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State v Sone [2023] PGNC 138; N10256 (23 February 2023)

N10256

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 831 OF 2021

THE STATE

V

SEBILONG UNDUMBUNDIMI SONE

Angoram: Thoke, Aj
2022: 6^th & 8^th May
2023:23^rd February

CRIMINAL LAW- Practice and Procedure – Trial - Murder- section .300(1)(a) of the Criminal Code-Accused did not plead guilty- relevant matters for consideration
CRIMINAL LAW- Evidence- assessment of evidence- Circumstantial Evidence favours the accused – State has failed to prove beyond reasonable doubt – Illogical explanations coupled with inconsistencies amount to unreliable evidence which out to be rejected- Poor quality of States Evidence

CRIMINAL LAW- Practice & Procedure –Issue of Identification – Lack of independent witness(s) to corroborate State’s evidence- Refusal to testify by key eye witness (s present at the scene)-identity not established.

CRIMINAL LAW- Practice and Procedure- unsworn Defence of Alibi-Prosecution has the burden of proof to establish the identity of the accused to disprove the alibi defence’- Where Prosecution fails it only strengthens the Defence’s case- Where a Defence of Alibi is not sworn or filed, Court has the discretion to adjust Criminal Practice Rules where Justice requires- Defence of Alibi by Defence accepted by the court.

CRIMINAL LAW- Practice & Procedure- Cause of death in dispute- Absence of a medical report by a qualified Doctor- Case dismissed.

Brief Facts:

On the 20^th of April 2020 between 7pm and 8pm at Timbun Camp, at Kararau Village, in the Angoram District of East Sepik Province, Mr. Sebilong Undumbundimi Sone was alleged to have hit her girlfriend, Melisha Bonje Yara, on her right-side rib with the aid of a stick, that subsequently led to her death. She was then taken to Timbuke Health Centre but was pronounced dead thereafter.
The accused denied killing the deceased and said the cause of her death was sorcery- related, executed by her own father who condemned their relationship based on customary standards, while the father and mother of the deceased claim that the accused have a fair history of assaulting their daughter on frequent occasions, and this time they actually witnessed the accused in the act of hitting the deceased with a stick, which led to her death.

Held:

1. In the event where State witness(es) presence at the scene of the offence are questionable, and lack good quality, there must be an independent witness to corroborate the state’s evidence. In this case, the state witness(es) essentially require an independent witness (es), significantly those at the time and scene of the crime, who should be the key witness (es)to establish the identity of the accused.
   
2. Which evidence is credible and reliable? The court accepted the evidence of accused, which was satisfactory and reasonable to believe given the context and circumstance, especially when the accused said that upon seeing the deceased laying on the ground, he did not escape, rather remained to take care of the deceased, asking her necessary questions, recurrently, despite the lack of response, to understand what had happened during his brief absence of 10 minutes.
   
3. In cases where a Defence of Alibi was not filed and served on the State, the Court has the duty to read the Record of Interview (ROI) and confirm whether Defence of Alibi is raised in Court. In this case Defence of Alibi was raised. The court still has the discretion to dispense or waive the requirements of the Criminal Practice Rules pursuant to Order 1 Rule 4 &10 and adjust where justice requires.
   
4. Medical Death Certificate must come from a certified Doctor, accompanied by a post- mortem report. Lack of post- mortem report by a certified medical Doctor creates doubt on the evidence relating to the cause of the deceased’s death. In this case, the state witnesses’ evidences are not credible to prove beyond reasonable doubt that the accused killed the deceased, as alleged.
   

5. Accordingly, I find the accused not guilty of Murder.

Cases Cited:
Papua New Guinean Cases

Alois Erebere and Taros Togote v The State PNG [2011] SC1135
Jaminan v The State [1983] PNGLR 318
The State v. Cosmos Kutau Kitawal (2002) N2245
The State v. Marety Ame Gaidi (2002) N2256
The State v. John Beng [1977] PNGLR 115
The State v Ismael Amjoni [2012] PGNC340; N9184
The State v Paul Gambu Laore & Ors [2007] PGNC 231; N5026
The State v Paul Irevaka & 2 others (2022) N9687

Overseas Cases

Brown and Dunn, 1983 6R 67 (SL)

Legislations:

Constitution of PNG
Criminal Code Act 1974
Criminal Practice Rules 1987

Counsel:

Ms. Deborah Ambuk, for the State
Mr. Nasson Katosingkalara, for the Accused

JUDGMENT ON VERDICT

23^th February, 2023

1. THOKE AJ: An indictment was presented on the 6^th day of May 2022 charging the Accused for murder under section 300 (1) (a) of the Criminal Code. The charge on the indictment read as follows:
   

“SEBILONG UNDUMBUNDIMI SONE of SAWI VILLAGE, ANGORAM DISTRICT in the East Sepik Province stands charged that he, on the 20^th day of April 2020 at Kararau village, Angoram District in the East Sepik Province of Papua New Guinea murdered one MELISHA BONJE”.

