State v Kerowa [2022] PGNC 10; N9393 (14 January 2022)

N9393

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 509 OF 2018

STATE

V

ROBERT KEROWA

Waigani: Wawun-Kuvi, AJ
2022: 11^th, 12^th, 13^th & 14^th January

CRIMINAL LAW-TRIAL-Application to stop the case-Criminal Code, Wilful Murder, s 299 (1)-Application to stop the case- inherently weak, vague or is inconsistent with other evidence – Application to stop case upheld

The accused was charged with wilful murder under Section 299 (1) of the Criminal Code. The cause of death was a penetrating wound which punctured the right lung causing it to collapse. The State alleged that the accused was part of a group of men numbering more than fifty (50), who killed the deceased. The State invoked section 7 (1) (a) and (c) of the Criminal Code. The accused in his statement to police states that he was at another location when the deceased was killed.

Held:

1. In an application to stop the case, the court considers the tenuous character of the State’s evidence which may be that it is inherently weak, vague or is inconsistent with other evidence. This is the second limb in the case of State v Paul Kundi Rape [1976] [1976] PNGLR 96 which was endorsed by the Supreme Court in, The State v Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37) [1983] PNGLR 287.
2. In relation to identification evidence, the Court is entitled to stop the case where the quality of the identification evidence is poor and there is no other evidence which supports the correctness of the identification: R v Turnbull [1977] Q.B 224.
3. I find that the identification evidence is poor and tainted. I also find that the evidence by the State was inherently weak, vague and inconsistent with other evidence. The evidence was heavily discredited in cross examination.
4. The State case does not show that the accused was responsible for the stabbing of the deceased. The State’s evidence identifies a person named as Calvin, as the person responsible for stabbing the deceased. And another person named as John L as also being present and actively participating in the offence.
5. There is no identification of the accused from all State witnesses who were near the deceased. The evidence of Junior Doil is not only discredited by his prior inconsistent statement but in its entirety, it is contradictory by the other evidence, including independent evidence of the Medical Doctor and the Police Photographer.
6. The Application to stop the case is upheld.

Cases Cited

Papua New Guinea Cases

State v White [1996] PGNC 73; N1441
Davinga v The State [1995] PNGLR 263
The State v Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37) [1983] PNGLR 287
The State v Paul Kundi Rape [1976] PNGLR 96

Overseas Case Cited

R v Turnbull [1977] Q.B 224
Reference

Criminal Code (Ch 262)

Counsel
Ms Gretel Gunson, for the State
Mr Bernard Popeu, for the Defence

RULING

14^th January, 2022

1. WAWUN-KUVI, AJ: The Defence have moved a motion to stop the case following the close of the State’s case. It is argued that the evidence presented by the State is inconsistent and discredited, that no reasonable tribunal could safely convict.
   
2. The State submits that the question of proof beyond reasonable doubt does not arise at this stage. That there is some evidence as to each element of the offence.
   
3. The State misconceives the application. The Defence submission is clear. There is evidence that supports each element of the offence, hence the application to stop the case.
   
4. In an application to stop the case, the court considers the tenuous character of the State’s evidence which may be that it is inherently weak, vague or is inconsistent with other evidence. This is the second limb in the case of State v Paul Kundi Rape [1976] ^[1]which was endorsed by the Supreme Court in, The State v Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37) [1983]^[2].
   
5. In relation to identification evidence, the Court is entitled to stop the case where the quality of the identification evidence is poor and there is no other evidence which supports the correctness of the identification: R v Turnbull [1977] Q.B 224. The full Bench in R v Turnbull held that:
   

“Recognition may be more reliable than identification of a stranger, but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.

In our judgement when the quality of evidence is good, as for example when the identification is made after a long period of observation, or in satisfactory conditions by a relative, a neighbor, a close friend, a work mate and the like, the jury can be safely left to assess the value of the identifying evidence even though there is no other evidence to support it; provided always that adequate warning has been given about the special need for caution......

