N11717

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR NO. 829 OF 2018

THE STATE

v

JOHN BEN

LAE:   MURRAY J
15 JUNE 2021; 30 JANUARY 2026

CRIMINAL LAW – wilful murder – Criminal Code, Section 299(1) – elements of the offence – whether the defendant killed the deceased - Criminal Code, Section 7 (1) (c) – whether applicable 

Cases cited

John Beng v The State [1977] PNGLR 115

Counsel

Mr J. Done, for the State
Mr J. Huekwahin, for the accused person

DECISION ON VERDICT

1.	MURRAY J: The defendant, John Ben who is from Hengali, Lae, Morobe Province is charged with the wilful murder of Yasaptung James (the deceased) at Markham Bridge, Lae, Morobe Province, on 30th September 2017. The Autopsy Report, Ex P1, states, the deceased died from traumatic brain injuries caused by blows to the left side of the head. The defendant pleaded not guilty to willfully killing the deceased, so a trial was conducted. 

2.	Facts to which the defendant pleaded not guilty to are that: 
On the 30th day of September 2017 between 5.00pm - 6.00pm, whilst he, John Ben, was at his small store premises located at the corner of Markham Bridge, the deceased, Yasaptung James, who was under the influence of alcohol and his friends, arrived at the store in his mv which he himself drove. He parked the vehicle and went to the store. Whilst he was there, an altercation between him and the defendant took place. The defendant assaulted him several times on his face. The deceased fought back. As they were fighting, the deceased's friends who went with him, got off the vehicle and went to stop the fight. When the defendant saw the deceased’s friends going to them, he called out for help from his family members and friends who were within the premises. Armed with beer bottles and pieces of timber of different sizes, they joined the defendant and fought against the deceased’s group. When the deceased realised what was happening, he went to his vehicle to leave. However, the defendant followed him to the motor vehicle, grabbed him by his neck, forced his head onto the base of the door, which was still locked, then, using a piece of 3 by 2 timber about 40 to 50cm long, struck the deceased on his head very hard. After striking him, the defendant opened the mv door and dragged the deceased out. The deceased tried to walk for a few seconds in a dazed state and fell on the ground. His body lay motionless facing upwards. 

3.	The State called three eyewitnesses, namely: Samob Kaukesa, Sadtrack Madu and John Yaks. In summary, all three gave evidence of seeing the defendant arguing with the deceased at the store. All three said, they saw the defendant start the fight by punching the deceased first, which escalated into a big fight between those supporting him and those supporting the defendant. They also each gave evidence that, amidst the fight, they saw the defendant follow the deceased to his motor vehicle and using a piece of timber, hit the deceased on the head.

4.	The defence also called three witnesses, namely: Yakam Ben, Brenda John and the defendant himself. All three witnesses gave sworn evidence. In summary, their evidence is as follows: The defendant gave evidence that, he was present at the crime scene and that, he assaulted the deceased by slapping him on his face at the store after he heard the deceased used offensive language towards his wife who was attending to the deceased and his friends at the store, but denied any involvement in the death of the deceased and further denied knowledge of how the deceased was killed. As for the other two witnesses, Yakam Ben gave evidence that, whilst she was on her way to the store, she heard a lot of noise coming from the road and she met the defendant and his wife who had left the store and were on their way to their house. The defendant was supported by his wife and his face was bleeding. And when she got to the store, she saw people chasing John Yaks. She told them she knew him and stopped them from attacking him. As for Brenda John, who is the defendant’s wife, she gave evidence that, whilst she was attending to one of the deceased’s friends at the store counter, the deceased went up to her, pushed a sausage in front of her and made some offensive remarks at her. The defendant who was standing at the side of the counter heard what the deceased said, so he pulled him to the side of the store, away from the counter. Not long after that, she heard loud noise. She could not see what was happening as the counter window was small. But she heard loud noise, and she knew there was a fight, so she switched her laptop off and had just packed it when she saw her husband walk past the counter. His face was covered in blood. She quickly closed the window of the store, went out to her husband, who had walked to the gate that led to their house at the back, his face was still bleeding heavily, she helped him, and they left the store premises whilst the fighting was still going on.