2. The Accused did not plead guilty.
   

THE CHARGE

3. Section 300 of the Criminal Code states:
   
   • (1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder: -

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person; ...

Penalty: Subject to Section 19, imprisonment for life.

4. The Prosecution has the onus of proving beyond reasonable doubt the four elements of the offence which are:
   
   • (i) A person;
   • (ii) Killed
   • (iii) Another
   • (iv) Whom he intended to cause grievous bodily harm to.
     

THE PROSECUTION’S EVIDENCE

5. The Prosecution called four witnesses, namely Joachim Bonje, Martha Bonje, Ms. Anna Kupmain and Snr. Peter Tupaia. The State also tendered three sets of documents into exhibit which include Record of Interview in Pidgin (exhibit 1 (a)) and English translated Record of Interview (Exhibit 1 (b)), Statement of Snr. Constable Peter Tupaia (Exhibit 2) and the Statement of Constable Zepten Waiki (Exhibit 3).
   
6. I will now simplify on the evidences of the State Witnesses.
   
7. The first State Witness , Joachim Bonje, who is the father of the deceased, gave sworn evidence that:
   

Examination in Chief

(i) He said he was with the deceased when the accused came in after hiding from a nearby dark bamboo patch hearing the deceased talking to her sister Nelly Bonje, over the phone.

(ii) The accused and the deceased were separated through mediation by the village elders upon complaints and knowledge that the accused frequently assaulted her based upon plain jealousy and insecurity.

(iii)
(iv) His elder daughter Joana, Joana’s husband Kenneth, their children and Samson Yala were all there at the scene at the time of incident. That is, they stayed in the hut that had two floors/levels. Upstairs was used to smoke dry fish.

(v) The deceased was then taken to the Timbuke Health Center where she was pronounced dead on arrival. The nurses there noticed a gap between her ribs by rubbing their hands along her side and advised that the deceased had fractured rib bones.

Cross- Examination

(i) When asked how he got to the place of incident, he said, upon hearing the noise, he paddled canoe to the scene of the crime (where Joana’s hut was) which is about 100-150 meters from his house on the other side of the lake.

(ii) He saw that the deceased was laying on the ground, had an argument with the accused.

(iii) He bluntly told the accused that he had killed his daughter.

(iv) He denied arriving at the scene at a state where deceased was already laying on the ground.

(v) After the argument, he said the accused fled the scene.

(vi) He further responded to that court that since accused’s father was his step-father the relationship of the deceased and accused was customarily forbidden, thus was not happy with the accused being in a relationship with the deceased.

(vii) He also said he was also not happy with the relationship because of the frequent assault caused on the deceased.

Re –Examination

(i) Upon hearing noise of deceased talking on phone on the other side of the lake, he paddled to the scene. Upon arrival he saw accused hitting the deceased with a piece of wood. He said he was not happy with accused for breaching custom by having relationship with his daughter and even worse, assaulting her.

8. The second State Witness, Martha Bonje, the mother of deceased gave sworn evidence which was partly analogous to the first sate witness:
   

Examination in Chief

(i) She said she came at distance of 150 meters to get to Joana’s hut upon hearing indistinctive noises. She came with her husband Joachim via canoe and saw from a distance of 5 meters the accused snatching the phone off from the deceased and hitting her with a stick on her side when she lost balance and fell down. She tendered the stick to the police.

(ii) Upon arrival at the scene she saw Joana and Kenneth, whereby, Joana recounted to her that the accused had just hit her. At around 7pm and 8pm upon realizing that the deceased did speak or gave any kind of response to the questions asked, she took her on boat downstream to Timbunke Health Centre.

Cross-Examination

1. The place was already dark when she and her husband Joachim arrived at the scene. Present at the scene were the accused, Joana and Kenneth. Upon arriving at the scene, she saw for herself the deceased already laying on the ground. She flashed the torch on the face of the accused and told him that he had killed her daughter.
   
2. When asked whether she had any issue with the accused, she said, she had personal grudges against the accused for befriending her daughter against customary standards, and that accused had been also frequently assaulting her.
   

