N10338

PAPUA NEW GUINEA
[IN THE NATIONALCOURT OF JUSTICE]

CR NO. 1666 OF 2016

THE STATE

V

MARTIN KINTANGWAH

Lae: Polume-Kiele J
2021: 17th February, 10 March,14,
30, April, 7 July, 2 August,
1, 7, 24, September 1, 5 & 11 October,
7 December
2022:	24th February

CRIMINAL LAW – Trial – dangerous driving causing death – Circumstantial evidence – Criminal Code, s 328 (2) & (5) - Defence of identification and alibi raised- State tendered in Police and witness statements and other documentary evidence and relied upon them – Nine (9) witnesses gave sworn oral testimonies and were subject to cross-examination - No rule of law requiring State to prove its case by direct or oral evidence only – State can prove its case by direct evidence, or by oral evidence or by documentary evidence or by circumstantial evidence – Charge of dangerous driving causing death – Criminal Code, s 328 (2) (5) - whether defence case put to State witnesses - Verdict of guilty returned.
Brief facts
On Sunday the 21st day of February 2016 between the hours of 5:00 p.m. and 7:00 p.m. a red Nissan Navara double cabin utility bearing the registration number LBE 334 was seen being driven around the University of Technology campus. At 6:30 p.m., the accused Martin Kintangwah was seen driving his father’s motor vehicle, the red Nissan Navara, Registration No. LBE 334 was seen driving into a bush trail in Area 5 that the University Ancillary staff used to access their garden. There was a young female passenger sitting on the off-side passenger seat. When driving through the gardens, the accused’s vehicle, the red Nissan Navara, Registration No. LBE 334, veered off the bush trail and hit the deceased, Gremlin Waine, who was at the garden with her aunt and brother at the relevant time. She died at the scene. A medical autopsy conducted on the deceased revealed that Gremlin Waine died from hyper flexed cervical spine injury as a result of a motor vehicle accident. 

Cases Cited:
Papua New Guinean Cases

John Beng v The State [1977] PNGLR 115
Biwa Geta v The State [1988-89] PNGLR 153
Jimmy Ono v The State [2002] SC698
John Jaminan v the State (No.2) [1983] PNGLR 318
Talangahin (No.1) Kondi (No.1) and Poni)) 
State v Kissip (2020) N8184
The State v Kevin Anis & Martin Ninigan (2003) N2360 
The State v Cosmos Kutau Kitawal & Anor No 1 (2002) N2266
The State v Paka [2016] PGNC 425; N6914 
The State v Theo Yasause (2012) N4871

Overseas Cases

Brown v Dunn (1893) 6 R. 67, H.L

Trial 

This was a trial of the accused, Martin Kintangwah charged with dangerous driving causing death.

Counsel

Ms. S Joseph, for the State
Mr. C Boku, for the Accused

VERDICT
24th February, 2022
1.	POLUME-KIELE J: On 8 March 2021, the accused, Martin Kintangwah was indicated with one count of dangerous driving causing death contrary to s 328 (2) & (5) of the Criminal Code Act. Section 328 states: 
“328-	offence of dangerous driving causing death
328. 	Dangerous driving of a motor vehicle.
(1)	 For the purposes of this section–
“driving a motor vehicle on a road or in a public place dangerously” includes the driving of a motor vehicle at a speed or in a manner dangerous to the public, having regard to all the circumstances of the case, including–
(a) 	the nature, condition, and use of the road or public place; and
(b) 	the amount of traffic that–

(i) is on the road or in the public place at the time; or

(ii) 	might reasonably be expected to be on the road or in the public place;

“public place”–

(a)	 includes every place of public resort open to or used by the public as of right and any field, ground, park, reserve, garden, wharf, pier, jetty, market, passage or any other place for the time being used for a public purpose or open to access by the public by the express or tacit consent or sufferance of the owner, whether or not it is at all times so open; but

(b)	does not include a track that is used for the time being as a course for the racing or testing of motor vehicles, and from which other traffic is excluded at the time.

(2) 	A person who drives a motor vehicle on a road or in a public place dangerously is guilty of a misdemeanour.

Penalty: Subject to the succeeding provisions of this section–

On summary conviction–a fine not exceeding K200.00 or imprisonment for a term not exceeding six months, or both.

On conviction on indictment–a fine not exceeding K1,000.00 or imprisonment for a term not exceeding two years, or both.

(3) 	If the offender has been previously convicted, on indictment or summarily, of an offence against Subsection (2) he is liable on summary conviction to a fine not exceeding K400.00 or to imprisonment for a term not exceeding 12 months, or both.

(4) 	If the offender has been twice previously convicted, on indictment or summarily (or once on indictment and once summarily) of an offence against Subsection (2), the court shall, on conviction, impose, as the whole or part of the punishment, imprisonment.

(5)	 If the offender causes the death of or grievous bodily harm to another person, he is liable on conviction on indictment to imprisonment for a term not exceeding five years.

2.	The accused pleaded not guilty, so a trial was conducted.  On 10 June 2021, a “No case to Answer” submission was dismissed. 

3.	This ruling is on verdict.

Issues arising during trial.

4.	The issues for determination are listed as:

(i)	Whether the accused, Martin Kintangwah, did drive his father’s vehicle, a Nissan Navara Double Cab, Registration No. LBE 334, to Area 5, back road, University of Technology, Ancillary Staff Compound, on 21 February 2016 between the hours of 5:00 p.m. and 7:00 p.m.?

(ii)	Whether the accused, Martin Kintangwah at the time of the alleged offending, did drive his father’s motor vehicle, a Nissan Navara Double Cab, Registration No. LBE 334, which killed the deceased, Gremlin Wemin Waine in the manner alleged by the State?

(iii)	Whether the accused, Martin Kintangwah was elsewhere at the time of the alleged offending? 

Defence of Alibi raised by the accused.

5.	The Defence raised a complete defence of alibi. In his defence, the accused, Martin Kintangwah stated that he never left the house between the hours of 5:00 p.m. and 7:00 p.m. on Sunday 21 February 2016. He was at home during this time. Hence, he cannot be found guilty. 

Issue raised by the Defence.

6.	The defence case focused on the defence of alibi evidence that the accused never drove the vehicle, a red Nissan Navara Double Cab Registration No. LBE 334 on 21 February 2016, between the hours of 5.00 p.m. and 7.00 p.m., he was at home during this time until the next morning. 

7.	The defence case also focused on defects in the police investigation, in particular, the failure to present any witness identifying the accused as being the driver of the vehicle, and that all documentary evidence tendered into evidence amounts to scintilla and no reasonable jury can convict on it. 

8.	Other issues raised by the accused is that all documentary evidence tendered into Court amounts to scintilla and no reasonable jury can convict on it. All police evidence lacks weight and credibility so does not assist the Court in any form or manner to convict the accused safely. Further, all independent witnesses’ evidence is dubious and contradictory so no reasonable inference can be drawn from it to convict the accused and finally, the Key witness, Sam Katam mistakenly identified the accused by-over knowing the vehicle’s existence at the University of Technology. The alleged vehicle was at the University of Technology for over 4 years. Sam Katam does not know the accused at any material time so cannot connect the accused with the alleged offence just by knowing the vehicle for over four years.

9.	Overall, the defence say that the State presented no direct evidence that the accused, Martin Kintangwah was the driver of the red Nissan Navara Double cab, Registration No. LBE 334 in the commission of the offence of dangerous driving causing death on 21 February 2016 between the hours of 6.30 p.m. and 7.00 p.m. 

10.	The State’s case rested entirely on circumstantial evidence. There was no direct evidence presented by the State. All documentary evidence tendered into court amounts to scintilla and no reasonable jury can convict on it. Reliance on documentary evidence is dubious and contradictory so no reasonable inference can be drawn from it to convict the accused. Further, the State failed to present any witness identifying the accused as being involved in the incident, all that was identified is the vehicle, which is known to have existed and was within the University campus.

11.	Given these circumstances, the question to be asked is “whose evidence should the Court rely on to determine the charge?

The State’s Case

12.	The case presented by the State is that on Sunday the 21st day of February 2016 between the hours of 5:00 p.m. and 7:00 p.m. a red Nissan Navara (tinted windows), Silver wheels, Registration No. LBE 334 was seen driving down Sarawaget Road, cutting into Kerevat Road and stopping at the junction. The vehicle then headed towards Badihagwa Road. At about 6.30 p.m. to 7.00 p.m. of the same day (Sunday, 21 February 2016), a vehicle of similar description; a red Nissan Navara (tinted windows), Silver wheels, was seen driving into Badihagwa Road and then the vehicle went off the main street and into a bush trail into Area 5, back road, where the University Ancillary staff used; to access their gardens. The accused MARTIN KINTANGWA is identified by witness Sam Katam as the driver of the said vehicle, the red Nissan Navara, Registration No. LBE 334 not his father Dr. Peter Manus. The said vehicle then drove into a bush trail in Area 5 that the University Ancillary staff used to access their garden. There was a young female passenger sitting on the off-side passenger seat. When the vehicle drove through the bush trail at Area 5, back road at the University Ancillary staff Compound, the deceased, Gremlin Waine was with her brother Kua Wemin, and aunty Wal Waine tending to their garden at Area 5, back road; the vehicle veered off the road and bumped the deceased, a young child, a girl, named Gremlin Waine, she died at the scene.  The accused upon realising that he had bumped someone, sped off. The medical autopsy revealed that the little girl, named Gremlin Waine died from hyper flexed cervical spine injury as a result of a motor vehicle accident.  

13.	The State says that the actions of the accused contravened section 328 (2) (5) of the Criminal Code Act. 

14.	Other evidence which the State relied upon were documentary evidence which were tendered into Court by consent of the Defence. These documentary evidence consisted of:  

(i)	Police Record of Interview dated 8 March 2016 (Exhibit 1). The State pointed out that in Q&A22& 23, the accused stated that when he returned the car, the car was there the whole night. He did not drive around the campus, or Area 5 and so he would like to know if those witnesses who saw him driving with the glass up or down.

(i)	Statement of Senior Constable Maryanne Dowe dated 8 March 2016 attaching copies of photographs of the crime scene – (Exhibits 2 and 2A). Senior Constable Maryanne Dowe states that she is the arresting officer who attended to the Crime scene, took photographs of the crime scene and obtained statements from 16 independent witnesses.  She also conducted the Record of Interview on 8th of March 2016 which was corroborated by Policewoman Constable Wari Richard. 

(ii)	Statement of Constable Betty Meck dated 8 March 2016, (Exhibit 3) in which she stated that she is the traffic policewoman who accompanied the arresting officer to the crime scene and observed the place of the offence.

(iii)	Statement of Constable Wari Richard dated 8 March 2016 confirming her participation as corroborator in the conduct of the Record of Interview with the accused on 8 March 2016. (Exhibit 4). She states that she is the corroborator during the ROI, when the ROI was conducted and how it was conducted.

