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State v Richard [2019] PGNC 46; N7762 (12 March 2019)

N7762

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. N0. 1387 & 1388 of 2015

THE STATE

V

PENIAS RICHARD
&
RICHARD TUKARE

Kokopo: Susame, AJ
2019: 15, 18 February & 12 March

CRIMINAL LAW – Particular Offence- Wilful Murder S 229 Criminal Code – Trial

DEFENCE - Alibi Defence Raised - Issue – Identification Of Accused – Guiding Principles On Alibi Evidence - Identification Evidence – Guiding Principles

CRIMINAL LAW – Circumstantial Evidence - Test Applicable In Order To Enter A Conviction

Held:

1. Alibi that accused were at Tokua where they reside is found to be false and rejected.
2. Accused were at Bolwara Settlement when the chasing of deceased occurred resulting in death.
3. State witnesses gave conflicting identification evidence of accused at the crime scene
4. State’s evidence was wholly circumstantial and lacks quality from which no tribunal of fact can rationally draw an inference, the only rational inference of the guilt of the accused.
5. Accused shall have the benefit of doubt. Court returned a Not Guilty Verdict.
   

Cases Cited:
Papua New Guinea Cases

Devlyn David v The State SCRA74/2003, (22 November 2004)]
John Beng v The State [1977] PNGLR 115
John Jaminan v The State (No. 2) [1983] PNGLR 318
Paulus Pawa v The State [1981[PNGLR 498
The State v Ben Simakot Simbu N2573.
The State v Cosmos Kutau Kitawal & Another (N0.1) N2266
The State v John Koe [1976] PNGLR562
State v Lucas Soroken & Ors (2006) N3029
The State v. Marety Ame Gaidi [2002] PGNC80; N2256

Overseas Cases

Barca v The Queen [1975]133 CLR 82
Woolmington v DPP [1935] AC 642

Counsel:

Ms. Luben, for presentation of indictment, with Miss. Batil for the State.
Ms. Jean Marie Ainui, for the Accuseds

DECISION

12 March, 2019

1. SUSAME, AJ: Accused persons are in court on an indictment charging them with the offence of wilful murder provided in s 229 of the Criminal Code. The offence carries the ultimate maximum death sentence upon conviction.
2. Both accused entered a not guilty plea in general denial raising an alibi.

Evidence

3. For the prosecution evidence included documentary evidence tendered by consent and testimonies of three witnesses. For the defence evidence consisted of testimonies of both accused persons and three other witnesses.
   • ➢ Documentary evidence tendered by consent were:
   • ➢ Statement of Saint Luke Maibogu dated 23 September 2015 exhibit A
   • ➢ Statement of Gilbert Yuanis exhibit B
   • ➢ Statement of Gilbert Yuanis exhibit C
   • ➢ Statement of Jack Patiliu exhibit D
   • ➢ Statement of Jack Patiliu exhibit E
   • ➢ Record of Interview (in Pidgin) dated 2 July 2015 exhibit F1
   • ➢ Record of Interview (Translated version) exhibit F2
   • ➢ Record of Interview (in Pidgin) exhibit G1
   • ➢ Record of Interview (translated version) exhibit G2
   • ➢ Post Mortem Report dated 19 June 2015 exhibit H1
   • ➢ Dr. Tommy Walter’s affidavit exhibit H2
   • ➢ Medical Certificate of Death dated 19 June 2015 exhibit I
   • ➢ Certificate of sealing exhibit J
   • ➢ Warrant to bury exhibit K
   • ➢ Photographs of crime scene and deceased showing wounds exhibit L1-13
   • ➢ Sketch map of the crime scene exhibit M
4. Relevant aspects of witnesses’ evidence will be set out in the latter part of the judgment.

Uncontested Facts

5. Facts which are not in contention and accepted by the court are as follows. A group of boys were consuming alcohol as early as 7:00pm that particular evening of 6 June 2015 at Bolwara Settlement, within Tokua Plantation. Richard Tukare was amongst the group. The other boys named were Bon Joseph, Nasin Tukare, Alex Vincent, the deceased Joseph Rodney Manau and one other unidentified boy. Penias Richard was not in the group.
6. Drinking continued into the night until a commotion started amongst the boys. They started fighting amongst themselves. Deceased was chased and subsequently attacked and killed.
7. The deceased is Joseph Manau 26 years of age from New Ireland and East New Britain parentage.
8. Photographic Evidence

Photograph 17 shows abrasions on the deceased back.