9. The Third Witness, CID officer, Peter Tupaia, gave sworn evidence that:
   
   • (i) He had tendered to the Court the piece of wood that was alleged to have used by the accused. It is marked as State Exhibit S.4
     
10. The Fourth Witness, OIC of Timbuke Health Centre, Anna Kupmain, gave sworn evidence that:
    

Examination in Chief:

(i) She produced the Death Medical Certificate (DMC) as State Exhibit S.5 by filling out the middle Section of DMC briefing out the cause of death as broken rib bones damaging the lungs based on the information from 2 general nursing officers.

Cross Examination

(ii) She affirmed in the cross-examination that the cause of death could have been the rib bone fracture.

THE PROSECUTION’S SUBMISSION

11. State Counsel Submitted that:
    
    1. The accused assaulted the deceased with a piece of wood upon being unnecessarily jealous, suspicious and angry with the deceased for talking on the phone with someone.
       
    2. The accused assaulted the deceased with an intention to cause Grievous Bodily Harm (GBH).
       
    100. The state witnesses’ evidences are compelling under the circumstances given.
         
    4. The state witnesses’ demeanors were reliable, thus had credibility than that of the accused.
       
    5. The accused is of no value to them, as there is nothing to benefit from him.
    6. The accused evidence is not acceptable taking into account that it was not corroborated and defence of alibi had not be filed
       
    7. The accused did not tell the court the distance between the toilet and the hut as he already said he was in the toilet for ten minutes, and so the prosecution submits that it was a character not of a reasonable man.
       
    8. There is no evidence of the deceased being asked reasonable questions such as “who killed you?” or “what happened?” at the time she was on found lying on the ground.
       
    9. If the questions of “who killed and what happened” were asked, then that was never disclosed during the examination in chief and cross examination except in the re -examination.
       
    10. The accused’s response to questions were specifically tailored to cover apparent inconsistencies in his evidence.
        
    11. The accused assertion that the cause of death is due to the use of sorcery by the deceased’s father holds no water in law, as it was never put to the state witnesses for comment, let alone, illogical under the circumstances given.
        
    50. The state witnesses (parents) evidences are credible and reasonable. Their evidences were further corroborated by the medical diagnosis and the physical exhibit tendered and marked as state exhibit 4.s.
        

13. Finally, the Prosecution submitted that pertaining to the circumstances of this case, the accused is criminally liable for the death of the deceased.
    

DEFENCE’S EVIDENCE

12. The Defence called only one witness, Mr. Sebilong Undumbundimi Sone, the accused.
    
13. I have simplified the Defence’s evidence for ease of understanding.
    
14. The defence witness, Sebilong Undumbundimi, gave sworn evidence that:
    

Examination in Chief:

(i) The deceased and him were together in Kenneth’s hut between 7pm-8pm smoking dry fish when Nelly Bonje (elder sister of deceased) called the deceased. The deceased answered her phone and they both talked to Nelly Bonje. He then left the deceased alone in the house and went out for a brief toilet break that was located 20 meters away. Upon return from the toilet in 10 minutes time, he stumbled upon the deceased laying on the ground. Joana was there by then and asked him what had happened to the deceased to which he responded that, upon returning from the toilet he found the deceased laying on the ground under Kenneth’s house in that condition and had no idea on how and what had caused her to fall on the ground.

(ii) The deceased complained about mosquitoes biting her so he lifted the deceased from the ground and carried her to Joana’s house with the help of Joana’s elder son. He then proceeded to lay down the deceased with her head lying on his laps, allowing her to sleep with her abdomen facing down, as this was the position the deceased felt comfortable with. He sat their allowing the deceased to rest her head on his laps and asked what had happened to her when deceased responded that she was weak and did not want to talk, and excused him to sleep.

(iii) As he was there, the deceased’s parents came in rage and hounded at him. Martha came with a wood and said “you have killed my daughter” to which in quick response he yelled at Martha to sit down quietly, asserting that the deceased’s sudden condition was sorcery-related, to which Martha would not be aware of, as he believed that it was sorcery executed by the father, as the father had sometime earlier threatened him and the deceased that he would destroy their relationship. Martha then came to an ease and put her stick away. She then sat next to the deceased who was sleeping, when he walked out of the house. As he was outside, the father came with a spear and said ‘is that you’. By this point he was fearful that the father was armed with a spear, confronting him.