(iv)	The fatality report dated 22 February 2016 was prepared by Mr. Paul Matna. (Exhibit 5). He states that he is the authorised vehicle inspector who inspected the red Nissan Navara, Double cab, Registration No. LBE 334.  He concluded that the vehicle is drivable except it has worn brake pads and spongy braking condition.

(v)	Statement of Constable Andy Ikime attaching photographs of the deceased, Gremlin Wemin Waine (Exhibits 6 and 6A). Constable Ikime in his statement states that he is attached to the forensic services, part of his duties involves attending to crime scenes and documenting crime scenes. He was present during the autopsy and took photographs of the deceased and the injuries noted on her body.

(vi)	In his affidavit of Dr. Alex Peawi testified that he is the doctor who did the autopsy on the deceased person, Gremlin Waine and he attached a Post Mortem Report and Medical Certificate of Deceased (Exhibits 7, 7A and 8). In his report, he noted bruises to her right face, right eye and neck. Further the deceased sustained bruises to chest, back, abdomen, upper and lower limbs. She died from hyper flexed cervical spine injury. He certified that the death of one Gremlin Waine, a female child of 5 years old who died at Area 5, Badihagwa Drive, University of Technology on the 21st of February 2016.  And that she died from hyper flexed cervical spine injury as a result of motor vehicle accident. 
The evidence for the State
15.	To prove its case, Ms, Joseph for the State, called nine (9) witnesses. Each witness gave sworn oral evidence and testified as to what they each saw, observed, heard or did in relation to this incident which involved the death of a little girl, Gremlin Wemin Waine. The death of Gremlin Wemin Waine occurred on 21 February 2016 between 6.00 p.m. and 7.00 p.m. at the University of Technology campus, on a bush trail at Area 5, back road, Ancillary Staff Compound. The little girl, Gremlin Wemin Waine was bumped by a vehicle described as a red Nissan Navara Double Cab, (4 x 4), Tinted Window with Silver Wheels. The location of the crime scene is referred to and marked in the sketch map as Attachments “36i, 36ii and 36iii”) – which was tendered into court by consent of the defence and marked as (Exhibit "3") for the State. 

16.	Witnesses called by the State to substantiate its allegation are: 

(1)	Nerrie Refo
The first witness called was Mr. Nerrie Refo a Security officer employed by the University of Technology Security Force (Uniforce). Mr. Refo testified under oath and was crossed examined on his evidence. He testified that on Sunday the 21st day of February 2016 at about 6.20 p.m., he was at the Habitat Security Compound and was walking towards Habitat. When about to cross over to the other side, he heard a car coming down, a red Nissan Navara with silver wheels, The car was coming down from Sarawaget Road, driving to Kerevat Road. It stopped at the junction. He gave the registration No. of the vehicle as LBE 334. He testified he has been a security officer with Unitech for almost 4 years, so he recognised the vehicle and he stated that the red Nissan Navara Double Cab, Registration No. LBE 334 is owned by Dr. Peter Manus.
Nerrie Refo stated that he did not see who was driving the said vehicle. He then continued on his way towards Habitat and when he arrived at Habitat, he saw two boys running to the Security Office. When he arrived at the security office, he heard that the boys came to alert the security office on duty that a vehicle had run over a little girl and took off so they wanted the security to radio the security officers manning the gate to lock the gate. He testified that during his walk from his single quarter to the Habitat, he passed only one vehicle that passed through Badihagwa Road, and it was the red Nissan Navara.
Upon cross-examination, Mr Refo affirmed his testimony that the vehicle he saw belonged to Dr Manus. He asserted that he is not mistaken about the identity of this vehicle. He also affirmed that the vehicle was seen at 6.20 p.m., there was still day light. The streetlights installed around the campus were not on yet as it was still day light. He testified further that he assisted the two boys and told the guards that he saw Dr. Manus’s car and told them to check Dr. Manus’s house. He testified further that the distance between Habitat and Badihagwa is about 80 to 100 metres and from Kerevat to Habitat is also about 100 metres. When put to him that he did not clearly see the vehicle, he denied this suggestion and the further suggestion that he was confused about the vehicle because many lecturers in campus also owned vehicles, he denied this suggestion also. He stated firmly that the vehicle he saw that afternoon belongs to Dr. Manus and he was not mistaken. 
(2)	Sam Katam Sanangkeoc
Mr Sam Katam Sanangkeoc is the second witness called by the State. He gave sworn oral testimony and was cross-examined on his evidence. He gave evidence that at about 6.30 p.m. to 7.00 p.m. of the same day (Sunday, 21 February 2016), a vehicle of similar description; a red Nissan Navara (tinted windows), Silver wheels, Registration No. LBE 334, was seen by him, Mr. Sam Katam Sanangkeoc (Sam Katam) for short; driving into Badihagwa Road. It came passed him and his wife and then it went off the main street and into a bush trail into Area 5, back road, where the University Ancillary staff used; to access their gardens as narrated in the evidence of Sam Katam, the second witness called by the State.
In his evidence Mr. Katam testified that he saw a vehicle, a red Nissan Navara (Double Cab) tinted window, Registration No. LBE 334 drive towards him at Badihagwa Drive. He was tending to his flower garden on his front yard. He recognised the vehicle as being owned by Dr. Peter Manus, a lecturer at the Agriculture Department. He testified further, that although the window was tinted, he was still able to see inside the vehicle and he observed that it was not Dr. Peter Manus driving the said vehicle, but he recognised that it was his son, the accused Martin Kintangwah sitting in the dock driving the said vehicle. He also gave evidence that there was a young girl sitting in the off side (passenger seat) as the vehicle passed him and his wife. Not long, after the vehicle passed him, he heard screaming from further down the back road, so he ran towards the screaming. When he got there, he saw a little girl lying on the ground, but he ran past her to try and see what had happened and that was when he saw a red Nissan Navara Double Cab similar to the same vehicle which he had seen earlier which he described as a red Nissan Navara Double Cab, tinted window, Registration No. LBE 334, speeding off from the scene. 
This witness is a retired Security Officer with the University of Technology Security Service and currently resides at his home village in Labu Tale. At the relevant period, he was employed as a Security Officer, he retired in 2017. He had been employed with the Uniforce Security for almost 20 years. (1996 to 2017).  The witness gave evidence that whilst him and his wife thought the vehicle would turn around and head back but instead it turned right and went into the ‘bush track’. As a security officer with the University for over Twenty (20) years, the witness knew all the lecturers, staff and if they own a vehicle, he knows which vehicle belong to which lecturer or staff. 
The witness Mr. Sam Katam identified the accused, Martin Kintangwah in the dock as the driver of the vehicle which killed the little girl Gremlin Waine. He also gave evidence that he sought assistance from his colleague, Peter from Kavieng to use his phone to make a call to the security office to have them lock the main gate as a red Nissan Navara vehicle bumped a small girl and sped off and to use his vehicle by rushing the little girl to Angau Memorial Hospital, Accident and Emergency Unit. However, the little girl was pronounced dead on arrival. Upon learning of the little girl’s death, he said that he used the Unitech Ambulance radio to call the security on duty to check the residence of Dr. Peter Manus for the red vehicle with the description as red Nissan Navara bearing the registration LBE 334. 
In cross-examination, Mr Katam confirmed it is part of his job to familiarise himself with everyone who enters and leaves the campus whether he talks to them or pass them on the road whilst on or off duty as a security officer. He does acknowledge that he may not know all of them personally, but it is still his duty to get to know who is who, the type of vehicle they own or if they don’t own a vehicle at all. Mr. Katam also confirmed that he knows all the residents of the campus and their movement in and out or around the campus whilst on duty. In regards to whether he talks to Dr. Manus, he says that there is no reason to talk to Dr. Manus. His job is to monitor movement of residents in and out or around the campus and anything out of the ordinary day to day activities, serious enough to require the assistance of the security services. As regards, this matter, Sam Katam gave evidence that he took it upon himself to ensure that the vehicle involved in the incident is secured for purposes of evidence, so he gave instructions to the security personnel on duty to lock the gate to prevent the alleged vehicle, the red Nissan Navara, Registration No. LBE 334 from leaving the campus grounds. He also gave evidence that he contacted the supervisor of that shift night.
When it was suggested to the witness that it was dark, and that he was not be able to see. Sam Katam maintained that it was not dark, it was still light “ples no tudak” and that he was five meters away from the vehicle to see that it was not the owner of the vehicle Dr. Manus but his son, the accused, Martin Kintangwah, driving the vehicle. He is not mistaken. Furthermore, it was not it was raining between 6:30 p.m. and 7:00 p.m. that day. Furthermore, when it was suggested that he should have called the police instead of the security officers at the university, Sam Katam denied this suggestion and stated that as he is a senior security officer, it was protocol that such a report be made to the Security Officers on duty that afternoon prior to making a report to the police. Furthermore, he was off-duty and it is only proper that his supervisors be informed of the incident which occurred within the University Campus. 
(3)	Kua Wemin

Mr. Kua Wemin was the next witness called by the State and in his sworn oral testimony, Kua Wemin states that he is a resident of Area 5 and has been for almost 5 years. He states further that at the time of the alleged offence he was a student at the Lanakapi Primary School. He gave evidence that on Sunday 21st February 2016, 6:00 p.m. and 7:00 p.m., a car, a Nissan Navara Dark Glass, red in colour bumped his little sister and killed her. When the car bumped his sister, he was on the left side of the bush trail whilst his little sister, the deceased was on the other side. The bush trail is a back road the security cars used to patrol and when the car drove into that trail, the driver did not switch on the light of the vehicle. He also gave evidence that he saw the vehicle tyre go off the trail towards the right where the little girl was standing, the witness only came to realise that his sister was bumped by that vehicle when the vehicle passed them the witness saw her sister lying on the roadside.  He gave evidence further that when he saw his sister on the ground, he was shocked and confused whether to assist her or follow the vehicle. At that instant he realised the vehicle sped and so he jumped on the trailer, but the vehicle went too fast and threw him off the vehicle to the ground. He watched as the vehicle sped towards the main road and towards Sogeri Market and drove off. The witness further gave evidence that when he saw the vehicle took off, he ran towards the Security Office and reported the incident to the Security on duty.  He told the security guard that a red vehicle bumped his sister and sped off. 