UNDISPUTED FACTS

5.	The following undisputed facts have emerged from the evidence:

•	According to the medical report, the deceased, Yasaptung James, died from traumatic brain injuries caused by blows to the left side of the head
•	Prior to his death, the deceased and his friends who had been drinking, drove to the defendant’s store at Markham Bridge. 
•	They parked on the side of the road. 
•	It was late in the afternoon.
•	The deceased and 2 others got out of the mv, went, bought sausages at the nearby market, then went to the defendant’s store to buy beer. 
•	At the store, an argument started between the defendant and the deceased. 
•	The defendant then assaulted the deceased. 
•	The deceased’s friends who were with him attacked the defendant. 
•	Others joined in 
•	A big fight broke out between those supporting the defendant and those supporting the deceased.
•	Yakam Ben helped prevent John Yaks from further assaults from people chasing him at the crime scene.  

CHARGE & ISSUES

6.	The defendant is alleged to have willfully killed the deceased. The charge is laid pursuant to 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 willful murder”. 

7.	The State has the onus of proving beyond reasonable doubt that: (1) the defendant, John Ben killed the deceased (2) the killing was unlawful and (3) that he intended to cause the death of Yasaptung James.  These are the three elements of the offence of willful murder. 

8.	State has also invoked section 7 (1) (c) of the Criminal Code alleging that the defendant is a principal offender who aided the others in killing the deceased. 

9.	Based on the allegations by the State as presented, John Ben is the only alleged offender. There was a group fight. No one else was arrested and charged in connection to the killing of Yasaptung James except John Ben. Section 7 (1) (c) speaks of a person who aids another in committing the offence. ‘Another person’ referred to in Section 7 (1) (c), in my view means an identified person who has been also arrested and charged for the same offence. It cannot mean the crowd of unidentified people. In other words, in order for the State to prove that the defendant is guilty as a principal offender under Section 7 (1)  (c) of the Code for aiding and abetting the persons that actually committed the wilful murder, the State must identify and prove all the actual persons who were directly responsible for causing the death, followed by the proof that the defendant actively aided and abetted the killing of the deceased. In this case, the defendant was the only one arrested and charged. As such, he cannot be said to be aiding another person in committing the offence as alleged. Section 7 (1) (c) in my view, has no application in this case. 

10.	The only matter I must determine therefore is whether State has proven all the elements beyond reasonable doubt against John Ben. If so, he will be found guilty of willful murder. If only the first two elements are proved beyond reasonable doubt but not the final element, an alternative verdict of murder can be considered under Section 539 (1). On the other hand, if the State cannot prove all the elements beyond reasonable doubt, he will be found not guilty and that would be the end of the matter. There will be no need for me to consider liability under Section 7, as there is no foundation for such consideration. 

11.	So, the main issues for this Court to determine are: 

1.	Did John Ben kill the deceased?
2.	Was the killing of the deceased unlawful?
3.	Did John Ben intend to cause the death of the deceased?
4.	Is John Ben guilty of willful murder?
 
12.	Issues 2, 3 & 4 will be considered if the first issue is answered in the affirmative.

13.	Starting with the first issue: Did the defendant, John Ben kill the deceased?

State Evidence

a)	Oral testimonies

Witness No. 1: Samob Kaukesa- (a Nursing Officer) 

14.	He referred to the deceased as his son. His evidence is that, at about 5pm on the 30th September 2017, he and others left Zero Block and went to the store located not far from the Markham Bridge. They travelled in a motor vehicle (mv) owned and driven by his son, the deceased. He said the mv was a Toyota Hilux double cab 5th Element, green in colour and he sat in the middle of the 2nd cabin of the vehicle. When they got to the store, the deceased stopped the mv on the left-hand side of the road, facing Lae. He got out and went to the store. He estimated the distance from where the mv was parked to the store to be about 5-6 meters. Whilst seated in the mv, he looked to the store and he saw and heard the deceased asking someone, “why did you hit me.” He said, he heard the deceased asked that man 3 times. After that, that man punched the deceased. When he saw that, he got out of the mv, went to them and told them not to fight, but they didn’t listen. They started fighting. When that man and the deceased started fighting, the boys and men who were with them, joined in the fight to help the deceased. When that happened, people who were sitting at the back of the store rushed out to help that man. They were armed with bottles and sticks, they joined in and the fight escalated. 