(iv) He then yelled from outside ordering the deceased’s parents to leave the house saying that ‘something’ that the deceased’s father, Joachim, had said to use on them (referring to himself and the deceased) had now been fulfilled and had effect putting the deceased in that condition.

(v) He refuted the assertion that he used a stick to harm the deceased, and that narrative was untrue. He distinctively said that the relatives of the deceased had refused to allow Joana and Kenneth in giving evidence, as they were witnesses to the events that transpired on that day.

Cross Examination

(i) When asked by the Court what happened on that day, he said he asked the deceased what had caused her to mysteriously fall to the ground in his absence, while he went out to use the toilet, but the deceased did not reply or utter any word. He reiterated that he did not assault the deceased and had no clue on what had caused the deceased to collapse or fall in the manner she did, thus, was deeply worried and questioned the deceased, recurrently, as to know what had happened, but the deceased did not respond. He emphasised again, that the deceased was alone when he went out and that something must have happened to her at that moment, causing her to fall down, but he did not know what exactly happened.

(ii) When asked whether he had any witness to corroborate his evidence, he said that he asked Joana to give evidence in favour of him, but she replied that the parents of the deceased had advised her not to testify.

(iii) When asked by the court on the distance between the deceased parents’ house and the place of incident, he responded that the distance from the location of incident and the deceased parents was about 200 meters, which one could hardly hear anybody talking from that distance.

(iv) When the court asked on whether he understood that their relationship was customarily wrong. He said that his father died when he was a child and did not have the privilege of being advised on customary implications of such relationship or had the luxury of receiving general fatherly teachings.

(v) When asked by this Court on the relationship between the accused and the deceased, he responded that it was five-year relationship without any differences.

THE DEFENCE’S SUBMISSION

15. The Counsel for the Defence submitted that:
    
    1. The accused and the deceased have lived for five years without any differences themselves.
       
    2. The distance between the witnesses’ places and the deceased’s place (scene of crime) is about 200 meters and it is irrational to say noises could be heard from such a distance.
       
    3. Both the parents, Joachim and Martha’s demeanor and tone were unimpressive, and discernably rehearsed and fabricated.
       
    4. Since the deceased was seen lying on the ground; both state witnesses’ evidence is that she was assaulted or hit by the accused is unreliable.
       
    5. It is illogical to accept that the deceased did not cry out or called out for help, if indeed she was hit by the accused with the aid of the stick tendered in as exhibit. The deceased was quiet and in deep sleep, even she did not explain what had happened.
       

6. The state witnesses’ obvious reasons behind providing false evidence to this court is primarily due to personal grudges against the accused, reluctantly being in relationship that was condemned by them as a family, based on customary reasons. The accused was also alleged to be frequently assaulting the deceased over the 5-year term of relationship, which gives the family more reason to be falsely accuse him over the death of their daughter, the deceased.
   
7. The medical Death Certificate is not a reliable evidence, taking into account, that it was not based on exclusive findings nor accompanied by a Postmortem, even worse, it was furnished by the 2-lower ranked general nurses based on mere observation without any written report and even was made 8 months after the observation on the 20^th April 2020.
   
8. The accused’s evidence is that he went to the toilet and upon return saw the deceased laying on the ground is a compelling and reasonable narrative, which was also expressed impressively. His demeanor and tone when giving evidence in the court was of good bearing.
   
9. The Defence added that the deceased is the accused’s girlfriend, someone who he was in a relationship with based on consent and love. Someone loved and cared for by the accused, for over 5 years without any difference, yet the parents labelled him as a jealous, insecure man who frequently assaulted her, without disclosing or providing evidence of such nature of conduct, or the time or dates she was assaulted, let alone, a reasonable justification on why he is labelled as a jealous, insecure man.
   
10. The Defence finally submitted that at the time he found her on the ground, he graciously lifted her and carried her into Joana’s house and let her sleep on his laps until the deceased’s parents came and chased him out. Hence, the evidence of the two State’ witnesses, Joachim and Martha, asserting that they witnessed the accused hitting the deceased with a stick, is purely fabricated.
    

ISSUES FOR THIS COURT’S DETERMINATION

16. The Prosecution analyzed the first four issues and Defence analyzed two last issues which are respectively listed as follows:
    
    1. Who or what caused the injuries that led to Melisha’s death?
    2. Should the Court accept the State witnesses’ evidence?
    100. Should the Court accept the accused’s story?
    4. Which version of the evidence should I accept as reliable and credible?
    5. Whether evidence identified accused hitting the deceased on her side?
    6. Whether medical evidence about cause of death is reliable?
       