In cross-examination it was put to the witness as to whether there were any security lights at the area, the witness confirmed there was no security light or any form of light at the place of incident. 
(4)	Hocks Lombo
Hock Lombo was another witness called by the State. He gave evidence that he is currently attached as a Driver with the Unitech Security Services. He has been in employment with the Unitech Security Services for 32 years. He states that in 2016, he was a resident at the Second Seven Block, out of the campus and was at his post on the day of the incident. As to why he is in Court this morning, he says that he is here to give evidence in relation to an incident of the little girl who was ran over by a car at Area 5, Badihagwa Drive, University of Technology. He gave evidence that at 6:40 p.m., on Sunday 21st February 2016, whilst at work, he received a call from the car radio that a red utility double cab with tinted glass and white rim ran over a little girl at the Area 5, hence he extended the message for security officers to check that car within the campus. The witness further radio to the security guards at the main gate to check for that mentioned vehicle, which there is only one gate to enter and exit the campus. The witness gave evidence that after he sent the message out, a Security Officer by the name of Sam Katam radio him and told him to check Dr. Manus’s vehicle at his house. So, the witness left the security vehicle at the office and walked over to Dr. Manus’s house at Sepik Drive, when he got there, he noticed that all the security lights were off, and that mentioned vehicle was covered in canvas. The witness gave evidence that since the lights were off and there was no one outside he walked over to their neighbour’s house and spoke with Mrs Nigel, Mrs Nigel told him that some minutes ago a vehicle sped into the Manus’s residence, and they switched off the light. The Witness having checked Dr. Manus’s house as instructed, he went straight to the Security Office and brief his Supervisor. 
In cross-examination, Hocks Lombo confirmed that when he got the message of the vehicle, they gave description and not plate number. When pressed to why he did not drive the security vehicle to check the Manus’s residence, he told the Court that the reason was because the father of the deceased is also a Security Officer and so it would not look good if he drove the security vehicle into the Manus’s residence. Again, when the witness was pressed if he spoke to Dr. Manus’s family, he told the Court that the lights were off and there was no one outside for him to talk to. The witness confirmed there was no fence, and when he went to the Manus’s residence, he was about 20 meters away from the house. The witness confirmed that since it was dark outside, he can only make out the shape of the vehicle, he did not see the colour of the canvas neither, but a canvas was used to cover that vehicle. It was dark, the canvas covered most of the vehicle except the car tyres. 
(5)	
Wal Wemin
Wal Wemin is the aunty of the deceased, Gremlin Wemin Waine.  She also gave oral sworn testimony and was cross-examined on her oral sworn testimony. In her evidence, she states that she lives at Area Five (5) Badihagwa Street with her family for almost five years and in 2016 she was living still at Area Five (5) when an accident occurred which resulted in the death of her niece. She testified gave evidence that on Sunday 21st of February 2016 between 6:25 p.m. and 7:00 p.m. The place was getting dark by the time, they were cutting the bush, it was herself with the deceased and Kua Wemin. The deceased, her name is Gremlin. They cut the bush and started a fire to burn the bush when the witness heard a vehicle drove into the bush trail, so she called out to Kua and told them to kill the fire. The witness gave evidence that a red double cab with dark glass and bumper, the car had no lights on.  After the car passed them, she heard Kua shouted “Stop”, driver put on the headlights and sped off after he bumped the little girl. Wal Wemin states that after the car sped off, she went over to where the little Gremlin was, and she noticed the little Gremlin had blood running out her mouth and nose. At that instant, she realised that Gremlin died.  
In cross-examination, it was put to the witness as to as whether or not she recalled giving her evidence to police and she told the Court that the incident occurred five (5) years ago and she could not recall, however, when shown her statement made to police, she was able to identify her signature, and confirm that she did make a statement to police about the incident.
As regards, the distance from their garden and their house, she testified that the distance is measured in terms of from the Court room is the house and the garden is where the main road is.  The witness confirmed that the car switched its light on after the car hit the little girl. When it was suggested to the witness that it was dark that time, she would not be able to see. The witness denied this suggestion and said the place was not dark, except that the driver did not switch on the car light until after we shouted, and he switched on the car light. When it was put to the witness as to where he was standing, she told the Court that she and Kua went to the left side whilst the little Gremlin crossed to the right side. The witness was pressed as to what she meant when she said four-by-four, and she told the Court that at that time she was not thinking straight and so she said four-by-four.  She confirmed in her evidence that she knew Sam Katam.  The witness was asked to estimate the distance from the house to the place of incident and she told the Court that they were not far from the place of accident and their house, as when the accident occurred, they could her when she called out. 

(6)	Nago Tiki 
This witness gave sworn oral evidence and was cross-examined on her evidence. She testified that she is a resident of Area Five at Unitech for almost 10 years, she gave evidence that car hit the little girl Dodo. Dodo is the daughter of Wiskey, she does not know the real name but only the street name. She knows the little girl who as they live in the same area. She gave evidence that on Sunday 21st of February 2016 between 6:30 p.m. and 7:00 p.m. the witness went to her garden at Area 5 with her three children when she heard someone shouted that a car killed someone. She was quite a distance only to see a red vehicle sped off. 
Upon cross-examination, the witness confirmed that all the people in the street knew her as Dodo. She also confirmed that she did not see the driver. 
On re-examination, the witness confirmed that that there was a case of car accident on the 21st of February 2016 at Area Five (5) and that the incident occurred between 6:30 p.m. and 7:00 p.m. a child was run over by a red vehicle, that child’s name is Dodo. 
Overall, I find that the only relevance in her evidence is that of the timing of the incident, which she says occurred between 6.30 p.m. and 7.00 p.m. Otherwise she did not see the vehicle nor the driver of the vehicle. 
(7)	Jacky Kiake
This witness gave sworn oral evidence and was cross-examined on her evidence. In her testimony, she says that she lives at Sepik Drive, Unitech Campus with her husband and family. She and her family moved into their house next door to Dr. Manus’s residence in 2015, they were neighbours for a year and a half when the alleged offence occurred. Briefly, her evidence is that on Sunday 21st February 2016 between 6:00 p.m. and 7:00 p.m. she was with her son sitting on their veranda when one Security Officer by the name of Hocks Lombo and another security officer approached her. She greeted the Officers and she asked “Yes Officers?” the Security Officer asked whether she saw a vehicle drove into Dr. Manus’s residence. She told the Security Officer that just a few minutes before they came, a car drove into the Manus’s residence. It was dark the witness did not see the colour of the vehicle. Also, the witness could not see clearly as there were flowers edges, she only saw a car drove in. 
Again, I find that the only relevance in her evidence is that of the timing of the vehicle driving into the yard of Dr. Manus, incident, which she says occurred between 6.30 p.m. and 7.00 p.m. Otherwise she could not identify the colour of the vehicle nor the driver of the vehicle. 
(8)	Seth Amai
Seth Amai gave sworn oral evidence and was cross-examined. He gave evidence that he is a Security Officer with the University of Technology. He has been employed for almost 7 years. At the time of the alleged offence, he was residing at Area 5. He gave evidence that on Sunday 21st February 2016 at 6:40 p.m. he was on official guard duty when he received a radio call from the Security Officer at rainforest Habitat, the Officer came on air and instructed the witness to shut down the gate and monitor the vehicle he described as a four-by-four utility, tinted glass and red in colour with double cabin. The witness confirmed the time as 6:40 p.m. when he received the message as he confirmed the time on his computer monitor; he immediately lowered the bar and search each vehicle exiting. The witness further gave evidence that when he closed the gate, he conducted ten searches of that vehicle but did not come across the described vehicle implicated in the alleged offence. The witness gave evidence that he conducted the search from 6:40 p.m. till midnight and there was no sign of the vehicle, before he dismounts, he briefed the Officer that took over his shift of the alleged offence. 
Upon cross-examination, Mr. Amai confirmed that the message he received from the Officer was the description of the vehicle four-by-four utility, tinted glass and red in colour with double cabin.
Seth Amai’s evidence is in relation to the actions that the Uniforce Security Officers took in relation to the search and identification of the vehicle described as a red 4 by 4 Double Cab Utility with tinted windows (glass). 
(9)	Nelson Andrew
Nelson Andrew gave sworn oral evidence and was cross-examined. In his evidence, said that he is a Security Officer with the University of Technology Security Services since March 2013. He gave evidence that on Sunday 21st February 2016 at 6:40 p.m. they received a radio message that a utility red in colour, double cab, and tinted glass bumped Waine’s daughter. When they received that message, he went with Security Driver Hocks Lombo, and they patrol the campus looking for the mentioned vehicle. At around 7:20 p.m. Officer Sam Katam used the Ambulance radio and told them to check Dr. Manus’s house for the vehicle, so they left the security vehicle and walked over to Sepik Drive to check the Manus’s residence. The witness gave evidence that when they got there, they saw Nigel’s wife and asked her if she spotted Dr. Manus’s vehicle, and she told them that some 20 minutes ago a car sped into the Manus’s driveway. He further gave evidence that the lights of the house were all switched off and the vehicle was covered with a canvas. He did not enter the premises; he was about 20 meters away and these are the things which he observed. 
Upon cross-examination, the witness confirmed that he did not enter the premises, there were flowers hedges around the premises and his vision of the premises were obstructed by these hedges. Hence, he could not tell whether it is the front or back of a vehicle which he saw under the house. Nelson Andrew confirmed that he did not speak to anyone at the property and he and his colleague returned to the Security Office. 
Principles on defence of Alibi

17.	In his defence, the accused called three members of his family as alibi witnesses including himself to give evidence. 

18.	Firstly, the legal position on alibi as a defence is set out in the case of John Jaminan v The State (No. 2) [1983] PNGLR 318 t. In that case, the Supreme Court stated:

“A defence of alibi can only arise if there is some evidence (as opposes to speculation) in support thereof; as a defence it 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.”

19.	Here also, the defence case is based on “mistaken identity” thus it is necessary to also consider the principles on identification evidence in the case of John Beng v The State [1977] PNGLR 115, Biwa Geta v The State [1988-89] PNGLR 153 and Jimmy Ono v The State [2002] SC 698. In those cases, the Court took a number of factors into account which it considered relevant when assessing the quality of identification. These are:

(a)	Whether the witness is purporting to identify a person who was a stranger; or someone he or she recognised.

(b)	The length of time that the witness observed the accused; (e.g., was it broad day light; or at dusk or dawn or inside or outside)

(c)	The length of time that the witness observed the accused (e.g., prolonged period or fleeing glance)

(d)	The emotional state of the witness at the time of identification

(e)	The prevailing conditions; (e.g., was it broad daylight or at dusk or dawn or inside or outside)

(f)	The time of sight (e.g., did the witness have a clear front-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.”

20.	The principles to apply when determining the value and weight to be given to alibi evidence is established in John Jaminan v the State (No.2) [1983] PNGLR 318:

(i)	When an alibi is raised the burden of proof does not shift from the prosecution.

(ii)	The prosecution must establish beyond reasonable doubt that the accused was at the scene of the crime at the relevant time. 

(iii)	The evidence of an alibi must be sufficiently convincing to create reasonable doubt in the mind of the trial judge (Browne v Dunn (1983) The PNG Law Reports 67) to raise a reasonable doubt in the mind of the Judge.

(iv)	The prosecution witnesses’ evidence must be sufficiently strong to raise a reasonable doubt in the mind of the Judge as to the guilt of the accused.

