State v Yari (No 1) [2024] PGNC 51; N10698 (14 March 2024)

N10698

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 827 OF 2022

THE STATE

V

MURUK YARI
(No 1)

Waigani: Miviri J
2024: 13^th & 14^th March

CRIMINAL LAW – PRACTICE AND PROCEDURE – Wilful Murder S299 CCA – Trial – General Denial – Stabbing in Dark At Night – Identification – Circumstantial Evidence – Whether other reasonable Hypothesis Other than Guilt – Admissions by Accused to Relatives of Deceased at Police Cells – Reliability & Credibility of Admissions – Circumstances of Admission – Corroboration of Admissions – Evidence Consistent with Common Sense & Logic – Attempt to Create an Alibi – Incredible False Belated – Corroboration of Identification – Motive to Attack Deceased – Jealousy Over Protectiveness of Female Companion – Opportunity to Commit Offence Good – No Doubts – Circumstances Consistent with Intent to Kill – Killing – Identification of Accused – Guilty of Wilful Murder

Facts
Accused was with the Deceased with a female who stepped into the dark. He came out of it grasping for air and bleeding from his mouth. He was stabbed in the chest by the Accused.

Held
Identification beyond doubt.
Circumstantially no other hypothesis open.
Guilt the only rational inference.
False Alibi
Concocted out of conscious sense of guilt.
Guilty.
Remanded.

Cases Cited:

Papua New Guinean Cases
Rape, The State v [1976] PNGLR 96
John Jaminan v The State [1983] PNGLR 318
Kandakason v The State [1998] PGSC 20; SC558 (7 July 1998).
Waranaka v Dusava [2009] PGSC 11; SC980 (8 July 2009).
Pawa v The State [1981] PNGLR 498
Bonu and Bonu v The State [1997] PGSC 11; SC528
Morris, The State v [1981] PNGLR 493
James v State [2020] PGSC 39; SC1937 (24 April 2020).

Overseas Cases
Barca v. The Queen [1975] HCA 42; (1975) 133 C.L.R. 82 at p. 104; [1975] HCA 42; 50 A.L.J.R. 108 at p. 117.

Counsel:
L Jack, & S. Suwae, for the State
D. Kaiyok, for the Defendant

VERDICT

14^th March 2024

1. MIVIRI J: This is the verdict after trial of Muruk Yari who was indicted with one count of wilful murder pursuant to section 299 (1) of the Code.
   
2. On the 11^th October 2020 around 10.00pm a young lady with her husband were fighting at the Korobosea International School Bus stop. Accused recognized her as a relative so he went and stopped the altercation. Both he and the young lady walked down to Mahuru Village stopping at a Tucker Shop where the accused bought a ready-mix blue berry spirit and four (4) loose cigarettes. And together they sat Infront of the tucker shop and drank the spirit in a small cup they had cut from a container. Whilst there for some time, the deceased Saki Thomas came there to the tucker shop with 500ml coke container in his hand. He began asking personal questions to the young lady who answered. Both begun holding each other and then kissing. The Accused then spoke in language and told her to get up and go.
   
3. It was already past 1.00am going to 2.00am of the 12^th October 2020. The young lady walked ahead whilst the accused followed her, then the deceased followed both behind. The accused asked the deceased where exactly he was going, and he replied that he wanted to go to Sabama to see his brothers. They proceeded onto the track out of the tucker shop’s light. About two (2) minutes later the deceased came back from the dark to the store struggling to breathe with blood coming out from his mouth and chest and fell. He had been stabbed by that time by the accused there. Who had intended to kill him and stabbed him in the right side on the chest from which he died.
   
