Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Kuvi [2017] PGNC 242; N6905 (13 September 2017)

N6905

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CR 1060 of 2014

THE STATE

V

ELIJAH DOMINIC KUVI

Kimbe : Miviri AJ
2017 :12^th &13^th September

CRIMINAL LAW - Trial- Wilful murder S299 CCA - application for leave to lead evidence on Alibi-refused-late on eve of trial - 14 days notice -practical application adjournment of trial - represented by counsel last circuit-no evidence -leave refused-application denied.

CRIMINAL LAW- TRIAL - Wilful murder S299 CCA-identification-3 eye witness identification-no motive-broad daylight-close quarters-immediate relatives-good identification-defendant sworn evidence-incredible witness-evidence tailored to disassociate with reality-alibi not made out-false-corroboration of identification-guilty of wilful murder

Facts
Accused armed with a gun aimed at the deceased shot him in the left side intending to kill him and killed him.

Held
No issue. Deceased died from gunshot wounds. Trial was on the issue of identification. Broad daylight identification at close quarters good identification by immediate relatives. No motive. Guilty of wilful murder

Cases cited:

The State v Beng [1977] PNGLR 115

The State v Jaminan [1983] PNGLR 318

The State v Pawa [1981] PNGLR 498

The State v Tubol [1994] PNGLR 378

Counsel:
L. Rangan, for the State
B. Popeu, for the Defendants

VERDICT

21^st September, 2017

1. MIVIRI AJ: This is the verdict after trial of a man who shot the deceased intending to kill him with a gun and did cause the death.

Background Facts

2. Elijah Dominic Kuvi was armed with a gun on the 6^th March 2012. He pointed it at John Pinda pressed the trigger and shot him on left side. He intended to kill him. John Pinda died as a result of the gunshot.
   

Evidence tendered

3. Tendered by consent into evidence was Exhibit S1A the pidgin original record of interview of the defendant with police dated the 29^th May 2014. There were no admission to the offence. Accused had elected to remain silent. Exhibit S1B was the English translation of that record of interview. Accused did not sign the record of interview nor did he disclose in there an alibi. He was interviewed on the 29^th May 2014, two years two months after the 6^th March 2012. He made no attempt to disclose his alibi to police nor did he draw police to his alibi witnesses Dominic Kuvi Senior and Ben Gare. Both witnesses and the accused have accessibility into Kimbe and know where the police station is but have not disclosed any reason credible before me as to why that alibi was not disclosed. It is simple and elementary that no one person can be at two places at the same time. Elijah Dominic Kuvi could not be at Gulpugo and the big village of Ganeboku one and nat the same time. He could not have killed John Pinda if he was at Ganeboku at that very time. Therefore disclosure of it at the earliest was a matter of common sense and logic not a hard process of law as the witnesses for the Defence will have the court believe. From 29^th May 2014 to the date of trial was 3 years 4 months and no alibi was disclosed nor contest to the name Elijah Dominic Kuvi Junior was ever made until the eve of trial when a belated attempt was made without any evidence to seek leave of the court.

Application for leave to file notice of Alibi

4. The law did not obligate that he prove his innocence at the time police interviewed him. In any case from that date up to the eve of trial Thursday 14^th September 2017, a period of 3 years 4 months the alibi was never disclosed nor was there instruction to counsel to file an appropriate notice in accordance with the Criminal Practise Rules 1987 Order 4 Division 2 Rule 4 to 8. And all alone the accused was represented by the office of the public Solicitor counsel appearing on record on each occasion leading up but there was no notice of alibi filed in accordance with the rules.
   
