N4399

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 95 OF 2011

STATE

V

MAX HAME
Accused

Goroka: Ipang AJ
2011: 18, 19, 23 August & 15 September

CRIMINAL LAW – Criminal Code Act, s. 300(1)(a) – evidence – circumstantial – accused alleged to have killed the deceased – accused and deceased party to a travelling group on a hired vehicle 10 seater Toyota land-cruiser to travel Mendi-Hagen & Lae – on the way from Goroka to Henganofi – vehicle stopped for the occupants to relieve themselves – next morning deceased body was found lying near the road some 2.5 to 3 kilometres.

CRIMINAL LAW – State relied on circumstantial evidence – relevant law on circumstantial evidence – whether accused own evidence some 3-5 hours on killing of the deceased sufficient to convict him.

Cases Cited

State v Minjipa [1977] PNGLR 293
John Beng v The State [1977] PNGLR 331
State v Steven Torila & Benedict Okole (1980) N216
Paulus Pawa v The State [1981] PNGLR 498
State v Tom Morris [1981] PNGLR 493
Allan Koraka v The State [1988-89] PNGLR 131
State v Billa Agari (1990) N859
State v Simon Ganga [1994] PNGLR 323
Wamban v The State [1995] SC479
State v Malepo (No. 2) [1996] PNGLR 252
State v Lasi Pale Nicholas (2002) N2270
State v Richard Saku (No.2) (2006) N3283
David Kandakason v The State (2006) N848

Overseas Cases Cited

Browne v Dunn (1893) 6 R 67 (HL)
Peacock v The King (1911) 13 CLR 619
Thomas v The Queen (1960) 102 CLR 584
Plomp v The Queen (1963) 110 CLR 234
Barca v The Queen (1976) 50 ALJR 108

Counsel

Ms. B. Gore, for the State
Mr. R. Kasito, for the Accused

DECISION ON VERDICT

15th September 2011

1.	IPANG AJ: This is the decision on verdict for the accused Max Hame who pleaded not guilty to one count of murder. The State had on the 15 August, 2011 presented an indictment against the accused alleging that on the 15 July, 2010 he did murder one Rex Agori Dalibe. He was charged contrary to s. 300(1)(a) of the Criminal Code Act.

Brief Facts

2.	The brief facts of this case are as follows: On the 14 July, 2010, the accused was part of the group that travelled from Mt Hagen to Lae on a hired vehicle, a Toyota Landcruiser, 10 seater, white in colour registration No. HAK-915 at around 3.00 am. As they approached the dirty wara bridge and a little further up at Kugomo village which is within Henganofi, the accused had an argument with the deceased. Both were dropped off. On the next morning on 15 July, 2010 nearby villagers discovered the body of the deceased and alerted the police. State alleged that the accused had confrontation with the accused, so the accused killed the deceased.

3.	 At the outset, the State through Counsel Ms. B. Gore tendered with consent from the defence counsel, the following documentary evidence to form part of the State's case. The following were the documentary evidence;

1.	Record of Interview – Pidgin original version dated 18th November, 2010 – marked as Exhibit "A1".

2.	Record of Interview – English translated version dated 18th November, 2010 – marked as Exhibit "B1".

3.	The undated Statement of the accused – marked as exhibit "C1" (pages DA 68-D72).

4.	Statement of Patrick Bungabu in English marked as Exhibit "D1".

5.	Statement of Gibbs Kipanu in English marked as Exhibit "E1".

6.	Record of Death to Coroner dated 16 December, 2010 marked as Exhibit "F1".

7.	The Post Mortem Report dated 20 July, 2010 marked as Exhibit "G1".

8.	Death Certificate of the deceased dated 20 July, 2010 marked as Exhibit "H1".

9.	Car photographs E93 marked as Exhibit "I1", E94 marked as Exhibit "I2" and E95 marked as Exhibit "I3"

4.	 Apart from the documentary evidence tendered in Court, the State called the following five (5) witnesses namely; Krenti Opi, Lambert Dick, Sevujo Kori and Kosane Kepsi.

5.	The first State witness Krenti Opi gave the following evidence. He said he is from Sege village, Henganofi. He said on the 15 July, 2010 he slept in the house and in the morning he went and met three (3) people on the road. The witness said, "I did not see what happened. I will tell the story of what the three (3) others had told me. These three (3) people, one of them is here." The witness pointed to the accused. The witness said he came to know the accused as the accused was with the other two men when he met them in the morning at his village. Witness said he does not know the names of the other two men and they are not here now. He said he met them at around 6.00am that morning.

6.	 Witness Krenti said as they stayed a little while a 10 seater land cruiser came, they (the 3 men) shouted, it stopped, reversed and they all got in. Witness said they went to Kainantu side and a small Nissan Ute came and told us a body was found on the other side. Witness said he hoped on the 10 seater Toyota land cruiser, to go to Henganofi Station to look for some things. However, when the driver of the ute told us of the body, the witness said he asked the three (3) people – "how many of you came in the night?" They answered four (4) of us came in the night.

