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State v Liri [2007] PGNC 14; CR 1142 & 1153 of 2003 (1 June 2007)

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1142 & 1153 OF 2003

STATE

v

RICHARD LIRI

and

PHILIP KIT KINOMEN

Kokopo: Lay J.
2007:14, 15, 16, 17, 21, 22, 23 May
1 June

CRIMINAL LAW– Criminal Code s 299 - willful murder - identification - conflicting evidence - integrity and veracity of witnesses.

Cases Cited

PNG Cases
The State v Tom Morris [1981] PNGLR 49
Paulus, Pawa The State [1981] PNGLR 498
John Beng v The State [1977] PNGLR 115

Overseas Cases
R v Bouquet (1962) 79WN (NSW) 423

References
Criminal Law and Practice of Papua and New Guinea, 3rd edition
Phipson on Evidence 14th edition
The State v Robert Wer [1989] PNGLR 444
R v Bouquet (1962) 79 WN (NSW) 423
John Jaminan v The State (No. 2) [1983] PNGLR 318

Facts

Jack Peni, a security guard, was shot several times at close range on the street outside the Kadat nightclub in Kokopo just after 2:30 a.m. on Sunday morning 2 February 2003. He died several days later. Mrs Wesley, wife of one of the barman at the club and Mr Kupepe a barman at the club were standing on the steps outside the club at the time. Mrs Wesley saw Philip Kit Kinomen come out of the club, cross the road and speak to someone in a white vehicle parked in the Post Office car park opposite the steps of the Kadat club. He then came back and tried to pull Mrs Wesley away from where she was standing on the steps with her husband. Jack Peni had been standing on the steps but he came down onto the road to remove Mr Kinomen. Just then a man crossed the road from the Post Office carrying a shotgun and shot Jack Peni in the legs and back with the shotgun. Mrs Wesley and Mr Kupepe said they saw Richard Liri in the Kadat club that night, he was the man who crossed the road with the shotgun and shot Jack Peni. Two days later they identified Mr Liri in a police identification parade. The defence called the son of a policeman and two State prisoners who gave evidence that they were also outside the Kadat club at the time of the murder and identified the man who shot Jack Peni as Gabriel Bola, a notorious criminal, since killed by police.

Held

1. that Philip Kit Kinomen was acting in concert with Richard Liri to draw Jack Peni from the Kadat club steps down onto the road to be an easier target for Richard Liri, was not the only reasonable inference to draw from the evidence that Philip Kit Kinomen and Richard Liri had been in conversation in the Kadat club and that Philip Kit Kinomen had been seen visiting a white motor vehicle in the Post Office car park immediately before attempting to pull Mrs Wesley away;
2. the case against Philip Kit Kinomen was not proven beyond reasonable doubt;
3. the policeman's son could not be believed, the evidence of the State witnesses was to be given greater weight than the evidence of convicted prisoners;
4. the State witnesses had opportunity to see Richard Liri in the Kadat club prior to the shooting;
5. the opportunity, position, lighting applying when Richard Liri was identified as the gunman were good;
6. the evidence of the State witnesses is to be preferred over the evidence of the policeman's son and the two State prisoners;
7. Richard Liri is guilty as charged.
   

Counsel
T.Ai, for the State
T.Potoura, for the Accused

DECISION

1 June, 2007

1. LAY J.: About 2:30 A.M. on the morning of Sunday, 2 February 2003 outside the Kadat nightclub at Kokopo, after a dance the accused Philip Kit Kinomen asked Julie Wesley, who was standing with her husband on the steps outside the club, to come with him. Jack Peni, a Kadat club security, called on other people present to assault Mr Kinomen, which they did. Jack Peni had also been standing on the steps of the Kadat club, but during the assault of Mr Kinomen he had come down the steps onto the road a few metres towards the building next door. Almost immediately thereafter a man carrying a shotgun came from the direction of the Post Office, which is opposite the Kadat club, and shot Jack Peni in the legs and back. Jack Peni was taken to hospital but died from his wounds a few days later.

2. The issues which arise on this trial are:

(1) whether Richard Liri was the gunman, and;
(2) whether Philip Kit Kinomen had an intention to assist the gunman by drawing Jack Peni into the open outside the Kadat club.

