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State v Koget [2017] PGNC 60; N6682 (17 March 2017)

-N6682

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR Nos. 1116-1120 OF 2014

THE STATE

V

KENNY KOGET, EDWIN KOGET, ROBERT KOGET,
MOSES DADU & SYLVESTER DADU

Madang: Cannings J
2016: 9, 10, 16 March, 3 May, 7, 8 June,
7 July, 12, 15 August, 19 October

2017: 17 March

CRIMINAL LAW – wilful murder – Criminal Code, Section 299(1) – elements of offence – whether any of the accused killed the deceased – whether killing unlawful – whether intention to kill – Criminal Code, Section 7 – whether any accused enabled or aided another in committing the offence.

Five accused were charged with wilful murder of a man who was chased and stabbed following an altercation between two groups of people at a market. The State alleged that the fourth and fifth accused directly killed the deceased by stabbing him, that they acted unlawfully, intending to cause his death, making them guilty of wilful murder under Section 299(1) of the Criminal Code, and that the other accused enabled and aided the fourth and fifth accused to commit the offence, making them also guilty of wilful murder under Sections 7(1)(b) and (c) of the Criminal Code. All accused denied being present and presented alibi evidence.

Held:

(1) Under Section 299(1) of the Criminal Code the offence of wilful murder has three elements:

• the accused killed the deceased;
• the killing was unlawful; and
• the accused intended to cause the death of the deceased.
  

(2) It was proven beyond reasonable doubt that the fourth and fifth accused killed the deceased as: there was credible eyewitness evidence, the alibis of the fourth and fifth accused were unconvincing, there were no significant inconsistencies in the State’s case and the medical evidence was consistent with the State’s case.

(3) There were no excusatory defences relied on, so the killing of the deceased was unlawful.

(4) It was proven that the fourth and fifth accused intended to kill the deceased. They were each guilty of the offence of wilful murder.

(5) As to the first and second accused the State proved that they were present but failed to prove for the purposes of Sections 7(1)(b) and (c) of the Criminal Code that they aided or assisted the fourth and fifth accused. As to the third accused the State failed to prove that he was present. The first, second and third accused were thus acquitted.

(6) In summary, the fourth and fifth accuseds were convicted of wilful murder. The first, second and third accused were acquitted.

Cases cited:

The following cases are cited in the judgment:

Biwa Geta v The State [1988-89] PNGLR 153
Browne v Dunn (1893) 6 R 67 (HL)
Fei Stanley v The State (2006) SC1324
Jimmy Ono v The State (2002) SC698
John Beng v The State [1977] PNGLR 115
John Jaminan v The State (No 2) [1983] PNGLR 318
Kampangio v R [1969-70] PNGLR 218
Kutau v The State (2007) SC927
Rex Paliau v The State (2016) SC1537
The State v Abaya Ulas (2010) N4009
The State v David Yakuye Daniel (2005) N2869
The State v Ephraim Ria Boa (2008) N3436
The State v Jenny Dei (2011) N4231
The State v John Buku Kailomo (2007) N4997
The State v Melchior Kapus (2010) N4114
The State v Moses Nasres (2008) N3302
The State v Paul Gambu Laore & 11 Others (2007) N5026
The State v Raphael Kuanande [1994] PNGLR 512
The State v Sapik Tommy (2014) N5575

TRIAL

This was the trial of five accused charged with wilful murder.

Counsel:

F K Popeu, for the State
A Meten, for the Accused

17^th March, 2017

1. CANNINGS J: The five accused are charged with the wilful murder of Patrick Ngsem at Bemlon, in the Vidar area of Madang District, Madang Province, on Sunday 6 July 2014. They have pleaded not guilty so a trial has been conducted. The State’s case is that:
   
   • the fourth and fifth accused, Moses Dadu and Sylvester Dadu, are the principal offenders and are guilty of wilful murder under Section 299(1) of the Criminal Code as they directly and unlawfully killed the deceased by stabbing him, intending to cause his death; and
     
   • the first, second and third accused, Kenny Koget, Edwin Koget and Robert Koget, enabled and aided the fourth and fifth accused to commit the offence, thus making them guilty of wilful murder under Sections 7(1)(b) and 7(1)(c) of the Criminal Code.
     

