State v Awagl [2018] PGNC 482; N7576 (19 November 2018)

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CRIMINAL LAW – Particular Offence-Murder-Not Guilty plea-Trial-Criminal Code Act 1974, Part V-Offences Against the Person and Relating to Marriage and Parental Rights and Duties, and Against the Reputation of Individuals, Division 3-Homicide: Suicide: Concealment of Birth-Section 300 subsection (1) (a).

CRIMINAL LAW- Evidence-Identification evidence-Relevant principles identified and applied in determining credibility-pre-existing knowledge of identity of accused.

CRIMINAL LAW-Evidence-Alibi evidence-Relevant principles identified and applied when in determining credibility of Alibi-Evidentiary onus-False alibi-Alibi rejected.

CRIMINAL LAW- State bears onus of establishing the charge against an Accused person on the required Standard of Proof, Beyond Reasonable Doubt.

[1] In assessing the evidence relating to identification I remind myself of the inherent dangers of relying on the correctness of identification to support a conviction and caution myself, as the tribunal of fact accordingly.

[2] When I considered the totality of the evidence on the issue of identification I found it to be of good quality because it was strong, cogent and convincing enough to base a conviction.

[3] The evidentiary onus or burden shifted to the accused not for the purposes of proving his alibi but rather for him to provide evidence of his alibi that would be of sufficient convincing quality to create reasonable doubt in my mind as to his guilt.

[3] I find that the accused other than what he said in evidence or in his Record of Interview did not in practical terms lead any evidence which I could say was of sufficient weight or was sufficiently credible or sufficiently convincing to create reasonable doubt in my mind to gain an acquittal. In fact I have lurking doubts about the accused’s alibi and find it not reliable and as a result place less weight on it.

John Beng v The State [1977] PNGLR 115
John Jaminan v The State (No.2) [1983] PNGLR 318
Biwa Geta v The State [1988-89] PNGLR 153,
The State v Wer [1988-89] PNGLR 447
The State v Tony Pandau Hahuahori N2185
Jimmy Ono v The State (2002) SC698,
The State v John Bosco (2004) N2777
State v Noutim Mausen (2005) N2870
The State v Kapil Omba (2010) N4130
The State v Okata Talangahin (No 1) (2004) N2581;
The State v Eki Kondi (No 1) (2004) N2542;
The State v Donald Poni (2004) N2663

Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder: ...

if the offender intended to do grievous bodily harm to the person killed or to some other person.