17. This Court considers all the questions (issues) mentioned by both Prosecution and Defence counsels above as relevant as they, are bound to occur in the circumstance where identification issue arises, as in this case.
    
18. However, this Court notes that the main issue among all the 8 enlisted issues above is the 4th issue identified by the prosecution. In the course of determining this issue (4^th issue above), all the other issues enlisted will surely be addressed. Thus, I need not address every issue but rather address the main issue which is entitled and addressed respectively.
    

WHICH VERSION OF THE EVIDENCE DO WE ACCEPT AS RELIABLE AND CREDIBLE?

19. This question can only be answered analyzing the quality of evidence as His Honor, Justice Kandakasi (as he then was) enunciated in the case of John Beng v the State [1977] PNGLR 115 and further expounded and simplified in the case of State v. Marety Ame Gaidi (2002) N2256. I quote the principles for ease of reference as follows:
    

“The law on identification evidence is settled. The often-cited authorities are the judgments of this Court in John Beng v The State [1977] PNGLR 115. Recently, Kandakasi, J summarized those principles in an easy to follow manner in The State v. Marety Ame Gaidi (01/08/02) N2256, in these terms at pages 5 to 6 of the judgment:

1. It has been long recognized that, there are dangers inherent in eye-witness identification evidence.
   
2. 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;
   • (a) A convincing witness may be mistaken; or
   • (b) A number of witnesses could be mistaken;
     
3. Provided such a warning is given, no particular form of words need be used;
   
   4. There should be specific direction to closely examine the circumstances in which the identification was made;
      
   5. 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.
      
   6. 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;
      
      7. The quality of the evidence nay be poor if there is a fleeting glance or longer observation made in poor conditions and
         
   8. There should be an acquittal if the quality of the evidence is bad.”
      
20. His Honor Justice Kandakasi’s (as he then was) 6^th term of 8-point principles in the State v. Marety Ame Gaidi (supra) is very crucial element for the purpose of determining and deciding the quality of evidence. I am therefore cautioned in assessing the quality of evidence before this Honorable Court under the circumstance that accused raised unsworn defence of alibi and shifted blame on sorcery while the state’s evidences, including the medical report and identification of accused at the crime scene are rebutted in the absence of any independent witness(es) justifying both state and the defence witnesses’ evidences.
    
21. The State firstly submitted that accused assaulted the deceased with a piece of wood out of jealousy, suspicion and anger against the deceased for talking on the phone. The Defence on the other hand said that that piece of wood was brought in by the deceased’s mother Martha and tried to hit him. I cannot decide who used this stick as this issue touches the core question that should otherwise be constructed as “Who killed the deceased?” Thus, this issue will be principally covered in the course of addressing other issues.
    
22. The State submitted that the accused failed to disclose the distance between the hut and the toilet. However, during the examination in chief, the accused did say that he was away for a brief period of 10 minutes, to use the toilet which was located 20 meters away from the hut. He clearly stated that he did not see what had caused the deceased to fall down, but only witnessed, upon return from the toilet that she was already laying on the ground by the time he arrived at the scene.
    
23. The state then submitted that the defence of alibi cannot be sustained as it was never filed in the court and was never corroborated by further evidence and witness(es). This Court is curious to know whether the defence of alibi is validated by being filed and sworn, or in the case of being unsworn, be corroborated with an independent witness (es)? In this case, I am aware that the accused precisely disclosed his defence of alibi in the Police Record of Interview, however, the question that now stands is “whether this Court should accept the defence of alibi upon disclosure in the Police Record of Interview, despite not being formally filed in the Court? Filing a defence of alibi and serving on the other party is a procedure required not by the statute, but by the Criminal Court Practice Rules. This means, the Court has the discretion to either waive or dispense the requirements of any rule pursuant to Order 1 rule 5 & 10 of the Criminal Practice Rules. Hence, I am satisfied that the accused disclosed his Defence of Alibi in the Police Record of Interview and once that ROI is tendered as exhibit, the accused’s defence of alibi stands effective.
    
24. Further, the law relating to Defence of alibi is clearly discussed in the case of Jaminan v The State [1983] PNGLR 318, quoted in par. 23-24, pg. 80: Alois Erebere: And Taros Togote v The State, Cannings (2011) in Papua New Guinea Law Reports- Volume 2- 2011. I quote the two main principles applicable in this case for ease of reference:
    

a. How strong or convincing the alibi evidence must be depends on the strength of the evidence of the prosecution witnesses. If their evidence is very strong to raise a reasonable doubt in the mind of the judge as to the guilt of the accused.”

b. If the alibi is rejected it does not necessarily mean that court should enter conviction. The court must be satisfied that prosecution has proven its case beyond reasonable doubt”.