4. He entered a not guilty plea and, in its endeavour, to secure the case against the accused the State tendered by consent into admission the record of interview of the accused marked as Exhibit P1(a) the pidgin original version, and P1(b) the English translation. It was conducted with the Accused and Police informant Detective Senior Constable Yaku Gwampom corroborated by Detective Sergeant Nei Pige on the 27^th October 2020 in pidgin. He stated that on Sunday 11^th October 2020 he was at 8 mile with his cousins. And that the name of the cousin was John whose father had since died, and he was lost with the name of the father. He denied knowing a person by the name of Jason Nande. But admitted that he knew Ruthy Anthon who was a relative from Souths. And She lived at Sabama. He admitted that he knew her husband, but they were newly married, and he did not know his name. He met both on that afternoon Sunday 11^th October 2020 at the Mahuru bus stop because both were fighting there. And this was around 9.00pm both were drunk and fighting and he stopped them fighting. Then he escorted Ruthy Anthon to Bundi Camp Settlement at their house. The husband had given permission, so he did this. Together they walked on the right side of the volleyball court towards the Store where he bought four loose cigarettes selling for K 0.50t each.
   
5. He denied that they stopped at the store and that he did not buy a ready-mix blue berry bottle from the storekeeper Ekai Hangau. And he did not have a K50 he only had a K2.00 which he used to pay for the four (4) loose cigarettes. And he denied getting a baby coke container cutting it and making a container of it to drink the alcohol. He denied that he was drinking alcohol with Ruthy Anthon in front of the store when the deceased Thomas who was drunk came. And he never saw him, nor did he talk with Ruthy Anthon. Or that he spoke in their language to Ruthy Anthon to go ahead to the house. Both he and Ruthy Anthon went together to the house, she in front and him at the back. He denied stabbing the deceased because of being jealous of the deceased and Ruthy Anthon together. Further that he had no knife on him at that time and denied stabbing the deceased. Asked where he went after stabbing the deceased at Question 52, he said he walked on the road to his house and slept.
   
6. Following at Question 53 he was asked why he surrendered to the Police Station. He answered, “They suspected me and so I came. I am innocent person that they held me for no good reason and brought me here.” At Question 54, he was asked “who actually brought you to the Police?” He answered, “I told Policeman name Asa that was prisoned for William Kapris case that I don’t know, and he just brought me to Boroko Police Station.” At Question 55, he was asked, “Do you know this guy by the name of Samson Ikati? Ans: I don’t know him. Question 56, Samson Ikati said he knows you and saw you in the Police Cell. Is that true? Ans, yes same day he came and saw me in the cell.” Question 57. “Samson said he knows you and that time you were in the cell he came and called your name. Is that true? Ans, yes. Question 58. “Do you know Samson? Ans, I am not sure about him, but I remember he came and called me and asked me that I was the one that killed the guy, and the Policeman came and told me to go inside.” Question 59. “Who was the Policeman that told you to go inside? Ans, A policeman told me to go inside.” Question 60. “Did you reply to Samson Ikati? Ans. No. Question 61. “The man that you were charged for his death by the name of Saki Thomas died already. His death occurred during the night you went to Joshua Kapu’s canteen. He received three knife wounds on his chest, and he died instantly. What are you going to say about his death? Ans, I don’t know the guy that died, and I don’t know about his death.”
   
7. Materially these are the vital excerpts of the evidence in the record of interview. For one it confirms that the accused surrendered to police because he was suspected of the homicide. This is an innocent man who has surrendered to police over suspicion of a wilful murder committed upon one Saki Thomas. He explains that he did so to clear his name. But that he did so after two days had lapsed after the offence.
   
8. The first witness on oath was one Wesley Feta, originally from Goroka but living at Sabama in 2020. He was the father of the deceased Saki Thomas, who bore that surname as he was sent to the village where his brother Thomas raised and sent him to school there, so he got that name. He had heard of the death of his son and gave a statement to Police. That on the 12^th October 2020 at 6.00 he heard that Muruk Yari had surrendered and was in the Police Cell. At 7.00 clock I came to the Police Station. I asked the Police to see Muruk Yari who allowed me to see him. I saw him and asked him about the killing of the teacher at Mahuru. And he said, I killed him and came. And I said you are already held by the law, so I left and went. The witness said he was accompanied by others namely, Uncle of the deceased, Gibson Bakoyefa and Thomas Bakoyefa Alfred, Samson Ikati including others whose names were not given. Samson Ikati talked to Police asking for the accused Muruk Yari.
   