1	Steven Kia	Neighbour
Evidence: Steven Kia said that he had lived at 4 mile for 20 years. He told the court that he knew the person sitting in the dock. That he knew that the accused who also lived at 4 mile and that for the 20 years he had lived there he had seen the accused as they both used the same road going in and out of 4 mile and that his name was Paul. Further that he didn’t know Paul’s second name but knows that he comes from Simbu and is married with children. That on the morning of 20 October 2014 at 7:30am he saw the accused kill the Sepik boy inside the accused’s house. That on that morning he was sleeping at his house and woke up and followed his neighbours and other people who were following boys who were dragging a boy to the accused’s house. At the accused’s premises he saw the accused get a 1mil, 2 meter long fencing pipe from inside his yard. Steven said this pipe was white in colour and the bottom part of it was rusty and was a heavy one. He hit the boy on his head with it after which he fell down and died. Steven was asked where exactly the accused hit the deceased on his head and he indicated to court by tapping the top of his head. Steven was standing outside of the accused’s fence looking into his yard with his back to the road from a distance of 6 meters and the accused was standing just inside his premises at the gate when Steven says he saw the accused hit the deceased. Steven says, when the accused hit the deceased on the top of his head he screamed out ‘aiyo mama’ and died. And he saw blood come out of the deceased’s head. Steven said he saw no one else hit the deceased. Steven said he did not hear the accused say anything when he hit the deceased. Nor did anyone say anything when the accused hit the deceased He said there were many boys holding onto the deceased’s hand as they dragged him into the house. Steven said the deceased was moving before Paul hit him and after being hit he did not move. That it was a short time between the time the boys dragged Terry into the yard and the accused hitting him. Steven said that when they tried to take the deceased to the hospital they were not allowed to so he went home at 9am. In cross-examination Steven told the court that he gave his story to the CID and they took it down on paper and that he didn’t sign the statement. That it was read back to him and he agreed with what he heard. He further told the court that he did not know how to read or write. Mr. Tjipet then took Steven through the statement he gave to the CID and he confirmed what he told them that at 7.30am in the morning of 20 October 2014 he was fast asleep at his house at 4 mile when he was awoken by people shouting and he heard from people that a Simbu man was killed by Sepik. And that upon hearing this he walked to the Simbu’s area and that there were many people there and not long he saw Simbu people pulling a Sepik inside the Simbu man’s yard and that he heard the deceased say ‘aiyo mama’. That he told the CID that a Simbu man by the name of Peter lifted a heavy iron and hit the deceased on the head to which Steven said no that he didn’t know the name Peter. The defence of alibi raised by the accused was put to Steven to which he responded to by saying he didn’t know anything about it. In re-examination Steven was asked if he saw the accused hit the deceased to which he responded yes.
2	Bakele Yangera	Neighbour
Evidence: Bakele Yangera is an Engan who is a neighbour of the deceased who has been living in 4 mile since he was a young man until he got married and currently has 3 children. He is uneducated and has been doing small jobs here and there, like fencing. He stated in his evidence in-chief that he knew the accused as Peter but didn’t know his second name. He describes himself and the accused as neighbours whose houses are within a minutes’ walk from each other on a particular stretch of road that the deceased, Terry Nawak, was also a commuter of. Bakele didn’t know the deceased name but knew he was from Sepik. He stated that the incident occurred on a Monday, 20th of October in 2014. That the deceased was brought by Simbus at around 7:30am to the accused’s house where he was hit on the head with a fencing iron which was approximated to be a meter and a half (1 ½ meters). The witness stated that he was standing at the gate of the accused house while the accused was inside with the deceased. They were chased away with bush knives so were standing outside the accused’s fenced premises. The witness states that he was about 4 meters away from the accused and the deceased. He further stated that the accused said, ‘one of my sons died so I will take the action for that’, while in the act of hitting the deceased on the head with the fencing iron. The accused also said, ‘one of my sons died so I will kill him’, according to the witness. In cross-examination the witness, Bakele Yangera, was asked by Defense if he knew the accused and he said he knew him because they lived together along the same street. The witness stated that he didn’t know much about the family except that the accused was a teacher and was from Simbu. When questioned the witnessed agreed that the accused is a community leader. Mr Tsipet read to the witness his statement that he had given to the CID on the morning of the incident. The witness is uneducated. He said the police took the body to the hospital. When questioned if there were plenty people around when the incident happened he said yes, its 4 mile and there was a very big crowd there. When asked if there were plenty Simbus around at that time and he said yes. It was put to him that the accused did not hit the deceased and he said yes, it was further put to him that it was another person who hit the deceased and he said yes. In re-examination he reconfirmed the person who hit the deceased is Peter by pointing to the accused and that he did see the accused hitting the deceased and that the deceased was still alive before the accused hit him.
3	Bosco Maul	Sepik Man
Evidence: He is from the East Sepik Province. He stated that the name of the deceased was Terry Nawal and that they lived together at 5 mile before the deceased died. He said that at that time the Simbu people were angry. He did not see the killing of the deceased.

And that questions arose as to whether the accused had the intention to do grievous bodily harm to the deceased and further hitting the deceased on the head causing his death.

“ In assessing the identification evidence I have applied the principles set out by the Supreme Court in John Beng v The State [1977] PNGLR 115, Prentice DCJ, Williams J, Kearney J; Biwa Geta v The State [1988-89] PNGLR 153, Kidu CJ, Bredmeyer J, Los J; and Jimmy Ono v The State (2002) SC698, Hinchliffe J, Sevua J, Kandakasi J. In particular:

• I have considered the inherent dangers of relying on the correctness of identification to support a conviction and caution myself, as the tribunal of fact, accordingly.

• It is particularly dangerous to rely on the correctness of identification where there is only one witness giving evidence of identification. However, provided the evidence is carefully examined the evidence of one witness can suffice.

• If the quality of the identification evidence is good the matter should proceed to verdict. But if the quality of the evidence is poor an acquittal should be entered unless there is other evidence that goes to support the correctness of the identification.

• There is always the possibility that an honest witness can be mistaken and still be a convincing witness. The court must be satisfied that the witness is both honest and accurate.

• If the accused has not given evidence the court must not take that into account when considering the quality of the identification evidence, as no inference of guilt ought to be drawn from a failure to testify.

• In assessing the quality of the identification evidence, relevant considerations include: whether the witness is purporting to identify a person who was a stranger or someone he or she recognised; the length of time that the witness observed the accused (e.g. a prolonged period or a fleeting glance?); the emotional state of the witness at the time of the incident; the prevailing conditions (e.g. was it broad daylight or at dusk or dawn or inside or outside?) the line of sight (e.g. did the witness have a clear front-on view or was the line of sight interrupted or did the witness just see the accused from the side?)

