N6402        
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 226 OF 2015

THE STATE

V

KOARA KEISA

Kerema :  Koeget, AJ
2016	:03rd, 7th March,
8th & 17th March

CRIMINAL LAW: - Indictable offence – unlawful killing section 302 of Criminal Code Act chapter 262– accused pleaded not guilty – trial – accused the only witness- identification of offender- principles of identification in The State –v- John Beng – evidence of identification in situations where observation of the accused is made under difficult conditions – identification of a familiar person.

FACTS
It was alleged that on the night of 14th June, 2014 between 1 o’clock  at night and 3 o’clock in the morning, the accused Koara Keisa Sarufa and one Gabriel Charles Mesa came out of Elore Club in Kerema town after drinking beer in that club.

The accused Koara Keisa Sarufa picked up a fight with a youth from Baimuru when that youth asked for a cigarette lighter. Both pursued that youth to the intersection of Preddle and Kivovia Streets next to the Murua Traders shop. They lost sight of the youth as it was dark. The deceased Charles Aehe, an innocent bystander came upon the accused and Gabriel Charles Mesa and both attacked him with fists, stones and sticks. In the fight Gabriel Charles Mesa picked up a stone and hit the deceased on the head causing him to fall to the bitumen surface of the road. They continued to assault the deceased while he was lying unconscious on the ground.

A bystander intervened and the accused and Gabriel Charles Mesa fled the scene leaving the deceased seriously injured. The deceased was taken to the Kerema General Hospital and he was pronounced dead later due to multiple injuries to the body.

The Post Mortem report tendered into evidence by consent states that (the death is attributed to head injury) due to fracture of the skull. 

The State alleged that Gabriel Charles Mesa and the accused Koara Keisa Sarufa acted in concert when they attacked and assaulted the deceased and so invoked section 7 of the Criminal Code Act chapter 262.
The following documents were tendered by consent and accepted  as evidence.

-	Record of interview (pidgin version) dated 21st July, 2014.
-	 English translation of record of Interview dated 21st July, 2014.
-	 Post mortem Report dated 7th July, 2014.
-	 Sketch plan of the crime scene.

ARRAIGNMENT:
The accused pleaded not guilty after arraignment and so trial was conducted. 

HELD

1.	The court should be mindful of all inherent dangers, the need for caution before convicting in reliance on the correctness of identification, the possibility that a witness could all be mistaken, court should examine closely all the circumstances in which identification by each witness came to be made bearing in mind that recognition maybe more reliable then identification of a stranger, but even where the witness is purporting to recognise someone he knows, mistakes can be made. Principles in John Beng  vs The State[1977] PNGLR 115 followed.

2.	The identification of the accused is correct as he is a familiar person known by the witnesses prior to the night of the incident and there was sufficient light shown from a dwelling house approximately 10 meters across the street. 

3.	The witnesses’ evidence of identification of the accused as the last person fleeing the crime scene is strong and believed by the court.

Cases cited:
Biwat  Geta vs The State [1988-89] PNGLR153
John Beng vs The State [1977] PNGLR115

Counsel:
 D Mark, for State
B Popeu, for Accused

17th March, 2016:

EVIDENCE FOR STATE

1.	KOEGET AJ; The witness Bishop Paul Mero stated on oath that he is from Lese Oalai village but resident of Kerema town, he is unemployed and he is a bachelor.  He recalls on the night of 14th June, 2014 between the hours of 1 o’clock and 3 o’clock in the morning, he came out of Elore Club with Joe Jobby Kongoro after drinking beer and the club closed for business. Both went and stood at the basketball court smoked cigarettes and chattered for some time.  As he stood at the basketball court with Joe Jobby Kongoro, he saw three people fighting on the road at the intersection of Preddles and Kivovia streets next to Murua Traders shop. He noticed two people attacking alone person with objects that resemble sticks, knives and stones.

2.	The lone person fell to the ground and the two men continued to attack him while laying on the ground. So he ran with Joe Jobby Kongoro to where the two men were assaulting the lone person laying on the ground at the intersection of Preddle and Kivovia streets. He estimated the distance between himself and Joe Jobby Kongoro at the Basket Ball Court to the crime scene was 25 metres and there were no street lights so it was dark. As it was dark he did not identify the two assailants. 

3.	The two men ran towards Works Compound and proceeded to run towards Karaeta village. 

4.	When he arrived at the scene, he notices that the person lying on the bitumen at the intersection of Preddles and Kivovia streets was son of Charles Maui, the President of Ihu Local Level Government in the Gulf Province.  He identified the person laying on the bitumen to be Charles Aehe. 

5.	He stayed and watched Charles Aehe while Joe Jobby Kongoro pursued the two men towards Karaeta village. In the mean time, he flashed the torch light from his mobile phone onto Charles Aehe’s body and noticed he was bleeding heavily from the face and there was a stick and a stone placed next to him. 