(v)	To enter a guilty verdict, it is necessary for the court to assess the degree of logic and common sense in the evidence of the alibi witnesses (Talangahin (No.1) Kondi (No.1) and Poni)) to draw an inference of guilt.

Evidence for the Defence
(i)	Dr. Peter Manus
Examination in Chief
Dr Peter Manus gave sworn oral evidence. He states that he has lived at Sepik Drive, University of Technology (Unitech) campus since 2005. He is the father of the accused, Martin Kintangwah. His son, Martin Kintangwah lived with him at the same resident, at Sepik Drive, Unitech in the year 2016.  He recalled that Sunday 21st February 2016. It was Service time and his family left for Church Service and he was at home. He gave evidence that he owns a Hino and a Nissan Navara, Registration No. LBE: 334. He states that three people drive the Nissan Navara, himself and his two sons. He described his vehicle as a Nissan Navara, double cabin, red in colour and bearing the registration LBE: 334 with tinted glass. 
The witness gave evidence that Sunday, morning, his son, Eddie Manus drove the described vehicle to church with his family members whilst he remained and then went to the office to do some work. At around 2:30 p.m., he returned home. On the way home, he passed a lot of people and cars on the road who gathered at the field to watch Rugby and cricket. When he got home, he sent his son Martin and his sister Roina to buy his flex, Martin drove the vehicle. 
The witness gave evidence that the accused retuned the car keys to him, and Roina gave him his flex card. The vehicle was and remained parked in front of the house from 3:30 p.m. till the next day. He further gave evidence that during this period he had visitors come to visit, the first was Michael Todip and his family. They came over to his house at 7:00 p.m. The second group of people were security officers, they came by later enquiring a car accident. Prompted as to why the Security Officers were at his house, he told the Court that before he could answer that question, he told the Court that Michael Todip is his son and so on that date he was in campus and came by to visit. As to the visit of the security guards, the witness answered that they went over to his house to check his vehicle. 

Dr. Manus stated that the Security Officer went over to his house at about 7:15 p.m. He states that the Chief Security Officer pulled him to the side and told him that there was a car accident and in Pidgin language stated “mipla painim displa redpla car long olgeda hap.”  Dr. Manus stated that in his response to this statement, he told the security officer that Sunday is their day of “Worship”, and they don’t move around. He invited the security officer to check the vehicle. 
Dr. Manus also told the Court that the Chief Security Officer Alex Warren told him that since he is a senior staff member, he came to his house to explain that there was a car accident in Area 5 and the car involved was a red car. He gave evidence further that the vehicle was never at the place of incident. Dr. Manus told the Court that the accused, Martin Kintangwah was with him at all relevant times. He maintained his statement and confirmed with the Court that from 7:00 p.m. to 7:15 p.m. the accused was with him. Further and in addition, Dr. Manus also gave evidence that a young boy had also gone to his house with the security officers and whilst there, the young boy had slapped the vehicle and said something to this effect “this is not the car that killed the child”. I note that this piece of evidence however was not put to the State’s witnesses during trial.  
As to how events unfolded after the incident, Dr. Manus in his evidence state that he came to realise the seriousness of the incident the next day when he found a note in his pigeonhole in his office, from the Chief Security Officer requesting that the witness bring his son to the police station and see Policewoman Constable Dowe. Dr. Manus stated that he shocked to see that message. He then took the vehicle to the Lae Police Station and was told that his motor vehicle was implicated in an accident on Sunday. To this, Dr. Manus again maintained that Martin never left the house on Sunday or even the car. Dr. Manus in evidence confirmed that there was a mechanical check conducted in front of the police station, however, there was no forensic check. Dr Manus maintained in his evidence in chief that between 3:15 p.m. and 7:15 p.m. Martin never left the house. Martin and Roina came home at 3:30 p.m. and they gave the car keys to him. 
In cross-examination, Dr. Manus told the Court that presently he is residing at Sepik Drive. He is married and has six children; the accused is one of them. When asked by the State whether he knew what his son was charged with, he told the Court that his son was accused of negligent driving at the bushes of Area 5. That is, he was alleged to have driven there to Area 5. He agreed with the State that, that the allegation of negligent driving caused the life of a little girl. When it was put to Dr Manus that as per the allegations it was his car that bumped the little girl, he became apprehensive and told the Court that as he had mentioned earlier his car never left the house. He maintained that after Martin returned the keys, he put the car keys in his study/bedroom.  Dr Manus also maintained that between the hours of 3:30 p.m. and 6:00 p.m. the whole family were in the house as it is their rest day; Martin was also in the house. 
When suggested to him that evidence has been adduced by state witnesses who are security personnel who claimed to have seen his motor vehicle around the University Campus, Dr Manus denied this suggestion and told the Court that his car never left the house and does not know why this security officer would lie and make the evidence up. Dr Manus maintained that between 5:00 p.m. and 6:00 p.m. his car never left the house, even 7:00 p.m. his car was parked till the next day.
Overall, Dr Manus did confirm that he owns a red Nissan Navara, double cabin bearing the registration number LBE 334 and that he is the owner of this vehicle. He also confirmed that Martin Kintangwah is his son and that he normally allows the accused Martin to drive his vehicle. When put to him that independent witnesses who have given evidence in court say that they had seen his vehicle driving towards Badihagwa Street between 6:00 p.m. and 7:00 p.m. and that his son, Marin was driving that vehicle; Dr. Manus told the Court that it was a mistaken identity of the car and the driver. 
In re-examination, it was suggested to the witness that apart from Sunday, the witness allows his son Martin to drive his car. The witness answered in the affirmative. 
(ii)	Debrah Manus
Debrah Manus gave sworn oral evidence that he is the mother of the accused Martin Kintangwah, and she lives with her family at Sepik Drive, University of Technology. She is a teacher by profession. She recalled that on Sunday 21st February 2016 she went to Church with some of her children whilst the accused Martin stayed back with her husband.  The witness and her children returned from Church around 12:00 o’clock midday, her husband had already left for work and Martin was in the house. Her husband returned from work around 3:00 p.m. and he sent Martin with their daughter Roina to the canteen to buy his flex card. Her evidence was that they took about 15 minutes and then they returned home, Martin parked the car in front of the house and gave the car keys to his father. After Martin returned the car keys, they all stayed in the house. 
As to her notice of alibi and statement raised by the defence, these were objected to by the State. The objections were sustained as it was given very late and not served on the State. The notice of alibi was subsequently not tendered into evidence. 
However, she was cross-examined on her oral testimony where she maintained that on Sunday 21st February 2016, like every Sunday she prepared their family meal, and they ate and watch TV. Martin was there at the house, right in front of him. When the witness was probed whether she knew what her son was charged with, the witness answered she does not know. Further the witness said he is only a suspect, he was suspected of killing a child that is why he’s in Court. When the witness was probed as to how she knew about the allegation, she told the Court that he is only a suspect and so she would not answer that question. She was further probed as to why she is giving evidence if she does not know the allegation; she told the Court that because she gave evidence that her son was with her that day. 
(iii)	Roina Manus
Roina Manus is the other alibi witness called by the Defence. She gave sworn oral evidence and was cross-examined on her evidence. In her evidence, she states that she younger sister of the accused, Martin Kintangwah, and lives at Unitech, she currently attends Lae Secondary School.  Her evidence in summary is that on Sunday 21st February 2016 she and her brother Martin went to the Uni shop to buy their dad’s flex card, when they returned home Martin left the car keys with their dad and they were all in the living room. They left the car parked underneath the house. After 3:30 p.m. no one left the house. She also gave evidence that Martin was in the house watching TV from 3:30 p.m. till the next day. 

In cross-examination, when asked if she could recall giving a statement to the Police or identify her signature, she stated that she could not recall. However, when prompted further, she claimed that sometimes, she does sign off with her signature and sometime write her initials. When the witness was asked as to why she was in Court, she told the Court that she’s here to give evidence for her brother as he was accused of killing little boy in Unitech and this information was relayed to her through her parents who informed her. When it was suggested to the witness that her parents and the accused told her what the case is about, the witness smiled and said she was made aware a kid died.  She was then asked to describe their vehicle; she told the Court it is a red Nissan Navara with the registration LBE 334. After 3:30 p.m. they returned their dad’s car keys and went to the living room. She is sure that the car never left the house that afternoon and so was Martin. When the State’s case was put to her, she told the Court it was not true because like she said Martin never left the house. From 4:00 p.m. to 4:30 p.m. they had dinner, so it took her about fifteen minutes to finish dinner and she went to her room. 
The State further put to the witness as to what she did after dinner and she went to her and as to whereabouts of the accused, Martin, the witness in reply stated that “He’s an anti-social person, he stays in his room”. When put to her that she would not have seen the accused when she went into her room, she replied, “Yes”. Again, it was put to her that “from 5.00 p.m., she did not see Martin? she replied yes. It was then suggested to the witness that it would be fair to say that from 6:00 p.m. to 7:00 p.m. she did not see Martin? She replied, “No” I would because my room is next to the boys’ room. At this juncture, the witness had changed her story as to the whereabouts of the accused, Martin between 5.00 p.m. and 7.00 p.m. on 20 February 2016. 
When queried to describe the route that the witness and the accused, Martin Kintangwah took to go to the shop, the witness told the Court that she and her brother took the long route. They went around the field because that day the field was too crowded, so they had to go around. From the map she drew, she did not indicate if the vehicle the Nissan Navara Double Cab, tinted window, Registration No. LBE 334 did not venture into to Badihagwa Street, University of Technology, Lae. 
Ms Manus was re-examined as what she meant when she said after 4:30 p.m. she did not see her brother and she told the Court that it came out wrong. 