When in the Judgement of the trial judge, the quality of the identifying evidence is poor, as for example when it depends solely on a fleeting glance or on a longer observation made in difficult conditions, the situation is very different. The Judge should withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification...”^[3] [Emphasis mine]

6. In the present case, I find that the identification evidence is poor and tainted. I also find that the evidence by the State was inherently weak, vague and inconsistent with other evidence. The evidence was heavily discredited in cross examination.
   
7. The above findings are based on the following reasons.
   
8. The Accused is charged for Wilful Murder under section 299(1) of the Criminal Code. The State invoked section 7 (1) (a) and (c) of the Code.
   
9. The State’s case was based substantially on identification evidence.
   
10. The facts alleged by the State are that on October 1, 2017, between 8 pm and 9.30pm a group of men numbering over 50 from Mount Hagen, in the Western Highlands Province murdered the deceased between the Tete Settlement and the Yumi Yet Estate at Gerehu, here in the National Capital District. That there was a fight at Tete between Western Highlands and Southern Highlands at the junction of Tete Settlement. As a result of the fight, the accused and others chased several Southern Highlanders including the deceased towards the Yumi Yet Estate. The deceased was stabbed by the accused.
    
11. The State called four out of the thirty witnesses listed on the indictment. The witnesses were Den Kapu, Esther Simon, Junior Doli and Detective Senior Constable Steven Eka.
    
12. Several documents including photographs were tendered into evidence by consent and were exhibited from “S1” to “S28”. The Statement by the accused dated 1 November 2017 was tendered into evidence without objection and marked as “S29”.
    

The Prosecution Case

13. The State tendered fourteen (14) eyewitness statements by consent. Eight (8) of the eyewitness statements are relevant to identification of persons who chased and stabbed the deceased at the Baptist Church. One of those statements and the most crucial is by Junior Mex, the complainant in the charge of Attempted Murder against the accused. That charge arises out of the same set of facts.
    
14. I deal with the statements of the witnesses first. This is because it highlights the unusual decision by the State to prosecute the accused.
    
15. The legislative basis for the tendering of statements lies within section 589 of the Criminal Code. In State v White [1996]^[4], Doherty J referred to the Supreme Court case of Davinga v The State [1995] PNGLR 263 as the authority for the tendering of statements pursuant to section 589 of the Code. The Supreme Court in Davinga v The State (supra) ruled:
    

"This tendering of evidence by consent is provided for in the Criminal Code S.589" Admission. An accused person may admit on the trial any fact alleged against him, and the admission is sufficient proof of the fact without other evidence" but "A trial judge should always consider carefully whether there can be no prejudice to a fair trial by the admission of such evidence."”

16. The statements that the State tendered were material to the innocence of the accused. By choosing to tender those statements, the State effectively established that other persons were responsible for the death of the deceased and not the accused. The State ought to have considered that very evidence and decided on a different course other than running a trial.
    
17. The State ran its case unfairly when at the outset it was aware that other persons were implicated in the death of the deceased.
    
18. The statements identify a Calvin and a John L as the persons responsible for the death of the deceased. Calvin was the person who delivered the fatal blow. There is very little evidence that identifies the accused as being involved in the stabbing death of the deceased.
    

STATEMENTS TENDERED BY CONSENT

Statement of Junior Max- Exhibit “S15”

19. He is the person that was with the deceased. The full effect of his statement can only be appreciated in verbatim:
    

“..both of us came to where the NRI yard and Pindu transport one of the Hagen fellow whom I know by face with stocky built, short, black skin name namely Calvin and John tall light skin came first. From the bright street light I saw Calvin armed with a bonnet type knife with sharp blade and stabbed Pewi LAMA on the back body, I called Pewi LAMA to come and we go together but he responded and said go so I ran into the church area still followed by this same Calvin fellow inside the church yard.