25. I find the Prosecution’s evidence weightless against the Defence, even though defense did not file notice of alibi and serve it on the state, prior to the trial date. The Prosecution has failed to prove beyond reasonable doubt that the accused in fact was seen hitting the deceased with a stick as alleged. I am content to accept the defence’s submission that evidence provided has discrepancies and lacks consistency, hence not suffice to establish doubt against the defence of alibi.
    
26. I intend to address very briefly on the allegations of sorcery. I agree with the State’s submission that the defense did not put to State witness the sorcery allegations leveled against the state witness and father, Joachim, thereby breached the principle of Brown and Dunn. I also take note that the Defence witness did not have proper medical evidence or any other credible phrases connoting to the sorcery allegations, other than the two phrases used when responding to Martha, the mother of the deceased, when he was blamed of killing her daughter, as expressed in cross- examination.
    
    • “what he knew had happened to the deceased”
    • “leave the place and go because it could be sorcery, since Joachim had been threatening to use it on me and the deceased, it has now come to effect on Melisha”

[translation all mine]

27. The blame against sorcery is substantially unsubstantiated, and even more hardly acceptable by PNG criminal justice system, hence, I make no acceptation until and unless the Criminal Code is amended to accommodate the elements of sorcery.
    
28. The State further submitted that there was a village elder’s mediation ‘Order’ in place, separating the relationship of the accused and deceased upon complaints of assaults by the accused on the deceased. Firstly, taking into account the Order, the accused breached the order when he decided to visit the deceased. This triggers me to question myself on why would someone sober as the accused himself, knowingly breach an ‘Order ‘with the intent to cause grievous bodily harm, let alone, in the hut or home that belonged to the immediate family members of the deceased? Secondly, the immediate family members of the deceased including her elder sister Joana, her husband Kenneth, their children and Samson Yala, were all present, smoking dry fish yet no one came on board to testify to this Honorable Court of what they witnessed, or what transpired on that day and time. This prompts me to doubt the evidence of the state witnesses and their narrative of what transpired. One of the members present should at least testify to this Court on what they saw. Defence also made submission pertaining to the reluctance of Joana, Kenneth and Samson, to testify to this court and why they were advised not to by the parents. This further corroborates the evidence of the defence.
    
29. The Defence also submitted that the relationship of the deceased and the accused is of five years and they both, respectively, believe they have no problem while in the course of their relationship. The Defense’s only witness, the accused himself said that, upon arriving at the scene, he lifted the deceased with his own hands, with the help of the Joana’s son and took her into Joana’s house, in response to the deceased asking him to move her into the house away from the mosquitos. The accused asked the deceased what had happened to her, whereupon she responded that she was weak. The accused placed her head on one of his lap and turned her upside down letting her sleep by her abdomen, as she instructed. The accused continued to take care of her until the parents came and chased him away. I am content with this evidence as opposed to the Prosecution’s evidence. The accused’s tone and demeanor were also reasonably consistent with his tone during examination in chief and cross examination.
    
30. It is important to also consider that the accused and the deceased together answered Nelly Bonje’s call and they both were happily talking with Nelly Bonje, the elder sister of the deceased. Hence, Nelly Bonje is also needed to testify to this. The reluctance and refrain from testifying to this court by most family members of the deceased is adding more strength to the defence’ case. It creates more doubt and difficulty to accept the narrative that the accused was suspicious, jealous and angry with the deceased for her talking on the phone and assaulted her for that reason.
    
31. The State’s submission that evidences of Joachim and Martha, corroborate each other, and that it is sufficient to establish identity, is unsatisfactory. I am prompted to question their evidence, taking into account the fact that they are the biological parents of the deceased, who have had a long-term grudge against the accused, for their allegations of frequent assault and breaching customary standards by being in a relationship, thus, another witness(es) from their family present at the scene, should have testified to eliminate this doubt, and difficulty of accepting their evidence. I am also not convinced that they made their way to the other side of the lake, upon hearing noises of commotion coming from Joana’s hut, given the distance of 150-200 meters. None of them also gave the estimated time, one can take from one side to the other, either by walk or canoe. There are significant discrepancies in their evidence. Thus, I infer that the key witness(es) in this case would be Joana, Kenneth, their family and Samson Yala, the individuals who were present in the hut together, during the time of incident, and not the parents, who came later.
    
