metres from the house. The light pole, which faced the house, was much higher than the fence and the flowers around the house. The walls of the house were incomplete so there was sufficient light in the house as well. This enabled her to see clearly what was happening that night. Shane Dugumari's evidence was that a spotlight on a long pole from the Industrial Centre was above the house and shone directly on the house. A candle tree grew near the house between the house and the fence but the shadow of the tree was not long or thick and did not fall across either his mother or the person attacking her. The trees around the house were small.

31. Ms. Kleinig of counsel submitted that the State has proven that the area immediately around the Dugumari house was clear of high vegetation and obstacles, other than the candle tree attested to by Shane Dugumari, that the area immediately around the Dugumari house was lit up by the industrial floodlights on a tall pole shining across from the Malahang Industrial Centre towards the fence that was between the centre and the house and that the candle tree did cast a shadow, but the shadow did not land where the attack on Wilma Dugumari took place, and it was not a thick shadow.

32. The only evidence of light was given by Sharon and Shane Dugumari. Both gave sworn evidence. The court is obliged to weigh and assess all the evidence relating to light. The accused and his witnesses have adduced no evidence to the contrary. In Re Fisherman's Island [1979] PNGLR 202, Wilson J commented thus:

"Where there is evidence, whether oral or otherwise tending to prove one side of an issue and there is no evidence on the other side to contradict it, then the judicial officer is bound to accept it unless the evidence is in itself so incredible and unreasonable that no reasonable man could accept it. If for any reason which recommends itself to the mind of the judicial officer dealing with a matter, he thinks it not fit to accept the evidence of the only witness before the court or judicial tribunal and he is founding his decision on his disbelief of that witness, he is bound to disclose it."

33. The same principle was outlined by the Full Court of the pre-Independence Supreme Court (Frost ACJ, Clarkson J, O'Loghlen AJ) in Regina v Holland [1974] PNGLR 7 and more recently by Woods J in Alphonse Kopi v The State [1994] PNGLR 475 and by Lay J in Rabaul Shipping Limited v Peter Aisi 2006) N3173.

34. I accept the evidence of Sharon and Shane Dugumari regarding light in and around the house that night. I make the following findings: (i) that the area immediately around the Dugumari house was lit up by the industrial floodlights on a tall pole shining across from the Malahang Industrial Centre towards the fence that was between the centre and the house; (ii) that the area immediately around the Dugumari house was clear of high vegetation and obstacles, other than the candle tree attested to by Shane Dugumari; and (iii) that the candle tree did cast a shadow, but the shadow did not land where the attack on Wilma Dugumari took place, and it was not a thick shadow.

35. Both counsel reminded me of the dangers of identification evidence and the need to caution myself before considering the guilt or otherwise of the accused. I am mindful of the inherent dangers, the possibility exist that a mistaken witness could be a convincing one. Likewise, mistakes can be made by a witness purporting to recognise a known person. The court must closely examine the circumstances in which identification was made before accepting the evidence. I now warn myself of the dangers of identification evidence and that a witness purporting to recognise a known person could make a mistake.

36. Counsel for the accused submitted that less weight should be given to Nelson Jerry's evidence regarding the behaviour of the accused at the hospital. Secondly, the events leading up to the attack and death were frightening and horrible and yet Sharon Dugumari had no fear which was against nature, common sense and logic. Finally, Sharon never saw the attack on her mother because her evidence on the injuries the mother received contradicted the medical report. Counsel urged the court to draw an inference that she never saw the attack and that she was lying. I will deal with the second and third points of the submission later but the behaviour of the accused at the hospital is relevant to the question of motive for the attack.

37. Sharon and Shane Dugumari identified the accused at the scene of the crime that night. Shane's evidence was that he was in the toilet, which was about 10 to 15 metres from the house, and saw his mother being attacked near the house. He saw the attacker from the back. There is no evidence before me to indicate whether he knew or had seen the accused prior to the offence that night. I give very little weight, if any, to Shane's identification evidence.