7.	We (the witness and Sigi Sipok) said one of you might have got injured, so we should go and see. We went a little short to the scene where the body was found and one of the three (3) men said, "turn the vehicle and we go back". The person on the other side said this. (The witness pointed to the accused as the person who said this).

8.	The witness said he insisted and they went. They drank beer and were under influence of liquor when the witness said he met them.

9.	The witness said they drove closer to the body. One of them, the three (3) men said, "turn the vehicle and go back." The witness said that same person continued on and said, "a person from other place died so we go back." The witness said the accused person said that and the witness pointed to the accused.

10.	The witness said, the accused told witness Krenti that "you are from a different place and are controlling us." The witness said, the accused then said, "he (deceased) is not from your village, so you must think and talk."

11.	Then as we drove a little further towards the body of the same person, the accused said, "I killed him so we must turn the vehicle and go." (The witness again, pointed to the accused person as the person who said that.

12.	Witness Krenti said they did not stop at the body. They drove passed it and went further down, turned the vehicle and drove back up. He said they did not stop at the body. He said the villages blocked the road and they stopped. He said three (3) people from Kugumo village, Kepsy and Kori hopped on the vehicle to report the matter to the Henganofi Police.

13.	We drove and the driver did not stop at the Henganofi Police Station so he (witness) said they all went to Kainantu. The three (3) people (Taris) said they will go to see the owner of the vehicle. From there, we were given K1000. The witness said another person who was not in the court room gave them the K1000 to get the body, wash it and take it to the hospital. The person who gave the K1000 was with the owner of the vehicle when he gave the money. We said we will go back with the two (2) people so we went back with the accused and another person whom the witness said he does not know his name. The other man left for Lae on a hiace bus. This state witness said when they arrived at where the dead body lay; the body was already taken to the village. Police arrived and got the accused and the other man. The two Hagen men and two Hagen ladies left for Lae in the 10 seater toyota land cruiser.

14.	When questioned by State Counsel how far from the body when you first got picked up? Witness said the distance is like from where he is seated to Mt. Zion which is around 2 kilometres. When you stopped at the body, did anyone get off? The witness said, the crew and himself (the witness) went down and saw the body. Witness said the crew was the person who was with the accused.

15.	Defence counsel cross-examined the state witness Krenti Opi on his prior inconsistent statement (statement marked as B11 on the Court File) and marked as Exhibit J1 in pidgin and J2 in English. During the statement given to the police, Krenti mentioned Hilux came and the driver of the hilux told them of the deceased body. In Court the witness said a Nissan Ute came and the drive of that Nissan Ute told them of the deceased body. I will address this issue at the later part of this judgment. The witness said the Ute driver told them a dead body was lying there and that he did not say a car bumped him.

16.	It is pretty much necessary that I re-state some parts of the answers by the witness when cross-examined by defence counsel. 

Q.	When inside the 10 seater Toyota land cruiser with three (3) people, you said one of the three (3) said the body is from another village (place) so let's go?
A.	Yes.

Q.	Yesterday, you said the accused said he (accused) killed him (deceased)?
A.	Yes.

Q.	You never knew of the accused prior to the 10 seater?
A.	Yes.

Q.	You never knew the other persons who got in to the 10 seater?
A.	No.

Q.	You could have mistaken the identity of the three (3) people?
A.	I can recognize them but not their names.

17.	In re-examination witness said it was around 6.00 am he got on to the 10 seater Toyota land cruiser. When you arrived at Kainantu what time was it? Witness said it was around 8.00 am and he was able to see everyone in the vehicle. He said the accused was with them at the back and they talked. The witness said the accused said he killed the deceased. Witness said he was seated on the crew-side and was facing the accused.

Three (3) other State witnesses Dick Lambert, Kosane Kepsi & Sevujo Kori

18.	These three (3) state witnesses are from Kugumo village. This is the village on which the deceased body was found lying beside the road. They were the three (3) people that got on the 10 seater Toyota land cruiser at Kugumo and travelled to Henganofi with intention to report the death to Henganofi police but the driver just drove on by-passed Henganofi for Kainantu.

19.	 The second State witness Lambert Dick said on the morning of 15 July 2010 a white 10 seater Toyota land cruiser drove passed Kugumo and then drove back. He said they shouted and told the people to stop it. They (Kugumo villagers) told the driver; one body is lying there so go and see. The off-sider or a person sitting as the crew, wearing a red jacket went and saw the body. He said he was looking for the man. He said the man is his brother. We then, told them we will go to the Henganofi Police Station and report the matter. Dick said 3 of them from Kugumo got on the vehicle and they took off.

20.	Instead of stopping at Henganofi, they drove passed Henganofi all the way to Kainantu. At Kainantu, they drove to Kainantu Lodge to see the owner of the vehicle. He said the crew got out and got the owner of the vehicle with two (2) ladies. They drove to town and they left them there.