5. On the eve of trial14th September 2017, he sought leave in accordance with the rules to be granted leave to file. The State objected to leave being granted arguing that there was more than enough opportunity and time leading up and no lead was taken by the accused. It would mean that the trial would be adjourned for 14 days to allow the state to check out the alibi if leave was granted to file. It would effect the rights of others who were also standing awaiting their cases. The court ruled that there was no material filed to sway the court that leave should be granted to file the notice of alibi. Leave was not as a matter of right but that there ought to be evidence filed on the basis of which case be made out that leave ought to be granted the accused to file notice of alibi. Here there was bare application made unsupported by material evidence to sway the discretion of the court to grant. Accordingly application was refused and leave not granted. Tubol, The State v [1994] PNGLR 378 (12 April 1994). I will discuss further as the effect of the alibi on the case proper in the course of this judgment.
   
6. Exhibit S2 was the affidavit dated the 14^th March 2012 of Doctor Sanoh Tahon of the Kimbe General Hospital who attached Exhibit 2A Report on Post Mortem examination dated the 14^th March 2012 wherein he had conducted an examination of body identified as John Pinda. He deposed that the cause of death was Pellet wound Haemathorax. In the summary of significant findings he deposed, pellet wound x4 left arm-Heart Normal, Pellet wound x2 left chest-Liver normal, Perforated left upper lobe, blood loss 2000 mls.
   
7. Exhibit S2B was medical certificate of death dated the 14^th March 2012 also by Doctor Sanoh Tahon was issued stating John Pinda last place of residence Ganeboku Talasea. Time of death was 9.00am 6^th March 2012. And the disease or condition leading to death was (a) Pellet wound left upper lobe and (b) Severe Haemothorax.
   
8. Exhibit S2C was order for post mortem examination signed by the Coroner dated the 14^th March 2012. And Exhibit S3 was Report of death to the Coroner. The suspicious circumstances deposed were alleged to have been shot by shot gun firearm on the left ribs.
   
9. Exhibit S4 was statement of Police Investigator Martin Vitolo of Kimbe Police Station dated the 26^th June 2014 of being assigned to investigate a tribal fight amongst two rival groups at Ganeboku between William Gare’s men and Senior Dominic Kuvi’ s men. There were two deaths. Because there were two deaths on either side both were advised to surrender their men to police. Elijah Dominic Kuvi and five others were surrendered to police but the other side did not so police released them all on the understanding that as soon as the other side surrendered they would all come back. But went and never came back and went into hiding.
   
10. On 26^th May 2014 police arrested Elijah Dominic Kuvi for the crime of wilful murder. On Thursday 29^th May 2014 at about 2.30pm a record of interview was conducted with the accused Elijah Dominic Kuvi. The accused gave his name, personal particulars and elected to remain silent. On 5^th June 2014 went to the alleged scene and took photographs. After which formally charged the accused with the crime of wilful murder. Accused refused to sign the record of interview.
    
11. It must also be mentioned here that at the time of the record of interview the accused named himself as Elijah Dominic Kuvi. He did not protest or tell police his name was not Elijah Dominic Kuvi. He had refused to sign the record of interview in the same way he had not since 29^th May 2014 when record of interview was conducted and protested or asked to be corrected that the name Elijah Dominic Kuvi was not his. On the eve of trial he made an application for leave to adduce evidence on alibi and similarly he protested when giving evidence that the person named as Elijah Dominic Kuvi was not him. But for three years now up to the date of trial he did not protest that fact. Interestingly also his witness Dominic Kuvi Senior was his uncle. He did not lead evidence as to who was Junior Dominic Kuvi. But the State did lead evidence as to who was Elijah Dominic Kuvi Junior and it was him. Because his mother was the sister of Dominic Kuvi Senior. What is also interesting here is that at the time when he surrendered with the others he never at that instance tell police where he was as alibi with the name of the witnesses. It begs the question whether the alibi is genuine and whether it indeed existed there and then. And the conduct of the accused in not returning raises doubts as to his veracity as a witness of truth.
    
12. Exhibit S5 was statement of Police Investigator corroborator Philip Kuri in the record of interview of the accused Elijah Dominic Kuvi. The accused cooperated in giving his personal particulars but remained silent in the allegation posed to him. He was formally charged with wilful murder. Accused read through the record of interview and refused to sign it.
    
