N6533
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 95 of 2014
CR 96 of 2014

THE STATE 

V

MICHAEL YANGILY

THE STATE 

V

ALI LAPUN
	
	Kandrian: Batari J
	2014: 16, 17, 22 October

	
	
CRIMINAL LAW – evidence – murder – deceased killed in a fight between two villages - denials by accused – alibi defence – proof of – onus on defence to lead some evidence – prosecution bears onus of proof beyond reasonable doubt - whether defence made out – identification of stranger – identifying witnesses – reliability of.   

CONSTITUTION - standard of proof in a criminal offence enhances the constitutional presumption of innocence until proven guilty in a court of law

PNG Cases Cited:
John Beng v The State [1977] PNGLR 115
John Jaminan v. The State (No.2) [1983] PNGLR 318
Alois Erebebe & Taros Togote v The State (2011) SC 1135
The State v John Bosco (2004) N2777
The State v Noutim Mausen (2005) N2870.
R v Uno Tam & Maru U'u [1973] No. 766

Counsel:
D. Mark, for the State
D. Kari, for the Accused

JUDGMENT ON VERDICT
22 October, 2014

1.	BATARI, J:   Michael Yangily and Ali Lapun are charged that on 3 August 2013, they assaulted one Raphael Pasekio with a bush-knife and axe, resulting in his death.  They have pleaded not guilty to murder charge laid pursuant to s. 300(1) (a) of the Criminal Code.  This is the verdict following their trial.
 
2.	The State’s story is that Michael Yangily and Ali Lapun were seen at the scene attacking the deceased.  Both have all along denied the allegations and raised the defence of being elsewhere at the time of the fight.

Issues on Trial and the Burden of proof

3.	From the two conflicting versions, only one version can be accepted as reliable and highly probable as both cannot be true. The reliability of one version or the other will depend on sufficiency of the alibi evidence and the strength of the prosecution’s case.  The following are relevant questions to ask:

a)	Whether there is evidence of alibi that is sufficiently convincing to create a reasonable doubt.
b)	Whether prosecution has adduced evidence the strength of which is such as to render the alibi defence unreliable.
c)	If so, has the prosecution adduced sufficient evidence to discharge the onus of proving the offence against the accused, beyond reasonable doubt.

4.	In cases where the defence of alibi is raised, the accused person need not prove his or her alibi or innocence on the higher standard of proof.  But in practical terms, it is incumbent on the defence to lead some evidence of alibi. Whilst the evidentiary burden is on the accused in that respect, the onus of proof remains on the prosecution throughout:  John Jaminan v. The State (No.2) [1983] PNGLR 318.

5.	If the alibi is rejected, the prosecution is not thereby relieved of its burden of proof. The Court must still be satisfied of the guilt of the accused on the requisite standard of proof beyond reasonable doubt.  In John Jaminan v. The State (supra), the Supreme Court set out instructive guide to dealing with alibi defence. The key features of those principles are succinctly captured in the recent Supreme Court case of, Alois Erebebe & Taros Togote v The State (2011) SC 1135 as follows:

a)	If an alibi is raised the burden of proof does not shift from the prosecution. The onus is never on the accused to prove an alibi or prove innocence. However, in practical terms, the accused must lead some evidence of an alibi and it must be sufficiently convincing to create a reasonable doubt in the mind of the judge.
b)	How strong or convincing the alibi evidence must be, depends on the strength of the evidence of the prosecution witnesses. If their evidence is very strong, the alibi evidence needs to be reasonably strong to raise a reasonable doubt in the mind of the judge as to the guilt of the accused.
c)	An alibi is properly regarded as a defence but before it can be said to fairly arise there must be some evidence in support of it, and not mere speculation.
d)	If an alibi is rejected it does not necessarily follow that the court should enter a conviction. The court must still be satisfied that the prosecution has proven its case beyond reasonable doubt. 

6.	See also, helpful guides set out by Lay, J in The State v John Bosco (2004) N2777 and Cannings, J in The State v Noutim Mausen (2005) N2870.