9. He acknowledged in cross examination that he had found out that his son deceased was killed. He was not there at the scene and did not see it happen. But Samson Ikati had asked for Muruk Yari who was taken out. And Muruk Yari said, “Mi Muruk Yari mi kilim pikinini bilong yu mi kam surrender long police.” I Muruk Yari killed your son, so I came and surrendered to Police. I asked Did you kill him, yes, I did he said. He maintained that the accused did speak to him and admitted. That when he was asked about the teacher at Mahuru, he said he killed him. And it was his relatives who were at that location who called out his name as he was known. And person at the trade store said Muruk Yari came.
   
10. He clarified that the conversation was in pidgin when asked by the Court. And it was at Boroko Police Station Cells. And which was also confirmed by the next witness for the State, Gibson Bakoyefa who was resident at Sabama. He is from Eastern Highlands and knows Saki Thomas his nephew. Who was buried in the village four weeks after he was stabbed with a knife to his right chest wall. And he drew the wound as he saw it oval shaped about 1 to 2cm in length. That drawing is exhibit P2 for the State.
    
11. On the 12^th October 2020 about 6.00 clock I heard that man who murdered my son is at the Jail. I wanted to see him there. I was accompanied by other boys namely, Thomas, Felix, and Samson. And I spoke to the police and did see him. I said you are Yari Muruk. “Yu save long dai bilong teacher at Mahuru? Mi save. Yu kilim? Yes. You are in hands of the law, so I left.” You know about the death of the teacher at Mahuru? I know. You killed him? Yes.
    
12. He said that the police moved them out because they might end up doing something. And he was eager to find out who had killed the deceased. And that the accused admitted killing the deceased. So, he left. The deceased was buried because he had a knife wound to his chest and he had died. And he saw the knife wound one hour later when he took off his clothes at the Morgue after he was taken there by the Ambulance. It was a big wound.
    
13. It is now confirmed by the Exhibit P5 Medical Certificate of death dated 21^st October 2020 issued by Doctor Kotapu that Saki Thomas who was 30 years old, usually resident at Sabama Kaugere area, died of pulmonary hypovolemic shock from Stab wound to the right chest.
    
14. Further Exhibit P3 Statement of the Police Investigator Yaku Gwampom confirms that the Accused surrendered to Boroko Police on the 13^th October 2020 a day after the allegation. By his statement is also the photograph evidence P3 (1) to (10) of the ten photographs that he took of the crime scene. Photograph P3 (6) shows blood stains where the deceased was when stabbed. Including P3 (7), (8). There appears to be no lighting immediately seen in respect of each. Exhibit P4 statement of the Corroborating Officer Nei Pige is as to the conduct of the record of interview.
    
15. On oath the final witness for the State was Ekai Hangau originally from Fugwa village in Hela Province. She was resident at Mahuru for five years of the Wesleyan Faith. She did not work formally but looked after her children husband and family. She had only a single child with the husband, and they all lived together at Mahuru. On the 12^th October 2020 at 10.00pm to 2.00am She was sitting in front of the small store inside. And looking after it. It is a store at Mahuru village. A man and a lady came. They came first and sat down. And they bought a blue berry and four loose cigarettes. And they were drinking as they were sitting. The lady said she was feeling cold, so I gave her my cold Shirt and she wore it. The man told me to go and boil tea. I said I have no kettle or Jug. The same man told me to boil noodles. I said I have no power.
    