Philip Kit Kinomen

I will deal first with the State case against Philip Kit Kinomen. Julie Wesley said she went to the Beach Hut Lodge about 8 p.m. on the 1 February 2003 to check if there was a dance. There was no dance. She went to the Kadat club from the Beach Hut Lodge between 8 and 9 p.m. and there she was sitting at the bar. Her husband was working on the other side of the bar and she was talking to him. Philip Kit Kinomen came in and offered her a Coca-Cola. Then he asked her to dance, which they did. While they were dancing the accused Richard Liri came up and started to have a conversation with Philip Kit Kinomen. Mrs Wesley could not hear what was being said. The conversation went on for a long time so Julie Wesley went and sat down. Richard Liri came and stood beside Mrs Wesley and squeezed her buttock. She had an argument with him. He then asked her to dance. She refused, but her husband insisted that she do so, to forget about the argument. After one dance Mr Liri asked for a second dance and Mrs Wesley refused. Mr Liri then said, "I know your husband, he is the brother of Jack Peni. If I don't get Jack Peni I will either get your husband or you." Mrs Wesley asked why and Mr Liri said that Jack Peni belted him once.

3. When the club closed about 2:30 a.m. Julie Wesley was standing on the steps of the club leading down to the road. She said she saw Mr Kinomen come out of the club, cross the road and go to a white car parked in the Post Office car park. Then he came back to the club steps, and tried to get Julie Wesley to come with him. This provoked the intervention of Jack Peni and the other Kadat club security officers. Mrs Wesley also said that the gunman who came from the direction of the Post Office came out of the same white vehicle parked in the Post Office car park, which Mr Kinomen had visited.

4. The other State witness, Mr Augustine Kupepe, saw no vehicle in the Post Office car park. He saw the gunman come from the Post Office.

5. Both State eyewitnesses say that Mr Liri was the gunman and they identified him at an identification parade on the Tuesday following the shooting.

6. Mr Kinomen vigorously disputes the version of the facts put forward by Mrs Wesley, but for my current purposes it is not necessary to decide who to believe. The issue is whether taking the State case at its highest, that is accepting all of the evidence given by the State witnesses, is there sufficient evidence to convict Mr Kinomen?

7. The State case against Philip Kit Kinomen is wholly circumstantial. It is submitted that I should draw the inference that the long conversation in the Kadat club between the two accused, and Mr Kinomen crossing the road to the white vehicle in the Post Office car park, where the gunman is said to have been, were arrangements being made for Mr Kinomen to draw Jack Peni out into the open by pretending to try and draw Mrs Wesley away, better to make Jack Peni a target for Mr Liri. It is submitted on the facts that this is the only reasonable inference to draw in the circumstances.

8. The law on circumstantial evidence is that where the case against the accused is substantially circumstantial, the guilt of the accused must be the only reasonable inference which can be drawn from the facts by the tribunal of fact. The inference must rest on something more than mere conjecture. On the other hand the mere possibility of innocence should not prevent conviction if the only reasonable inference is the guilt of the accused: The State v Tom Morris [1981] PNGLR 493, 495 Per Miles J. and Paulus, Pawa The State [1981] PNGLR 498 at 501 per Andrew J.

9. While some plan to act in concert is one possible inference to be drawn from what Mrs Wesley says occurred, it is by no means the only reasonable inference to draw. An equally plausible inference is that Mr Kinomen was looking for a lift home. The attempt to leave with Mrs Wesley no more than what Mr Kinomen claimed it to be, an attempt to obtain a woman for the night.

10. In the defence case Mr Kinomen gave evidence that he was drinking at the bar all evening with Mr Sikot and Gerard. Gerard had a vehicle parked outside beside the steps of the Kadat club. Evidence given by Mr Sikot confirms the evidence given by Mr Kinomen that they were together for a long time that evening and at the end of the evening outside the club Mr Kinomen sought a lift home in Gerard's vehicle, but was rejected because it was already full. I accept that evidence as truthful. Although I note that Mr Sikot is a friend of Mr Kinomen, my strong impression was that he told the simple truth, even though it did not all fit neatly with Mr Kinomen's version of events.