(iv)	The Accused, Martin Kintangwah
The accused gave sworn evidence in his defence and was subject to cross-examination. In his evidence, he states that he is 34 years of age and is employed as a Sales & Administration Officer with a small company. He still lives with his parents at Sepik Drive, Unitech.  
Briefly, he stated that he recalled that on Sunday 21st February 2016, his family left for church services in the morning whilst he stayed home with his father. At around 3:15 p.m. he left the house with his small sister to buy their dad’s flex. By 3:30 p.m. they returned home. He further stated that there are two routes to the Union Shop, one is around the field, and one is passed through the security office.  At the alleged date of offence, there was a rugby tournament and in terms of traffic there were lots of cars. It was not a Uni game, hence a lot of people from outside the Campus came to play and support. After they returned from the shop, he gave the car keys to his father. When asked about his whereabouts from 3:30 p.m. to 7:00 p.m. the accused told the Court that after returning from the Union Shop, he was with his family the whole afternoon. It was after 7:00 p.m. the security guards came to the house, specifically one Mr Alex Warren, Ruben Ainamo and third guy they don’t know the name. The fourth guy that came with them was a young boy who told them and identified the vehicle. It was at that juncture that the State raised objections as to the evidence the accused is giving is not in evidence nor was it put to the State witnesses. The Court noted the State’s objections. 
The accused was then asked whether the police came to their house, and he answered no. However, he was interviewed by the police on 3 March 2016 including his other brother Eddie, but he was charged for the offence. There was no ID parade conducted by the police.
Upon cross-examination, the accused confirmed that he gave a statement to the police and identified the signature of his statement. He stated that between 3:00 p.m. and 3:30 p.m. he drove his father’s vehicle a Nissan Navara, red in colour bearing the registration number LBE 334. The accused holds a Class 3 license and has been driving since he was 18 years old. His license enables him to drive Utility 4x4 but not big cars. When it was suggested to the accused that he normally drives around the Unitech campus, the accused denied that suggestion and says he gets permission from his father. The State put to him that on the alleged date of the offence, State witness Sam Katam saw him driving his father’s vehicle into Badihagwa Street between 6:30 p.m. and 7:00 p.m. the accused denied that he ever drove the vehicle that date and time. 
So, the State poised several questions to the accused to confirm his whereabouts between the hours of 5:00 p.m. and 7:00 p.m. the accused replied, “probably watching TV and eating.” Furthermore, it was also put to the accuse that it would be correct to say that his father owns the vehicle Nissan Navara, red in colour bearing the registration number LBE 334? He answered, “Well, the car is under his name, so that is correct.”  But on the date of the offence, you were driving between 5:00 p.m. and 6:00 p.m., he replied “No”. Again, the State poised a question, Why would Sam Katam lie to the Court? He replied, “I wouldn’t know why he lied to the Court”. Further questions were then put to the accused with the State suggesting that State witness, Nerrie Refo also saw your dad’s vehicle that afternoon, what do you have to say? The accused replied, “He too would be lying, the rest of the afternoon I was at home”.  
Overall, the accused in his evidence maintained that the two independent witnesses lied, and his family told the truth. He also denied all the allegations put to him by the State and maintained that he never left the house nor did the car never left the house after 3:30 p.m. till the next day.
Submission for the State

21.	Ms Joseph for the State submitted that in answer to the issues posed at the outset as to whether the accused drove his father’s vehicle to Area 5 on 21st day of February 2016 between the hours of 5:00 p.m. and 7:00 p.m. and taking into account the relevant principles on identification evidence as stated by the Supreme Court in the case of John Beng v The State [1977] PNGLR 115, Biwa Geta v The State [1988-89] PNGLR 153 and Jimmy Ono v The State [2002] SC 698 and the 6 considerations relevant to take into account when assessing the quality of identification; she proffered that the State witness Sam Katam recognised the vehicle first as one belonging to Dr. Manus, and when he looked into the front windscreen of the vehicle he saw that it was not Dr. Manus but his son, the accused, driving. He was also accompanied by a young female passenger sitting at the off-side passenger seat. There was ample lighting and when the witness looked through the windscreen, he could clearly see that it was not the father but the son who drove that afternoon. Sam Katam was able to observe and recognise the accused it was a broad daylight, the accused was standing outside his house and observed the vehicle driving into their street and past them to the Area 5 bush trail. The identification was from a frontal position. The vehicle was on the main road and driving towards him and his wife who were standing in their front yard garden. The vehicle was not speeding and therefore he was able to recognise the driver of the vehicle. The State witness Sam Katam was not in a distressed or disturbed emotional state of mind when he recognised the accused. His identification and recognition occurred during the afternoon, the place was still light and there was no obstruction from where the witness was and the vehicle. He had clear vision of the vehicle travelling towards him and that he recognised the driver as the accused, he was 5 meters away and was standing in front of the vehicle when it made the turn to the bush trial. His vision was not obstructed or interrupted; he was standing in front.

22.	Ms Joseph also submits that there are no discrepancies in the identification evidence. The State’s evidence in regard to identification is consistent, truthful, and reliable. Therefore, she invited this Court to make a finding that the accused was present at the crime scene, and that he drove his father’s motor vehicle and killed the deceased in the manner alleged by the State. The accused was reckless when he did drive into the bush trail which is used by members of the University of Technology Ancillary Staff to access their gardens; a route not frequently accessible by other vehicles where he became inattentive to his surroundings and as a result the car veered off the trail and bumped the little girl Gremlin Wemin Waine, who happened to be gardening with her aunt, Wal Wemin and brother Kua Wemin at Area 5, Badihagwa Drive and killing a little girl, named Gremlin aged 5 years old at the time.

23.	Furthermore, Ms Joseph submits that the alibi defence must failed as there is no other explanation other than the evidence adduced in Court through the evidence of Sam Katam and Nerrie Refo who saw the subject motor vehicle, red Nissan Navara, double cabin with tinted glass bearing the registration number LBE 334 at some stage between the hours of 6 .00 p.m. and 7.00 p.m., within Area 5 and along Badihagwa Drive. The evidence of Sam Katam identifies the accused Martin Kintangwah as the driver of the said red Nissan Navara, Double Cab, Tinted Window, Registration No. LBE 334. The evidence of Kua Wemin in essence infers that it is the same red, Nissan Navara (Double Cab, Tinted window that was driven within and along the bush trial in Area 5 that killed his little sister, Gremlin, the deceased in the manner alleged by the State.
Submission for the Defence
24.	Mr. Boku for the accused submitted that the State’s case rest entirely on circumstantial evidence and say that the State did not prove its case beyond any reasonable doubt to connect the vehicle and the accused to the alleged offence so on that basis, this Court cannot convict the accused safely based on the case of State v Kissip (2020) N8184. Counsel submitted that Rules 1, 2, 3, 4, 5, 6 and 7 as stated in State v Kissip (supra) were all breached because the manner and form of how the police conducted its evidence including the collation of evidence from witnesses were irrelevant and because of this failure, the prosecution elected not to call the police investigators and authors of the documentary evidence to be cross-examined. Consequently, the Court cannot allow these materials in evidence. 

25.	For our purpose, the guidelines or factors identified in The State v Kissip (supra) are set out as follows: 

1.	“The ordinary rule is that the prosecution should call all witnesses whose evidence is necessary for the presentation of the whole picture, to the extent that it can be presented by admissible and available evidence, unless valid reason exists for refraining from calling a particular witness or witnesses. Generally, all witnesses who can give “material evidence” should be called by the prosecution: R v Harris [1927]2 KB 587.

2.	As the prosecution seeks the truth, it must call evidence favourable and unfavourable to its case: see R v Soma [2003] HCA 13: (2003) 212 CLR 299; R v Shaw (1991) 57 A Crim R 425

3.	The prosecution has a discretion as to whether, any particular witness should be called, The discretion is not unfettered, however, and must be exercised in the interest of justice so as to promote a fair trial: see Muhammed El Dabbah v Attorney General for Palestine [1944] AC 156 PC; Apostilides v R [1984] HCA 38; (1984) 154 CLR 563 considered.

4.	The prosecution does not need to call a witness if his or her evidence is likely to be unreliable, untrustworthy, or otherwise incapable of belief: Whitehorn v R [1983] HCA 42, (1983) 152 CLR 657; R v Newland (1997) 98 A Crim R 455. Nor should the prosecution call a witness whose evidence is likely to be unnecessarily repetitious: Whitehorn v R (supra)

5.	Where the prosecution fails to call a witness without providing a reasonable explanation, the Court may, if it considers that the prosecution has not exercised its discretion fairly, invite the prosecution to reconsider its position but is not obliged to do so: see R v Olivia [1965] 3 All ER 116; and R v Apostilides (supra). It may, in exceptional circumstances, call the witness itself: see R v Birch [1978] PNGLR 79, or make an adverse finding that the witness should be called.

6.	As a general rule, a trial judge should not infer that the evidence of those who were not called would not have assisted the prosecution. A judge should not speculate about what the person might have said. Exceptions to these general rules will be rare and will arise only in cases where it is shown that the prosecution’s failure to call the person in question was in breach of the prosecution’s duty to call all material witnesses: see Dyers v R [2002] HCA 45; (2002) 210 CLR 285: considering Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.

7.	If the question concerns the failure of the prosecution to call a witness whom it might have been expected to call, the issue is not whether the trial judge may properly reach conclusions about issues of fact but whether in the circumstances, the judge should entertain a reasonable doubt about the guilt of the accused: se RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620”

26.	Counsel for the Defence submitted that firstly, the State breached Rules 1, 2, 3 and 6 established in the case of State v Kissip (2020) N8184 by failing to call all material witnesses, all policemen and women involved in the investigation with the vehicle inspection to adduce evidence to present the whole picture of the allegations though it was the prosecution’s duty to do so, breaching Rules 1 and 6. In addition the prosecution did not call all evidence favourable or unfavourable to seek the truth to its case especially through the police witnesses and authors of the documentary evidence, breaching Rule 2; and furthermore, the prosecution to not call all witnesses though it has the discretion to do so but this case rests entirely on circumstantial evidence gather by police and that discretion was not exercised in the interest of justice and fair trial breaching Rule 3. Specifically put, the police witnesses were not just ordinary duty officer but that were materially engaged in the investigation of a death caused by an unidentified vehicle and driver at the University of Technology Ancillary Staff premises. Hence, the accused was not given the opportunity to counter the documentary evidence in the interest of justice and reasons of fair trial.

27.	Whilst Counsel for the defence acknowledged that Rule 4 in The State v Kissip (supra) makes provision for the Prosecution to not call a witness if his or her evidence is likely to be unreliable, untrustworthy or incapable of belief, so when the State did not call the police witness, the Lead Investigator in which she is the Arresting Officer as well, Counsel submitted that Rule 5 is relevant  and that the entire evidences she has gathered in the alleged offence are unreliable, untrustworthy or incapable of belief.  Further and in addition, Mr Boku did submit that where the prosecution fails to call a witness in its exercise of discretion fairly and that the Court is not obliged to invite the prosecution to reconsider its position or make an adverse finding that the witness should be called, he submitted that in this case, the Court should have invited the prosecution to call the police witnesses to be called to present the whole picture of the alleged offence. 

28.	Also still relying on Rules highlighted in The State v Kissip (supra), Mr Boku submitted that under 7,  because the prosecution failed to call a witness whom it might have been expected to call, the Court should now find that under the circumstances where the prosecution has failed to call all witnesses who may have provided evidence to present the whole picture of the alleged offence, reasonable doubt about the guilt of the accused be entertained as to the missing link between the police investigation and the entire evidence before the Court. 

29.	In conclusion, Mr Boku submitted that in the alternative, not one single witness gave any linking evidence to connect the vehicle and the accused to the alleged offence as their evidence were contradictory through the trial and he outlined the evidence which he submitted were contradictory and therefore the accused should be acquitted with all his bail monies and guarantors ’surety refunded. 

30.	I will address the matters raised by the defence in my analysis of the evidence. 
Analysis of the evidence
31.	I will now analyse the evidence of both the State and Defence and come to a conclusion. 