16. They kept on sitting there and from then this Goroka man came holding a 500ml mix as he came and sat down. He observed that she was wearing a shirt that was torn and asked her about it. To which she replied that she had had a fight with her husband, but that her life saver was the man with her sitting there. He was a Ialibu man who asked the Goroka man why he was asking that question. And he the Ialibu man told her in their language to get up so that they both could go. She complied and got up and started walking with him following her. The Goroka man also followed suit after both, but the Ialibu man asked him, the Goroka Man where you are going, to which the Goroka man replied that he was going to see someone at Sabama. And they walked.
    
17. Not long the Goroka man returned holding his shirt in his hand from the front around the collar and the neck area holding them together. He was bleeding from the mouth and the chest, and he was struggling to breathe. He was taking short gasps of air with his mouth open demonstrating that he was short of breath. That he was seriously injured from his chest as there was blood coming from there and the mouth. He went up a short distance and collapsed to the ground. She could not identify the Ialibu man. The State closed its case.
    
18. Defence made a no case submission urging that the accused could not be lawfully convicted on the evidence after closure of the State case. But in making that submission it did not occur that there were alleged admissions made by the accused to two witnesses who were called by the State. It was clear that there was a death depicted by the medical certificate of death and that the deceased had died from a stab wound to the chest. The issue prima facie was that of identification of who had caused the stab wound on the chest of the deceased causing his death. The alleged admissions to the two witnesses in the Police Station Cells at Boroko was enough as it stood to lawfully convict the accused of the charge laid. There was prima facie intent to kill and there was killing. He had a case to answer. Because this was not the time to look at analyse scrutinize credibility as that was when all evidence was in for and against: Rape, The State v [1976] PNGLR 96. The no case submission was rejected and so the accused went into evidence in defence.
    
19. He gave evidence on oath stating his name as Muruk Yari. He thought that he was 39 years old because he did not know his birthday. He had never been to school. And made that assessment on an assumption without any formal education. Originally from Kware village, Kagua, Erave he lived at Sabama for three years with his sister. On the 11^th October 2020 going onto 12^th October 2020 between 10.00pm and 2.00am he recalls that at 6.00pm he was at 8 mile with his family. He saw them then got on a bus to 3 mile where he got off and walked using the backroad to Mahuru village. I went to the International School; I saw a man and a woman there. Both were fighting and the woman’s shirt was torn. Both were wantoks so I separated them because we usually stay together at Sabama Bundi Camp. The husband said okay so I escorted the wife. I was ahead and she came after me and we took the right-hand side track to the store not the left-hand side. I had K 2.00 and I purchased four (4) loose cigarettes with it. When we came to the store it was 8.0’clock because there were people about. Asked by the State how would he tell if there were people about at 10’clock he gave no clear answer.
    
20. I followed her to the dark area I told her to go ahead so that I could urinate. I urinated followed her because she was a bit drunk, and we went to our houses. He denied ever meeting the deceased or leaving the store with him after drinking as stated by the state witness. He said he only bought four loose cigarette and not blue berry alcohol drink which he consumed with the lady using a cut top of a container as drinking glass described as a “Sori Cup.” He agreed in principle with the evidence of both State witnesses Wesley Feta and Gibson Bakoyefa but denied that he made admission to killing the deceased. They were the ones who made the allegation against him, and he did not reply to their allegations he simply went back into the cells after being told by a policeman.
    
21. After hearing the arguments for and against in respect of the verdict this is the determination of the Court considering. It is relevant to determine that the Accused’s time meeting both Ruthy Anthon with her husband at the Mahuru bus stop is 9.00pm in the record of interview, which cannot be consistent that he was at the store on his way down to Sabama Bundi Camp escorting Ruthy Anthon at 8.00pm in his oral evidence on oath. He is an uneducated person who has not attained any formal education. He is not acquainted in the knowledge to be able to tell time with exactness and precise. He has produced no evidence as to the basis of his stance that he was at the store at 8.00pm with Ruthy Anthon. But a vague assertion that he assumed because people were about. He could not say the same for people being out and about at 10.00pm. It is therefore weak to hold to sustaining the veracity of his contention. But he is faced with a very serious allegation of wilful murder that carries the maximum penalty of life imprisonment. It is material that he sways the Court version of facts favourable to his cause to sustain his not guilty plea. Particularly of disassociating himself from the immediate scene where the death occurred. In this regard it is material to lay out that lies told out of a conscious sense of guilt has been held to corroborate the version of the prosecution: John Jaminan v The State [1983] PNGLR 318. Which includes false alibis that are created out of a conscious sense of guilt.
    