11. It seems to me quite inconsistent with a premeditated plan to trap Jack Peni that Mr Kinomen should be trying to get a lift home straight after closure of the club. Even if I were to find that Mr Kinomen's denials of speaking to Mr Liri at the Kadat club, on the dance floor and in the car park beside the Post Office, were false denials, and I do so find later in the judgment when dealing with Mr Liri, it does not strengthen the State case by much. There is still no unequivocal act or conversation pointing to a common purpose.

12. There are any number of reasons why Mr Kinomen could have spoken to Mr Liri in the club and in the car park inconsistent with any guilty intent. A false denial of those conversations is as equally consistent with simply not wanting to be associated with Mr Liri as any other explanation.

13. I am not satisfied that the State has proven the case against Philip Kit Kinomen to the required standard. I find him not guilty of the charge of willful murder of Jack Peni.

Richard Liri

14. The State case against Mr Liri is not much more complex. It rests entirely on the eyewitness accounts of Mrs Wesley I have outlined above and Augustine Kupepe, who was a barman at the Kadat club. Mr Kupepe said that during the evening he saw Mr Liri on the dance floor at the club. That evidence was not contained in his statement to the police. He explained the omission by saying that the police only asked him about what happened outside after the club closed. After the closure of the Kadat club Mr Kupepe was standing at the gate beside the steps at the front of the club. Mrs Wesley was standing on the steps. Mr Kupepe estimated that he was 20 m from the gunman at the time the shots were fired. He saw the gunman come from the direction of the Post Office. The gunman did not come out from a car in the car park beside the Post Office. He was not wearing a cap.

15. The defence was three pronged:

1. that the State star witness Mrs Wesley was a drunkard, immoral, was drunk on that night before she left the Beach Hut Lodge and continued substantial drinking of beer after she arrived at the Kadat club; and had a reason to get Philip Kit Kinomen into trouble - to keep him away from her husband so as not to reveal their sexual liaison, and could not be believed;

2. that the investigating officer, Detective Sergeant Yapu, had a grudge against the accused Mr Liri and carried out a vendetta of devices to ensure that Mr Liri was identified as the gunman;

3. the real gunman and his accomplices were some well- known felons, identified by a number of eye witnesses for the defendant, all now dead, shot by the police. Mr Liri was at home with his wife at the time of the murder.

4. The law on identification is well settled. I must warn myself of the dangers of convicting on the evidence of a single identification witness. A convincing witness may be a mistaken one. Even several witnesses can be mistaken: John Beng v The State [1977] PNGLR 115. Factors of relevance in identification are(a) the impression left by the eyewitness as to his or her reliability and accuracy, (b) the existence of a motive for giving false evidence as to the identity of the offender, (c) the circumstances in which the person to be identified has been observed, (d) the circumstances in which the identification witness finds himself or herself when making the observation, (e) the existence or otherwise of the evidence of other witnesses confirming or contradicting the evidence of the original eyewitness, (f) the existence or otherwise of other evidence direct or circumstantial, of facts or circumstances independently proved: See Criminal Law and Practice of Papua and New Guinea, 3rd edition page 638.

5. I also note from statistical information available from the United States, that DNA evidence has been available there as acceptable evidence for some years. In some cases DNA material had been preserved from the initial police investigation of crimes committed before DNA evidence was available. The submission of that DNA material for scientific examination has exonerated more than 200 people convicted after a trial. Some of those people had been identified on an identification parade. Yet the scientific examination of the DNA material taken from the victim positively excluded the convicted person as the person responsible for the crime. This experience in the United States simply reinforces the law that a convincing and convinced witness may be a mistaken one.

6. As Phipson on Evidence 14th edition says at 12-20 "The credibility of a witness depends upon his knowledge of the facts, his intelligence, his disinterestedness, his integrity, his veracity. Proportionate to these is the degree of credit his testimony deserves from the court or jury." Those are matters which I can consider in weighing the evidence for and against Mr Liri.