6.	He ran to Kerema Police station and sought police assistance and returned with two policemen so Charles Aehe was taken to Kerema General Hospital the same night. 

7.	The next witness, Joe Jobby Kongoro stated on oath, that he is originally from Kikori district, but is a resident along Kivovia Street in Kerema town. The Kivovia street stretches pass the front of Kerema District Court House. He recalls the 14th of June, 2014 between 1 o’clock and 3 o’clock in the morning he was at Elore Club with Bishop Paul Mero drinking beer. When the club closed, he came outside with Bishop Paul Mero and walked to the Basket Ball Court. They met some friends and told stories and he saw three people fighting near the corner of Murua Traders shop. 

8.	So he ran with Bishop Paul Mero to those men fighting. As they approached the three people fighting, the two men ran down the street towards Works Compound, so he told Bishop Paul Mero to keep watch over the person lying on the bitumen while he perused the two men towards the Works Compound. He chased the two men towards Karaeta village and caught the person running last by the hand. 

9.	He held that man by the arm and that person screamed and uttered something in his local dialect. He held that man at the back of GMI hotel as he was running towards Karaeta village. 

10.	There was electrical light affixed outside of Mark Kasau’s resident on the other side of the street and was able to identify that person as Koara Keisa Sarufa. The witness identified him sitting in the dock during the trial. 

11.	He had known the person prior to the night of 14th June, 2014 as he is from Karaeta village and he knows him as ‘’Keisa’’. 

12.	When he held Keisa by the hand, he realised that Keisa too was drinking beer at the Elore Club that night prior to assault on the deceased Charles Aehe. He released Koara Keisa Sarufa because, he shouted and uttered something in his local dialect and the witness feared the accused’s friend might return to attack him in the dark as he was alone then.  

13.	In Cross Examination witness Joe Jobby Kongoro stated: ‘’I saw two people running away so I ran after them. One of the men ran ahead, the other followed behind.’’     

14.	The witness was asked the following questions in cross examination:

‘’Q:      The accused did not fight with the deceased that night?

A:      He fought with the deceased.

Q:     Suggest that the accused was not one of them that fought with the deceased that night?

A:      I saw him. Both ran down and I caught him.

Q:      He was walking slowly when you caught him?

A:      He was running when I caught him. I saw him in the club and when I held him by the hand, recognised him.’’

In re- examination he was asked:

Q:     When you saw someone lying on the bitumen and two men ran away towards Karaeta
        Village, did you see any other person run with him.                   

A:      No 

EVIDENCE FOR DEFENCE

15.	The accused give sworn testimony in his trial and stated he is from Karaeta village and is married with three children. He is unemployed and resides with family at Karaeta village. 

16.	On 14th June, 2014, between one o’clock in the morning and three o’clock in the morning he was at Elore Club drinking beer. There were friends drinking beer as well.  He left the Elore Club before it closed and walked outside and followed the road home. 

17.	He saw three boys standing on the road and they asked him for matches. He told one of them: ‘’If you are a smoker, you should have a match of your own.”  The man swore him and he responded by slapping that man in the mouth. The other two men joined in and fought with him. He fell on the ground and when he stood up, he saw the man that swore him ran towards Murua Traders shop and proceeded down the Kivovia Street. So he chased after that person and at the inter section of Preddle and Kivovia streets, a stone struck him on the head. He fell to the ground and was unconscious so did not know what happened during that time. He said” I felt someone waking me up, shaking me, I woke up and open my eyes saw it was Gabriel Mesa.’’                   

18.	He was dizzy, so stood up and walked slowly along the street towards Karaeta village.   At the inter section of the road to Works Compound and Karaeta village , Gabriel ran and told him in local dialect to run , so he ran first to Karaeta village leaving Gabriel Charles Mesa.

19.	 In cross examination he stated there were no other persons except Gabriel Mesa. He had gone to his village so did not know what happened later.  He denied that Jobby Joe Kongoro ran and held him by the arm because he ran ahead and Gabriel ran behind him. 

20.	I asked the witness the following questions:

‘’Q:  	 Do you know why Joe Jobby Kongoro would come and tell his about you in court?’’

A:    	 ‘’ I don’t know, they fought, I stood and walked home. The incident happened after I left”.

Q:    ‘’Where is Gabriel Mesa?

A:       He is in jail at Bomana.  He did it, he knows, not myself.’’

Q:   “	What incident are you talking about?

A: 	Accident of about a death of a person, I don’t know about.’’

Q:	“Suggest the other person with Gabriel Mesa between 1 o’clock and 3 o’clock in the morning on 14th June 2014 was yourself and nobody else?

A: 	 I was alone not with him.’’