I went inside the Pastors house and hide inside one of the rooms but Calvin still followed me inside the room and dragged me out of the room in-front of Pastors house where he stabbed me two times on my right side body. One of them I know by face namely John also from Hagen came and stabbed my head four times using a pocket knife. I started bleeding all over my body same time more Hagens coming towards me and rounded me started using those missles on my body. I immediately fell on the ground unconscious so whatever happened to me behind I do not know.....”

20. This witness was the closest to the deceased and he identified persons named as Calvin and John. The physical description of those two individuals is starkly different to the accused person.
    

Statement of Freddy Lea- Exhibit “S16”

21. He was also chased by the group of Western Highlander’s. He was running ahead of the Junior Max and the deceased. He saw a man named as Calvin behind the deceased with a bush knife. He turned and saw a man named John L swing a knife towards the deceased. He could not help him because they were outnumbered. He ran towards the Church area and hid. He later learned that the deceased was killed, and that Junior Max was badly injured.
    
22. He did not participate in the identification parade.

Statement of Moti Kondo – Exhibit ‘S17’

23. He identifies John L as the person that was leading the group.

Statement of Simta Aiya – Exhibit “S7”

24. He resides at the Yumi Yet Estate. He is a member of the Baptist Church. The Church shares a boundary fence with Yumi Yet Estate. On the day in question, he attended Church. Following the Church service, he stayed with the Pastor. Sometime between 8pm and 9 pm as they were having dinner, he heard what he describes as noise coming towards the Church in the direction of Tete Settlement
    
25. He walked out of the Church gate and saw that a crowd of people were moving towards him. As he was still observing, a man approached him breathless asking for help. He identified himself as Max, the son of the owner of the Yumi Yet Estate. He informed him to get inside and quickly cross over to the Yumi Yet Estate premises.
    
26. Soon after him another boy arrived. He was badly injured. He was limping, swaying and was about to fall. Behind him was the crowd that chased him. They told the boy to go and lie in the dark. The boy lay helplessly in the dark. Two men then arrived. One man was tall and looked like he was from Kerema. He was armed with a spear made of steel and the other was fat and medium in height. He cannot recall if the other person was armed. They could not stop them from entering the Church premises.
    
27. He then ran to the Yum Yet Estate to get help. When he returned, the commotion had subsided. He organized a vehicle and took the two injured males to the hospital.
    
28. He did not see who stabbed the deceased. He was already stabbed before he came into the Church. The streetlights were on, however the sides of the road were dark. He was not able to identify the individuals approaching the Church until they came much closer.
    
29. His account of the events and description of the two individuals responsible is similar to Junior Max.
    

Statement Pastor George Yara –Exhibit “S9”

30. His statement is similar to Simita Yata. He is the Pastor for the Faithway Baptist Church.

Statement of Allan Kapu- Exhibit “S10”

31. His statement is similar to Simita Yata and George Yara. He is the driver for the Faithway Baptist Church.

Statement of Raymond James- Exhibit “S13”

32. He states that there was a fight between Paul and John L. at Tete. Police arrived and stopped that fight. After police left, he identified two individuals from Hagen leading a group of about fifty (50) men. They chased five Pangia boys towards the Yumi Yet Compound. They were Calvin who is stocky in built and John L who is tall, light skin and a bit fat. Calvin was armed with a bush knife which was measured about 30 cm in length.

Statement of Stanley Robert- Exhibit “S14”

33. He saw John Laike, John L and Calvin leading the group that chased some boys towards the Yumi Yet Estate.
    
34. The description of the two individuals who led the chase is consistent with all the above witnesses.
    

ORAL EVIDENCE

Den Kafu

35. At the outset the evidence of Den Kapu is irrelevant.
    
36. There is no dispute that there was a fight at Tete. The evidence establishes that there was an initial fight which was stopped by police. That fight was between two groups of Western Highlanders. Police intervened and stopped that fight. Police then left the scene. After the police officers left, a large group of Western Highlanders reconvened. They then started attacking people from Southern Highlands specifically people from Pangia District.
    