15.	As the fighting got worse, the deceased managed to get out and ran to his mv and got in and whilst the deceased was trying to start his mv, he saw the same person who had argued with the deceased earlier, went to the deceased, held him by his neck and head and tried to pull him out. At the same time, that person was holding onto a piece of timber which looked like 3 inches by 2 inches thick and 50- 60 cm long. He then pulled the head of the deceased out of the mv door and using maximum force hit the deceased on the left side of his head. He said he saw all of that from a short distance. He was standing in front of the mv facing them. After that, the same man who hit the deceased with the timber opened the door of the mv and pulled the deceased out and pushed him to the ground. The deceased laid on the ground facing up. As the deceased lay on the ground, others went and kicked him, whilst one short and stocky man hit the deceased with a piece of timber on his chest. By then, the deceased was motionless. When he saw that the deceased did not move after the short stocky man hit him on his chest, he thought to himself that the deceased had died. Without touching the deceased, he left the area and went to Zero block, where he told the person whose house they were at earlier that day about what happened, then they went back to the store where the deceased was still there on the ground. They picked him up and took him to the hospital.  At the hospital, they were told that the deceased was already dead. 

16.	When asked who that man was, that hit the deceased with the timber, he said, that man was fat, tall and had beard and he looked like a terrorist, like Osama Bin Ladin and he had on a round neck shirt. When asked where that person was, he pointed to the defendant, saying that is the man.

17.	Under cross examination, when it was put to him that, he did not see what happened because he ran away to safety, he said, although there was a big fight and his life was in danger, he did not run away. He wanted to observe what was going on, so he stood there and saw everything that happened.

Witness No. 2: Satrack Madu  

18.	He is a security guard with Lamadep Private Security with NKW. When asked if he knew the defendant, he said he does not know him at all and gave his evidence as follows: At about 5:30pm in the afternoon, he and others got on the deceased’s vehicle, which the deceased drove himself. He sat with others in the back tray of the vehicle. They left Zero Block and they went to the store where the fight took place. When they got to the store, the deceased parked the vehicle on the left side of the road facing Lae. As he sat there, one of the boys by the name of Roger jumped off and went to the store, and bought one bottle of beer. When Roger returned, the deceased and another boy, by the name of Onias walked around the back of the mv and went to the market where they were selling sausages. They bought a sausage each and walked to the store whilst eating the sausages. Not long after the deceased and Onias went to the store, he heard the deceased called out “why did you hit me”. When he looked to see who the deceased was talking to, he saw a big built man who was wearing a shirt with sleeves cut off, punch the deceased. He was sitting in the mv that time. The deceased was punched twice (or 3 times) at the store. When he saw that, he jumped off the vehicle which was parked about 5-6 meters from the store where the deceased and defendant were standing, went to them, held onto the deceased’s hands, told him to stop and pulled him away and helped him to his mv. As they got closer to the deceased’s mv, the tall man who had punched the deceased earlier followed them and punched the deceased a third time right next to the deceased’s mv whilst he and others were holding him. When that happened, he and the other boys on the vehicle jumped down to help the deceased and that’s when the fight broke out. Whilst they were fighting, he saw the same big tall guy go after the deceased who was already in his mv, and when he got to the mv, he tried to open the door and pull the deceased out, but he couldn’t, so, he pulled the head of the deceased out over the door of the mv and using a piece of timber, 3 by 2, about a meter or less, he hit the deceased on the left side of his head once. After that person did that, he opened the door of the mv and pulled the deceased out of his mv. The deceased tried to walk but fell. As he was on the ground, another man a short tough looking guy hit him on his stomach with a piece of 4 by 4 timber. The deceased was motionless. Then people shouted, “man die” and he ran away. 

19.	When asked where the big, tall man was, the witness went silent for a long time then when the question was asked a second time, he pointed to the defendant and said, “this man.
When asked how far he was when he saw the deceased being beaten up by the tall man, he said, he was very close, about 5-6 meters.

20.	In cross examination, he said, as the deceased and the big, tall man were arguing, he went to them, told the deceased to stop and took him. As they were walking away from the tall man, 2 other boys from their group who were already there with the deceased walked back with them. As to how long he observed how the deceased was attacked whilst in his mv, he said it took him a few seconds. As to his involvement in the fight, he admitted he also took part in the fight and that there were a lot of people there fighting, but he said he focused on the deceased and helped him to the mv.

21.	When it was put to him that it was a short stocky man that attacked the deceased and not the tall man that used the timber to hit the deceased, he said, it was a well-built man he saw.