32. The accused said during cross-examination that Joana advised him that their family stopped them from giving evidence or testifying to the court, after he had initiated to call her and her husband Kenneth to give evidence in favor of him. Although this is a hearsay, I essentially need evidence from anyone present at the scene apart from the parents. This is a fatal mistake on the part of the State and its witnesses in failing to assist this Court properly.
    
33. I am guarded by the 4^th term and 6^th term principles of the Kandakasi’s 8^th point principle in the State v. Marety Ame Gaidi (supra), and infer that the quality of evidence on identification has come into serious crisis in this case.
    
34. Both State witnesses said that their houses are located some 100-150 meters away from the scene of the crime and travelled on canoe to get to the hut (crime scene) upon hearing noises. They did not say that someone in the hut called them via phone, they said they heard the noise from that distance and went in haste. In other word, the noise that came out of the alleged assault and argument between the deceased and the accused was as audible enough for people living as far as 150 meters to hear, which is untrue. On the contrary, the Defence Counsel that the distance between the crime scene and the location of the parents (state witnesses) was about 200 meters, and one could barely hear any noise from that distance. I am content with this assertion. Martha, the mother, was specifically asked to testify to the Court the estimate time one can take to reach the other side of the lake, when she was hesitant to provide a response to that, rather deviated and gave an ‘out of subject’ answer, saying there was torch and solar power at Joana’s house. I am of the opinion that if she had provided an answer, it would perhaps assist the court for time and distance determination. At this juncture, I am still in doubt whether the distance is 150 meters, or more.
    
35. The State then submitted that the accused had the intention to cause Grievous Bodily Harm (GBH) on the deceased, and death ensued. I will address this with the evidence that Joachim, the father, adduced in examination in chief. He said he was with the accused along with Joana, Kenneth, their children and Samson Yala, when they saw the accused hiding in the nearby dark bamboo patch, eavesdropping on the deceased talking on the phone, to which he furiously came out and hit the deceased, resulting in deceased falling down. He said he was positioned at a distance of 2-3 meters. In cross examination he said, he saw the accused hitting the deceased. Martha said in examination in chief that from a distance, on their way to the hut, 5 meters away, she saw the accused snatching her phone off her, and hitting her with a piece of wood that was on her side, causing her to subsequently fall to the ground. Martha further said as she reached for her, the deceased was already laying on the ground. In my careful analysis, taking into consideration the assertion above, If Joachim was already with the deceased at a close distance of 2-3 meters, and saw accused coming out from the dark bamboo patch, while Martha was bit far in the distance of 5 meters, I am still bothered by the un-disclosure of time they took from their house to the crime scenes as this evidence has a direct bearing on the exact time they reached the scene to spot the accused hitting and assaulting the deceased. In the absence of this, I am in fatal doubt. Further, the demeanor and tone of both state witnesses were unimpressive. In my ruling in the case of The State v Irevaka & 2 others [2022] N9687, I ruled that evidence by any family member does not have significant weight unless corroborated by an independent witness(es). Under such circumstance, the Prosecution’s evidence is deemed to be fallacious and fabricated.
    
36. The State further submitted that the accused failed to ask her the cause of her incident. It is a relevant question not required only of the accused but anybody around including the parents. As disclosed in Examination in Chief and Cross-examination, the accused did ask the deceased “what happened?” twice, first of which was responded by the deceased that she was weak and excused him to sleep. He asked again but the deceased did not respond or was unresponsive by then. On the other hand, no questions of such nature were asked by the parents, or if was asked, it was never disclosed in Court. Since the deceased was taken to the health Centre by the parents, there was sufficient time of 2 hours, from 8pm to 10pm before the deceased was pronounced dead, where they could have asked her the necessary questions. Nothing in that nature was disclosed during examination in chief, pertaining to that period of time. Again, I refuse to accept that the accused had failed to ask the deceased the necessary questions regarding her fall, when accused did make an attempt to ask, as opposed to the state witnesses, when the same is also required.
    
37. Defence submitted that there is inconsistency in the evidence of the state witnesses. The defence counsel submitted that both state witnesses saw the accused hitting the deceased with a piece of wood, yet both said they saw accused assaulting on the noiseless deceased laying on the ground. However, I note from the ROI that the accused debunked the assertion that he used the wood (State Exhibit S.4) that was in evidence. He told the police that, that wood was brought in by the mother to hit him (the accused). There is no witness(es) to testify to either of their evidence, as such triggers doubt in my mind as to who is telling the truth.
    