The Attack on Mrs Wesley's credibility

7. Mrs Wesley is a key witness for the State case against Mr Liri. She contributes an excellent opportunity to observe him, reason to remember him, positive identification at an identification parade, the motive for the murder, and a link to the motor vehicle stolen at the Rabaul yacht club.

8. Mr Kinomen attacked Mrs Wesley's credibility by saying that she did not arrive at the Beach Hut at 8 p.m., she arrived at 5 p.m. and he purchased 18 bottles of beer for Mrs Wesley at the Beach Hut over a period of four hours. In my estimation a woman of Mrs Wesley small stature could not walk if she had drunk that much beer over that period. Also I find it surprising that Mrs Wesley would get herself so very drunk knowing that she was going to the Kadat club where her husband worked and where he would obviously observe her drunken state and want to know how it came about and where she got the money to get drunk. Mr Jimmy Kende, a State prisoner, serving sentence for misappropriation, and owner of the Beach Hut gave evidence corroborating that Mrs Wesley arrived that Saturday afternoon at the Beach Hut around 5 p.m. I recognise that the integrity and veracity of such a witness is questionable and care should be exercised in giving weight to evidence from such a source.

9. Mr Kinomen also said that at Mrs Wesley's insistence they both left the Beach Hut Lodge between 9 and 10 p.m. to go to the Kadat club. Because Mrs Wesley wanted K50 they had sex together on the vacant field opposite the Police Station and beside the Court. Afterwards, as they passed the Police Station they met detective Sergeant Sirinjui and another policeman.

10. Mr Sirinjui confirmed the meeting. He also confirmed that both Mr Kinomen and the woman he was with were drunk. I am suspicious to some extent of Mr Sirinjui's evidence. He started off in examination-in-chief saying he did not know the woman with Mr Kinomen. But the more he was cross-examined on his knowledge of her the better his knowledge of her became. He is not completely disinterested in this case, Mr Kinomen is a friend of his and Mr Sirinjui spent 10 years in the mobile squad of which Mr Liri was a member. I consider he would be quite prepared to exaggerate his evidence. I think it's safe to accept that Mr Sirinjui did see Mr Kinomen and a woman walking on that evening, and possibly affected by alcohol. Beyond that I do not think it is safe to accept Mr Sirinjui's evidence.

11. Mr Kinomen said that when they arrived at the Kadat club he did not dance with Mrs Wesley, he went and sat with his friend's Mr Sikot and Gerard all evening. I don't accept that. I consider it would have been a most unnatural thing to do, to arrive at a dance with a woman who has been insisting on going to the dance, and not dance. I accept Mrs Wesley's evidence that they did dance and after that to Kinomen joined his friends.

12. I accept Stanley Sikot's evidence. I do not think he exaggerate any of his evidence and was truthful and accurate. He said Mr Kinomen came over and joined him and Gerard and they were there for a long time. Mr Kinomen may have gone to the toilet during that time, Mr Sikot did not notice.

13. That raises a problem with Mrs Wesley's evidence. If Mr Sikot was at the bar all night and Mrs Wesley was at the bar all night, then surely he would have seen her. And I believe that Mr Sikot would have mentioned that to the court. If the woman who asked Mr Kinomen for a beer was Mrs Wesley then I think it highly unlikely that she was at the bar all night talking to her husband It is unfortunate the State did not consider calling Mr Wesley. There cannot be too many witnesses of what occurred in situations where alcohol is being consumed over many hours under dim lighting as occurs in nightclubs.

14. If Mrs Wesley was not at the bar all night but was in the club, which I think is likely, then she was probably on the dance floor. It demonstrates that Mrs Wesley was not being entirely truthful and complete in all of her answers. I was not assisted by any drawings of the scene in or out of the club so that I do not know if the bar was sufficiently large for people to be seated at it all night and not see each other. I have assumed this is not the case.

15. The series of corroborations of Mr Kinomen's evidence by Mr Kende, Mr Sirinjui and Mr Sikot leads me to believe that Mr Kinomen's version of events, although completely denied by Mrs Wesley, is at least partially true. The State submitted that I should find that the woman with Mr Kinomen was not Mrs Wesley. I think that unlikely because of the series of corroborated events and because I believe Mrs Wesley would have noticed if Mr Kinomen had arrived at the Kadat club with a woman.