32.	This is a case of dangerous driving causing death. It is a crime under s 328 (2) & (5) of the Criminal Code Act. A Defence of identification and alibi raised- - State tendered in Police and witness statements and other documentary evidence and relied upon them – Nine (9) witnesses gave sworn oral testimonies and were subject to cross-examination. 

33.	The State’s case is that on 21 February 2016 between the hours of 6.00 p.m. and 7.00 p.m., the accused, Martin Kintangwah drove a vehicle, a red Nissan Navara Double Cab Utility, Registration No. LBE 334, on a public road, at the University of Technology Campus, Lae, on a bush trail at Area 5, back road, dangerously. The accused, Martin Kintangwah caused the death of one, Gremlin Waine, a young female child aged 5 years old. She died at the scene.

34.	To prove their case, nine (9) witnesses were called by the State. They all gave sworn oral testimony and were subject to cross-examination. They all testified as to their personal recollection of the incident which occurred on 21 February 2016 between 6.00 p.m. and 7.00 p.m. at the University of Technology campus, on a bush trail at Area 5, back road, University of Technology Ancillary Staff Compound.  The incident is that a little girl, Gremlin Wemin Waine was bumped by a vehicle described as a red Nissan Navara (Tinted Window) Double Cab, Silver Wheels (4 x 4); adduced in the evidence of Kua Wemin, Wal Waine and Sam Katam. Here, they all gave evidence that the incident occurred at Area 5, back road, University of Technology Ancillary Staff Compound. This evidence is collaborated by the photographs taken of the location of the crime scene, the photographs are referred to and marked as Attachments 36i, 36ii and 36iii) which were tendered into evidence by consent of the defence as Exhibit "3". This evidence remains unchallenged and intact. 

35.	Further, there is also no dispute that a motor vehicle described as a red Nissan Navara (Tinted window) Double Cab, Silver Wheels. Registration No. LBE 334 is owned by a Dr Peter Manus, a lecturer at the Department of Agriculture. No evidence was called to rebut this evidence. Thus, it remains unchallenged.

36.	Similarly, there is no dispute that the cause of death is “hyper flexed cervical spine injury as a result of a motor vehicle accident”. It remains unchallenged.

37.	The only issue for determination is whether the accused, Martin Kintangwah was the driver of the said vehicle, was at or within the crime scene on 21 February 2016, between 6.00 p.m. and 7.00 p.m.  The accused has raised or put up a complete defence of alibi. I must say that as to the alibi evidence, the accused’s response to questions put to him about his whereabouts between 5 p.m. and 7.00 p.m., and his response being: “probably watching TV, eating or hanging out with family” is very vague and inconsistent with the principles of “alibi” since the accused has put up a complete defence of alibi. 
38.	The accused’s evidence that he never drove the vehicle, a red Nissan Navara Double cab, Registration No. LBE 334 to Area 5 nor committed the offence on Sunday 21 February 2016 between the hours of 5.00 p.m. and 7.00 p.m., is not convincing at all. He states that the only time he drove a red Nissan Navara Double cab, Registration No. LBE 334 on Sunday, 21 February 2016 was between 3.15 p.m. and 3.30 p.m., when he drove to the Union Shop to buy flex for his father. Given that, I must say that whilst the version of events and timing differs to the version of events and time given in the evidence of some of the State witnesses. Hence, this is where the issue of common sense and logic comes into play.
39.	It is trite law that, common sense and logic plays a major role in determining whether a witness and therefore his evidence is credible. In The State v. Cosmos Kutau Kitawal & Anor (No 1) (2002) N2266: The Court stated: 
“Logic and common sense do play an important part in either the rejection or otherwise of evidence before a court of law and whether or not an accused person should be found guilty.  In The State v. Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48, applying a logical and common-sense approach, the National Court found the defendants guilty of murder even when there was no evidence directly showing that the defendants had killed the deceased. The Court proceeded to convict them, when the defendants’ failed to provide a reasonable explanation for the appearance of the badly wounded deceased body in their house. On appeal, the Supreme Court affirmed the National Court’s approach and dismissed the appeal: see Garitau Bonu & Rosanna Bonu v. The State (24/07/97 SC528 and Paulus Pawa v. The State [1981] PNGLR 498 for an earlier authority on point.” 
40.	First, with this question in mind, I will now analyse the evidence of Sam Katam of observing that it was the accused, Martin Kintangwah who the person was driving the red Nissan Navara, Registration No: LBE 334, it was not his father, Dr. Peter Manus. 

41.	Sam Katam also observed that there was a young girl sitting on the off-side passenger seat. According to his evidence, he was standing facing the oncoming vehicle. The red Nissan Navara Double Cab was driving towards him. It was still day light, and he was able to identify the accused, Martin Kintangwah as the driver of the said vehicle. The vehicle was not speeding as it was driving onto the bush trail. He was able to see and identify the driver of the vehicle. 

42.	Sam Katam also observed that there was a young female sitting at the off-side passenger seat. I say that this evidence collaborates the evidence of all the alibi witnesses including the accused. In all their evidence, they say that the accused and his young sister, Roina Manus had driven out in their father’s red Nissan Navara Double cab, Registration No. LBE 334 (tinted window) on that day.

43.	However, the only difference in all their evidence and the State’s evidence is the timing of the incident causing death. The alibi witnesses and the accused say that the accused had driven the vehicle out of the home between 3.15 p.m. and returned at 3.30 p.m. Upon return home, it never left the home. No one left the house after 3.30 p.m.  

44.	The State evidence point to the vehicle being seen between 6.00 p.m. and 7.00 p.m.  This evidence now leads to the question of which version of the evidence should this court accept, and which be rejected. It involves the issue of common sense and logic.

45.	Further, the evidence of Sam Katam as to the description of a Nissan Navara, Double Cab, Tinted Window, red in colour, Registration No. LBE 334, is collaborated by the evidence of Kua Wemin who gave evidence that on Sunday, 21 February 2016 between 6.00 and 7.00 pm, he saw a Nissan Navara, Double Cab, dark window, red in colour bumped his little sister. Whilst Kua Wemin is unable to give evidence of the actual registration number of the said Nissan Navara, Double Cab, dark windows, which is red in colour, it does not necessarily deviate from the evidence of Sam Katam, there are common features in the vehicle description and would lead to the conclusion that it was the same vehicle which had been described by Sam Katam, who was able to observe the vehicle as he was not a stranger to the identity of vehicle and able to identify the owner of and registration number of the vehicle, including the model and colour. 

46.	As Sam Katam stated, it was part of his job to keep records of the movement of staff, students, family members of staff and vehicle going in and out of campus. He was not a stranger and is able to recognise that Dr. Manus was not the driver of the said vehicle but his son, the accused. The length of time in which he made this observation was about five minutes as the vehicle was driving towards him. At the relevant time of his observations, he was in a stable stage of mind, tending to his garden and not under any stress. It was a leisurely afternoon and there was still sufficient light for him to make the observation of recognising that it was not Dr. Manus driving the said Nissan Navara, Double Cab, Tinted Window, red in colour. It was his son, the accused, Martin Kintangwah driving the vehicle, he was accompanied by a young female sitting on the off-side passenger seat. I do not think that there are any discrepancies in the identification evidence. Further I accept that the evidence is an honest and reliable testimony. 

47.	This evidence is further supported and collaborated by the evidence of Wal Wemin, the aunty of the deceased who was on the scene. She gave evidence of a red car with bumper, tinted windows with no back cover that ran over the little girl, Gremlin. 

48.	Further and in addition, I also note that the evidence of Nerrie Refo points to him seeing the vehicle. He states on Sunday the 21st day of February 2016 at about 6.20 p.m., he was at the Habitat Security Compound and was walking towards Habitat. When about to cross over to the other side, he heard a car coming down, a red Nissan Navara with silver wheels, The car was coming down from Sarawaget Road, driving to Kerevat Road. It stopped at the junction. He gave the registration No. of the vehicle as LBE 334. He testified he has been a security officer with Unitech for almost 4 years, so he recognised the vehicle and he stated that the red Nissan Navara Double Cab, Registration No. LBE 334 is owned by Dr. Peter Manus.

49.	Overall, State witnesses, Nerrie Refo, Sam Katam and Kua Wemin place the vehicle, a Nissan Navara, Double Cab, Tinted Window, red in colour, Registration No. LBE 334 to have been seen driven on that Sunday afternoon, (21 February 2016) firstly, from Sarawaget Road towards Kerevat Road  and Badihagwa Drive (Nerrie Refo) and then the vehicle of the same description is seen at Area 5, and Badihagwa Drive (Sam Katam) and then after bumping and killing the little girl, Gremlin at Area 5, Badihagwa Drive, the vehicle speeding off toward the Sogeri Market (Kua Wemin). The timing was between 6.00 p.m. and 7.00 p.m.

50.	Whilst it is noted that there is no map of the general area of the University campus, I am assisted by the sketch map drawn by the Alibi witness, Ms Roina Manus who gave evidence that they (accused and herself) had taken the backroad to go to the Union Shop to buy flex and returned home using the same route. According to the sketch map, the back road appears to be the Sarawaget Road. So, in applying the common sense and logic test, I accept the evidence of the State witnesses, Nerrie Refo, Sam Katam and Kua Wemin that on Sunday 21 February 2016, the vehicle, described as a Nissan Navara, Double Cab, Tinted window, red in colour, Registration No. LBE 334 was seen driven along Sarawaget Road, on the back road of the University of Technology campus heading towards Kerevat Road, and Badihagwa Drive.

51.	As to where Area 5 of the Ancillary Staff, Compound is exactly situated; no evidence was adduced to determine its location. However, from the evidence of Nerrie Refo, Sam Katam and Kua Wemin and that of the alibi witness, Roina Manus; it can be inferred that Area 5 is situated somewhere on the back road along Sarawaget Road, University of Technology campus. 

52.	From this evidence, it is also reasonable to infer that their evidence placed the Nissan Navara Double Cab, tinted windows, red in colour, Registration No. LBE 334 within the vicinity of Area 5, Badihagwa Drive that Sunday, 21 February 2016 between the hours 6.00 p.m. and 7 .00 p.m.

53.	As indicated earlier, the timing of sighting however differs. That is, the alibi evidence is that it was driven out between the hours of 3.15 p.m. and 3.30 p.m. The State evidence is that it was seen being driven around the area between the hours of 6.00 p.m. and 7.00 p.m. This is where the assessment on the credibility of witnesses would determine whose version of the evidence, should the Court accept.