7.	Because the accused maintains he was elsewhere, his defence must show sufficient proof of his alibi. If the prosecution evidence is very strong, the alibi evidence needs to be reasonably strong to raise a reasonable doubt in the mind of the judge as to the guilt of the accused. The prosecution bears the additional onerous task of proving beyond reasonable doubt, the presence of the accused at the scene. It must establish the correctness and accuracy of the identification evidence beyond reasonable doubt, even after disproving the alibi defence.

8.	The trial conducted on the issue of identification is based on the two contentions by Defence, namely; the accused was elsewhere at the time of the incident and secondly that, he had been mistakenly identified.  Conversely, there can be no lawful conviction unless reliable convincing evidence exist which clearly establishes beyond reasonable doubt, presence of the accused at the scene.
	
Facts not in Dispute

9.	The undisputed facts are brief.  On 3/8/13, many people gathered at Kandrian administration centre to witness the declaration of polling result for Kandrian Inland LLG President. Amongst those present were villagers from Kandrian inland villages of Pomuku and Awanglo. When a Lawrence Mango was declared duly elected, a fight broke out between Pomuku and Awanglo villagers.  It spread to the residence of Norbert Molpoio where Raphael and his relatives were attacked. While fleeing towards the Health Centre, Raphael was attacked with a bush-knife and sustained a deep wound to the left calf muscle.  He also sustained an axe injury to the right back part of the head.  The medical report stated that Raphael died from internal bleeding due to compound skull fracture.  

10.	The incident was reported to the police, resulting in the in the arrest of the accused persons some three weeks after the incident.

Contested Evidence – State’s Version

11.	The evidence implicating the accused persons came from State witnesses Hoffman Pasekio and Patrick Pasekio, the younger brothers of the deceased. State also called a Paul Walis.  He was of no assistance on the issue of identification. 

12.	Hoffman testified that he was at the residence of Norbert Molpoio with other relatives when fighting came to their location.  Ali Lapun and Michael Yangily with many others chased them towards Kandrian Health Centre. They attacked Norbert so he and Raphael came to assist him.  Ali Lapun and Michael Yangily then attacked Raphael.  Ali Lapun cut Raphael on the leg with a bush-knife and he fell.  Michael Yangily then struck him on the back of the head with the blunt end of the axe.  Hoffman said they also hit him on the head with a stone and he fell into the sea. He recognised the two accused persons from his previous acquaintances with them.  They would occasionally meet in town and would talk.       

13.	Patrick Pasekio said he stood some 10 - 15 metres away and saw Ali Lapun cut Raphael on the leg with a bush-knife and Raphael fell. He later told the police and others that Ali Lapun cut Raphael with a bush-knife and Raphael died.  

Defence’s Alibi

14.	The accused Michael Yangily elected to give unsworn statement from the dock. He said he had given his story to his lawyer denying the allegations against him. In cross-examination it was put to the prosecution witnesses that Michael Yangily was in the village at the start of the fight. He later came to Kandrian station with others and by then, the fight was over.  Michael called two alibi witnesses to support his story. His first witness, Alois Riru said he was at the Pomuku community with Michael when they heard of fighting in town.  They jumped on the fourth trip in a Toyota land cruiser vehicle which I believed was then bringing Pomuku villagers to Kandrian town to join the fight. They proceeded to the town junction and alighted from the vehicle.  At the same time, they heard gun shots from the police so; they got back on the vehicle and returned to the village.  His second witness Mipiu Nepeniu spoke of being in the garden until the afternoon.  When he arrived back at Pomuku village, he saw Michael Yangily and Alois Riru getting on the vehicle.  He too got on with them and heard on the way they were going to a fight in town. The rest of his story is consistent with that of Alois Riru.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              
     
15.	The accused Ali Lapun gave sworn evidence on his Alibi.  His story is that on the morning of 3/8/13 he rose up early with his family members – his wife Esther Lepkin, his mother Selin Vila and his sister, Anna Bugina and they proceeded to their garden at Amiuku, some long walking distant from the village. They left the garden around 4.00pm, arriving at their home around 6.00pm.  His alibi defence was supported by his wife Esther Lepkin and his mother Selin Vila.  Except for slight variations on the timing, the alibi stories were consistent and supported each other.  