16. However, no rationale has been put forward by the defence as to why Mrs Wesley would lie and say she saw a person of Mr Liri's description and danced with him at the insistence of her husband or create the conversations which Mrs Wesley has recited. Mrs Wesley's initial statement was taken the morning after the event. I consider it highly unlikely that at that time she would have been concocting such a detailed story involving someone of Mr Liri's description, to involve Mr Kinomen. Particularly so, when on Mr Liri's version of events there was no reason for Mrs Wesley to mention his existence, because he was not at the club. The evidence concerning the alternate gunman offered by the defence, was of a solid well built man of dark brown complexion. I do not think that a woman would mistake a slim, I would say very slim tall man for a solid tall man. Nor a light skinned man for a dark brown skinned man, subject to any tricks the disco lighting might play with colour.

17. Because of the substantial difference in the description of the gunman in the State case (Mr Liri-tall, slim and pale brown complexion) and the description of the gunman in the defence case (Gabriel Bola-tall, solid build and dark brown complexion) mistake seems unlikely. If Mrs Wesley never saw a Mr Liri like person on the evening prior to the shooting it seems to me rather far-fetched to suggest that Mrs Wesley invented those events with a person of Mr Liri's description, to get Mr Kinomen into trouble. There is no suggestion that the "defence gunmen" was in the club. I also consider that the level of detail provided by Mrs Wesley of what took place in the club is inconsistent with a person heavily affected by alcohol.

18. Mrs Wesley's evidence that Mr Liri was in the club is corroborated by Mr Kupepe's evidence of seeing Mr Liri on the dance floor in the club that night. This evidence was challenged as being a recent invention because it was not in his police statement but no reason was put forward as to why Mr Kupepe, who appears to me to be a completely disinterested bystander, should make something up to assist the State. His evidence is evidence of another eyewitness tending to confirm the evidence of the original eyewitness. It is the evidence of a completely disinterested person whose veracity and integrity is not challenged, except for the suggestion of recent invention which I reject, and justifies being given reasonable weight.

19. Taking the defence case for a moment, if Mrs Wesley did arrive at the Kadat club between 9 and 10 p.m. under the influence of alcohol there was then between 4 1/2 and 5 1/2 hours remaining before closure of the club. The only evidence which corroborates Mr Kinomen's own evidence in relation to beer purchased for Mrs Wesley at the Kadat club, also contradicts Mr Kinomen. That is the evidence of Mr Sikot. He corroborates that a woman asked Mr Kinomen for a beer and was supplied with one, the emphasis being on one. As Mr Sikot said, he was there all evening at the bar but only saw the woman supplied with one bottle of beer over a period of at least 4 1/2 hours (10 p.m. to 2:30 a.m.). That contradicts Mr Kinomen's evidence that he purchased beer for Mrs Wesley frequently throughout the evening at the Kadat club. I believe Mr Sikot.

20. I cannot ignore the evidence corroborating Mr Kinomen's version of events. I find that Mrs Wesley was with Mr Kinomen at the Beach Hut Lodge and went with him to the Kadat club under the influence of some beer, not as much as Mr Kinomen suggests. Perhaps there was 18 bottles between them with Mr Kinomen drinking the most. And over the next four and a half hours at the Kadat club Mrs Wesley drank only one bottle of beer.

The shooting occurred virtually in front of Mrs Wesley, slightly to her left as she was standing on the steps of the Kadat club and thus was slightly elevated and had a better view than someone standing on the ground. Mr Kupepe was further to the right standing on the ground. Both say they were recognising a person that they had seen earlier in the club. A tall slim person in a mobile squad type uniform. Mrs Wesley said he was wearing a round hat or cap which he did not have on in the club, Mr Kupepe said there was nothing on his head. There was a floodlight on the roof of the club which lit up the area in front of the club. The light was reasonable. The gunman did not wear a mask. The cap, if any, which he was wearing did not cover or shade his face. Mrs Wesley saw a second man get out of a white car wearing a mask. He pointed a shotgun at Mrs Wesley, she ran away and he fired once.