54.	Further, the evidence of Hocks Lombo, Seth Amai and Nelson Andrew all relate to the actions taken by the Unitech Security Force members in the performance of their duties in relation to taking preventive measures to prevent the suspect vehicle from leaving the scene and escaping which will hinder any investigation which may ensue in relation to the incident. The evidence of Hocks Lombo, Seth Amai and Nelson Andrew also corroborate the evidence of Sam Katam Sanangkeoc and Nerrie Refo; more particularly in relation to their overall personal knowledge of Unitech staff personnel and movement in and out of campus, the type of vehicles they own and or if they do not own any vehicle at all. Their evidence also collaborates their knowledge of the type of security measures that they follow when incidents such as this occur. Which is to shut the gate and not allow any persons or vehicle in this case to leave the campus grounds and this is where the evidence of Hocks Lombo and Nelson Andrew as to their visit to the house of Dr Peter Manus, although discreet is also relevant.

55.	As regards, the evidence of Nogo Tiki and Jackie Kiake, I find their evidence mere assumptions, however, it would nevertheless collaborate the evidence of Hocks Lombo and Nelson Andrew as to visiting the premises of Dr Manus and observing that his vehicle was covered in canvas. Evidence which remains unchallenged.

56.	As to the evidence of the Alibi witness, Dr Manus in relation to the Security Officer, Chief Security Officer Alex Warren, fronting up at his residence at 7.15 p.m., on Sunday, 21 February 2016 and enquiring about the car accident, and a young boy coming with the security officers, the young boy slapped the vehicle and said this is not the car that killed the child. I find this story fanciful as these allegations have not been put to the State’s witnesses nor have the defence called these persons to give evidence to counter the State’s evidence. It also breaches the rule in Brown v Dunn (1893) 6 ER. 67

57.	Furthermore, I am satisfied that the evidence of Hocks Lombo, Seth Amai and Nelson Andrew support the whole evidence of Sam Katam Sanangkeoc, Kua Wemin, Wal Wemin and Nerrie Refo, although not relevant to the issue of identification. Their evidence is relevant as it pins the timing of receiving the information of the incident, which they each said was between 6.20 p.m. and 7.00 p.m.  It contradicts the time given in the alibi witness’ evidence which it stated to be between 3.15 to 3.30 p.m.

58.	What is relevant is whether witness Sam Katam Sanangkeoc, saw the accused driving the red Nissan Navara, (tinted window) Registration No. LBE 334 on the bush road at Area 5 (Badihagwa Drive) on 21 February 2016 between the hours of 6.00 p.m. and 7.00 p.m. Evidence adduced during trial placed the accused being seen driving the said vehicle at the relevant date and time on or within the Area 5. The issue of having personal contact with the accused or Dr Manus prior to the incident is irrelevant to the issue of identification.  This evidence is supported by the evidence of Kua Wemin and Wal Wemin which point to them witnessing a red vehicle (Double Cab) (Nissan Navara) running over the little girl, Gremlin Wemin Waine causing her death. Their evidence is also not disputed.

59.	In considering all the evidence presented, I am satisfied that all of the above evidence supports the allegations raised by the State. Hence, I find that the following have been proven: 

(1)	The Accused drove

60.	The accused, Martin Kintangwah is identified by State witness Mr. Sam Katam Sanangkeoc, who gave evidence that on the 21st February 2016 between 6:30 p.m. and 7:00 p.m. whilst standing on his front of their yard, when he looked up, he saw a vehicle approaching their street. Sam Katam stood 5 meters away from the road and when he looked through the front screen of the car, he first noticed that it was not Dr. Manus in the driver’s seat. He saw that it was Dr. Manus’s son who drove the vehicle. And he further gave evidence that there was also a young female passenger in the off-side seat. The witness Mr. Sam Katam went on to identify the accused in the dock as the driver of the vehicle that killed Gremlin Waine.  I accept his evidence as credible and believable. He has no reasons to lie to this. In fact, the alibi witness evidence gives credence to his evidence.

(2)	A Motor Vehicle 

61.	From the nine witnesses that the State called to give evidence, two witness namely Mr. Sam Katam and Mr. Nerrie Refo identified the motor vehicle as ‘a Nissan Navara, red in colour with tinted glass, silver wheels with the registration number LBE 334’ belonging to one Dr. Peter Manus, a lecturer with the University of Technology. Also State witnesses Kua Wemin and Wal Wemin gave evidence that they saw a ‘Nissan Navara, red in colour with dark glass’ bumped and killed Gremlin Waine. Their evidence is credible and believable. 

(3)	On a Road or in a Public place

62.	The location at which the alleged offence occurred was at a public place known as Area 5, a bush trail where the Ancillary staff used to access their garden. This evidence was given by the following State witnesses; Mr. Sam Katam, Kua Wemin and Wal Wemin.

Dangerously
63.	The accused, Martin Kintangwah whilst driving the vehicle described as a red Nissan Navara, Double Cab, Tinted window Registration No. LBE 334, drove the vehicle recklessly on a bush trial at Area 5, University of Technology campus, Lae. Further and in addition, he was inattentive as to his surroundings and as a result veered off the bush trial and in doing so, bumped a little girl, Gremlin Waine who was standing in the bush trial. 
Caused the Death of Another Person
64.	State witness Kua Wemin gave evidence that after the car passed them, he saw that his sister Gremlin was lying on the ground. Wal Wemin also gave evidence that when the car passed them, she ran to where Gremlin was lying and she picked her up into her arms, blood was coming out of her nose and mouth. From that moment she knew that little Gremlin has died. Another State witness Mr. Sam Katam gave evidence that when they rushed little Gremlin to Angau Hospital he was told by the doctor and nurses attending to him that Gremlin died at the scene.  The medical report and post mortem reports dated 3 March also confirmed the cause of death from hyperflexed cervical spine injury as a result of a motor vehicle accident.
Alibi evidence
65.	At this juncture, I must now determine the defence of alibi based on the principles established in John Jaminan v the State (No.2) [1983] PNGLR 318 and to apply this in determining the value and weight to be given to alibi evidence. In essence, it states: 

(i)	When an alibi is raised the burden of proof does not shift from the prosecution;

(ii)	The prosecution must establish beyond reasonable doubt that the accused was at the scene of the crime at the relevant time; 

(iii)	The evidence of an alibi must be sufficiently convincing to create reasonable doubt in the mind of the trial judge (Browne v Dunn (1983) The PNG Law Reports 67) to raise a reasonable doubt in the mind of the Judge

(iv)	The prosecution witnesses’ evidence must be sufficiently strong to raise a reasonable doubt in the mind of the Judge as to the guilt of the accused.

(v)	To enter a guilty verdict, it is necessary for the court to assess the degree of logic and common sense in the evidence of the alibi witnesses (Talangahin (No.1) Kondi (No.1) and Poni)) to draw an inference of guilt

Description of vehicle involved in the incident

66.	I start with the evidence of the second witness, Sam Katam Sanagkeoc called by the State. Mr. Katam (for short) to set the scene of the State’s evidence. Mr. Katam gave sworn oral testimony and he was cross-examined on his testimony. Mr. Sanangkeoc gave evidence of being a security officer employed by the Unitech Security Force for over 20 years and is very familiar with most University staff and their family members; also, who owns a vehicle and who does not. Although he does not know the accused personally, he knows of them through their movement in and out of the campus area, it is his overall functions as a security officer. He testified that on Sunday, 21 February 2016, he and his wife were outside their home situated at Area 5, University of Technology Campus tending to their flower garden at their front yard. He said that whilst there, his wife saw a red Nissan Navara Double cab, driving into their street, Badihagwa Street. She then commented that perhaps, the people in the car were looking for someone. Mr. Katam then stated that he stood up from what he was doing and he saw that the vehicle was a new type/model of Nissan Navara, double cab tinted glass, the colour of the vehicle is red. The red Nissan Navara Double Cab drive around the roundabout towards their street. He stated that the time was between 6.30 p.m. and 7. 00 p.m. He gave evidence further that he recognised the vehicle and stated that the vehicle belongs to Peter Manus, a lecturer attached to the Department of Agriculture. The Registration No. LBE 334. 

67.	Further, the description of the car is collaborated by the evidence of Nerrie Refo, a security officer of 9 years, who gave evidence that at about 6.20 p.m., he was walking through Habitat at Unitech when he saw a red Nissan Navara (tinted windows), Silver wheels, Registration No. LBE 334 driving down Sarawaget cutting into Kerevat Road and stopping at the junction. The vehicle then headed towards Badihagwa Drive. Nerrie Refo also gave evidence that he is a security officer, is familiar with most vehicles owned by staff members and he testified that this red Nissan Navara Double Cab, tinted window is owned by Dr Peter Manus but he could not see who was driving the said vehicle.

68.	Witnesses, Kua Wemin and Wal Waine gave evidence that on 21 February 2016 between the hours of 6 p.m. and 7 p.m., at Area 5, back road, they saw a red Nissan Navara Double Cab (dark windows), bumped Gremlin Wemin Waine. Wal Waine gave evidence further that she saw little Gremlin with blood coming out of her mouth and nose. She said that she saw and knew that she had died. 

69.	Overall, the evidence of witnesses, Nerrie Refo, Sam Katam, Kua Wemin and Wal Waine, as to the description of the vehicle are consistent. They all have given evidence of a red motor vehicle which they saw on the afternoon of Sunday 21 February 2016.  The time of sighting of the vehicle was between 6.00 p.m. and 7.00 p.m. Nerrie Refo and Sam Katam Sanangkeoc on the other hand, have given the full details of the vehicle as being a red Nissan Navara Double Cab, Tinted Windows, Registration No, LBE 334. 

70.	In addition, the State’s evidence is collaborated by the evidence of Dr. Manus himself confirming ownership of the said vehicle, red Nissan Navara Double Cab, Tinted Windows, Registration No, LBE 334. The accused, Martin Kintangwah also confirmed ownership in his father’s name.

71.	Given their evidence in relation to the type and model of the car I find that the facts in relation to the description and model of the vehicle is proven and unchallenged.

Identification of driver of vehicle

72.	Mr. Katam in his evidence further stated that he recognised the red Nissan Navara Double Cab, with tinted window, Registration No. is LBE 334 as the vehicle that belongs to Peter Manus, a lecturer attached to the Department of Agriculture, He also testified that the although the glass was tinted, he could see through the windscreen. He further stated that the driver was not Dr. Peter Manus, but it was his son who drove the car whilst a young girl was sitting in the front passenger seat.  Mr. Katam pointed to the accused, Martin Kintangwah, sitting in the dock as the Dr Manus’ son and identified him as the driver of the vehicle that bumped the little girl, Gremlin Waine, who was pronounced dead on arrival at the Angau Memorial Hospital.

73.	Whilst Mr. Katam is the only State witness to have given evidence as to a positive identity of the driver of the said red Nissan Navara Double Cab (tinted window) Registration No, LBE 334. I find that his evidence of seeing the accused driving the said vehicle at Area 5, back road with a young female passenger sitting on the passenger seat more reliable and believable because, although the timing differs, I find this fact is collaborated by the evidence of the accused himself and his alibi witnesses. They all gave evidence that the accused had driven out from his home in the said a red Nissan Navara Double Cab (tinted window) Registration No, LBE 334 to the Union Shop to buy flex for his father, Dr. Peter Manus. He was accompanied by his young sister, Roina Manus. Further, this fact is affirmed by the evidence of Roina Manus, where she did testify that she and the accused drove to the Union Shop along the back road to buy flex for their father, Dr. Peter Manus, and had return home the same way, drove back to the house using the back road. A sketch map drawn by her in the course of her evidence also placed the vehicle on the Sarawaget Road, University of Technology Campus. 