13. Exhibit 6 (1) to (8) were the photographs of the scene taken by the Police Investigator on the 5^th June 2014. They were not immediate after the crime and therefore as evidence did not add to the case in any way. Use of them to discredit State witnesses did not hold water for the defence. They would have if they were taken immediately after the shooting. Vegetation grown back up if not attended to. This was a village abandoned because of conflict and naturally nature claimed back what belonged to it - the growth of vegetation there. It did not add or subtract the case for the state or the defence.

View per Sketch Plan Exhibit S7

14. Exhibit S7 was the scene of the crime drawn showing where the witnesses each stood when the gunman came and shot John Pinda. He was directly in front 9 meters from the deceased. To the right side of the deceased was the witness Dominic Gorea who was 18 meters from the gunman parallel and adjacent to an oil palm. He had a very clear view. There was nothing in front and in between him on the left side of the deceased back was the witness John Lutu who was not called despite intent to cross examination by the defence. Adjournment to find him was unsuccessful. But in the sketch plan he was in the clear and his view to the gunman was unobstructed and the distance was 18 meters. The distance from the gunman to Alois Lavu was the same as Dominic Gorea 18 meters but in the case of Alois Lavu there was an oil palm tree about 9 meters in front of him. He was parallel with an oil palm tree himself from where he observed. He was also exposed in direct view head on with the gunman. And from where he was the gunman was also parallel with the oil Palm looking directly to where he was. The witness furthest back was Fidelma Raka she was about 27 meters back. She had a view unobstructed between two oil palm looking into the back of the deceased and alongside of another oil palm to the gunman.
    
15. I determine that for the gunman to get a good shot off at the deceased he would have come out of the oil palm as shown in the sketch plan and would have had the sights on the left side of John Pinda whose right side was covered by the oil palm. As he did he would have exposed himself to the sights of Alois Lavu and Dominic Gorea, including John Lutu and Fidelma Raka. Each witness would have seen him from where they stood well because there is no obstruction to their view depicted in the sketch plan. What is clear also is these were individual observations from the location they each were. The reliability of the Sketch plan exhibit S7 is that the view is unobstructed for the witnesses individually. The sketch plan was made based on the evidence of these witnesses by the investigator on the 5^th June 2014. That is closer to the 6^th March 2012 and naturally would be fresh in the mind of the witnesses’ events of that day as opposed to now. The truth and veracity of their evidence now will be measured with that Sketch plan. If there is consistency even after five years then that will be strengthening their credibility and their evidence. The truth is never learnt but comes by heart.
    

Death of John Pinda

16. What is now established beyond all reasonable doubt by all these evidence that have been tendered by consent is that on the 6^th March 2012 John Pinda was shot by a gunman who was armed with a shotgun. That he died at 9.00am as a result. He had a pellet wound left upper lobe and he had Severe Haemothorax which were the cause of death. He was intentional shot by this gunman with a shotgun aimed at him and discharged leading to his death.
    
17. Circumstantially there is no other reasonable hypothesis other than that the person armed with a shotgun had intended to kill John Pinda because he deliberately aimed or pointed the shotgun in the direction of John Pinda and not the other witnesses who were also at the scene at that time. He had a choice and he chose the deceased John Pinda to discharge the shotgun to. Then he deliberately discharged it at him with the knowledge that the projectile will kill as it did here. And it did kill as it did here. The gunman knew this would happen. I find as a fact that based on this evidence there is no other reasonable hypothesis other than that the gunman intended to kill John Pinda and did kill John Pinda as he intended and this is clear from his overt actions displayed by the evidence of his conduct on that day: Pawa v The State [1981] PNGLR 498 (27 November 1981)