21. The discrepancy in the State evidence concerning the presence of a motor vehicle remains a concern. Mrs Wesley saw the vehicle, Mr Kupepe did not. It could not have been Gerard’s vehicle which Mrs Wesley saw because that was parked on the Kadat club side of the road. Mrs Wesley was quite specific that she saw Mr Kinomen cross the road to go to the vehicle. One might ask how could one witness see the vehicle and the other not? The Post Office car park is directly opposite the steps of the Kadat club and very slightly diagonally opposite the gate to the back of the club where Mr Kupepe was standing. The impression I gained of Mr Kupepe was that he had a far greater understanding of what the shotgun could do and fear of guns than did Mrs Wesley. He sounded the alarm by shouting "gun, gun" and ran away at the first shot. His lack of observation of the motor vehicle could be explained by the fixation on the gun and not observing what lay around it. That would explain why he did not see the hat on the gunman's head that Mrs Wesley saw. It is likely that Mrs Wesley's natural fear reaction was dulled by the long evening.

22. That however leaves the problem of the other witnesses who say the gunman and friends did not leave by motor vehicle, but walked. That includes Ben Selan who does not mention a vehicle in his oral evidence, nor in the statement he repudiated which Sergeant Yapu said was taken by him and signed by Ben Selan in which he implied that they walked away. John Luke, who said he saw them walk away. After considering all of the evidence at the end of the case I have found that this aspect remains an unanswered issue which deserved further investigation, but does not ultimately directly affect the question of who shot Jack Peni.

The Conspiracy Defence

23. The defence case was that Detective Sergeant Yapu had a grudge against Mr Liri arising out of an earlier fight. Detective Sergeant Yapu completely denied the allegation of an exchange of punches between himself and Richard Liri at some point between the barracks and the Police Station at some time before this murder. And I tend to believe him. Rank is such a matter of great importance in a disciplined force that I consider it would be very unusual indeed for there to be an exchange of punches between a detective sergeant and a constable which would not result in comment from others and probably an official report and disciplinary charges, none of which are in evidence. I think the exchange of punches is more likely an invention of Mr Liri's in order to add plausibility to the allegations that Detective Sergeant Yapu was "rigging " the result of the identification parade. And framing Mr Liri for a wilful murder was "payback". In Mr Liri's words, the allegation was that detective Sergeant Yapu was "using" the witnesses. I am also of the view that Mr Liri's allegation, when he was charged with this offence, that the detective Sergeant Yapu said "you thought you were smart when you punched me " is untrue, a statement made by Mr Liri to reinforce his allegation of enmity between him and Sergeant Yapu.

24. Constable Nigel Orawari and State prisoner Jerry Tano gave evidence that before the identification parade on 4 February 2003 they saw Moses Elias, one of the identification witnesses for the robbery of a motor vehicle at Rabaul, sitting outside at the Police Station waiting area together with other people. At the time Mr Liri and Mr Elias were within sight of each other. Mr Liri and Mr Tano said that Sergeant Yapu called Mr Liri's name two or three times while looking in the direction of Moses Elias. What the defence is suggesting is that Sergeant Yapu was tampering with the recollection of identification witnesses, before the identification parade, by showing them the suspect, in an indirect way.

25. The defence attempts to link Mrs Wesley as being one of those persons sitting outside at the Police Station in sight of Mr Liri prior to the identification parade on 4 February 2003, failed. Mrs Wesley was adamant that she was brought directly from the Kadat club and locked in the CID office until the parade. The same position applied to Mr Kupepe. While the evidence of Constable Nigel Orawari and Jerry Tano supports the contention that Mr Moses Elias was exposed to views of Mr Liri outside the Police Station prior to the identification parade, that is not relevant, because Mr Elias is not an identification witness in this trial.

26. I think it is very possible that the event described by Mrs Kinomen took place. That is, detective Sergeant Yapu having interviewed Mrs Wesley and having been convinced by her description that the person described was Mr Liri, came out of his office and perhaps elated through an early breakthrough, announced that "it was only the Kerema bloke the tall bloke by the name of Richard (who did the murder)". And it is possible, Kokopo being a relatively small community, that that conclusion was spread around by word of mouth. However the identification parade took place only two days later and both Mrs Wesley and Mr Kupepe denied having heard any such report or rumour.