38. Both counsel referred me to the relevant considerations in assessing the identification evidence of a witness. In Chalmers, Weisbrot, Injia and Andrew, Criminal Law and Practice of Papua New Guinea, 3rd edition (Law Book Co. Ltd 2001), the learned authors set out the factors relevant to an assessment of identification evidence at page 638. They are:

"(1) the impression left by the eyewitness as to his or her reliability and accuracy;

(2) the existence of a motive for giving false testimony as to the identity of the offender(s);

(3) the circumstances in which the person to be identified has been observed;

(4) the circumstances in which the eyewitness finds himself or herself when making the observation;

(5) the existence or otherwise of the evidence of other witnesses confirming or contradicting the evidence of the original eyewitness;

(6) the existence or otherwise of other evidence, direct or circumstantial, of facts or circumstances independently proved (R v Uno Tam and Marau U'U (1973) N766)." (See also John Beng vs. The State (supra); Bewa Gita vs. The State (supra); Jimmy Ono vs. The State (2002) SC698; Ila Bate vs. The State (2012) SC1216).

39. The State relied principally on Sharon Dugumari's identification evidence and I assess her evidence hereunder.

• The impression left by the eyewitness as to her reliability and accuracy: Sharon gave a clear and believable account of events on the 15th and 16th of May 2010. She impressed me as a truthful witness and I have no cause to doubt the accuracy or reliability of her observation.
  
• The existence of a motive for giving false testimony as to the identity of the offender: No matter or reason was put forward by the accused to show that Sharon has a motive for giving false testimony against him.
  
• The circumstances in which the person to be identified has been observed: I found that the area surrounding the Dugumari house was well-lit with security lighting on a high post pointing towards the fence and the house from the Malahang Industrial Centre. This evidence is undisputed.
  

According to Sharon, she used to drink with the accused at Seth Daniel's beer garden in 1997 and when she moved to Malahang they would meet at the market. She knew that he lived at Busu Compound, that he is from Kubalia area of East Sepik Province and that he is married to a Markham woman who worked at Trukai Industries. This corroborates Sharon's evidence that she personally knows the accused and recognised him that night.

She identified and observed him at three (3) different places in and around the house that night. First, she was upstairs in the girls' room when she heard people talking in Kubalia language so she picked up her baby and held him close to her chest. From the room, she saw the accused and others questioning her mother about Shane. She saw the accused cut her mother twice and then pushed her down and stepped on her neck. Secondly, she was forced to go down from the house by an unknown man with a homemade gun. When she was going down the steps, she recognised the accused and called his name out. The accused then attacked her with the knife and cut her on the left hand. Finally, she ran into the kunai grass where the accused struck her two more times with the knife on the back of her head and on the rear of the left shoulder.

She knew the accused since 1997 so it was a question of recognition of a known person as opposed to identification of a stranger. She recognised the accused from the room when he, together with others, was questioning her mother about Shane. When she was going down the steps of the house, they came face to face with one another. She called his name out and the accused then attacked her with the bush knife. They would have been very close to each other. This enabled Sharon to observe the accused at close range. While there is no evidence to show how long Sharon observed the accused for, I am, nevertheless, convinced that it was not a "fleeting glance."

Sharon said that the accused ran after her and cut her on the back of the head and rear left shoulder while she was on the kunai grass. Whilst I am prepared to accept Sharon's evidence that the accused ran after her I must caution myself from accepting the evidence that the accused cut her twice while she was on the grass. As the attack was on her back, she could not have seen her attacker, and I am unable to accept that piece of evidence.

I am satisfied that Sharon had ample opportunity to observe the accused and recognise him.

• The circumstances in which the eye witness finds herself when making the observation: Sharon said she was not terrified by the events surrounding her mother's attack. Counsel for the accused submitted that it was against nature, common sense and logic for one not to be frightened by the tragic and horrible attack on her mother. As such, I should not believe her. I do not accept that submission. Individuals react differently to a given situation. It is reasonable to believe that Sharon would have been fully alert because of the danger to herself and the family. Her friendship and knowledge of the accused makes her identification one of recognition, which is more reliable than identification of a stranger.
  
• The existence or otherwise of the evidence of other witnesses confirming or contradicting the evidence of the original witness: Sharon Dugumari's evidence was undisputed.
  
• The existence or otherwise of other evidence, direct or circumstantial, of facts or circumstances independently proved: A number of matters provide corroboration. First, Sharon said the accused inflicted the wounds on her mother's face and hand. She said nothing about the wound on the back of her mother's head. Counsel for the accused argued that Sharon's evidence contradicted the medical evidence in that she made no mention of the wound on the back of her mother's head so I should not believe her evidence.
  