Issue

18. Who was this gunman who shot John Pinda?

State evidence

19. Alois Lavu Junior is educated to grade 6. He is a villager, married with five children. In 2012 there was an argument over land called “Bagum” between the two groups which led to the death of two people. The first person who died is John Pinda. The second person who was killed over revenge for his death was Paul Loke. On the 6^th March 2012 he was with John Pinda, Dominic Gorea, John Lutu, Fidelma Raka, Thomas Kambu, and Charles Kaona. It was in the morning a bright sunny morning at about 8.00am at Gulpugo we were sitting down and talking and surprised when some people came into the village. When I looked I saw Dominic Kuvi man over there holding onto a shotgun. We stood up and we tried to chase them back. Myself I was next to John Pinda. I saw Dominic wore army shirt with a cut jean. He came and stood next to a Palm tree and pressed the trigger and gun fired. He was not far, he was about 9 meters distance between 2 palm. John Pinda fell down so we were concentrating on John Pinda and he ran away. Elijah Dominic Kuvi is from Rovu, his mother is from Ganeboku. She is my elder clan sister who gave birth to him. We are from the same clan and accused is my nephew. And Dominic Kuvi would call the deceased his brother. Prior to that day he used to come to custom work together with us. Other name of Accused is Junior Dominic Kuvi. He was named after his uncle brother of his mother Dominic Kuvi Senior. Because of the cross he came from the side of his uncle to attack us. It was a surprise attack and we grabbed whatever we could lay hands on to chase them. Three days later and in retaliation, Paul Loke clansman of Dominic Kuvi Senior was killed.
    
20. The next State witness was Dominic Gorea whose material excerpts of his evidence were he was from Gulpugo and was educated to grade 8 level at Namoga Primary School he was a villager. He stated that on the 6^th March 2012 he saw who killed John Pinda. And that it was Dominic Kuvi who shot John Pinda with a gun. He pointed to the accused as the person he saw. He also confirmed all the persons that Alois Lavu mentioned in his evidence as being the persons he was with immediately before the shooting. He was alerted by the swearing and shouting and got up to see Dominic Kuvi who was holding a gun when he used it to shoot John Pinda. Dominic Kuvi was with the gun the others were following him. As soon as he shot John Pinda they all turned and ran away. He said he was 30 meters away when he first saw Dominic Kuvi. And it was a sunny day. And when Dominic Kuvi pointed the gun at John Pinda he was only 10 meters. He said that he knew Dominic Kuvi because both went to the same school at Namoga Primary School. And that he is related as he is the son of a Clan sister of the same clan. That prior to the day of the shooting they went to custom gathering together and he is also brother to the deceased John Pinda. He shot John Pinda as he was helping his uncle Dominic Kuvi Senior. He says he identified Dominic Kuvi as he was directly in front and pointing the gun and fired it killing John Pinda he was wearing an army shirt Jacket type and blue trousers.
    
21. The next witness was Fidelma Raka primarily she stated that on the date in question they fought over land. And that they were all at the house. Dominic Kuvi came and pointed the gun at John Pinda and shot him and he fell. She pointed to Dominic Kuvi in the dock as the man who shot John Pinda. I ran over and we carried him up to the main village. She confirms that she was with the other witnesses who were her brothers. She said that she was behind her brothers at the time that Dominic Kuvi pointed the gun and shot John Pinda. She also said Dominic Kuvi’s mother is her clan sister and the father is from Rovu. And therefore Dominic Kuvi used to come to and fro to his uncle and we used to see him there. She was firm that she saw with her own eyes what happened on that day. She also said Dominic Kuvi was leading them and she saw him. She also described him with the same clothes as seen by the other witnesses. She further stated that the place was a village and it was very clean and it was not obstructed by anything so their view was clear when they saw him. And at the time they reported his name as suspect in the murder.
    