➢ Photographs 18 & 19 shows a large wound on the left side of his back.
➢ Photograph 20 shows a wound on the back of his right hand/fist,
➢ Photograph 21 shows wound on the face,
➢ Photographs 22 & 23 shows a large deep wound on the left forearm.

Medical Evidence

9. Post mortem was conducted of the body. Doctor's findings are contained in report dated 19 June 2015 (exhibit H) set out below:
10. External:
    • ➢ On Posterior abdominal wall on the left side were deep laceration
    • ➢ 8.0cm long X 4.0cm deep.
    • ➢ On the Upper limbs deep laceration on right hand measuring 5.0cm long X 3.0cm deep between the 2nd and 3rd digits of the hand. And on the left forearm deep laceration measuring 9.0cm X 2.0cm wide 3.0cm deep extending into the Ulna and radius bones.
    • ➢ On the lower limbs laceration below the left knee measuring 5.0cm long X 2.0cm wide X 2.0cm deep extending into the proximal tibia bone.
11. Internal:
    • ➢ On the head compound fracture measuring 7.0cm long X 3.0cm wide involving the parietal & optical bones of the skull.
    • ➢ Brain tissue pouring out easily from the skull fracture.
      

Cause of Death:

12. Deceased died of cardiorespiratory arrest from hypovolemic shock due to excessive blood loss as a result of multiple bush knife wounds to his head, back and limbs.

Issue

13. The main issue of contention is on identification. I have heard and considered the respective arguments advanced by the parties. Arguments were based on evidence.
14. To begin, discussions will focus on principles on alibi defence, identification evidence and circumstantial evidence. That will be followed by assessment of evidence and application of the principles on the facts in deciding the issue.

Law on Alibi Defence

15. At law alibi is essentially a defence that the material time the alleged offence was committed accused was elsewhere. That he could not have possibly committed the alleged offence. Hence, putting every matter at issue.
16. There is abundance of case authority on alibi defence. John Jaminan v The State (No. 2) [1983] PNGLR 318 is perhaps the leading authority on alibi defence. Canning’s J summarized the principles with clarity in The State v Lucas Soroken & Ors (2006) N3029. The guidelines are well established and have been extensively been used by the courts in this jurisdiction. I adopt them without setting them out in the judgment.

Alibi

17. Richard’s alibi is he had left Bolwara Settlement when the fight occurred and deceased was murdered.
18. As for Penias’ his alibi was he was with the family at Tokua airport where they resides and was never at the crime scene. Defence rely on evidence from both accuseds and three other witnesses.
19. Miss. Batil prosecuting attacked the alibi by arguing firstly, that witnesses appeared to have been coached or guided into giving the story they told the court. Sally and Selina are related to the accuseds and were not independent witnesses. Their motive was to get immediate release of the accused persons out of prison. Stanley Leo was a close friend of accused Richard Tukare. His evidence contained inconsistencies and were fabricated.
20. Miss. Batil conceded State’s evidence is wholly circumstantial. Accuseds were clearly identified at the crime scene. They were seen coming out of the bushes where deceased was left bleeding from the wounds he received. That it should be the only rational inference the court can draw as to the guilt of the accused persons. The inference drawn as to the guilt of the accused persons must also make sense and follow logically from the facts and circumstances. In support she replied on the following authorities: Barca v The Queen [1975]133 CLR 82, Paulus Pawa v The State [1981[PNGLR 498, The State v Cosmos Kutau Kitawal & another (N0.1) N2266 and The State v Ben Simakot Simbu N2573.

Defence Evidence

21. Accused persons gave evidence at the material time deceased was attacked and killed they were home at Tokua. That is a distance of about 2 – 3 kilometers from Bolwara Settlement where the killing occurred. Richard Tukare gave evidence early in the evening he was at Bolwara Settlement drinking with Bon Joseph, Alex Vincent, Masmin Kamba and Nathan Jambui. He left the boys at 7.00pm and walked home. He arrived at the Ward Member Stanley Leo’s house at 7.30pm. They chatted for a while and they both walked to the Richard’s house.
22. They arrived at the house at 7.45pm. Penias Richard, Selina, Epi and Lasten were at home. The Ward Member left him at home and left. He said he had his dinner and went straight to bed. When he woke up in the morning he was surprised police arrived at the house and apprehended him.
23. Penias stated he was all the time at Tokua with Selina, Epi and Lasten.
24. Selina and Epi gave similar evidence to that of Penias. They were at the house when Richard arrived with the Ward member at exactly 7:45pm.
25. All of them denied accuseds were at Bolwara settlement during the fight and subsequent killing of the deceased.