22.	In re-examination, when asked what took place first, was it the assault with the timber or the fighting that broke out, he said, the fight that broke out and whilst they were fighting, he saw the big, tall man hit the deceased with the timber at the deceased’s mv.  

Witness No. 3: John Yaks

23.	This witness does not know the defendant by name but says he recognizes the defendant as the person from the fight. Before the fight he did not know the defendant and that he owned the store at Markham Bridge corner that they were at that afternoon. His evidence is that, it was between 5 and 6 pm. He was at the counter of the store with the deceased. They wanted to buy beer. Then, the person sitting there, pointing to the defendant, went to them, pushed him aside and punched the deceased twice on the concrete floor of the store. At that time, he was still there with the deceased but did nothing. But when the defendant punched the deceased the third time, he, and the other boys with him and from their group attacked the defendant. As they were fighting with the defendant, other people, supporters of the defendant joined in the fight against them. It was a big fight between the 2 groups and in the midst of fighting, he saw the defendant going after the deceased who was already in his mv. The defendant went to him and pulled the deceased’s head out and punched him again whilst deceased was in his mv. When he saw that, he went to help the deceased, but the defendant pulled the deceased out of the mv, and hit him with a piece of timber 3 by 2 and about a meter long, on the side of his head. The deceased fell and whilst he was on the ground, another man, who was short also hit the deceased with a piece of timber. Using that same timber, that short man also hit him on his shoulder. Others tried to attack him too but a woman there who is married to a man he knows helped him by stopping them from attacking him. He then went to Zero block, got the other boys there and they went back picked up the deceased and went to the hospital.

24.	When asked where he was when he saw the defendant hit the deceased with the timber, he said, he was standing in front of the deceased’s mv which was parked about 7 meters away, facing the store. 

b)	Documentary evidence 

25.	The following exhibits were tendered by the State and admitted into evidence by consent:

•	Post-Mortem report dated 12 October 2017 marked as exhibit P1
•	Medical Certificate of Death marked as exhibit P1A 
•	Affidavit of Dr Lucas Komnapi marked as exhibit P1B
•	Photographs identified as Pages 62 to 69 attached on 8 pages marked as exhibit P2
•	Record of Interview Pidgin version dated 11 October 2017 marked as exhibit P3A
•	Record of Interview English version dated 11 October 2017 marked as exhibit P3B
•	Statement of Senior Constable Jonathan Ansep dated 15 February 2018 marked as exhibit P4
•	Statement of Police Investigator Constable Jeffrey Kowor dated 15 February 2018 marked as exhibit P5
•	Statement of Constable Sugma Okul dated 17 October 2017 marked as exhibit P6
•	Statement of Constable Luther Aki dated 17 October 2017 marked as exhibit P7
•	Statement of Constable Andy Ikime undated marked as exhibit P8

Defence evidence

c)	  Oral testimony

Witness No. 1: Yakam Ben – Defendant’s sister	

26.	Her evidence is that, on 30th of September 2017, she was looking after the store at Markham Bridge owned by the defendant, until about 4pm, when Brenda, the defendant’s wife, got there. There were no customers when she was there. After Brenda arrived, she left. She went to the house to prepare dinner for the family. Once that was done, she left the house and was walking back to the store. It was between 5:00 pm and 6:00 pm. Halfway to the store, she heard noise of fighting coming from the store area and she also met the defendant and his wife Brenda. She said she saw the defendant’s face was full of blood and Brenda, his wife was supporting him as they walked past her and were going home while she continued to the store. As she got to the gate, which is on the side of the store, joining the fence that separates the front of the store and their area at the back, she saw Yaks who was drunk, being chased by some men. When Yaks saw her, he ran through the gate to her and called out; "Mama!" and fell in front of her. When she recognised Yaks as someone she and her husband knew, she defended Yaks and stopped those men who were chasing him from assaulting him. Then she helped Yaks up to his feet and told him to go back to Zero Block. 