22. The observation of these witnesses are clear in the morning at about 8.00am particulars of which are set out clearly in the sketch plan Exhibit S7 and discussion of which I have set out above. It is a sunny morning and the witnesses all recognize a relative Elijah Dominic Kuvi Junior who is armed with a shotgun that is deliberately aimed at John Pinda and is fired at him. They all say he pointed out John Pinda and not them individually. Because after he had discharged and fired the gun at John Pinda he turned and together with the others who had followed behind him, they all ran away. The identification is made at distance individually evidenced by each witness in court unobstructed from where they individually were. The description that each has given is from their individual points of location and observation. There is clear line unobstructed of seeing Elijah Dominic Kuvi Junior a relative at close quarters early in the morning at 8.00am sunny morning. No evidence has been put before me that each of the witnesses has a problem with their eyesight. Or had a problem identifying Elijah Dominic Kuvi because of obstruction in between witness and subject observed. Their individual evidence on oath detailing particulars as to how they observed Elijah Dominic Kuvi Junior are consistent with sketch plan Exhibit S7 which was made out on their evidence on the 5^th June 2014. The latter is closer to the time of the offence and there is credible consistency in the evidence of the State witnesses.

Defence case

23. The accused gave sworn evidence in pidgin stating that his name was Elijah Kuvi and that he had no other name. He was married with two children and worked with Mosa Construction. On the 6^th March 2012 he was at Ganeboku village, 7 to 8am he went to rescue his uncle Dominic Kuvi. And this was after they heard story on the 4^th March 2012 that houses were burnt down so his mother sent him to rescue his uncle Dominic Kuvi. But his uncle did not come with him as he was thinking about others at the village so remained back so he did also. On the 5^th March 2012 there was a fight, on the 6^th March 2012 there was two fights one in the big village Ganeboku and the second in Gulpugo which fight he did not see. But says that he heard screaming and calling out and several shots were fired. And the distance between the two villages were the same as from the witness box to Morokea and Ruango about a kilometre. He says he was there in the fight Ganeboku it was a tough fight strong and two sides were strong shooting at each other stone sling shots and guns. He said he was standing with his uncle and saw them fighting. He said he was wearing a cut green shirt and cut white trousers. He said the state witnesses all saw him on the 4^th March 2012 when he was on his way to rescue his uncle up at the big village Ganeboku. He did not name any of the witnesses who saw him except to say that their house was by the road side and therefore they saw him. But he did not see who was there and did not recognize them. Asked that they saw him on the 4^th March 2012 and therefore would not make a mistake he said they must have planned to bring lies into court. That he was innocent of the matter. That he had never gone to where they were and shot the deceased John Pinda with the gun.
    
24. Second defence witness was Dominic Kuvi a community leader elder of family and also a clan leader of the Rupopo clan. He is a married man with five children and grandchildren. He gave sworn evidence that Elijah Dominic Kuvi was with him on the 6^th March 2012. On the 6^th March 2012 there was a big fight and our enemy attacked us with gun. And there was another fight at distance from Ganeboku on at the same time. I was at the village maintained my children who were in the fight. There was another fight at the other side we only heard gun shot. At about 10, clock they had taken a body to Kimbe by vehicle passing our village that the person died at the hospital. We received the message later on in the afternoon and we left our village. I left with Elijah and moved down to Navupa. I left the village because of that death. Because those people fought with us they were on the side of the enemy. One Saturday there was an incident over a mobile telephone with the deceased and our people they fought and it became clear they supported the other side our enemy. And that is the reason why I left. The enemy was the people from Kaumukolo clan. My clan is Rupopo. Person who died John Pinda is from Nangi clan. The fight was very strong from the 4^th, 5^th, and 6th March 2012 I did not go anywhere I was there in Ganeboku all along. I was with my family. We were at our area and they attacked us there. When I say attack I am an ex -soldier and I look after the village and I have been in the village they came with weapons, guns, knives and spear. They burnt down our houses, shot two boys and a woman. This all happened on the 6^th March 2012. That day I was with a brother, our children were facing this fight and we were behind in the village.
    