21.	Witness said at Kainantu they were given K1000.00. When examined further as to anyone of them said anything in the vehicle, the state witnesses Lambert Dick, Kosane Kepsi and Sevujo Kori said as they went past Henganofi, a Tari man opened the beer and gave them to us and said drink – a life has been lost. When giving evidence, they pointed to the accused as the person saying these words. The two Hagen men and two ladies went to Lae. The two (2) Tari men, two (2) Sege men and three (3) Kugumos came on a hiace bus.

Defence Case

•	Witness Max Hame

22.	 Defence witness said they travelled on the vehicle on the 14 July, 2010. That is myself as the Chairman of Tari Rugby League, Henry Gendari as President of Tari Rugby League, Philimon Kayabe, Rex Agori (deceased), two (2) ladies from Hagen, vehicle owner and the driver. The accused said they were travelling to Lae to buy uniforms for players.

23.	 Accused said they passed through Goroka; the vehicle owner stopped the vehicle at Henganofi. The vehicle owner and a Hagen lady went out. It was in the night. It was real dark at around 12 midnight or 1.00 am. The vehicle owner and the Hagen lady went in to the bush. Accused said he went further down a bit to toilet and when he came back the vehicle was not there.

24.	He (Max Hame) said he followed the highway towards Lae. He then met the president and Philemon. Both asked him where is Rex? Accused, replied Rex and you guys did not go ah? Both the president and Philemon said Rex also went down. Both said he also went out so we go and look for him. The vehicle stopped up there so let's go and get the vehicle. We went up to where the vehicle was but the vehicle was not there. We said we hired the vehicle and why did it go? While we were talking a person came outside the house near the road and said "boys" how are you guys? We said we came from Tari and the vehicle left us and went off. That person said its night and he invited us and we slept.

25.	In the morning they stood on the road. The vehicle that left them on the road came back they got on the vehicle. Then a person ran to us and said "boys! boys! How many of you came?" One person died and his body is on the road. That person plus their host got on the vehicle.

26.	Later some people got on the vehicle. We went down and checked the body. President and I went out and confirmed that, that was the person we left yesterday. President talked to the people. I saw the body and I was crying.

27.	They asked where is the vehicle owner? Driver said he slept at Kainantu Guest House. President said lets go and see him. So we got on the vehicle and we went to Kainantu. We saw the vehicle owner came out of the Kainantu Guest House. Accused said the president and himself went and told the owner of the vehicle. We told him; "you left us one by one – one of our brothers died – what will you do?" He said "true ah". He said we go but we said no. The Hagen's took off with two (2) ladies. They left for Lae and we travelled back to Henganofi (Sugumo village) on the bus.

28.	Accused said president paid for their bus fares and they attended "haus krai". President put K1000 on the body. Accused said he felt sorry and he was crying. He said people also cried with him. He said then Police (CID) came and arrested him and he is now in court.

Examination In-Chief

1.	Q.		You and president went to see the body and you cried? 
Ans. 	I saw his face – we left yesterday – Rex Agori.

2.	Q.		Vehicle came back in the morning. You and others got on. Who got on the vehicle that morning? 
	Ans. 	Three (3) of us Philemon, Henry (President) and the accused.

3.	Q.			How many people beside you people got on the vehicle? 
	Ans.	Our host and 4-5 others got on.

4.	Q.		You, Henry, Philemon got on which vehicle? 
Ans.	The same vehicle.

5.	Q.		You, Philemon and Henry got on with your host and proceed to see the body? 
		Ans.	Yes

6.	Q.			From the pick up point to the scene of body. You said anything? 
	Ans.	No.

7.	Q.		When you got on the vehicle and left for Kainantu, did you say nothing?
Ans.	No.

8.	Q.		Where is Rex Agori from?
Ans.	Tari

9.	Q.		Rex Agori related to you?
Ans.	No.

10.	Q.		Prior to the incident, you know Rex Agori? 
Ans.	Brother of Anderson Agiru.

11.	 	Q.		You have problem with Rex? 
Ans. 	No.

Cross Examination 

1.	Q.	You were part of the group that travelled from Hagen on a 10 seater to Lae?
Ans.	Yes.

2.	Q. 	You were dropped off at some parts of Henganofi?
Ans.	No.

3.	Q. 	Where were you dropped off? 
	Ans.	Driver and lady went out and I went out and they left me.

4.	Q.		Was it at Hanganofi? 
Ans. 	Yes.

5.	Q.			You went with two (2) others? 
	Ans.	I went in front and I did not see at the back.

6.	Q.		10 seater land cruiser, left you and your two (2) friends
Ans.	Henry and Philemon.

7.	Q.		Henry and Philemon were dropped off at another location?
Ans.	Yes.

8.	Q.		You walked Lae way and you met them?
Ans.	Yes.

9.	Q.		You and you two (2) friends walked Lae way?
Ans.	We walked up as the vehicle was parked there.

10.	Q.		You slept with Sigi?
Ans.	I don't know the name but I know the face.

11.	Q.		You came to the road early morning?
Ans.	Yes.

12.	Q.		You met Krenti on the road?
Ans.	He came last. The first to come was an old man.

13.	Q.		You met Krenti first?
Ans.	No, an old man.

14.	Q.		Old man told, is that the first time you heard a man die?
Ans.	Yes.

15.	Q.		Was it the first time you heard Rex was left behind?
Ans.	I did not think Rex.

16.	Q.		Was it the driver of the Nissan, who told you it was a body?
Ans.	Old man came and told us.

17.	Q.			It was you, your friends, Sigi and Krenti were there? 
	Ans. 	Plenty of us, if they come, I wouldn't know.

18.	Q.			The first stop the 10 seater land cruiser made how many of you got on the vehicle? 
		Ans. 	5 of them, 3 of us and 2 in the cabin.	