27. Likewise, the defence attempt to develop an argument that detective Sergeant Yapu contaminated the memory of Mrs Wesley on other occasions failed, such as when he collected her from Gelegele to attend the identification parade, in the CID office immediately before the identification parade, and when he collected her to come to court to give evidence. Mrs Wesley denied that Sergeant Yapu discussed any aspect of the evidence of the case at those times. There was no evidence to the contrary.

The Wrong Man Defence

28. The last leg of the defence was the dual contention that (a) the murder was perpetrated by Gabriel Bola, a known criminal, who since 2003, has been killed by the police and (b) that Mr Liri was home with his wife.

29. I did not find the evidence of Constable, Johnny Korong of the Criminal Intelligence Unit, that he had a conversation with Mr Liri at the Police Station in which he told him of a line of investigation he was pursuing which did not involve Mr Liri, of any assistance at all. Not only was his evidence regarding unnamed unconfirmed alternate suspects, but he had so little belief in that line of information that he simply dropped that line of investigation as soon as Richard Liri was charged.

30. Ben Selan, son of a policeman living at the police barracks adjacent to the Kokopo Police Station, said that the written statement purportedly signed by him and included in the hand up brief in the District Court, was not his document. Further he said several days after the murder he had a conversation with detective Sergeant Yapu at the latter's house when he told Sergeant Yapu that he identified the man who shot Jack Peni as being the known criminal Jack Bola, whom he knew personally. I observed in the witness box that Ben Selan was extremely calm and relaxed. Possibly the most relaxed person I have ever seen in the witness box, which includes policeman who have given evidence in many cases. I am uncertain as to the origins of that attitude. However, I did not believe Mr Selan. The statement he rejects is signed in quite a young hand and Mr Selan was about 18 at the time. The only point of major departure between what Mr Selan said in the witness box and what was contained in the written statement is the claim in the witness box that he identified the gunman. I believe that belated identification is a recent invention more attributable to his elder brother's friendship with Mr Liri than the facts. The allegation of fraud against detective Sergeant Yapu contained in Mr Selan's evidence was not put to detective Sergeant Yapu in cross-examination. The detective Sergeant Yapu was recalled and said that Ben Selan was lying, that his statement was taken and signed in the CID office just as all of the others were. I accept that evidence.

31. John Luke and Eddie Max, both currently State prisoners gave evidence that they saw the murder and also identified Jack Bola as the gunman and that he was dressed like a policeman. Both said the gunman and those who accompanied him came from behind the Post Office. John Luke said there was a total of three, Eddie Max said there was a total of four. Both said there was a short man wearing a mask. John Luke said after the gunman fired the third shot he said "come and get your pig". This was not put to the State witnesses. After the first two shots Eddie Max ran away but while running heard another two shots. John Luke said that after Gabriel Bola shot Jack Peni, Gabriel Bola and his friends walked away. As they did so the masked man fired a shot at the front of the club. Their evidence was consistent with that of persons who were present and saw the events. They said they came to testify to the truth, John Luke because he knew that Richard Liri was an innocent man.

32. However, I cannot treat these witnesses as being disinterested nor can I regard their credibility and integrity as being intact. First, both men are now in the class of people whom society has rejected for a time and it is not unnatural that they would feel some affinity for Mr Liri who is a person in a similar position. Secondly, they have little to lose by telling untruths because they are already prisoners of the State. And perhaps they have something to gain, if only a feeling of getting "one over the system". Thirdly it seems to be the case from the evidence of Mr Korong and Constable Orawari there was a general uninformed belief amongst some members of the Police Force in East New Britain that the murder had been committed by some known criminals, and not one of their own. I say an uninformed belief because it was an opinion held by members of the force who were not involved with the investigation of the crime and not privy to the information which detective Sergeant Yapu held. And of course it is much more palatable to believe a serious crime, a wilful murder, was committed by a person outside the police force, not one of your workmates. And I do not rule out the possibility that this view was communicated by some policeman to the people that they deal with, namely criminals. And that these men have come to give evidence that Jack Bola was the murderer, not because they identified him at the scene, but because they have heard from policeman that he was the guilty party and hence feel almost virtuous in telling a lie which they believe is probably the truth.