All accused denied being present and presented alibi evidence.

UNDISPUTED FACTS

2. A number of undisputed facts have emerged from the evidence, from a site visit conducted after the close of evidence and from submissions of counsel:
   
   • An incident in which the deceased, aged 26, lost his life occurred at or near Bemlon market, on the North Coast Road, 25 kilometres north of Madang town on Sunday 6 July 2014. Bemlon is a small village, next to the larger village of Rempi.
     
   • The incident followed immediately after a fight between two groups of young men. The deceased was a member of one of the groups.
     
   • As a result of the fight the deceased and other members of his group were chased by the other group. While being chased the deceased fell and was stabbed twice and died shortly afterwards as a result of the wounds he suffered.
     
   • The cause of the fight is unknown. It is also not known what the deceased is alleged to have done that would have caused others to chase and stab him.
     
   • The first, second and third accused are brothers, aged 25, 27 and 30 years respectively at the time of the incident. The fourth and fifth accuseds are brothers, aged 19 and 18 years respectively at the time of the incident.
     
   • All accused except the second accused, Edwin Koget, live at Bemlon. The houses of the first and third accused, Kenny Koget and Robert Koget, are adjacent to each other and at a spot that, by a road track, is approximately 265 metres from the market. By taking a direct walking track the distance is approximately 200 metres. The fourth and fifth accused, Moses Dadu and Sylvester Dadu, live together in a house at a spot that, by a road track, is approximately 250 metres from the market. By taking a direct walking track the distance is approximately 150 metres. The houses of the Koget brothers is approximately 50 metres from the house of the Dadu brothers.
     
   • The second accused, Edwin Koget, does not live at Bemlon. His house is on a mountain top approximately 1.5 kilometres from Bemlon.
     
   • The Police were called and arrived on the scene soon after the incident. The five accused were taken into custody in the afternoon of the incident.
     

ISSUES

3. As the fourth and fifth accused are alleged to be the principal offenders, the Court’s attention must be focussed on them first. They have been charged under Section 299(1) of the Criminal Code, which states:
   

Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

4. The three elements of the offence are that:
   
   • the accused killed the deceased;
   • the killing was unlawful; and
   • the accused intended to cause the death of the deceased (or some other person).
     
5. The Court must determine whether those elements have been proven beyond reasonable doubt. A decision will then be made on whether the fourth and/or fifth accused are guilty of wilful murder or any other offence (eg murder or manslaughter). If either or both are guilty, the Court’s attention will shift to the other accused to determine whether any of them aided or assisted the principal offender(s) in committing the offence or is otherwise criminally liable under Section 7 of the Criminal Code. If both the fourth and fifth accused are found not guilty of any offence, the others will also be acquitted. The issues are addressed in this order:
   
   1. Did the fourth or fifth accused kill the deceased?
   2. If yes, was the killing of the deceased unlawful?
   3. If yes, did the fourth or fifth accused intend to cause the death of the deceased?
   4. Are the fourth or fifth accused guilty of wilful murder or any other offence?
   5. Are the first, second or third accused guilty of any offence?
      
1. DID THE FOURTH OR FIFTH ACCUSED KILL THE DECEASED?
   
6. This is a question of fact, to be determined by applying the definition of killing in Section 291 (definition of killing) of the Criminal Code:
   

Subject to the succeeding provisions of this Code, any person who causes the death of another, directly or indirectly, by any means, shall be deemed to have killed the other person.