19.	Q.			Who sat on the crew? 
		Ans. 	President, he wore the red jacket.

20.	Q.			No one got on the vehicle, only you and your friends, and your host? 
		Ans. 	Not only Krenti also 3 others.

21.	Q.			When you cried, who asked for the owner of the vehicle? 
		Ans. 	Guys who threw stones at the vehicle.

22.	Q.			You were in the vehicle? 
		Ans. 	I went out.

23.	Q.			You never cried? 
		Ans. 	I cried.

24.	Q.		You said, "he (deceased) died already and you asked the villagers to drink beer?" 
		Ans. 	No.

25.	Q.		You opened the beer and gave to the villagers? 
		Ans. 	I opened the beer and give them to drink.

26.	Q.	You told Krenti, that he should not bother as a man from another place died? 
		Ans. 	He is lying.

27.	Q.			You told Krenti, you killed deceased? 
		Ans. 	I did not say this.

28.	Q.		Travelling back Henganofi to Kainantu, you said he died already, drink beer? 
			Ans. 	No.

29.	Q.	When you first drove to where the body was, you never stopped at where the body was?
	Ans.	We stopped straight at where the body was.

30.	 	Q.		You and Rex were dropped off that night?
	Ans.	I walked direct.

31.	 	Q.		You and Rex were dropped off that night?
	Ans.	I went and I was not in the vehicle.

32.	 	Q.		You and Rex had fought in the vehicle?
	Ans.	No.

33.	 	Q.		You fought with him and killed him?
	Ans.	No.

34.	 	Q.		After that you met Philemon and Henri on the road?
	Ans.	I walked up and we met.

Re-Examination

35.	 	Q.		You said you met Henri and Philemon?
	Ans.	Yet.

36.	 	Q.		You said both of them said the vehicle was a head?
	Ans.	Yes

37.	 	Q.		However, the vehicle was not on that place?
	Ans.	No.

38.	 	Q.		What happened?
	Ans.	We walked and a person came, asked us and we told him.

39.	 	Q.		What happened?
	Ans.	Owner of the house said come and sleep.

Facts not in dispute

1.	The accused and the deceased were part of the group that travelled on a hired 10 seater Toyota Land Cruiser Registration No. HAK-915 from Mt Hagen via Goroka destined for Lae. 

2.	There were 4 Taris accused, Henry, Philemon and deceased Rex Agori. In the vehicle were also 4 of which included 2 Hagen ladies.

3.	They were drinking substantially alcohol drinks commencing from Mt Hagen.

4.	There was a dead body of Rex Agori lying near the road at Kugumo village, Henganofi.

5.	The Hagener's in the vehicle left 3 Taris in some place between Goroka and Henganofi.

6.	Three (3) Tari men over-nighted at Sege village, Henganofi.

7.	The 10 seater Toyota Landcruiser Registration no. HAK-915 travelled back in the morning and picked up 3 Taris, Krenti and Sigi to scene of the body lying.

Facts disputed

1.	The number of stops the 10 Seater Toyota Land Cruiser Registration No. HAK 915 made?

2.	Did the accused have an argument or confrontation with the deceased?

3.	Were the accused and deceased dropped off at Kugumo village?

4.	Did the Deceased die from motor vehicle accident or was it the accused that killed the deceased?

The essential elements of murder charge under s. 300(1) of the Criminal Code Act.

29.	The accused Max Hame has been indicted under s. 300(1)(a) which reads:

"(1)	Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder-

(a)	If the offender intended to do grevious bodily harm to the person killed or to some other person; or…"

30.	The State therefore bears the burden of proving the elements of the murder beyond reasonable doubt. These are:-

(i)	A person (the accused Max Hame)

(ii)	Kills another person (Max Hame kills another person Rex Agori Dalibe).

(iii)	With intention to cause grevious bodily harm to deceased (Max Hame must have intention to cause grevious bodily harm to the deceased Rex Agori Dalibe)

Issue

(i)	Whether based on circumstantial evidence, rational inferences can be drawn as to the guilt of the accused?

(ii)	Can this Court be satisfied beyond reasonable doubt on the guilt of the accused so far based on the evidence presented?

Submission by State

31.	 The state case as Ms. B. Gore submitted is more than circumstantial evidence in that the accused made his own admission. In this regard, the state relied on its crucial witness Krenti Opi. Krenti said when the accused was told of the death, accused said he came with four (4) people. Yet, the state submitted the accused did not want to go and see the body and insisted on going Lae way. State also submitted that the accused said to Krenti a man from another place died and that he should think and talk. Further state submitted that the accused told the witness Krenti he killed him (deceased). State's submission was not destroyed by the defence in cross-examination, it was not put to the state witnesses especially Krenti Opi that accused never made voluntary admission to the witness.