• If there are discrepancies in the identification evidence the court should consider them and assess whether they are explicable in terms other than dishonesty or unreliability”.

“56. The final issue is whether the accused was the offender. This raises the issue of identification of the accused. In assessing the identification evidence provided by the victim, I will apply the principles set out by the Supreme Court in John Beng -v- The State [1977] PNGLR 115; (1977) SC112 and Biwa Geta -v- The State [1988-89] PNGLR 153. I have considered the inherent dangers of relying on the correctness of identification to support a conviction and caution myself, as the tribunal of fact, accordingly. I accept that it is dangerous to rely on the correctness of identification where there is only one witness. I note there was no identification parade in this case but it is not necessary to have one. I am conscious of the possibility that an honest witness might be mistaken as to who they saw.

57. It has been said trial judges should warn themselves that the reliability of an identification of a person depends upon the circumstances in which the witness observed the person who he or she has identified as the accused and any one of those may possibly lead to error. For example:

“...The law requires an accused person, who claims to have been elsewhere then the scene of a crime, must give notice of that to the State. This is a well-established requirement in our criminal trial justice system. The requirement is expressed in these terms in Order 4 Rule 4:

"4. An accused person shall not upon his trial on indictment, without the leave of the Court, adduce evidence of an alibi unless, before the expiration of the prescribed period, he gives to the Prosecutor written notice of particulars of the alibi and unless the notice contains the name and address of any person whom he claims can support the alibi or, if such name or address is not known to him at the time he gave the notice—

(a) he gives in the notice all information in his possession that may be of material assistance in locating that person; and

(b) the Court is satisfied that before giving that notice he had made all reasonable attempts to obtain that name and address and that thereafter he continued to make all reasonable attempts to obtain and to inform the Public Prosecutor of that name and address."

The reason for this is simple, if it is indeed true that an accused person was at the place he or she claims he or she was at, and if that can be verified by the State, there would be no need to proceed against such a person. This follows on from the fact that our system of criminal justice is one in which fairness to both sides of a case must prevail. There is therefore, no room for surprises. Brunton AJ considered Order 4 Rule 4 and said these of the rational or purpose behind that rule in The State v Wer [1988-89] PNGLR 447 at p 447:

"But against the rights of the accused, there are the Criminal Practice Rules 1987. They make it very clear that when an accused person relies on a defence by alibi, then proper notice must be given. That is the law. Order 4, rule 4 and rule 5. These rules ensure that the State is not caught by surprise, and that the public interest in seeing a criminal case fairly and properly prosecuted, does not suffer.

"On the one hand, there are the interests of individuals, the interest of the accused, the right to a fair trial, and the right to have one’s day in Court. On the other hand, there is the public interest in the lawful and proper prosecution of offenders. Further, the public have an interest in the economic and efficient operation of the criminal justice system, and the courts."

It is also clear law that, a failure to observe this can have a detrimental effect on an accused person’s case. The Supreme Court decision in John Jaminan v The State (No.2) [1983] PNGLR 318 is a demonstration of what can happen to a defendant who fails to meet the requirements of this rule. In that case, Mr. Jaminan was convicted on four charges of rape and was sentenced to 4 years imprisonment on each charge to be served concurrently. He raised the defence of alibi at his trial. He maintained that he was not present in the room in a hotel where the offences were allegedly committed at the time but was somewhere else. He failed to give notice of this to the State. The National Court rejected the alibi defence and convicted and sentenced him in the way it did”.

“There are two aspects of alibi evidence that need to be considered. First, the formal, procedural requirements that are prescribed by the Criminal Practice Rules. Secondly the more substantive principles, emerging from the case law, that guide the court on how to deal with alibi evidence and determine what weight to give it...

The leading case on the principles to apply in determining the value and weight to be given to alibi evidence is John Jaminan v The State (No 2) [1983] PNGLR 318, Supreme Court, Pratt J, Bredmeyer J, Amet J. Kandakasi J has also carefully set out and applied the relevant principles in a series of recent National Court decisions involving alibi evidence, eg The State v Okata Talangahin (No 1) (2004) N2581; The State v Eki Kondi (No 1) (2004) N2542; and The State v Donald Poni (2004) N2663. In a recent National Court case in Kimbe, Lay J dealt with the specific issue of the limited circumstances in which an inference adverse to the accused could be drawn by the accused’s failure to call a witness to support an alibi (The State v John Bosco (2004) N2777).

I have considered all those cases and summarise the main principles as follows:

• 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.

• How strong or convincing the alibi evidence must be, depends on the strength 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.