7. The question is whether Moses Dadu and/or Sylvester Dadu directly or indirectly caused the death of the deceased. Resolution of this issue requires a:
   
   • summary of evidence for the State;
   • summary of evidence for the defence;
   • determination of the question whether the fourth and/or fifth accused killed the deceased.
     

Evidence for the State

8. Five witnesses gave evidence for the State, as summarised in the following table.
   

Exhibits

9. The only State exhibits admitted into evidence were the post-mortem report and medical certificate of death prepared by Dr Gawi, which he referred to in his oral testimony.
   

Evidence for the defence

10. Nine witnesses gave evidence for the defence, including each of the accused.
    

Did the fourth or fifth accused kill the deceased?

11. Having weighed the competing evidence and the submissions of counsel I find that the State has proven beyond reasonable doubt that the fourth and fifth accused directly caused the death of the deceased by stabbing him, for the following reasons:
    • (a) The identification evidence of the State eyewitnesses was of high quality.
      
12. Two State witnesses, Melchior Nabur and Adolphia Pakul, identified Moses Dadu and Sylvester Dadu as being the persons who stabbed the deceased. State witness Solastica Keinam did not specify which of the accused stabbed the deceased but said it was one of the five. David Wanga said he saw Sylvester Dadu stab the deceased. All those State witnesses gave credible evidence. Their demeanour was sound.
    
13. I have applied the principles on identification evidence in the leading Supreme Court cases of John Beng v The State [1977] PNGLR 115, Biwa Geta v The State [1988-89] PNGLR 153 and Jimmy Ono v The State (2002) SC698. Having been reminded by defence counsel Mrs Meten to do so, I have considered the inherent dangers of relying on the correctness of identification to support a conviction and caution myself, as the tribunal of fact, accordingly. If the quality of the identification evidence is good the matter should proceed to verdict. However, if the quality of the evidence is poor an acquittal should be entered unless there is other evidence that goes to support the correctness of the identification. I remind myself there is always the possibility that an honest witness can be mistaken and still be a convincing witness.
    
14. I have assessed the four State witnesses who gave identification evidence as being honest witnesses. I acknowledge the risk that they were mistaken about who they saw. The court must be satisfied that a witness is both honest and accurate. In assessing the quality of the identification evidence, relevant considerations include: whether the witness is purporting to identify a person who was a stranger or someone he or she recognised; the length of time that the witness observed the accused (eg a prolonged period or a fleeting glance); the emotional state of the witness at the time of the incident; the prevailing conditions (eg was it broad daylight or at dusk or dawn or inside or outside?); the line of sight (eg did the witness have a clear front-on view or was the line of sight interrupted or did the witness just see the accused from the side?). If there are discrepancies in the identification evidence the court should consider them and assess whether they are explicable in terms other than dishonesty or unreliability.

15. Having applied those principles, I uphold Mr Popeu’s submission that the identification evidence was of high quality for the following reasons:
    
    • For State witness, Melchior Nabur, it was a case of recognition, not just identification, of close relatives; he knows them individually. His evidence was direct and to the point: he saw Moses Dadu and Sylvester Dadu stab the deceased. His evidence was of very high probabtive value.
      
    • The evidence of Adolphia Pakul corroborated that of Melchior Nabur.
      
    • None of the State witnesses was shown to have any reason to give false evidence. The fact that they are related to the deceased is not a reason to reject their evidence.
      
    • Each identification witness had more than a fleeting glance at those who stabbed the deceased.
      
    • Though it was a traumatic and dramatic incident, none of the identification witnesses was being chased by the group that was chasing the deceased. They were in a position to observe what was happening, while not being under attack themselves.
      
    • The identification witnesses had a clear line of sight, and the incident happened mid-morning in fine weather (there was no evidence otherwise and it was not put to the witnesses that their viewing of the incident was impaired due to prevailing conditions).
      
    • The fact that David Wanga only saw Sylvester Dadu stab the deceased, and not Moses Dadu, is inconsequential. Such differences in evidence are understandable as this was a traumatic and dramatic event, witnessed by a number of people who, though in the vicinity of the stabbing, would have viewed it from different angles.
      