27.	Under cross examination, she said, she did not see the actual fight that took place.

Witness No.2: Brenda John – Defendant’s wife

28.	Her evidence is that, on 30th September 2017 at a time between the hours of 5pm and 6pm, she was in the beer store at Markham Bridge. The store is owned by her husband, the defendant. When he got to the store from the house, he saw an empty bottle in front of the store. He picked it up went to her and told her to tell the customers not to throw their rubbish around the place. Whilst he was standing outside in front of the store talking to her, a green 5th element vehicle fully loaded with men came and stopped at the roadside. Three men got off the mv and went to their store to buy beer. She told the defendant to move so she could attend to them as their customers. When he moved, those men stood in front of the counter and one of them asked her for the price of the beer and she told him that it was K5.50 per bottle. Whilst she was waiting for them to decide, another man came from the back, shoved a sausage through the counter, right to her face and said; "eat my sausage." She quickly moved away from the encounter and the defendant, who was standing at the side of the counter, asked that man if he knew her. The man said he did not, then they started arguing and as they argued, they moved to the side of the store. When they moved away from the counter to the side, she could not see what was happening because the store counter is small. She could only hear them arguing and the noise got louder. Realising there was trouble, she bent down to switch off the laptop which was under the counter and to pack it. As she got up after getting the laptop, she saw the defendant in front of the counter. He had blood all over his face. Seeing that, she quickly closed the counter, got the laptop, went out the store and to the gate where the defendant was. His face was covered with blood. She held onto him and they left the store area whilst the fighting was still going on. She does not know what happened after they left. 

29.	As to the distance from the store to where the deceased’s mv was parked, she described the distance to be about the same as the distance from where she was (witness box) in the court room to the public gallery outside the court room. That was estimated to be 15 plus meters.

30.	When asked about how long it took between the time she lost sight of the defendant and when she saw him again with his face full of blood, she said, it was about 5-6 minutes.

31.	Under cross examination, she said, the store counter is small and the size is enough just to pass beer out to customers. And so when the defendant and the man moved to the side of the store when they started arguing she could not see. She also could not see the fight which broke out and who was fighting because she was in the store and the counter was small. She knew there was a big crowd fight because of the loud noise. From within the store, one could only see people or things if they are in front of the counter.  

Witness No.3: John Ben 	

32.	He is the defendant and final witness for the defence. His evidence is that he is a freelance biologist but currently employed by South Pacific International Container as the Environmental Manager. He has been residing at his own area. He owns a portion of land up at Markham Bridge area, adjacent to the main Markham Bridge. The size of the land is about 9.5 hectares. He has been residing there since his return from Port Moresby in 2006. Whilst there he provided consultancy services with respect to environmental issues to the communities along the Huon coast in Morobe Province. He was doing that since 2006 up until the incident.

33.	As to the reason why he is in Court, he said, he is there because he was accused of committing willful murder against another person on 30th September 2017, which he says is not true. He says, on that date and at a time between 5pm & 6 pm, he left his house and went to the store to check the affairs of the store as he always does. As he reached the front of the store, he saw an empty bottle wine just adjacent to the main road so he picked it up, and went to the counter of the store and told his wife not to allow people to drink in front of the shop because it was a take-away-shop. As he was talking to his wife, he saw a mv, a double cab utility, green in colour, full of people, drove by, stopped on the side of the road about 10-15 meters away from the store and some men got off the back of the mv and walked towards the shop. They had been drinking. He then moved aside and gave way to those men as his customers. He observed them from the side of the counter where he stood. They wanted to buy beer and were talking to his wife about the prices. They were rowdy, but his wife who was in the store attended to them at the counter. As he stood there observing, one of those men shoved a sausage right in front of his wife’s face and told her to eat his sausage. When he saw that and heard what that man said to his wife, he got angry, he stepped in, argued with that man and assaulted him by slapping him. When he did that, those men who were there with the man he assaulted at the store, together with others attacked him. He fought back but there were so many of them and one of them hit him on his face with a bottle which cut his face causing heavy bleeding. He tried to fight back but the blood got into his eyes making it difficult to see and as he was still fighting, others joined in the fight on his side against those men that attacked him. Realizing that others had joined the fight to help him, he saw that as an opportunity to escape to safety, so he continued to fight back but at the same time he moved away from the crowd and moved slowly to the gate to his area which is about 4-5 meters from the store and 18-20 meters to where the mv was parked. His wife caught up with him and supported him and they left the store where the fight was still going on. On their way home, they met his sister coming from the house and heading to the store.

34.	At about 10 o’clock in the night, some policemen went to their house and told them not to leave. Then at about 2am the next day, the same police men went back to their house and told him that a man was killed at the main road and that he and his family were not safe to stay at their home and that they should leave the area, so he left with his family. Then at about 4am, his sister rang him and told him that people went to their place and burnt down everything he owned, including the store.       