16.	In the upshot, the defence case is that, neither accused person was at Kandrian at the relevant time and place that Raphael was attacked and killed. 

Alibi Defence - Assessment of

17.	Both Michael Yangily and Ali Lapun initially raised their alibi defences on 22/8/13 some 3 weeks after the incident in their respective records of interview.  The State was then alerted to that defence. They have repeated their alibi defences with details of their whereabouts and movements on the date in question. It is obvious from the prosecution evidence and from cross-examination of the alibi witnesses, that police had not investigated the alibi defences.  I am impressed with the evidence of alibi raised by the accused persons.  The alibi defences raised are not mere speculation. They are sufficiently strong and convincing against the strength of the evidence of the prosecution witnesses which at the highest is such that it is unlikely to dissuade a reasonable doubt in my mind as to the guilt of the accused persons.

Identification Evidence - Assessment of

18.	The only reliable evidence of identification is from Hoffman Pasekio.  The weight of his evidence is however reduced by the evidence of his brother, Patrick Pasekio.  While Hoffman Pasekio was in the middle of the fight and most probably more concerned with his own safety than anyone else’s, Patrick Pasekio was on the other hand a spectator, seeing Raphael being attacked 10-15 metres away from him in broad daylight. He spoke of seeing Ali Lapun cut Raphael on the leg with a bush-knife and Raphael fell down.  He was asked in examination in-chief –

     “Did you see anything else?”
     “No”
     “Did Ali Lapun come himself or was he with others?”
     “He was by himself”

19.	Patrick Pasekio’s assertions put Hoffman Pasekio away from the scene where Ali Lapun purportedly attacked Raphael with a bush-knife.  His evidence also casts some doubt on the evidence of Hoffman Pasekio which suggested that the accused Michael Yangily attacked Raphael with an axe immediately after Ali Lapun cut him with a bush-knife.  Then in Court, Patrick Pasekio pointed to the accused Michael Yangily as the accused, Ali Lapun.     

20.	Hoffman Pasekio also relies on prior knowledge of Michael Yangily and Ali Lapun. When the issues on trial turn on the question of identification, I bear in mind that mistakes had been made in the past, even in purported recognition of a close relative or friend.  The case of State v John Beng [1976] PNGLR 481 sounded this warning when it stated:

“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.”

21.	  Accepting that the identification evidence in this case implicates the accused persons as to their presence and participation, the question remains whether the State has proven its case against them beyond reasonable doubt. This standard of proof in a criminal offence enhances the constitutional presumption of innocence until proven guilty in a court of law. The high requirement for proof of guilt does not mean that the State has to prove every single fact in the case beyond reasonable doubt.  What the onus requires of the prosecution is to prove each element of the offence charged, beyond reasonable doubt.

22.	I do not find the evidence of prior knowledge of the accused persons convincing. Hoffman Pasekio did not give any particular reason, basis or circumstances for his prior knowledge. He merely asserted occasional casual meetings with them in town. His assertions could have improved with evidence of how the names Michael Yangily and Ali Lapun were given to the police; how soon after the incident it was given; any descriptions given on the identity of the person identified; or recognised; and the circumstances of their arrest and detention.  It is apparent that this case was poorly investigated by police.

23.	Furthermore, the circumstances under which Hoffman Pasekio purportedly made the observations were not conducive to positive identification.  According to his evidence, there were many people involved in the fight. He was amongst them and in the thick of the fight. No doubt, he would have been anxious and constantly moving around and attentive to his own safety. Furthermore, the contradictory evidence from his brother Patrick Pasekio does not assist. In the end result, I find the identification evidence unconvincing against the accused persons.  

24.	I am not satisfied that there is sufficient evidence to sustain a conviction against Michael Yangily and Ali Lapun.  I find each accused not guilty and acquit him on the charge of murder as charged on the indictment.

Public Prosecutor:   Lawyer for the State  		
Public Solicitor:      Lawyer for the Accused