74.	The incident occurred at Area 5, back road between 6.00 p.m. and 7.00 p.m. 

75.	In his evidence, the accused did state that he did drive the said vehicle but it was between 3.00 p.m. and 3.30 p.m., the vehicle is a red Nissan Navara Double Cab (tinted window) Registration No, LBE 334, a 4x 4 utility. It is registered in the name of his father.  Although in his evidence he did state that there are two routes to the Union Shop, one through the University Security Office and one through the University field. He stopped short of stating which route he took that afternoon but did state that there was other traffic on field as there was a game of rugby and cricket on. He denied driving through the back road through Badihagwa Drive.  This evidence is contrary to the evidence of his sister, Roina Manus, who gave evidence that she and the accused drove to the Union Shop through the back road and returned the same way. 

76.	I note that from the sketch map which she drew for the Court, an inference can be drawn here that the accused took the back road to the Union Shop along the Sarawaget, Road, Kerevat Road, Sogeri Drive and Badihagwa Road, all these roads lead on to the Area 5, Ancillary Staff Quarters. This piece of evidence does collaborate the evidence of Nerrie Refo, Sam Katam, Kua Wemin and Wal Waine, as to the description of the vehicle being seen on their respective section of the road and the timing which they each gave as between 6.00p.m. and 7.00 p.m. 

77.	To determine this aspect of the evidence, I refer to the evidence of Sam Katam, former security officer, University of Technology Security Force. In his evidence, he testified that on 21 February 2016 between 6.00 p.m. and 7.00 p.m. at the University of Technology campus, at Area 5, back road, University of Technology Ancillary Staff Compound.  he was tending to his flower garden on his front yard, at Badihagwa Drive, Area 5, backroad, when his wife pointed out to him that a car was coming towards them. He then stood up and that was when he recognised the vehicle coming towards them, a new red Nissan Navara, tinted window as being owned by Dr. Peter Manus, a lecturer at the Agriculture Department. The registration No. of the vehicle is LBE 334. But when he looked into the vehicle, he saw that it was not Dr Manus, who was driving the vehicle, but it was his son, the accused, Martin Kintangwah, who is now sitting in the dock. He also gave evidence that there was a young girl sitting in the off-side (passenger seat). He stated further that although the window was tinted, he was able to see inside the vehicle and recognised the driver of the vehicle. It was not yet dark. He stated “ples no tudak yet”. He further gave evidence that sometime later, after the vehicle had passed, he heard screaming from up the bush trail, so he ran towards the screaming and when he got there, he saw a little girl lying on the ground, but he ran pass her to try and see what had happened and that was when he caught a glimpse of the same vehicle which he had seen earlier speeding off from the scene.  

Credibility of witnesses

Given this evidence, the question to ask is, whose evidence should be believed?  

78.	In answering the question of who to believe, I have taken the liberty to refer to the case authorises cited by Counsel for the State, Ms Joseph has invited this Court to assess the credibility of each witness and relied on the case authority of The State v Kevin Anis & Martin Ninigan (2003) N2360 where his Honour Kandakasi J (then) stated that “common sense and logic plays a major role in determining credibility of a witness’s evidence” and similarly common sense and logic apply an important part in either the rejection or otherwise of evidence before a court of law and whether or not an accused person should be found guilty”, see The State v Cosmos Kutau Kitawal & Anor No 1 (2002) N2266. 

79.	In The State v Paka [2016] PGNC 425; N6914 the Court considered that to determine which version of the stories is credible depends on a number of factors:

“Firstly, the degree of logic and common sense usually plays a big part in this process including the demeanour and performance of the witnesses in the witness box and consistencies in their evidence as established in Garitau Bonu and Rosa Bonu v The State (1997) SC 528; Peter Waragu Waranaka v Gabriel Dusava (2009) SC 980. Furthermore, having stated the above, it is equally important to note that a lying witness can also be forceful and convincing in their evidence and yet be lying; whilst on the other hand, a truthful witness can be so unconvincing in their appearance and yet be telling the truth. [see Andrew Palili v The State (2006) SC 848] Similarly there is no rule of law which states that the more witnesses called by a party and the more consistent or identical their stories given by that party must be correct version of what occurred and should be believed than the opposing party who called only one witness. [see State v Jacob Dugura Roy (2007) N3137]. The Complainant in the case of PAKA was a much more impressive witness than the accused. She gave her evidence clearly, calmly and directly whereas the accused was evasive.”

80.	Here, I find that the overall credibility of the accused including his alibi witnesses in his legal defence to be unimpressive. Their demeanour and performance in the witness box were indifferent and evasive and their evidence offends the principle of logic and common sense.

81.	I say this because, whilst it is not disputed that Dr. Manus lives at Sepik Drive with his family and owns a red Nissan Navara, double cabin with tinted glass, bearing the registration number LBE 334; all the alibi witnesses including the accused denied that the said family car between 3:30 p.m. and 7:00 p.m. never left the house. Their evidence is inconsistent with the evidence of two independent State witnesses (Nerrie Refo and Sam Katam) who both gave evidence during trial and identified this vehicle, a red Nissan Navara, double cabin with tinted glass, bearing the registration number LBE 334 which is owned by one, Dr. Manus on Sarawaget Road, heading towards Kerevat and toward Badihagwa Drive (Nerrie Refo) and therefore the same vehicle was seen by Sam Katam driving on Badihagwa Drive towards and through to Area 5, Ancillary Staff Compound, University of Technology between 6:00 p.m. and 7:00 p.m.

82.	State witness Sam Katam recognised the said vehicle as being owned by Dr. Manus. However, his evidence is that it was not Dr Manus driving, it was the accused, his son who was the driver and he was accompanied by a young female passenger on the off-side passenger seat. The vehicle was heading towards the bush trail where the staff used to access their food garden. Sam Katam recognised the accused, Martin Kintangwah as Manus’s son. In his work as a security officer, for 20 years with the University of Technology Security Force, he is familiar with all staff members, their family members, including students. He was not mistaken. He recognised that the driver of the red Nissan Navara Double Cab, tinted windows as the accused, son of Dr. Manus. He is familiar with him. 

83.	The three alibi witnesses who gave evidence are all family members, his father, Dr. Peter Manus, his mother, Mrs. Debra Manus and his sister, Ms. Rona Manus. They all testified that the red Nissan Navara Double cab, Registration No. LBE 334 was parked under the house from the hours of 3.30 p.m. until the next morning. They all testified that the accused, Martin Kintangwah, after returning from the Union Shop, returned the car key to his father, Dr. Peter Manus, had remained in the house from there on until the next morning. He did not go anywhere. As to the exact whereabout of the accused and what he was doing, that day, their testimonies differed.  Overall, they all testified that he was at home from 3.30 p.m. until the next morning.

84.	In all, I say that all three-alibi witness failed to give coherent details as the whereabouts of the accused in the house. They did not provide coherent details of the exact place that he may have been sitting, watching a particular TV program or just reading a book or sleeping. In fact, none of the alibi witnesses testified as to what they themselves observed about and of the accused and what other members of the family were doing. Most so, of Eddie, the other son or other members of the family who had returned home after the church worship. None of these details were given, Furthermore, if these were their evidence, I also note that these were not put to the State’s witnesses, it was hidden and this offends the rule in Brown v Dunn (1893) 6 R. 67, H.L. Given these matters, it therefore follows that I would not place much weight on the evidence adduced by the accused and his witnesses. 

85.	As regards the alibi witness evidence as to the arrival of the Chief Security Officer and two other officers late in the night, I reject this as recent inventions and do not accept. These officers were not called by the defence to collaborate Dr. Manus’s evidence. No weight is given to it. It lacks credibility. 

86.	In regard to the overall alibi evidence, I find that there is deficiency in the accused alibi evidence because all alibi evidence, failed to clearly establish the accused whereabouts at the material or relevant time of the alleged offence, ie., from 5:00 p.m. to 7:00 p.m., and adopt the statement made in The State v Theo Yasause (2012) N4871 (Kangwia, AJ), where the Court acknowledged the principles of Alibi evidence in John Jaminan v State (No.2) [1983] PNGLR 318 in which the Supreme Court per (Pratt, Bredmeyer, Amet, JJ) stated:

“It is not necessary to state them here fully but it would be remiss of me not to mention here that a defence of alibi is a complete negation as it puts every matter in issue, unlike the defence of provocation or self-defence which are excusatory. The risk of setting up an alibi is that if it is not convincing or false then the accused is left with no answer. The accused must lead evidence of alibi and it must be of sufficient weight, sufficiently credible and sufficiently convincing to create a doubt in order to gain an acquittal. This would depend more on the strength of the prosecution evidence as the accused is not required to prove alibi.” 
87.	In concluding I adopt the above statement and point out that “… a defence of alibi is a complete negation as it puts every matter in issue, unlike a defence of provocation or self-defence which are excusatory. The risk of setting up an alibi is that if it is not convincing or false then the accused is left with no answer. The accused must lead evidence of alibi and it must be of sufficient weight, sufficiently credible and sufficiently convincing to create a doubt in order to gain an acquittal…” 
88.	Consequently, I find that the alibi evidence lacks sufficient weight, not sufficiently credible and not sufficiently convincing to create a doubt in my mind to gain an acquittal.  The only inference that properly flows from the whole evidence (both State and Defence) is that the evidence of Nerrie Refo who identified the said vehicle a red Nissan Navara Double cab, Registration No. LBE 334 (heading towards Badihagwa Drive and further of Sam Katam of seeing the said vehicle driving into Area 5 and of Sam Katam recognising and identified the driver of that vehicle as the accused, Martin Kintangwah, the son of Dr. Manus. 
89.	In conclusion, I am satisfied the State has proven the State’s case beyond reasonable doubt with credible and reliable evidence that on Sunday 21st February 2016 between the hours of 6.00 p.m. and 7.00 pm. at Area 5, the accused Martin Kintangwah drove a red Nissan Navara, Double Cabin with tinted glass bearing the registration number LBE 334 and killed a little girl, Gremlin Wemin Waine.  
90.	I therefore return a verdict of guilty against the accused on a charge of dangerous driving causing death and enter a conviction of dangerous driving causing death under s 328 (2) (5) of the Criminal Code Act, the accused is remanded into custody, CIS, Buimo pending sentence.
 Verdict accordingly.
__________________________________________________________________
Public Prosecutor: Lawyer for the State		
Public Solicitor: Lawyer for the Accused