35.	In cross examination, he said, he owned the store where the fight broke out. Before the fight broke out, he was at the store to provide security to his property and his wife who was working in the store. He was not drunk, and he did not kill anyone. He said, when he got upset with the man who shoved the sausage to his wife’s face, he slapped that man whom he later discovered was the deceased. He did not punch him. He only slapped him and when he did that, the man’s friends who were there with him and others all attacked him. He was by himself. He was not in a group. He fought back by himself. During the fight, one of them hit him with a bottle on his face. His face was bleeding heavily. He could not see well from the blood dripping into his eyes, making it difficult for him to see and fight back. By that time, other people who he did not know joined in the fight on his side against those men that attacked him. When that happened, he saw that as an opportunity to get out to safety and he did that. Whatever happened after he left, he had no idea. He only learnt about the death of the deceased the next morning at 2am when the police went to his house and told him about it. 

CONSIDERATION

36.	The allegation by the State in summary is that a fight broke out between the deceased and the defendant at the defendant’s store premises after the defendant hit the deceased several times on his face. That fight escalated when friends and supporters of both sides joined in. When that happened, the deceased went to his mv and was going to drive off when the defendant caught up with him, grabbed him by his neck, forced his head onto the base of the door of the mv which was still locked and using a piece of 3 by 2 timber about 40-50 centimeters long, struck him very hard on his head. That caused the death of the deceased. Three eyewitnesses were called to prove that. 

37.	The defendant, on the other hand admitted to assaulting the deceased at his store, but he denied following the deceased to his mv and hitting him on his head with a 3 by 2 timber.

38.	According to the postmortem report, (Exhibit P1) the deceased died from traumatic brain injury due to a blow to the head by a blunt force. This is not disputed. 

39.	What is disputed is the defendant hitting the deceased on the head with a piece of timber causing the traumatic brain injury. That is the issue I must determine first. Did the defendant cause the traumatic brain injury sustained by the deceased? The three State eyewitnesses said they saw the defendant hit the deceased on his head with a 3 by 2 timber which caused the brain injury that led to his death. The defendant himself and supported by his two witnesses denied doing that. He said he left the area where the fight was as soon as he could after he himself was cut in the face by friends of the deceased who attacked him with a bottle. Clearly, there are 2 conflicting stories. 

40.	Given that, I must first decide which version of story to believe and accept. That would determine whether it was the defendant who caused the brain injury and that would ultimately determine the main issue of whether it was the defendant who killed the deceased. 

41.	In order for me to decide on which version of story to accept, I would have to assess the evidence before me.

ASSESSMENT OF EVIDENCE

42.	All 3 State witnesses’ evidence go to the identification of the defendant. They all say he is the person they saw hitting the deceased on his head with a piece of timber. 

43.	Before I proceed to assess the quality of their evidence and that of the defence, it is necessary to state here the principles of law on identification.

44.	The law on identification is settled.  The leading authority on point is the Supreme Court case of John Beng v The State [1977] PNGLR 115. In relation to the dangers of identification evidence, the Supreme Court said:
“In proceedings where evidence of identification is relevant, the Court should be mindful of all the inherent dangers, the need for caution before convicting in reliance on the correctness of identification, the possibility that a mistaken witness could be a convincing one and that any number of such witnesses could all be mistaken; the Court should examine closely all the circumstances in which the identification by each witness came to be made bearing in mind that recognition may be more reliable than identification of a stranger, but that even where the witness is purporting to recognize someone he knows mistakes can be made.

 When the quality of the identification evidence is good the matter should   proceed to a verdict, when the quality of identification evidence is poor, unless there is other evidence which goes to support the correctness of the identification, an acquittal should be entered.”
(emphasis added)

45.	I now proceed to assess the evidence, bearing in mind, the inherent dangers of relying on the correctness of identification to support the conviction and warn myself to be cautious in dealing with identification evidence. 

46.	Mr. Done of counsel for the State submitted that, I should believe all 3 State witnesses and reject the Defence evidence on the following basis: Firstly, the defendant himself had a motive to kill because of what the deceased did to his wife, so what he said in Court were all lies. If there were any truth in what he said in Court, he did not say those during the police interview. He chose to remain silent instead, and the consequence of that is that the State’s case has been strengthened given the lack of rebuttal to vital matters. Secondly, Brenda, the defendant’s wife, is also a liar and should not be believed, because she denied that there was ever, a fight but yet, she was there in the store when the fight broke out and all the witnesses, including the defendant himself, said there was a fight. Her evidence does not make sense and is not logical. And lastly, Yakam Ben’s evidence has no probative value as she was never at the crime scene.