(b) The alibi evidence of the fourth and fifth accused was unconvincing.

16. Moses Dadu and Sylvester Dadu presented an alibi: they were at their house, 200 metres from the market, at the time of the stabbing, where there was a family gathering to discuss roofing iron; they did not go to the market that day and they were not involved in any fight or chase or stabbing of the deceased. They gave sworn evidence to support that alibi. Evidence of other defence witnesses, Rebecca Dadu (their sister) and Martin Belis (their uncle), supported their alibi.
    
17. In considering the alibi I have applied the principles emerging from the leading case John Jaminan v The State (No 2) [1983] PNGLR 318, in particular:
    
    • If an alibi is raised, the burden of proof does not shift from the prosecution. The onus is never on the accused to prove an alibi or innocence.
      
    • However, in practical terms, the accused must lead evidence and it must be sufficiently convincing to create a reasonable doubt in the mind of the judge.
      
    • How strong or convincing the alibi evidence must be, depends on the evidence of the State witnesses. If their evidence is very strong, the alibi evidence needs to be reasonably strong to raise a reasonable doubt in the mind of the judge as to the guilt of the accused.
      
    • Unlike the defences of self-defence and provocation, there is no rule of law that says that once an alibi is raised it is up to the prosecution to disprove it.
      
    • If an alibi is rejected it does not necessarily follow that the court should enter a conviction. The court must still be satisfied that the prosecution has proven its case beyond reasonable doubt.
      
18. I have applied those principles and decided to reject the alibi for the following reasons:
    
    • No notice of alibi was given to the State, contrary to Division 4.2 of the Criminal Practice Rules. This is not by itself a reason for rejecting the alibi, but the failure to comply with this important requirement gives rise to the inference that the alibi was a recent invention.
      
    • The evidence of Moses Dadu and Sylvester Dadu was not credible. Their demeanour was poor. Their evidence of being at their house discussing roofing iron while people ran down from the market shouting about a fight, and remaining at their house while this was happening, was very difficult to believe.
      
    • Rebecca Dadu was a very unconvincing witness. She was unable to answer simple questions, such as ‘what time did the Police arrive?’ during cross-examination. She was overly nervous and appeared to be lying.
      
    • The evidence of Martin Belis was not credible. He was adamant that the fight at the market occurred at 1.00 pm. He was the first witness for either the State or the defence to say that the incident occurred in the afternoon. His evidence of the time of the fight and meeting and greeting Melchior Nabur on the road, before the stabbing, was not put to Melchior Nabur or any of the other State witnesses (who would have been expected to see him, if he was in fact there). This was a breach of the rule in Browne v Dunn (1893) 6 R 67 (HL), a rule of procedural fairness that applies in all criminal trials: the central planks of the defence case must be put to the State witnesses. Breach of the rule gives rise to the inference that the story told by the defence witness is a concoction (Kutau v The State (2007) SC927). That is a proper assessment of the evidence of this witness. It was a concoction. The demeanour of this witness was poor. He appeared to be lying.
      

(c) The medical evidence supported the State’s case

19. Dr Gawi’s post-mortem report and the doctor’s oral testimony revealed that the deceased suffered deep wounds with a sharp, penetrating object to the axilla (armpit) and right posterior chest, one of which led to the right pneumothorax, which was the cause of death. This evidence was consistent with the eyewitness accounts, given by State witnesses Melchior Nabur, Adolphia Pakul and Solastica Keinam, of the deceased being stabbed twice, in the back and under the armpit.
    • (d) The absence of a motive is inconsequential
      
20. Defence counsel Mrs Meten emphasised that the State did not establish any motive for the deceased being chased and stabbed and could not prove that any of the accused had any grievance against the deceased that would make them want to do what they are alleged to have done. That is correct: no motive has been established. There were suggestions that the fight was caused by a dispute over land or tensions arising amongst local people due to “outsiders” from Bogia and other places settling on customary land in the North Coast Road area. This evidence was speculative and the motive for the attack on the deceased remains unknown.
    