32.	 All the State witnesses said the accused did not go out of the vehicle to see the deceased's body. State witnesses further said the accused insisted that they go to Kainantu and not to Henganofi to report the death. So as the vehicle passed Henganofi he opened the beer and gave them to the villages and told the villagers not to worry because the deceased died already.

33.	The state finally concluded that Court should not believe the accused story. State said when he learnt of the body, he knew four of them came that night and one of them is not with them, yet he insisted that they go to Lae. He did not want to see the body yet when they went to the body, he said he went down and cried so badly. But State witnesses say the accused never got out of the vehicle.

State also submitted that the state witnesses insisted that they report the matter to Henganofi Police but the accused insisted that they go to Kainantu to see the owner of the vehicle. So when the vehicle passed Henganofi, he (accused) opened the beer, gave them to villages and told them, "deceased died already so drink your beer".

34.	State said how could he not want to see his brother's body, further not reporting to police, how could he open up beers and give them to villagers and say he (deceased) died already so drink your beer. State submitted that this defies common sense and logic.

Submission by Defence

35.	 Defence submitted that the four state witnesses that were called and gave evidence of not seeing who caused the death of the deceased, how the deceased died, when the deceased died, and where the deceased died. Defence submitted that the four state witnesses did not give direct eye witness accounts. Defence said their (State) versions of evidence were after the body was found dead by the road side. State witnesses had all agreed that the dead body was in a ditch beside the main highlands highway.

36.	Defence submitted that the accused gave evidence that he had no knowledge of the deceased when he went to the toilet. The only knowledge he had was that he left him in the car with others and went out to toilet. He does not know whether the deceased came out or not. After the toilet when the vehicle was not there, he (accused) decided to follow the Highlands Highway to Lae. The place was dark, there was no light but he (accused) headed towards Lae. He met his two Taris and decided to check for the deceased but the vehicle had again left them so they started walking and a local accommodated them for the night.

37.	Defence submitted that at the first stop where the accused got off to go to the toilet, what if the deceased had gotten off as well after the accused had gone to do his toilet and that the deceased also went for toilet. The Hagen man and Hagen lady got in, started the vehicle and took off. The accused had finished his toilet as he was first to go to toilet and seen that the vehicle was not there, he stared to walk towards Lae.

38.	Defence inferred that the deceased after finishing his toilet came to where the vehicle was but there was no vehicle so he headed towards Goroka. Bearing in mind that this was in the mid early hours of dawn and the place was dark with no clear lights. Both the accused and the deceased are not from Eastern Highlands Province. Both are strangers to the geographical area where they stopped.

39.	Defence submitted that the accused was fortunate to meet the other two Tari's who had stopped the vehicle and came looking for the accused and deceased. However, they were unfortunate to look for the deceased as the vehicle had left them and had gone Lae way. The deceased walked along the highway towards Goroka and was likely hit by a night vehicle.

40.	The crime scene visit on the 23 August, 2011 reveals that the place where the body was found was beside the road. The road coming from Kainantu and going towards Goroka is a downwards straight stretch of the road and is more or less a speed way. Defence submitted that vehicles travelling from Goroka to Kainant will travel upwards to the spot where the deceased was found was a bend before straight stretch upwards Kainantu. In either ways, defence say a night travelling vehicle could have collided with the drunkard.

41.	Defence further submitted that the medical report shows that the injuries sustained are concentrated only on the left side of the body. Defence say this suggest something hitting the deceased on the left side. Defence says this is common sense. Was that something a vehicle or the accused?

42.	The medical report revealed the following findings:

•	Head	-	Left parietal scalp laceration	
	-	Chin (x2) superficial laceration	
	-	Bruises on the forehead	
			
•	Neck	-	Cervical spine level (C7-C8) fracture dislocation with spinal cord transaction	
			
•	Chest	-	Left lateral chest multiple rib fractures with hematoma	
	-	Left chest – haemopneumothorax	
			
•	Abdomen	-	Bruises and hematoma	
	-	Haemoperitoneum	
			
•	Lower Limbs	-	Left thigh swelling with haematoma	
	-	Closed fracture of distal 1/3 left femur bone	
	-	Abrasions and lacerations of left foot and toes	
	-	Abrasions and lacerations of left fingers	

43.	 Defence submitted that it was not the accused who caused the injuries as reported in the post mortem. Defence say it is common sense that if another person is assaulted leading to a death, then injuries will be all over the body on both the left and right side. Defence say there was no report from injuries sustained from dangerous weapons such as knife or axes.

44.	 Defence had also raised the issue of prior inconsistent statement by State witness Krenti Opi based on the Exhibit "J1" and as I said earlier I will evaluate and discuss this aspect when I analyse the evidence.