25. Elijah was with us on the 6^th March 2012 from the morning till afternoon. He was guarding me as he was concerned about me and came. His village is further away, heard about the incident and came to rescue me. Yes I had a lot of gun shots from the side of Kaumukolo. My clansmen had homemade guns I could not recall how many but I was just at the back. I made pictures of gun that they used. We both left on the afternoon of the 6^th March 2012 as a telephone message came through that a man had died at the hospital in Kimbe admitted from the fight at Gulpuo. That was John Pinda.
26. Alois Lavu Junior we are from one clan Kanerogo. But have clashed on the level of our ancestors. Although together with all state witnesses we are divided by our ancestors but we are from same big clan. All are inter related.
    
27. Ben Gare is the third defence witness. He is from Ganeboku, an oil palm harvester married with five boys and three girls. He said on the 6^th March 2012, I was leading my group. I gave command and also I was positioning our men and would go back to the big men and stay with them. And the fight was at Ganeboku, Rupopo and Kaumukolo in the early morning at 6.0’clock. I was positioning my men at 6.0’clock in the morning in the village because there were people who attacked us. We fought and at the same time they were fighting at Golpugo between Nangi and Rupua. After the fight we sat down and we received a message that somebody died in the other village between Nangi and Rupua. When death occurred in fight between Nangi and Rupua we left the village. Because Rupua our brother clan had caused death to Nangi. They fought them because of the incident over the mobile. From where we were fighting at Ganeboku to where they were fighting at Golpugo it is about the same distance as Ruango and we heard them swearing and gun shots because we were high above them. I was with Fabian Tau and Dominic Kuvi sorry correction Elijah Kuvi with his “Kandre” Dominic Kuvi. It was 9.00 am after we fought and positioned the boys that is around that time. The enemy came firing their guns and were swearing on the 6^th March 2012. Whether Elijah shot John Pinda, I would say no he was with us until the afternoon and he left us.
    
28. Elijah Dominic Kuvi was not with me as I positioned my men between 6 am and 9.00am. No when I returned he was still there with his uncle when I returned as he was worried about his uncle. I was positioning my men same distance as from the witness box to front gate one facing us of the market the here same distance 100 meters. Yes it was a long time because I need to position them and I need to monitor them one location to another. Fight started in the morning at 6.0 clock in the morning. They attacked us and shot two of our people, a mother and a young boy. At the same time of the attack I was positioning my men which were 6.0 clock in the morning they attacked us. We were fighting to and fro and it lasted from 6.00am to 8.00am. I went by myself to where the elders were and then went back again. Accused was at Golpugo at 8.00 am in the morning because he was not at the place you were positioning your fighters. I would not agree when I returned he was there at haus boi. He must have gone and shot John Pinda and returned. Your Honour no. your enemies came at 7.00am I maintain that. Accused said fight started at 7.00 and 8.00am who is telling the truth. We were in a fight we did not keep exact time. He is down at another place shooting John Pinda you are telling the truth. No. Accused said fighting finished at 10 am you said 7. 00am and 8.30am time to fight we did not keep exact timing. Accused was never with you and uncle. No. We left the village in the afternoon when we heard that there was a death. It was about 2 to 3 pm. Yes we left together with Dominic Kuvi Senior. We are related in the mother clan but we are from different ancestors.