22. I ponder whether that is the case here of the accused? Has he lied in the face of guilt glaring at him. Has he attempted to create an alibi in the face of guilt? In this regard I start with holding and determining that assessment of logic and common sense and consistency in evidence are important tests for credibility of witnesses and their testimony. Any serious unexplained inconsistency in evidence and evidence not in keeping with logic and common sense are basis for rejection of such evidence: Kandakason v The State [1998] PGSC 20; SC558 (7 July 1998); Waranaka v Dusava [2009] PGSC 11; SC980 (8 July 2009). Here therefore, common sense and logic denote that one cannot be at two places one and at the same time. If he was at the Mahuru bus stop at 9.00pm, logically he could not have come to the Store with Ruthy Anthon until much later. Because that is the place both are at within that time. And the only store in evidence is that looked after by the State witness Ekai Hangau originally from Fugwa village in Hela Province. Because there is no evidence that another store was visited that night and similar items purchased before me. It points that the only store visited was that operated by Ekai Hangau. And the Accused accompanied by Ruthy Anthon did visit to purchase from it.
    
23. This is the store where the accused says he purchased four loose cigarettes because he only had K2.00. And it is the Store where the paths of the Accused and the witness Ekai Hangau met because there is clear similarity and consistency in their evidence. But the accused conveniently distances that there was no blue berry bought which is not the evidence of Ekai Hangau. No motive has been drawn by the Accused against the evidence of Ekai Hangau. It is the only store depicted by the photographs Exhibit P3 (2)(3)(4) (5)(6)(7)(8)(9)(10) taken by the police investigation officer Yaku Gwampom. Which is further the independent evidence that draws out their evidence together. The preference here would be in view of that fact the evidence of Ekai Hangau over the accused because of that independent verification. Blood is found set out by these photographs where the deceased fell to his demise. That is uncontradicted in any way by the accused. Therefore, I find as a fact that it is the place where the Goroka Man Saki Thomas in the evidence of Ekai Hangau met his death. There is only one man who is from Goroka who died immediately there, it is the deceased Saki Thomas. And circumstances of his death described by Ekai Hangau is that he left with the Accused accompanied by Ruthy Anthon after into the dark adjacent to the store. It is not long that he comes back gasping for air breathing heavily, with blood coming from his mouth and chest. He is holding the collar of his shirt with his one hand. The other is with the 500ml also by that hand he is holding up his trousers. That to mind draws an altercation because his clothes are not in order. He is fatally wounded to the chest. It is a mortal wound as demonstrated by the medical certificate of death Exhibit P5, stab wound to the right chest causing pulmonary hypovolemic shock leading to instant death. He is dead when taken to the hospital.
    
24. I find as a fact that not only did the Accused purchase four (4) loose cigarettes, but he also purchased a blue berry. And that was consumed in the way described there evident by the evidence of Ekai Hangau supported by the drunken condition of Ruthy Anthon from the evidence of the Accused. The Accused is in my view drunk or effected by alcohol from the consumption of the blue berry settled by the evidence of Ekai Hangau. And he was concerned for the safety well-being of Ruthy Anthon who is a relative that he saved earlier. He is evidently pushing that fact when he asks Ruthy Anthon to leave because of the questions that the deceased is asking her noticing her torn shirt also covered by the evidence of Ekai Hangau. I find no reason to doubt the veracity of the evidence of Ekai Hangau. She has told the truth as best as She could recall. She could have easily pointed to the Accused and said, he is the man I saw that night with the woman before the Goroka Man met his death. That has not happened. She simply said it was a long time ago and I simply cannot put the face to him. That is consistent, this offence took place 12^th October 2020. It is four years since, and it would not be common to doubt one’s vision given. I find that she has told the truth in all her evidence.
    