21. The absence of proof of motive is inconsequential. Evidence of the presence or absence of motive, means, opportunity, previous attempts, threats or a propensity on the part of an accused to do the act that he is charged with, is admissible, as tending to prove guilt (The State v John Buku Kailomo (2007) N4997). However the presence of a motive ought not be elevated to the status of an element of a homicide offence. The Criminal Code creates statutory offences, the elements of which are prescribed by the Code itself. It ought not be interpreted in a way that imposes on the prosecution the obligation to prove things that are not elements of an offence (Kampangio v R [1969-70] PNGLR 218).
    
22. The State is not required to establish a motive for commission of the offence of wilful murder or any other homicide offence for that matter. Proof of the elements of the offence is sufficient.
    

Conclusion

23. The State has proven beyond reasonable doubt that Moses Dadu and Sylvester Dadu directly killed the deceased. The first element of the offence of wilful murder is proven.
    2. WAS THE KILLING OF THE DECEASED UNLAWFUL?
       
24. The fourth and fifth accused did not rely on any specific excusatory defence such as accident, compulsion, insanity, provocation or self-defence. Their killing of the deceased is therefore not authorised, justified or excused by law and is deemed by force of Section 289 (homicide) of the Criminal Code to have been unlawful. Section 289 states:
    

It is unlawful to kill a person unless the killing is authorised or justified or excused by law.

25. The second element of wilful murder is proven beyond reasonable doubt.
    
3. DID THE FOURTH OR FIFTH ACCUSED INTEND TO CAUSE THE DEATH OF THE DECEASED?
   
26. It is at this point of a wilful murder trial that the Court is required to consider the accused’s state of mind:
    
    • Did he intend to kill the deceased? If yes, the third element of wilful murder is proven and the accused will be guilty as charged (eg The State v Moses Nasres (2008) N3302).
      
    • If he did not intend to kill, did he intend to inflict grievous bodily harm or did one of the other circumstances prescribed by Section 300(1) of the Criminal Code apply? If yes, the accused will be convicted of murder, not wilful murder (eg The State v David Yakuye Daniel (2005) N2869; The State v Ephraim Ria Boa (2008) N3436; The State v Abaya Ulas (2010) N4009). If no, the accused will be guilty of manslaughter, not wilful murder or murder (eg The State v Paul Gambu Laore & 11 Others (2007) N5026; The State v Melchior Kapus (2010) N4114; The State v Jenny Dei (2011) N4231, The State v Sapik Tommy (2014) N5575).
      
27. It is an accused’s state of mind at the time that he committed the act of killing that is critical. In assessing the state of mind at that time, evidence of his conduct (a) before, (b) at the time of, and (c) subsequent to, the act of killing, must be considered (Fei Stanley v The State (2006) SC1324, The State v Raphael Kuanande [1994] PNGLR 512). Here the evidence of the State, accepted by the Court, is that:
    

(b) immediately before stabbing and killing the deceased, the fourth and fifth accused, armed and in company with others, chased the deceased and one member of the group threw an object at him, causing him to fall;

(c) the fourth and fifth accused combined in inflicting two deep stab wounds on the deceased on vulnerable parts of his body as he lay in the ground, defenceless and outnumbered;

(d) immediately after stabbing the deceased the fourth and fifth accused shouted that they had killed him and won.

28. All of (a), (b) and (c) is consistent with an intention to kill. I find that the State has proven beyond reasonable doubt that the fourth and fifth accused intended to kill the deceased.
    
4. ARE THE FOURTH OR FIFTH ACCUSED GUILTY OF WILFUL MURDER OR ANY OTHER OFFENCE?
   

Yes, as it has been proven that they killed the deceased, unlawfully and with the intention of killing him. They are each found guilty of the offence of wilful murder.