37. Den Kapu’s evidence in court is that he saw the accused armed with a bush knife at Tete. He does not observe anything else as he was hiding in his house. The State did not establish whether the observations were from the first fight or later.
38. There is a further issue in relation to this witness. He denies outright that his name is Den Kapu. This was the very first question that the Prosecutor had asked. In cross examination he stated that he was not known by any other names. He stated that his only name was Den Jim.
    
39. He identified his signature in his police statement but stated that Detective Eka must have put the wrong name. Additionally, he stated that Detective Eka inserted “iron bar” in his statement as opposed to his sworn evidence that it was a “bush knife”.
    
40. Detective Steven Eka states that he read the statement to the witness in tok pisin, the witness agreed and signed it. He denies that he changed anything in the statement.
    
41. The second witness Esther Simon who walked in immediately after Den Kapu, stated that Den Kapu is her brother. That he is known by both Den Kapu and Den Jim. That Den Kapu is his village name, and Den Jim is his city name.
    
42. I find that the witness evidence is irrelevant and does nothing to prove the facts in issue. Furthermore, on the face of the State’s case, he is not a witness of truth as he denies his own name contrary to two other State witnesses identifying him to the name listed on the indictment. One of whom was his own sister. And further that he had initially informed police that the accused was holding an iron bar and later changed his story in Court. I do not accept his explanation that Detective Eka changed his statement.

JUNIOR DOLI

43. The State’s primary witness was Junior Doli. His evidence is that he was on duty at the Yumi Yet Estate gate. He was informed of the fight by a taxi driver. He heard the commotion. He walked inside the Yumi Yet Estate premises until he reached the boundary fence. The boundary fence separates the Yumi Yet Estate to a Church. The fence is made of wire. From his position he observed what was happening on the Church grounds. He observed a Calvin holding onto the deceased shirt and Robert stabbed the deceased. The deceased was stabbed in the back. He indicated the right side of the lower back towards the waist. He said that he was able to observe the stabbing because of the lights from the Yumi Yet Estate. And that he knows Robert because they all reside at Tete. He identified Robert in an identification parade at the police station.
    
44. Junior Doli’s evidence is inconsistent with the statements that were tendered by the State. In consistent with the statement of Junior Mex and the members of the Faithway Baptist Church who state that the deceased was stabbed outside the Church premises. That other persons were responsible for the death of the deceased.
    
45. The police photographer one Gerald Saiguyau (S24) took photographs of the crime scene and drew a sketch map. Junior Mex who was also attacked indicated the location where the deceased was stabbed. The deceased was stabbed across an access road further down a footpath in front of residential areas. That the deceased then walked towards the Church area and collapsed.
    
46. The witness was not telling the truth because the police photographs showed two buildings along the boundary fence. At night and with the obstruction of the buildings, the witness would not have been able to see anything.
    
47. Additionally, his evidence is inconsistent with his statement to the police. In examination in chief, he confirmed that he gave a statement to police. That the statement was read back to him, and he agreed. He signed the statement. In cross-examination he stated that he is illiterate. He told his story and Detective Eka wrote down his story. He denies that the statement was read to him. He agrees that he signed the statement. It was put to him that in his statement he said that it was John, Robert, Wilson, and Calvin who were the first to arrive and others came later. That he saw John and Robert grab the deceased shirt and Calvin stabbed the deceased. To this, he replied that he never told the police that and it must have been Detective Eka who put those words in the statement. He stated that his evidence in court is the truth.
    
48. Detective Steven Eka explained that Junior Doli spoke in Tok Pisin and he typed the statement in English. He read the statement back in Tok Pisin and the witness agreed. The witness then signed the statement. He denies outright that he removed or added anything in the statement. He stated that whatever the witness told him, was what he wrote down. The statement was tendered through Steven Eka as a prior inconsistent statement and marked as “D1”.
    