25. There is common trend of the truth that runs separated by time and logic from their points of view. Each corroborates the other and therefore I find as a fact that the Muruk Yari was the Ialibu Man, who is referred to in the evidence of Ekai Hangau. The only Goroka man is Saki Thomas who was with this witness with the Accused and Ruthy Anthon also from that area who both spoke language. I determine in view of all set out above that a blue berry was also purchased. Which was together with the four (4) loose cigarettes that the Accused purchased. After which he cut off a container into a “sori cup” using it to consume that blue berry with Ruthy Anthon and now with the evidence of Ekai Hangau who admits also being given a share to drink. He had a knife in his possession to be able to cut off the container and make a sori cup. That is the knife which he used fatally to stab the deceased in the chest causing the injuries evident in the medical certificate of death leading to his death. And the Accused had motive evident by his questions to the deceased why he was going to Sabama as they left, the Accused, Ruthy Anton and he replied that he was on his way there to see some brothers. The accused was overprotective of Ruthy Anthon and saw the deceased as making advances to her. Intoxicated and keen on ensuring her welfare because she was the daughter of a leader and relative, he did what he did, stab him in the chest killing him. He immediately surrendered as set out in his own record of interview set out above. And made the admissions he made to the witnesses Wesley Feta, Gibson Bakoyefa and Samson Ikati. These were made almost immediately after the offence when events were fresh in his mind, and he made the admission, Mi Muruk Yari mi kilim pikinini bilong yu mi kam surrender long police,”
    
26. No motive has been laid out by the evidence here except that they are both a father and uncle to the deceased. Even if that were so their admissions are not alone because they are corroborated by what evidence I have gone to lengths to set out above. All go hand in hand and leave no doubts except that the accused was the author of the death of the deceased. Because if view circumstantially, there is no other reasonable hypothesis that has been invited to by the Defence. Even it were it does not add because the simple fact is that the accused has tried desperately to create an alibi by time, but he is uneducated cannot read time, nor align when he was specifically asked by the court referring to the Clock in Court. The only rational reasonable hypothesis is that provided by the State which is the guilt of the Accused: Pawa v The State [1981] PNGLR 498, and this is so because where the circumstances of death are best beknown to the accused who tries all in vain to disassociate himself from that fact, it has been held a material fact eventual to the guilt of the accused in the allegation Bonu and Bonu v The State [1997] PGSC 11; SC528 (24 July 1997). That has been the theme of the defence case. Because when a case against an accused person rests substantially upon circumstantial evidence, the question for the court is whether the guilt of the accused is the only rational inference that all the circumstances would enable it to draw, Morris, The State v [1981] PNGLR 493. Which approved and endorsed Barca v. The Queen [1975] HCA 42; (1975) 133 C.L.R. 82 at p. 104; [1975] HCA 42; 50 A.L.J.R. 108 at p. 117.
    
27. The Aggregate in my view is that I find the Accused Muruk Yari guilty of Wilful Murder. That he intended to cause the death of the deceased Firstly, intention to kill is a basic element here. And where it is not express, it may be inferred from the general circumstances of the offence, and evidence of animosity prior is one such factor to be considered to establish: James v State [2020] PGSC 39; SC1937 (24 April 2020). It would not be erroneous for me to go down that path here. And secondly there must be death. And both are attributed principally to the accused. It must be beyond all reasonable doubt that he is the author of the crime.
    
28. I have no doubts of the guilty of the Accused that he intended to kill the deceased Saki Thomas and did kill him. I return a verdict of guilty of wilful murder on the indictment presented.
    

Orders Accordingly,

__________________________________________________________________

Office of the Public Prosecutor: Lawyers for the State

Office of the Public Solicitor: Lawyers for the Defendant