38. The State then submitted that the evidence of the state witnesses are corroborated with the diagnosis of the medical death certificate. The officer in Charge (OIC) of Kimbuke Health Centre, Ms. Anna Kupmain, stated that she filled up the middle section of the medical death certificate where she said the cause of the death was related to broken rib bones, damaging the lungs. Ms. Anna Kupmain further described the cause of death in cross- examination that; “rib bone fracture could have been the possible cause of death”. The Defence contested that the medical death report was produced 8 months after the death of the deceased, and was based on a mere observation report from two lower range nursing officers of CHW, without any written report or exclusive findings relating to a postmortem. A medical report is essential in such circumstance where the cause of death is disputed, as in this case, hence, it must be essentially furnished by a certified Doctor, accompanied with a post- mortem report. Thus, the failure to produce these documents renders the state’s evidence unsubstantiated and baseless.
    
39. I am now guarded by His Honor, Justice Kandakasi’s (as he then was) summarized principles in the case of State v. Marety Ame Gaidi (01/08/02) N2256, which governs the credibility of evidence. The 4^th, 6^th and 7^th term out of 8 principles of this case, essentially outlines the quality of evidence for purposes of establishing identification that is credible good. I quote and bold them for purposes of reference as follows:
    

“The law on identification evidence is settled. The often-cited authorities are the judgements of this Court in John Beng v The State [1977] PNGLR 115. Recently, Kandakasi, J summarized those principles in an easy to follow manner in The State v. Marety Ame Gaidi (01/08/02) N2256, in these terms at pages 5 to 6 of the judgement:

1. It has been long recognized that, there are dangers inherent in eye-witness identification evidence.
2. 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;
   • (c) A convincing witness may be mistaken; or
   • (d) A number of witnesses could be mistaken;
     
3. Provided such a warning is given, no particular form of words need be used;
   4. There should be specific direction to closely examine the circumstances in which the identification was made;
   5. 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.
   6. 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;
   7. The quality of the evidence nay be poor if there is a fleeting glance or longer observation made in poor conditions, and
   8. There should be an acquittal if the quality of the evidence is bad.”
      

DECSION SUMMARY

37. I am cautioned to screen all the evidence from both state and the defence witnesses to see whether each evidence passes through these tests, particularly test six as in this case. I will now give an answer to each of the questions posed by both the state and the defence counsel as earlier listed and decide which evidence are of good quality and which are of bad quality.

1. Who or what caused the injuries that led to Melisha’s death?

Unreliable and bad quality of evidence adduced by the state witnesses to establish the cause of the death

2. Should the Court Accept the State Witnesses’ Evidence? No. There is no credible evidence to corroborate their case. Lack of independent witness (es), especially any one of those family members present at the scene. All decided against testifying in Court. In the case of Death Medical Certificate, a Post Mortem Report with a report from the certified medical Doctor is required to establish credibility.
   
3. Should the Court Accept the accused, Sebilong Sone’s story? The Prosecution has failed to prove beyond reasonable doubt that the accused killed the deceased, as alleged. The prosecution’s witnesses’ weak evidence and lack of independent witness(es), strengthens the Defence’ s case. This simply means the accused’s story is accepted and has more weight against the Prosecution’s evidence.
   
4. Which version of the evidence do we accept as reliable and credible?

Defence version of the evidence is reliable and credible.

5. Did the evidence adduced by the Prosecution establish the identification of the accused hitting the deceased, as alleged? No credible evidence. All evidences adduced lack credibility and corroboration.
   
6. Was the medical evidence pertaining to the cause of death reliable? The Medical evidence adduced was unreliable. It has to be furnished by a Certified Medical Doctor, accompanied by a post- mortem report. The Medical Death Certificate tendered to this Court lacks credibility and value, as it was produced merely upon an observation report by two nursing officers, who were uncertified to administer such. In addition, it was furnished after 8 months from the deceased’s date of death, making it totally unreliable.
   

38. Having answered the above questions, I am content that the Prosecution has failed to prove beyond reasonable doubt the criminal prosecution, by not establishing all four elements of the offence of murder pursuant to sec.300(1)(a) of the CCA.

39. Accordingly, I have no hesitation in applying the 8^th term principle of the 8^th point principles of State v. Marety Ame Gaidi (Supra), and declare that the benefit of acquittal goes to the accused, on the basis of bad quality of evidence adduced by the Prosecution.

39. The Orders of the Court are as follows:

1. The case is dismissed.
2. Accused be discharged forthwith.

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