State’s Evidence

Charlie Vincent

26. He gave evidence that particular afternoon he saw some boys who he named were drinking. Richard Tukare and deceased were also with the boys. He then left for the beach with his brother Jude. When they returned he saw the deceased chasing the boys he was drinking with, same time issuing threats to shot them with a gun. His elder brother Alex who was caught in the brawl told him to walk him to Tokua where he resides. So he escorted him to Tokua. They met Nathan at the river and Alex told him the deceased had chased them and threatened to shoot them with a gun.
27. After leaving Alex he walked back with Jude and Penias Richard to Bolwara settlement where the fighting continued. When they arrive the deceased chased them and assaulted Penias. However, Penias never fought back and blocked him with a piece of wood. The commotion continued through the night but he never saw Penias again as he was chased by the deceased. He said he may have fled home.
28. With regard to Richard Tukare Charlie said he never saw him that night but Nathan who chased the deceased with a bush knife. He said he never saw what happened when the deceased was found wounded by the banana patch.

Jude Vincent.

29. He got home from Kalabon after sports and saw the boys drinking. Richard Tukare was in the group. He went to bed at 10.00pm and at about 12 midnight he heard shouting and swearing woke him up. He went out and saw two groups were fighting. Richard Tukare was in one group. During the brawl he heard the deceased threatened to shoot Alex and Richard Tukare with a gun.
30. Alex wanted to go home so he told Jude to escort him to Tokua where he resides. When they arrived Alex told Penias Richard and Nathan to go and bring their father home as he was fighting with someone. Jude said he stood at the back of the house and saw Penias and Nathan get hold of a rod and knife. Both of them headed for Bolwara settlement where the fight was on. Jude followed them.
31. He joined his mother and other siblings at their house when he arrived. There he heard shouting in front of the neighbour’s house. He saw deceased was chased around the house. He ran after them and saw someone stabbed the deceased. He heard the deceased crying out for help. He went close and at a distance of 10 meters he saw Nathan stab him on his forehead and ribs. He went closer and he saw Richard Tukare and Penias Richard. Nathan and Richard held knives while Penias held a stone. Jude said he could not see clearly as it was dark he could just hear the sound. He admitted he never saw who actually cut the deceased.

Margaret Vincent

32. She gave evidence she arrived home from the market in the afternoon and saw a group of men drinking. She named the men including Richard Tukare. They were drinking and between 7pm and 8pm. At about 10pm they started arguing and fighting amongst themselves. She saw Nathan, Penias and others chasing the deceased towards Joe Manuai’s house. Then she heard sound of knife three times and ran over to see what happened. She never saw the person who wounded the deceased. Except that she saw Nathan and Penias Richard coming out from the bushes. Nathan had a bush knife. Penias never held anything. Richard Tukare was not with them. She was able to identify them in the moon light. She saw the deceased was on the ground next to the bananas. She cried and said you have already killed him and they have to leave. Then the boys came over with torches and they saw deceased had received wounds.

Law on Identification and Circumstantial Evidence

33. It is worth considering legal principles on identification and circumstantial evidence.

Identification Evidence.

34. There are host of case authorities on this point. I rely on two of them: John Beng v The State [1977] PNGLR 115 and The State v. Marety Ame Gaidi [2002] PGNC80; N2256,

35. In John Beng v The State (supra) the Supreme Court stated;

a. “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.

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

c. 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.

d. 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.

e. 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.”

36. In The State v. Marety Ame Gaidi (supra) at page 5 to 6 of the judgment His Honor Kandakasi J reiterating the principles stated:

a. "1. It has been long recognized that, there are dangers inherent in eye-witness identification evidence;

b. A trial judge should warn the jury in the case of a jury trial system or himself as in our case, of the special need for caution before convicting in reliance on the correctness of the identification because for example:

1. a convincing witness may be mistaken; or

2. a number of witnesses could be mistaken;

c. Provided such a warning is given, no particular form of word need be used;

d. There should be a specific direction to closely examine the circumstances in which the identification was made;

e. Identification by recognition may be reliable but one needs to be cautious because there can be mistakes in trying to identify close relatives and friends;

f. All these go to the quality of evidence – if the quality of evidence is good the identification may be reliable. If however, the quality of evidence is bad, the identification will be bad;

g. The quality of the evidence may be poor if there is a fleeting glance or a longer observation made in poor conditions; and

h. There should be an acquittal if the quality of the evidence is bad."