Court's Analysis of Evidence and Application of Relevant Laws

45.	 Defence has raised issue with state witness Krenti Opi's statement to police which is marked as Exhibit "J1". This is on whether which actual vehicle Hilux or Nissan ute brought the message of the deceased body. In the police statement witness was said to have stated a Hilux but in Court he said a Nissan ute. In the Supreme Court case of David Kandakason v The State [1998] SC558 and later adopted in Andrew Palili v The State (2006) SC848 the principle of prior inconsistent statement was stated and I quote:

"Where the witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the court must regard and treat that evidence unreliable, and similarly disregard that previous statement, whether sworn or unsworn, as it does not constitute evidence upon which the judge can act. In other words, both the sworn testimony of the witness and his statement given out of the Court are discredited and both are no longer reliable evidence."

46.	 In the Exhibit "J1" tendered in Court there were two (2) prior inconsistent statements made by the state witness Krenti Opi. The first concern the type of vehicle Hilux or Nissan and second concern the statement given to the police that driver of the Ute said body bumped by a vehicle and in Court Krenti only said ute driver, only said body lying on the road. There is evidence of prior inconsistent statement. However, the relevancy of such prior inconsistent statement to the crux of the issue is not so crucial. Whether they are rejected or allowed does not in my view have any direct bearing to the principal issues before this Court.

47.	 Defence argued that his inconsistency casts doubts on evidence given by Krenti Opi in Court. Krenti Opi had given evidence in Court that accused had made voluntary admission to Krenti Opi. Defence had let that crucial part of State's evidence go unchallenged when it had the opportunity to do so during cross-examination but had that opportunity go. Defence had not tainted, discredited or destroyed that part of the state's evidence. How can the defence at the submission stage go again this time say doubts has been casted on this aspect of evidence as Krenti Opi has given prior inconsistent statements. These prior inconsistent statements have no relevance to the voluntary admissions made by the accused.

Credibility of State Witness Krenti Opi

48.	 Has the credibility of state witness Krenti Opi being called in to question after giving two (2) prior inconsistent statements? Witness Krenti Opi had no prior knowledge of the accused. The accused is from Tari in the Southern Highlands Province and Krenti is from Henganofi, Eastern Highlands Province. Both just met at around 6.00 am that morning and were inside the 10 seater Toyota Land Cruiser bound to see the body. Accused was not provoked in anyway. All that was before the Court was that the accused said that they go Lae way and suggested not to see the body. There is no difference(s) between Krenti Opi and the accused. What more is there before this Court to taint or question the credibility of Krenti Opi as a witness?

49.	 This case rests substantially on circumstantial evidence. Before this Court considers the circumstantial evidence and the relevant law on circumstantial evidence, I wish to address issue of concern under the rule in Browne v Dunn (1893) 6 R 67 (HL) which was followed in The State v Minjipa [1977] PNGLR 293 and subsequently in State v Simon Ganga [1994] PNGLR 323. These aspects of evidence were found to have not been put before the State and is rendered as being breached in Browne v Dunn Rule:

(i)	The aspect that the accused got off the vehicle to view the body;

(ii)	The aspect that the accused saw the body and was crying badly;

(iii)	After returning from Kainantu and at Kugumo village, accused was crying and other villagers assisted him and cried;

(iv)	Krenti Opi did not go down from the vehicle to see the body; and

(v)	When travelling down to see the body the vehicle stopped instantly at where the body lay.

50.	 The principle as enunciated in Brown v Dunn (supra) and followed by subsequent cases as stated is nevertheless, essential to the proper conduct of a case that a party must put his case to the other party's witnesses in cross-examination so that the witnesses are given the opportunity to either agree, disagree with or even explain what is being put to them. That is a rule of fairness.

51.	 Now in respect to the relevant law applicable in this case which deals with circumstantial evidence? I refer to the following Papua New Guinea cases; The State v Tom Morris [1981] PNGLR 493; Paulus Pawa v The State [1981] PNGLR 497; Wamban v The State [1995] SC479; Allan Oa Koroka v The State [1988-89] PNGLR 131; John Beng v The State [1977] PNGLR 331. The following Papua New Guinea cases had reported or cited the following foreign cases; Barca v The Queen (1976) 50 ALJR 108; Peacock v The King (1911) 13 CLR 619; Plomp v The Queen (1963) 110 CLR 234 and Thomas v The Queen (1960) 102 CLR 584.

52.	The relevant applicable principle of law on circumstantial evidence as found in the above stated cases are as follows and I quote:

"When a case against an accused rests substantially upon circumstantial evidence there should be an acquittal unless all the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused."

53.	 In the case of Paulus Pawa v The State (supra) Kearney DCJ said at p. 499 and I quote:

"…where the evidence in a criminal case is wholly circumstantial, the court must acquit unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than the guilt of the accused."

54.	 I would like to refer to Peacock v The King (supra) and Plomp v The Queen (supra) as referred to in Paulus Pawa's case. The Court in Peacock's case said at p. 634:

"To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but it should be the only rational inference that the circumstances would enable them to draw."