Sharon moved away from the window to go down to the ground as ordered by the unknown person with the home-made gun while she was upstairs. Later she saw the accused push Wilma Dugumari to the ground, put his foot on Wilma's neck, and stood over her with a bush knife. This may be the explanation for lack of evidence regarding the wound on the back of Wilma's head. Sharon gave evidence of what she saw and I reject the suggestion that her evidence contradicted the medical report. On the contrary, I believe Sharon's evidence corroborated to a large extent the medical and photographic evidence of the deceased's injuries.

Secondly, there is evidence that the accused is from Kubalia area in East Sepik Province and that his wife worked at Trukai Industries and owned a fluorescent green uniform shirt which provides some corroboration that the accused was the person Sharon identified that night.

Finally, the accused had a motive to carry out an attack on the person responsible for the death of his son, and failing that, someone connected with that person.

40. In view of the foregoing, I find that the evidence of Sharon Dugumari is strong, credible and capable of supporting a finding beyond reasonable doubt that the accused is the person who killed Wilma Dugumari.

41. I had the benefit of observing the demeanour of all the witnesses. On important aspects relating to the alibi and to motive, I found the accused, John Kais and Wasa Yaeng evasive, unconvincing and contradictory between one another. I am of the view that they are not truthful witnesses for a number of reasons.

42. First, each one of them was asked whether they knew the person who was responsible for the killing of Andy Marus, the accused person's son. They told the court that they did not know and had no idea and had made no attempts to find out until the next morning when police inform them at about 7.00 am. John Kais and Wasa Yaeng were at Busu Compound when the body was brought from Raicoast Compound and were told that there was a fight and "they" killed him. During cross-examination, John Kais admitted that the accused was cross or angry at the hospital and wanted to know who had "killed his son." I believe the more natural reaction would have been to find out the killer as soon as the news of death reached the relatives. As there was a fight a suspect would have been known almost immediately. The accused's evidence that he made no enquiries about the person who was responsible for his son's death is a lie. I accept Ms. Kleinig's submission that that piece of evidence is a lie told deliberately and designed to hide from the Court the fact that he had a motive to attack Dugumari family members.

43. Secondly, in cross-examination the accused named the prayer warriors as Pastor Yapi, Tai Kaim, the Pastor's wife and others from the Lutheran Renewal Church. He was asked what kind of prayers were being prayed and he responded thus: "I don't quite know." This indicates to me that the accused was not in the house when the body was in the house.

44. Thirdly, the accused said he was in the living room with his wife, daughters and prayer warriors when the body was in the house. John Kais gave evidence that he was in the living room with the accused and the prayer warriors before the body was taken down between 4.00 am and 5.00 am. Wasa Yaeng gave a different version altogether. He said John Kais was with him under the house facing the steps throughout the night while Willie Wafi was upstairs with the body.

45. Fourthly, John Kais and Wasa Yaeng, who are related to the accused by marriage, had volunteered to act as guarantors. Their primary motive is to ensure that the accused did not remain in custody and therefore had a motive to lie and did in fact lie.

46. Finally, Sharon's evidence was that the accused was wearing a green Trukai Industries shirt on the night of the alleged offence and that his wife worked at Trukai Industries. The accused said the wife wore the shirt to work only but never denied the suggestion that he was wearing a green shirt that night.

47. I am satisfied that the State witnesses are credible and truth witnesses, particularly Sharon Dugumari. I find the defence of alibi to be false. A false alibi supports the State's case (see John Jaminan v The State (supra)).

48. The post mortem report shows that Wilma Dugumari died from severe multiple head injuries. She had a 17 cm long and 4 cm deep cut from the nose through the face to the right jawbone, and a 21 cm long and 4 cm deep cut to the rear of the skull, exposing brain tissue. In addition, the deceased's right hand had two (2) fingers amputated. The wounds on the face and hand were inflicted by the accused. From the evidence before me regarding the behaviour of the accused that night, I am convinced and draw the inference that the wound on the back of Wilma Dugumari's head was also inflicted by the accused.

49. A deadly weapon, a bush knife, was used in the attack inflicting serious injuries as a result of a series of blows and the severity of injuries, and their location on the head and face, a sensitive, vulnerable and vital part of the body, satisfied me that the accused inflicted the wounds with intent to kill the deceased. Accordingly, I find the accused guilty as charged.

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