Analysis of Evidence

29. Elijah Dominic Kuvi does not dispute his name to police in the record of interview. All throughout his evidence I find that he seeks to disassociate himself from the witnesses. For instance he contends at the outset that the witnesses are lying to bring disrepute and bad name to his good standing but does not disclose for whatever reason or motive the State witnesses would want to do this to him. He says that the witnesses all saw him on the 4^th March 2012 when he was on his way up to the main village Ganeboku. But he does not name the witnesses who saw him on that day. He says their house is on the road and they must have seen him go up. And not the 6^th March 2012. He says he wore a cut green shirt and cut white trousers. He says that he never went to Golpugo. He was sent by his mother to rescue his uncle Dominic Kuvi Senior whose house was burnt down at Ganeboku main village. And that is where he was all throughout. He said the State witnesses all lied about seeing him. That they must have planned to put the blame on him for the murder. I find that this assertion is not backed by evidence as to why the witnesses would want to blame him. He said he was not related to any of them, which is contrary to his own two witnesses who say that they are and come from the one big clan Kanilogo and the clash or fight now is along “tumbuna” or ancestor. He said one Peter Baki rang from Kimbe and said John Pinda had died. He said he took his uncle and they made a short cut through the bush track to Navo where he left him and proceeded to Rovu. Asked as to why he took his uncle there he was avoiding and did not give a direct answer. I find that he had no reason to fear the death of John Pinda he had nothing to do with it because he was never at the scene where John Pinda died. He had no reason to take his uncle his second witness Dominic Kuvi through the bush track and to leave him with his sister at Navo and then for him to proceed to Rovu. I find this behaviour contradicting, and not sensible and logical because what it does is it adds to the witnesses for the State in that he was seen by them that morning of the 6^th March 2012. That would be more probable for him to act as he did to take his uncle Dominic Kuvi and to go through bush tracks to Navo where he left him and then he went to Rovu. Because of the behaviour displayed, it is consistent with concealment or strong intent to avoid detection for behaviour not acceptable and right committed.
    
30. Dominic Kuvi’s second witness for the defendant is the uncle of the accused. His sister is the mother of the accused. He is not an independent witness in the matter and would be more inclined towards the accused. This is borne out when he describes that his village was attacked on that day the 6^th March 2012. They burnt down houses three boys and a woman was shot by gun. They came with guns weapons knives and spears. Yet it is his evidence that Elijah unarmed had come to rescue him in an area where fighting was rampant that all were armed as he described in the midst of that fight. That his nephew Elijah was with him from the morning to the afternoon and did not rescue him but stayed with him until John Pinda was killed and a phone call from Kimbe alerted of this fact did he and the nephew accused Elijah leave in the afternoon via a bush track to Navo where he was left with the sister of accused and accused proceeded to Rovu. He confirms what the State witnesses all have stated that they are all related to the big clan Kanilogo but are divided by their ancestor, “Tumbuna” where the clash lies.
    
31. Ben Gare was commander and was positioning his men at 6.00am because Rupopo was being attacked. It was important that he ensure proper strategic positioning so that he defended off the attackers from the village. Because they came with guns, knives slingshots and spears. These were weapons that could kill, hurt and injure. It was not a light matter. That is where they lived if he did not properly set out their defence the village would be over run and their people Rupopo and all within will be hurt or killed. There is evidence of burning of houses within and continuous fighting since the 4^th, 5^th and the 6^th March 2012. It was his duty to take every care to properly position his men it was not a matter of going and coming as he explained in court but a delicate and balancing job to ensure that the men he positioned repelled any attack on them. It was a matter of life and death injury and good health there was no time to do it in a hurry or be deviated by something else other than a relative who must be static at the same place all throughout, Making sure that Elijah Dominic Kuvi Junior was at his location with his uncle Dominic Kuvi Senior was not a matter of life or death. He could not have concentrated on ensuring that the defendant Elijah Dominic Kuvi Junior was where he was and also at the same time effect a defence of the village from the attack. According to his evidence they were attacked as he positioned his men and that two of our people, a mother and a young boy were shot by the enemy Kaumukolo. Given this he could not have been concentrating on the location of the accused and at the same time setting up his defence in the heat of an attack. It was also not credible that he heard what was being uttered at the same distance as from the witness box to Ruango or Morokea here in Kimbe two or three kilometres away to comment that there was a fight in Gulpugo between the Nangi and Rupua. It was not important that he knew of the fight elsewhere except that which was immediately in his village so as to properly defend his village. In any case it was unbelievable that whilst the Rupopo were being attacked by the Kaumukolo Elijah Dominic Kuvi one extra hand was sitting with his uncle Dominic Kuvi Senior as if they were on holidays or leisure doing nothing whilst the attack was on. It did not make sense nor did it draw any amount of credibility to it. Objectively or subjectively it was incredible that in the midst of a fight where they were attacked with guns, knives slingshots, and spears they were not concentrating on the fight but on whether or not Elijah Dominic Kuvi Junior was there or not. Because Dominic Kuvi Senior had his house burnt down he was clan leader and he was spectating with his nephew.
    