55.	 In Plomp v The Queen (supra) Menzies, J further elaborated its application in the following words;

"…to bring in a verdict of guilty it is necessary not only that it should be a rational inference but the only rational inference that the circumstances would enable them to draw."

56.	 In an unnumbered judgment the State v Kokara Fova CR No. 1494 of 2006 (2009) Sevua, J (as he then was) was of the view that and I quote:

"I take that statement of the law to mean that in order for a finding of guilt to be recorded against an accused, the circumstantial evidence adduced against him establishing guilt must be the only rational inference that the Court, sitting as a jury, can draw."

57.	 I have cautioned myself on the dangers of convicting an accused person on circumstantial evidence and I take note of such caution expressed by my brother Lenalia, J in the State v Richard Saku (No. 2) (2006) N3283. His Honour stated and I quote:

"The issue for this Court to decide is whether the guilt of the two accused is the only inference that the circumstances of the evidence before me would enable me to draw. If there are any competing inferences in the prosecution evidence or if I entertain any lurking doubts in my mind as to the two accused involvement then the Court should not proceed to conviction.

However, if I am satisfied beyond reasonable doubt about the guilt of the two accused, it is necessary not only that their guilt should be a rational inference but that it should be the only rational inference that the circumstances of the evidence before would enable me to draw."

Record of Interview

58.	From the Record of Interview (ROI) the following questions were asked and the following answers were given:

Q.48		How many times did you stop along the road towards Goroka? 
Ans.		I was drunk and did not know.

Q.49	You said that you people came and stopped at Daulo Pass is that true?
Ans.	We stopped there and went out to urinate, the Hagen man and the Hagen woman went out and when they came back we got in to the car and took off.

Q.50	when you people stopped at Daulo Pass, did Rex go out too?
Ans.	All of us inside the car came out, Rex came out too.

Q.51	When you got in the car again to come did Rex got in to the car too?
Ans.	The second time we got in and the third time, the accident occurred, that is in Henganofi.

Q.59	When you left Goroka and came towards Henganofi Rex Agori was in the car?
Ans.	Where will we leave him, he was in the car.

Q.60	When you left Goroka and came towards Henganofi, Rex Agori did he sleep or he was awake?
Ans.	We were telling stories and came and he was sitting not sleeping.

Q.61.	When you left Goroka and came towards Henganofi were you awake or sleeping?
Ans.	We were drunk and talking and I was sitting not sleeping.

Q.62	You stared drinking beer in Hagen and came, is that true?
Ans.	Beer finished at Simbu and from Simbu to Goroka and Henganofi we did not drink.

Q.65	You people came and passed this long bridge and came up the mountain and the driver turned the car and went in to a feeder road that is on the right side when you come towards Henganofi. What do you people want to do and the driver turned the car in to this feeder road?
Ans.	I don't know.

Q.66	Two men within your group opened the back door and came out and went and opened the gate for the car to go further, who were these two (2) men?
Ans.	The owner of the car and a lady.

Q.67	How many times did you people stop when you left Goroka and before coming to Henganofi?
Ans.	Two times, at this location the car stopped and the two, the man and the lady went out and I also went out to urinate.

Q.68	You stated earlier that you left Goroka and came at a certain location you did not know, the driver stopped and you went out, is that true?
Ans.	Yes.

Final Analysis

59.	 Having considered the evidence, both counsels submission in this case, most of state witnesses' evidence are from what they said they heard from the accused otherwise I can say the state is not wholly or say substantially circumstances. State's case rests substantially on the accused own voluntary admissions made on the morning of 15 July, 2010.

60.	 The evidence of Krenti Opi is crucial in this trial. A part from the prior inconsistent statement as tendered in Exhibit "J1" which I have stated that was not so crucial to the principle issue before this case. I have also stated that whether or not it is accepted will not have serious ramification on the issues before this Court. Whether the Hilux or a Nissan Ute brought the message of dead body is too trivial.

61.	But the crux of State witness is Krenti Opi's evidence of directly hearing the accused voluntarily admitting that "turn the vehicle and we go back." On the second occasion the accused said, "turn the vehicle and go back. The person from another place died so we go back." Then as they drove a little further down, the accused said to the witness, "you are from different place and controlling us. He (deceased) is not same person from your village. So you must think and talk" Then a little further down, the witness said he heard the accused say "I killed him so we must turn the vehicle and go."

62.	This aspects of State's evidence were not been subjected to cross-examination by the defence counsel Mr. Kasito. If he wants the Court not to accept or disbelieve, these were never put to this state witness in cross-examination. Defence counsel did not ask question(s) on these aspects of state's evidence therefore he cannot ask the Court to believe what he has failed to put to state witness in cross-examination.

63.	Then, there is this aspect of evidence by the other state witnesses who said the accused on the way passed Henganofi station and opened beer, gave them and said drink up the deceased died already. Can this aspect of evidence be disbelieved and on what basis? Or even under what circumstances?

64.	Defence case is that there is other inference which can be drawn and this is:- At the first stop where the accused got off the vehicle to the toilet, what if the deceased also went for toilet. The accused had finished relieving himself and seen that the vehicle was not there, he started to walk towards Lae. Deceased after relieving himself seeing that the vehicle was not there walked the highway back to Goroka.