Analysis of evidence and Findings of Facts

37. What is the strength of State’s evidence on identification of the accused persons?

38. I adopt the principles of law on identification evidence discussed above. I am mindful of the dangers inherent in relying on the witnesses’ evidence of the correctness of the accuseds’ identification. On some occasions mistakes can be made in recognizing friends, family members or other well-known persons in the community in difficult or trying conditions.

39. The facts I find drawing from the evidence are as follows. Firstly, I accept as a fact that Nathan and Penias Richard had accompanied Jude and Charlie to Bolwara Settlement from Tokua when they received report of Richard Tukare being involved in the fight with the deceased. Richard by then had not returned to the house. Naturally in PNG when family members are involved or are in trouble there is always a tendency for family members to be emotional and react. So when both received the report they had to leave their house in defence of Richard.

40. Secondly, all three witnesses testified Richard Tukare was with the boys drinking earlier on in the evening. That fact is not in issue and has been admitted by Richard. He was with the group when the drunken brawl started. He had not returned to Tokua where he lives when Alex reported to Nathan and Penias of Richard being involved in a fight. If he had been present Nathan and Penias would have had no reason to go to Bolwara Settlement. The only plausible reason they had gone to Bolwara was to help Richard who was involved in a fight.

41. My observation of the witnesses’ demeanour is that they had close eye contact with the accused persons and were careful not to say the wrong things. The alibi witnesses, Sally and Selina were not independent witnesses. They are family members to the accuseds. Certainly they had an interest in the case and their interest was to get the accused persons out of prison immediately. Stanley Leo was a close friend of accused Richard Tukare. It appears to me all of them were coached to stick to the story they each told court. Therefore, I consider the alibi defence is false and is rejected. I uphold the State’s argument in the respect.

42. Having made that finding though, the law still requires the State to make out its case beyond all reasonable doubt accused are guilty of the offence.

43. It is crucial therefore to assess and analysis evidence of what transpired in the latter part of the night at Bolwara settlement when the deceased was chased and killed.

44. Firstly, Charlie makes no mention of Richard Tukare being seen anywhere during the fight and before he left for Tokua to leave Alex. He said after leaving his brother Alex at Tokua he walked back with Jude and Penias to Bolwara Settlement where the fighting was going on. When they arrived deceased picked up a fight with Penias and assault him. He stood at the distance of about 7-8 meters and observed. He saw them in the torch light which was not bright. The deceased chased them and they all fled including Penias. After that he never saw Penias again that night when the fight continued. Other than that, this particular witness never saw the person(s) who attacked and fatally wounded the deceased.

45. Frankly, I had difficulty following his story. His recollection of the incident was not in logical sequence and pretty confusing.

46. Secondly, Jude’s evidence differed to that of Charlie. According to Jude he woke up from his sleep and saw deceased was fighting with Richard. He then went away to Tokua to leave Alex when the commotion continued. From then Jude never made mention of Richard being involved in the chasing and wounding of the deceased. He said Nathan and Penias armed themselves with a knife and rod and advanced to Bolwara Settlement after receiving report of the fight from Alex.

47. Thirdly, the sketch (exhibit M) tendered into evidence by consent of the scene of the fighting and subsequent killing is useful. I note the sketch map marked significant spots, objects and routes taken during the attack. Unfortunately, it was not used for witnesses to indicate and explain where they positioned themselves and observed and the routes taken. This was important to reaffirm their stories and put the State’s case into perspective.

48. Next. Jude joined his mother and his other siblings at their house (marked 10), He saw Nathan and Penias chased the deceased around the house. He stood at an estimated distance of 20-30 meters and observed. He ran after them. He went closer at a distance of about 10 meters and he saw someone stab the deceased on his fore head and ribs. He said went close to the spot (marked 8) deceased was wounded. There he saw Nathan and Richard were standing with knives in their hands while Penias was holding a stone. He never he had a torch with him but saw them in the torch light which was not bright. Jude made no mention of Richard chasing the deceased from Manuai’s house (marked 4) following the route dotted in brown on the sketch map. But he saw him in company of Nathan and Penias at the crime scene. He was holding a knife. Jude is the only witness who gave evidence of the presence of both accused including Nathan at the crime scene.