49. The inconsistencies are outlined as follows:
    
    • ➢ The police photographer one Gerald Saiguyau (S24) took photographs of the identification parade. He states that Junior Doli was not able to make an identification. In oral evidence Junior Doli says he identified Robert.
      
    • ➢ The medical report (S25) and the statement of the police photographer one Gerald Saiguyau (S24) independently confirm that the stab wound was on the back of the deceased, towards the right shoulder near the spinal column. This is inconsistent with Junior Doli’s oral evidence that the deceased was stabbed in the lower back near the waist.
      
    • ➢ In his statement, Junior Doli states that when he heard the commotion, he walked to the Church gate and observed the stabbing. In fear of his life he ran back to the Yumi Yet Compound and walked into the compound. From his evidence in Court, he stated that he was standing within the Yumi Yet Estate observing through the boundary fence. He then cried and walked away after he saw that the deceased was stabbed.
      
    • ➢ In his statement he identifies John, Robert, Wilson, and Calvin as the first to arrive. He saw John and Robert grab the deceased shirt and Calvin stabbed the deceased. This is inconsistent with his sworn evidence and the admitted evidence which established that only two people arrived first and they were John L and Calvin.
      
50. Junior Doli’s evidence is inconsistent with other evidence and is heavily discredited in cross examination.

ESTHER SIMON.

51. Esther Simon says that she saw the accused at Tete and the accused informed her that ‘they killed a boy from South Highlands’. That he, the accused, did not know the name of the deceased. The witness shifts between the words “they killed” and “he killed”. She says that the accused was not armed when he informed her husband.
    
52. The accused in his statement exhibited as “S29” states that after he dropped off passengers, he washed the bus and walked home. On the way he was informed that Hagen’s had killed a Pangia man. He proceeded home where he met a Pangia woman. He cannot recall her name. He informed her of what he had heard.
    
53. The State’s evidence establishes that someone else stabbed the deceased. The State’s evidence also shows that two other persons led the charge against the deceased and others.
    
54. The accused explanation in his statement to police is consistent with the statements tendered by the State. Other persons killed the deceased. He was merely informing the witness of what he had heard on his way home. It defies common sense and logic that he would be informing the other side to the conflict that he had killed their relative and not only that, while he was unarmed.
    
55. Additionally, this witness says that she was at the Yumi Yet Estate when she heard about the fight at Tete. The time was between 8pm and 9.30 pm. She took the direct route as indicated in the crime scene photographs. Yet she does not mention a group of men on the road chasing after some individuals. It is unclear at what stage she may have met the accused. Whatever it may be, her evidence that she saw the accused between 8 pm and 9.30 pm, places the accused away from the scene of the stabbing.
    

CONCLUSION

56. In the present case, the State case does not show that the accused was responsible for the stabbing of the deceased. The State’s evidence identifies a person named as Calvin, as the person responsible for the stabbing. And another person named as John L as also being presented and actively participating in the offence.
    
57. There is no identification of the accused from all State witnesses who was in closest proximity to the deceased. The evidence of Junior Doil is not only discredited by his prior inconsistent statement but in its entirety, it is contradictory to the rest of the State’s evidence, including independent evidence of the Medical Doctor and the Police Photographer.
    
58. I find that the evidence of the State is so tainted and discredited that I am duty bound to stop the case at this stage.
    
59. The Application is upheld.
    

Orders

60. The Orders of the Court are:
    1. The Application to stop the case is upheld.
    2. A Verdict of Not Guilty is returned.
    3. The accused is acquitted.
    4. The Accused is discharged on the indictment dated 10 January 2022.
    5. The accused is discharged from custody unless there are pending charges.
       

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

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^[1] PNGLR 96
^[2] PNGLR 287 (14 September 1983)
^[3] at 229-230
^[4] PGNC 73; N1441