65.	How could the deceased done that. That is by walking back to Goroka and not walking towards Lae way as that was the direction he was heading to and also that was the direction the vehicle had left. Furthermore, that was the direction the accused headed towards and met the other two Taris. It could have being easier and closer walking to Sege village than walking 2.5 to 3 kilometres back to Kugumo village. Defence drew rational that it was mid to early hours of dawn, the place was dark with no light, both deceased and the accused are not from Eastern Highlands Province, strangers to the geographical area and the accused was drunk. These were circumstances relevant to the accused yet he walked to Sege village and not the deceased. What reasonable explanation can we place on this evidence in order that a logical inference can be drawn? Provided that the defence stance was that from Goroka to Henganofi there was only one (1) stop and that stop was closer to Sege village and not Kugumo.

66.	What about the Question 67 and answer given: Q:67 How many times did you people stop when you left Goroka and before coming to Henganofi? Ans: Two (2) times, at this location, the car stopped and the two then men and the lady went out and I also went out to urinate.

67.	Then comes the voluntary admissions by the accused and his insistence of turning the vehicle and go back corroborated by evidence of Dick Lambert, Kosane Kepsi and Sevujo Kori who said the accused told them as they passed Henganofi Station, accused opened beer gave them and said deceased died already –drink up. Is this a way of celebration. 

68.	What about our culture and respect bestowed on the deceased persons. That is to say generally, that when there is a death, how do people normally conduct themselves in our culture. Right after the body was discovered and the news reached the 3 Taris inclusive of the accused how did they react? How did they react after receiving the news that Rex Agori is dead? How did they react to the driver & owner of the 10 Seater Land Cruiser Registration No. HAK 915? Isn't it not normal especially when three (3) people who are from Tari to react with the words, "You left us one by one – one of our brother died-what will you do?" 

69.	There must have been some pinnacle REASONS WHY THE Hagens in the vehicle had to leave the Taris to over night at Kainantu. That reason was not the cause for commotion or confrontations between these Hagens and Taris. It can be that Taris stopped the vehicle to urinate frequently as the accused said they stopped two (2) times from Goroka to Henganofi through Record of Inteview (Q.8 Ans: 67) and in the Court the accused maintained that they only made one stop. I do not believe the accused to be telling the truth. He is lying under oath. The reason for urinating frequent cannot hold ground as evidence show a Hagen man and Hagen lady also got off to urinate. Defence has not produced any reasonable explanation why the vehicle could have left the 4 Taris in the middle of the road; the place was dark, different geographical area, no lights and just took off like that. 

70.	Can deceased collided with a night vehicle be a rational inference? I do not think so now that there is conflicting evidence which shows that there were more than just one stop the Toyota Land cruiser Reg No.HAK 915 made between Goroka and Henganofi on the night of 15th July, 2010. This aspect of evidence of more than one (1) stop tainted tarnishes or to a certain extent damaged the inference by the defence.

Demeanour of the accused as observed 

71.	In court the accused, who can be described as a stocky short built person with light skin complexion was steadfast. When first State witness Krenti Opi gave evidence, the accused was seen to be tightly seated upright and he did little bending forward with started eyes little wide opened staring straight-forward towards the State witness when the State witness was been examined In –chief. Especially with questions and answers relating to; Witness said: One of them said "turn the vehicle and go back". Q. Who said that? Witness said the accused and pointed to the accused. See the strings of questions started in paragraph 61 of this judgment. The accused continued to place himself in this position till the final question was asked- witness Krenti Opi said one of them said, "I killed him turn the vehicle and go back". Q. Who said that? Witness the accused and pointed to the accused person.

72.	When the accused gave evidence in court and gave his re-collection, he did not display any sympathic signs or sympthoms by his words or through tears. Instead, he has shown forthright, stead fast and held on.

73.	During the visit on the 23rd August, 2011 to the scene of where the body was discovered, I have observed and assessed the accused to have displayed that "Steadfast" posture. Naturally, in my view if one re-visits the place where one of your brother, colleague or companion was killed, would naturally draw some tears and I mean that's human nature and that's natural.

74.	Basing on the voluntary admissions made by the accused (Refer to paragraph 61 of this judgment) and the confessions made during the Record of Interview (ROI) Q67 –Questions & Answers given (Cases of State v Jeffrey Malepo (No.2) [1996] PNGLR 252 and State v Steven Torila & Benedict Okole (1980) N216) plus the fact that the medical report on the cause of death of deceased Rex Agori Dalibe did not rule out physical assault as the cause of the death. I therefore find there are no other reasonable hypothesis I can draw on other than that of the guilt of the accused. It is the rational and the only rational influence that the deceased had met his fate prior to the location where defence assert that was the first stop. I am convinced and satisfied beyond reasonable doubt that accused was one of those that caused the death of deceased. I return a verdict of guilty and enter a conviction against him. 

____________________________________
Acting Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Accused