33. I treat this evidence from the defence, of Gabriel Bola being the murderer, as a possible version of events, but I give it less weight than the evidence of the State witnesses whom I generally regard as more independent and whose veracity and integrity should be regarded more highly than that of a convicted person. However, I do not discount the difficulty a person on remand or serving sentence for another offence, has in obtaining witnesses. The only persons directly available to them are the other detainees.

The Alibi

34. Finally, there is the evidence of alibi. Mr Liri says he was at home with his wife and his wife says Mr Liri was home with her. Both gave evidence of what happened on Saturday prior to the murder. Their evidence differs in that Mr Liri says he went to the hospital by himself and met his wife later at the market whereas his wife said they both went to the hospital. The discrepancy does not go to guilt or innocence and at this distance from the offence it is very difficult to say whether the difference is caused by the dimming of recollection of the truth or dimming of recollection of the story they agreed to tell.

35. The notice of alibi was given late, the day after the trial started. However, as counsel for the defendant has pointed out, the alibi was one raised by Mr Liri in his record of interview taken on the Tuesday after the murder. Generally the court should allow a late alibi, subject to service of notice and allowing the State any adjournment necessary to investigate: The State v Robert Wer [1989] PNGLR 444 (Brunton AJ). I granted leave to serve the late notice of alibi and indicated that liberty would be granted to the State to call rebuttal evidence, or have an adjournment, neither of which was taken up by the State.

36. It has been said that it is permissible for a judge to say that raising an alibi for the first time at the trial has prevented the Police from investigating it: R v Bouquet (1962) 79WN (NSW) 423: and that he can in those circumstances comment upon it in distinctly adverse terms: John Jaminan v The State (No.2) [1987] PNGLR 318. However this alibi was not raised for the first time at the trial. It was raised when Mr Liri was first interviewed. In my view it was a considerable lack of diligence on the part of the police not to investigate that allegation of alibi immediately even when there was initial strong eyewitness identification evidence. If the alibi proved convincing Mr Liri would have been released. If it proved illusory then it would have strongly reinforced the State case. As it is the State has called no evidence to rebut it, when it has had every opportunity to do so. It might be said that Mr Liri's wife could have been expected to give the same evidence in February 2003 as she gave now. But in February 2003 there may have been independent witnesses, other people in the village who could have given evidence while recollection was fresh. As it is, the alibi evidence is to be weighed together with all of the other evidence in the case. The only two witnesses are of course very interested in the outcome of the case and their evidence cannot be given the same weight as independent disinterested witnesses.

Conclusions

37. Going back to the actual shooting and the identification dangers presented there; there is no doubt that a distinctive uniform worn by two different people at different times, might cause someone to believe the same person wore the uniform on those different occasions. In this case I consider the likelihood of that danger is excluded by the opportunity which the State witnesses had of observation in the Club, prior to there being a threatening situation, their proximity to the gunman, the lighting outside the club, the fact that they had recently seen Mr Liri in the club and a substantial difference between the build and colouring of Mr Liri to that of the alternate gunman offered by the defence (Gabriel Bola).

The case comes down to whom I believe fired the shots at Jack Peni on the evidence which is available. I believe Mrs Wesley and Mr Kupepe did see Mr Liri in the Kadat club on the evening of 1 February/morning of 2 February 2003. They both later saw him shooting Jack Peni. Later they identified him in an identification parade. It has not been established that their recollection has been tampered with prior to the parade. As far as I can tell from the very poor black and white photographs tendered, there is nothing to complain of in respect of the composition of the parade. Some were tall as Mr Liri, as Mr Liri conceded. Some had uncombed hair as Mr Liri had that day. Although Mr Liri was the only one wearing a white T-shirt, it did not make him stand out. There was a variety of clothing worn and his shirt was just part of that variety.

38. I therefore find that that the State witnesses accurately identified Mr Liri as the gunman who murdered Jack Peni. I reject the contrary evidence from Ben Selan and the two State prisoners. I find Mr Liri guilty of wilful murder.
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Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Accused