5. ARE THE FIRST, SECOND OR THIRD ACCUSED GUILTY OF ANY OFFENCE?
   
   29. The criminal liability of the other accused must now be considered in the light of Section 7(1) of the Criminal Code:
       

When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:—

(a) every person who actually does the act or makes the omission that constitutes the offence; and

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and

(c) every person who aids another person in committing the offence; and

(d) any person who counsels or procures any other person to commit the offence.

30. I consider first the involvement of the third accused, Robert Koget. The first State witness, Melchior Nabur, did not name him as being in the group that chased the deceased. Other State witnesses gave evidence that put him in the group. Solastica Keinam stated that Robert Koget was the person who attacked her son, Godfried Beanir, with a knife in the market, before the group chased the deceased. I place the greatest weight on the evidence of Melchior Nabur, who is related to all accused. If Robert Koget was present, Melchior Nabur would have seen him in the chasing group with the others and would have identified him in his evidence. I find that the State has not proven that Robert Koget was in the group that chased the deceased. It is unnecessary to conclude whether in fact he attacked Godfried Beanir. Robert Koget must be found not guilty.
    
31. As for Kenny Koget and Edwin Koget I find, on the strength of the identification evidence of the four State eyewitnesses, in particular that of Melchior Nabur, that they were in the group that chased the deceased and that they were armed and behaving aggressively.
    
32. In making that finding I have considered their alibis. Kenny Koget’s is that he was at his house, 200 metres from the market, with his wife and three sisters-in-law. It is too difficult to believe that a major incident involving a fight, a chase and a death, and inevitably a significant commotion, could take place nearby without him hearing or knowing about it and just continuing with his quiet Sunday morning at the house. Furthermore there is no worthwhile evidence to support that version of events. The evidence of both Christina Pias (whose evidence was very vague and unconvincing) and Martin Belis (whose evidence has already been rejected) did not corroborate the accused’s evidence. His alibi is rejected.
    
33. Edwin Koget said he was in the garden near his house on the mountain top 1.5 km from the market at the time of the incident. He was an unconvincing witness and his wife, Leola Edwin, was equally unconvincing. His alibi is rejected.
    
34. However, presence of an accused at a violent incident involving death, does not by itself result in the conclusion that the accused participated in the incident or commission of the crime (Rex Paliau v The State (2016) SC1537). Something extra must be proven: that by taking part in the armed chase of the deceased, the first and/or second accused aided or enabled the fourth and/or fifth accused to stab and kill the deceased.

35. If the standard of proof were on the balance of probabilities I would be inclined to the conclusion that this element of the offence (for these two accused) had been proven. However as the criminal standard of proof must be applied, I conclude that it has not beyond proven beyond reasonable doubt that either of them committed some specific act, such as throwing the object at the deceased to make him fall, or holding him down or disabling him after he fell or inciting the fourth and fifth accused to stab the deceased, such that they aided or enabled the fourth and/or fifth accused to stab and kill the deceased, and thereby commit the offence of wilful murder. Kenny Koget and Edwin Koget are found not guilty.
    

VERDICTS

Verdicts for Kenny Koget, Edwin Koget, Robert Koget, Moses Dadu and Sylvester Dadu, having each been indicted on one count of wilful murder under Section 299(1)of the Criminal Code, are entered as follows:

1. Kenny Koget: not guilty of wilful murder or any other offence;
   
2. Edwin Koget: not guilty of wilful murder or any other offence;
   
3. Robert Koget: not guilty of wilful murder or any other offence;
   
4. Moses Dadu: guilty of wilful murder under Section 299(1) of the Criminal Code, as charged;
   
5. Sylvester Dadu: guilty of wilful murder under Section 299(1) of the Criminal Code, as charged.
   

Verdicts accordingly,

_______________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Accused