49. Furthermore, Margaret’s evidence also conflicts with that of Jude. She also made no mention of Richard chasing the deceased. She said Nathan, Penias and the boys chased the deceased passed their house. She stood there with her children and observed. She heard the sound of knife decided go and see what was happening. She took the route dotted in green to the spot deceased was left wounded. She would have walked a distance of 51 meters to reach that spot. There she saw Nathan and Penias Richard coming out of the bushes. Nathan was in possession of a knife while Penias had nothing in his hand. Richard Tukare was not present with them. Her evidence conflicts with Jude’s evidence in that Richard Tukare was not at the crime scene and Penis was holding nothing in his hand.

50. Next point. It is not clear from the evidence if Margret walked over to the crime scene alone or with Jude and Charlie. If they had arrived together the same time they would have seen all three of them (Nathan, Richard and Penias) walking out from the bushes. Perhaps they arrived at different time intervals and differed in their version of facts.

Conditions Prevailing

51. The fight occurred at mid night. It was pitch dark except for torch lights that were used. Margaret was the only witness who stated there was moonlight. I am therefore not prepared to accept that there was moonlight. The place was obviously dark.

52. Deceased was at Manuai’s house. From there he was chased for about 32.5 meters before turning right. From point N0.6 he was chased for a distance of 37.2 meters to the spot murder occurred. Adding the distance deceased would have been chased for about 70 meters. There was running around and chasing. Many boys chased after the deceased as he was fleeing. That occurred in the middle of the night. One or two torches were used. Even then lighting was still poor.

53. The photographs taken of the surrounding areas deceased was chased and attacked show tall grasses and shrubs. Such prevailing conditions would have made observations quite difficult.

Law on Circumstantial Evidence

54. The test to apply when conviction is dependent on circumstantial evidence is settled and continues to be applied by the courts in our jurisdiction. There are many case authorities to rely on. I make reference to two Supreme Court judgments; the first is Paulus Pawa v The State (supra) counsels have relied on in their respective arguments. This is the leading authority that laid down the principles which both the Supreme and the National Courts most often rely on. The other is Billy Nara v The State [2007] PGSC 54; SC1314

55. The Supreme Court in Paulus Pawa v The State essentially followed the decision of the High Court of Australia in Barca v The Queen (supra).

56. The law is that:

✓ Where State’s evidence is substantially circumstances the court cannot return a guilty verdict unless all facts proved in evidence are inconsistent with any reasonable hypothesis other than guilt of the accused.
✓ To enable the court to be satisfied beyond all reasonable doubt of the guilt of the accused it is necessary not only that his or her guilt should be a rational inference but it should be the only rational inference that the circumstances would enable it to draw.
✓ That an inference to be reasonable must rest on something more than mere conjecture.

57. In other words do the proven facts lead reasonably to only one conclusion- that the accused did all the things constituting the elements of the offence? If yes, the accused is guilty. If no, the accused is entitled to an acquittal. [Devlyn David v The State SCRA74/2003, (22 November 2004)]

58. In adopting the principles in Paulus Pawa v The State I ask myself: Is it reasonably safe for this court to draw an inference and the only rational inference from the proven facts the accused are guilty of the offence?

59. I have considered the defence argument. This is a very serious case of homicide which carries the mandatory maximum death sentence on conviction. Some facts have been proven by evidence. That Richard and Penias were never at Tokua. They were at Bolwara Settlement when the deceased was chased and killed.

60. However, witnesses gave conflicting evidence on identification of the accused at the crime scene. Such evidence lacks quality and does not remove the doubts I still have in my mind. Evidence is wholly circumstantial as such court cannot convict on it. State’s evidence is such that no tribunal of fact can rationally draw an inference and the only rational inference of the guilt of the accused.

61. When there is a doubt in the judge’s mind that should lean in favour of the accused persons. Therefore, no conviction should be entered and they are entitled to an acquittal.

62. The conclusion reached from the discussions is that court will return a not guilty verdict for the accused persons.
63. Court orders that they be discharged from custody forthwith.

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