21.	I analysis all the evidence in the trial and I am impressed with the credible evidence of witness Joe Jobby Kongoro. Iam satisfied on the evidence of identification of Joe Jobby Kongoro. His evidence was very good and he was clear on identification of Koara Keisa Sarufa. He knew Koara Keisa Sarufa before the night of 14th June, 2014 as he is known in Kerema Town as Koara Keisa Sarufa
 
22.	He was able to identify Keisa because there was electrical light afixed outside of a residential house across the street and the light rays spread to where he apprehended the accused. The light was located outside a dwelling house about 10 metres across the street where he apprehended Keisa.  He was firm in his evidence about the identity of the accused as he had known him before the night of 14th June, 2014 and saw him Elore Club drinking beer prior to the assault on the deceased. 

23.	In applying the principles in the case of The State v John Beng [1977] PNGLR 115, I am satisfied that Joe Jobby Kongoro correctly identified the accused as the person he chased and  apprehended on the night of 14th June, 2014 along the street next to the Works compound. 

24.	A judicial note is taken of Gabriel Charles Mesa’s conviction by the National Court sittings in Kerema in 2015 for the unlawful killing of the same deceased Charles Aehe. The prisoner Gabriel Charles Mesa pleaded guilty to the charge of unlawful killing of the deceased Charles Aehe on the night of 14th June, 2014. 

25.	On the other hand, the accused denied fighting with the deceased while in company of Gabriel Charles Mesa on the night of 14th June, 2014.  He stated he was alone when attacked and knocked unconscious to the ground. He felt someone shook him up and when he opened his eyes, it was Gabriel Charles Mesa waking him up.  He stood up and walked slowly down the road to Karaeta village. 

26.	As he walked down the street to Karaeta village, he heard Gabriel Charles Mesa shouted out to him to run but he did not do so.  He walked home slowly to the village. 

27.	So according to his own testimony, he was with Gabriel Charles Mesa and accordingly, I find that on the night of 14th June, 2014, the accused was with Gabriel Charles Mesa. 

28.	I asked the accused the following question:

Q:   	Do you know why Joe Jobby Kongoro would come to court and tell lies about you in court?’’

A:        ‘’ They fought and I stood and walked home.’’

29.	I asked myself how did this accused know there was a fight that night?
            
30.	He had knowledge of the fight that night because Gabriel Charles Mesa and himself assaulted the deceased and inflicted the injuries on the deceased. 

31.	I accept the State witness’ evidence that the two people fighting with lone person at the intersection of Preddles and Kivovia streets on the night of 14th June, 2014 were Gabriel Charles Mesa  (own admission) and the accused Koara Keisa Sarufa as identified by the witness Joe Jobby Kongoro. This is confirmed by the accused’s own admission in the trial and such evidence corroborates the evidence of State witnesses. 

32.	The State invoked section 7 of the Criminal Code Act, because the accused and Gabriel Charles Mesa assisted each other in assaulting the deceased and inflicted the injuries upon him. 

33.	I find that on the night of 14th of June, 2014 the accused was in company of Gabriel Charles Mesa and they assaulted the deceased Charles Aehe and inflicted injuries from which he died.

VERDICT

34.	The verdict of the court is that the State has proved its case beyond reasonable doubt that on the night of 14th of June, 2014 Koara Keisa Sarufa and Gabriel Charles Mesa were together when they assaulted the deceased Charles Aehe and inflicted the injuries from which he died at Kerema General Hospital. Both acted in concert when they assaulted the deceased that night. The accused is found guilty as charged.

ALLOCATUS: 

‘’This is my first time to be in trouble.’’

PERSONAL PARTICULARS

35.	He is a subsistence gardener and a first time offender- He resides in the village with his wife and 3 children. He is now 42 years of age.

MITIGATING FACTORS

36.	The prisoner has been in custody awaiting trial of his case for 2 years 4 months and 3 weeks. He has no prior conviction and he is a first time offender.

AGGRAVITING FACTORS
37.	The conviction is after a trial and so court’s busy time was wasted. 
38.	The deceased was an innocent bystander on the road when attacked by the prisoner and Gabriel Charles Mesa and both inflicted the injuries from which he died.

-	When the deceased fell to the ground, the prisoner and Gabriel Charles Mesa continued to assault him with sticks and stones till disturbed by witnesses Joe Jobby Kongoro and Bishop Paul Mero.

-	This was a brutal attack on innocent bystander. A life is lost and it will not be resurrected by payment of compensation or apology to his family. This offence carries maximum sentence of life years so it is a serious offence.
 
SENTENCE
39.	The accomplice Gabriel Charles Mesa was sentenced by National court sitting in Kerema, in 2015 for 12 years in hard labour. 

40.	This prisoner too must receive the same punishment so the sentence of the court is that the prisoner is sentence to be imprisoned for 12 years in hard labour.

41.	The pre-trial custodial period of 2 years 4 months and 3 weeks is deducted. 

42.	He is to serve the balance of 9 years 7 months 1 week in jail at Bomana Corrective Institute Services.

Accordingly sentenced.
Public Prosecutor: Lawyers for the State
Public Solicitor    : Lawyers for the Accused