• Unlike the defences of self-defence and provocation, there is no rule of law that says that once an alibi is raised it is up to the prosecution to disprove it.

• An alibi is properly regarded as a defence but before it can be said to fairly arise there must be some evidence in support and not mere speculation.

• An alibi is not one of the excusatory defences such as self-defence, provocation or mistake, which concede the presence of the accused and his or her involvement in a series of events that led to the final state of affairs and are like a confession and avoidance. An alibi entails a complete negation and puts every matter in issue.

• 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.

• An alibi that is determined to be false may, depending on the circumstances, amount to corroboration of the complainant’s evidence.

• Great caution should be exercised before drawing an inference adverse to an accused, as a result of the accused’s failure to call a witness that might reasonably be expected to support the accused’s alibi. The State v John Bosco (2004) N2777).

• As a matter of practice, defence counsel should put questions about the alibi to the prosecution witnesses, to comply with the rule in Browne v Dunn (1893) The Reports 67.

• A belated alibi, not revealed on any 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 a record of interview or in District Court committal proceedings.

• Guilt should not be inferred from the accused not mentioning the alibi on an earlier occasion, as the accused has the right to remain silent at all times. However, as a matter of fact the lateness of an alibi reduces its weight.

• The court should consider whether the alibi evidence contains convincing detail or whether it is vague and short on detail.

• The court should assess the degree of logic and commonsense in the evidence of the alibi witnesses (the terminology used by Kandakasi J in Talangahin (supra), Kondi (supra) and Poni (supra).

• The court should also consider the demeanour of the alibi witnesses and whether there are any inconsistencies in their evidence”.

“The onus of proof remains on the prosecution throughout; there is of course no onus on the accused to prove his innocence. But if there is no evidence from the prosecution witnesses in support of the alibi, in practical terms it is incumbent upon the defence to lead some evidence of alibi. One can, I think, speak correctly of an evidentiary onus or burden on the accused. In practical terms in that situation the accused must lead some evidence of alibi and it must be of sufficient weight or sufficiently credible or sufficiently “convincing” — I will allow the word used by the trial judge — to create a reasonable doubt in the mind of the tribunal of fact to gain an acquittal. How strong or credible or convincing that evidence must be, depends on the strength of the prosecution witnesses: if their evidence is very strong then the defence evidence of alibi needs to be reasonably strong to raise a reasonable doubt”.

Q: So similar to the stance that you took the Simbu community also forgave the Sepik community for killing one of their own?
A: The Simbu community I told them not to do anything, God is the Judge but when I went out, that thing happened.

Q: You say that when you went out that thing happened. Tell us what that ‘thing’ was?
A: What I mean is the death of Terry Nawak. When I returned I saw the body in front of my house. That’s the thing I’m talking about.

Q: So I’ll ask you again; the Simbu community forgave the Sepik community for killing one of their own? They did not take any action against the Sepik community?
A: It didn’t happen that way, I think they did not forgive the Sepiks that is why they killed Terry Nawak.

Q: When you say that’s why they killed Terry Nawak, you accept that someone from the Simbu community killed Terry Nawak?
A: That is not correct, not only Simbus are living at 4mile, all of PNG is living there, people coming from all parts of Papua New Guinea, so it was a new type of thing to happen there.

Q: Now I am not asking you who lives at 4 mile, I’m asking you when you say that’s why they killed Terry Nawak, I’m asking you; you accept that someone from the Simbu community reacted to the death of your son and killed Terry Nawak?
A: That I won’t tell this Court, because I’ve told this Court that I wasn’t there at that time. I drove out.

Q: So what you are telling the Court is; to this day you don’t know who killed Terry Nawak?
A: Correct, until today I don’t know who killed Terry Nawak.

Q: And you told court that when you came back and you saw Terry’s dead body you didn’t do anything? You just opened your vehicle and stood there?
A: That’s correct

Q: At the hauskarai, people didn’t mention how Terry’s dead body got to be in your yard?
A: I didn’t hear anything, maybe they might have said but to my ears I didn’t hear anything.

Q: So they spoke about his death but you never heard it?
A: No one told stories with me on Terry death because my son was killed, died, so I was in a state of worry. So nobody would like to tell such stories with me.

Q: You didn’t ask at the hauskrai how Terry Nawak’s body got to be in your yard, did you?
A: No.

Q: My question is; you just weren’t curious as to how the body of your son’s killer got your yard?
A: I didn’t know that until the policeman told me that he is one of the culprits who killed your son, that time I knew.

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

National Court of Papua New Guinea

State v Awagl [2018] PGNC 482; N7576 (19 November 2018)