32. This is not a case of a vehicle with a GPS monitor that is programed of its own accord and details the movement location of the vehicle wherever it may be on the globe. I find it incredible against common sense and logic for two witnesses Dominic Kuvi Senior and Ben Gare who are with the defendant at a particular location to wait out three years with the defendant facing a very serious charge and not come with that evidence to the police or authorities in law right up to the eve of trial and to come forward. And for all three witnesses to come and say that there was another fight at a location two to three kilometres away from their village with certainty in the midst of an attack upon their village Ganeboku is unbelievable and incredible. And for them to run away and leave their village because of a death that they had no part in is incredible and not worthy of believe. There was no reason to leave their village the fight where the death occurred was culminating over a mobile phone and not what they were fighting for leadership in the Kavugara Development Corporation.
    
33. I do not believe them as witnesses of truth for the reasons I have set out above. I reject their evidence for the reasons I have set out above. The effect of this is that I do not believe the alibi that they have tried to create. What then is the effect of this fact: Jaminan v The State [1983] PNGLR 318 (29 September 1983) states that where an alibi is created out of a conscious sense of guilt it has been held to corroborate what has been contended by the prosecution. From the discussion above, I find as a fact that the alibi is false which has been created out of a conscious sense of guilty effect of which corroborate the identification made out by the State witnesses.

Identification

34. Following the findings above the law on identification is in the often quoted case of Beng v The State [1977] PNGLR 115 (2 May 1977) wherein it is set out as follows:
    

“Whenever the case against an accused person depends wholly or substantially on the correctness of one or more identifications of the accused which the defence allege to be mistaken, the trial judge should warn the jury of the special need for caution before convicting in reliance on the correctness of the identification. He should make some reference to the possibility that a mistaken witness could be a convincing one and that a number of such witnesses could all be mistaken. Provided such a warning is given, no particular form of words need be used.

Further, the trial judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made ....

Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made. All these matters go to the quality of the identification evidence. When the quality is good, the jury can be safely left to assess the value of the identifying evidence even though there is no other evidence to support: Provided always, however, that an adequate warning has been given about the special need for caution.

When the quality of the identifying evidence is poor — i.e. a fleeting glance or a longer observation made in difficult conditions — the judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification.

The trial judge should identify to the jury the evidence which he adjudges is capable of supporting the evidence of identification. If there is any evidence or circumstances which the jury might think was supporting when it did not have this quality, the judge should say so.”

35. I warn and caution myself that there is no cause for concern in the acceptance of the evidence on identification set out by the witnesses, Alois Lavu Junior, Dominic Gorea, and Fidelma Raka. I find them each as witnesses of truth individually and severally because their observation of the accused particulars of which I have set out above in my discussion on the sketch plan Exhibit S7 is in my view conclusive and credible of the sighting and identification of the accused at the scene of the shooting. It is more recognition of a relative the son of a clan sister to all of them at close quarters from 9 meters at the closest to 27 meters at the furthest, Alois Lavu to Fidelma Raka. The evidence of their relationship is undisputed both defence and State agree that both sides were related to each other in that they were all from the big clan Kanilogo but are divided by their ancestor, “Tumbuna” where the clash lies, which were Rupopo, and Kaumukolo, Nangi and Rupua. They were all the same people related. The State witnesses therefore saw one of their relative Elijah Dominic Kuvi Junior. And the circumstance was of recognizance a mistake could not have been made. It was a sunny morning and they saw him at close quarters. I find no fault in the identification made and the circumstances depicted are such that the identification is beyond all reasonable doubt, Elijah Dominic Kuvi Junior is the person with the shotgun who aimed and fired at John Pinda on the 6^th March 2012 at Golpugo.
    

________________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Defendant