47.	On the other hand, Mr. Done submits, I should believe all 3 State witnesses, on 2 bases. The first is that each of them told a story that connects the defendant to the killing given the continuity of all 3 of them seeing the defendant continually assaulting the deceased from the front of the store to the deceased’s vehicle. They all gave evidence in a very logical manner on the events from start to the end on how the deceased was killed. Secondly but more importantly, Mr. Done submits, the Defence did not destroy any of their evidence in cross examination. All their evidence remained intact and therefore must be accepted as the true version of what had happened and accordingly, a verdict of guilty be returned on the indictment.

48.	I propose dealing with the issue at hand by addressing Mr. Done’s submissions first. I start with the argument that the evidence by the defendant himself should not be believed for reasons that, firstly, he had a motive to kill and secondly, what he said in Court is all made up because he did not tell his story during the police interview. He remained silent. So, this Court should not believe him now.

49.	I find the second reason misleading. The defendant did not remain silent during the police interview. The interview was done on 2 different days. It commenced on 11th October 2017 at 1.54, suspended at 2.40 that day and resumed on 15th February 2018. He told the police his side of the story on the first day of interview, and it is very much the same story he gave in Court. That can be seen in the ROI Exhibit P3B, Q & A 29 & 30.  Looking at the questions leading up to questions 29 & 30, the defendant was charged before the allegations were put to him and when he was asked to respond to the charge, his response was what he told this Court at trial. Q & A 31 shows the interview was suspended after he gave his story of what happened. When the interview resumed in February 2018, he was asked the same question again, (Q.34) about his involvement in the willful murder of the deceased and his response was, “I already stated to you after you charged me”. His response to all the questions after Q.34, “I will remain silent”. It is not difficult to see why he said he would remain silent after his answer to Q.34. Clearly, he was annoyed with the questions he was asked when the interview resumed on 15 February 2018, about 4 months later. The questions that followed which he exercised his right to remain silent throughout were really a breakdown of what he had already said in response to the charge that he willfully killed the deceased. The same story he gave in Court. I find nothing wrong with his election to remain silent about the other questions. The conclusion reached by the State for the defendant’s election to remain silent is baseless. The defendant’s explanation is in his answer to Q:34 which reads: 

Q: Can you tell me about your involvement in that wilful murder of deceased Yasaptung James at the front of your store ‘Markham Bridge Trading’ dated Saturday 20th September 2024 at time between 5.30pm and 6pm and his answer which reads: 
A: I already stated to you after you charged me. 

50.	As for the argument that the defendant should not be believed because he has a real motive to kill the deceased, I also find this argument baseless. The defendant admits to assaulting the deceased at the store and his explanation for that is, he was provoked by the offensive words used by the deceased towards his wife who was in the store serving him (deceased) and his friends. To argue that, that was the motive for the defendant to kill the deceased, in my view, is farfetched, given the evidence by all 3 State witnesses which confirms the defendant’s evidence that, soon after he assaulted the deceased for being rude to his wife, he was attacked by all those who were with the deceased, which resulted in others joining in the fight. (emphasis added)

51.	As for Brenda John, the defendant’s wife, again, I find the State’s argument in support of its submission why I should not believe her misleading. Her evidence is that she did not see the fight taking place, but she did hear a lot of noise outside and knew there was trouble. As to why she did not see the fight, she explained that she was inside their store which has a small window and a counter to serve customers. So, her visibility from inside the store is limited to what’s in front of the counter only. Anything on the sides of the counter is not visible. Given that, I find nothing wrong with her evidence. Her explanation is clear as to why she did not see the fight and most especially why she did not see the defendant assaulting the deceased. It is not because she was covering up for her husband, but it is because they had moved to the side of the store, where she had no visibility. 

52.	As for the State’s argument that, Yakam Ben’s evidence has no probative value as she was not at the crime scene, it is not disputed that, she was not there when the fight broke out, but her evidence does have value in that, it corroborates the evidence of both the defendant and his wife. Her evidence is that she met the defendant and his wife on her way to the store to see what the noise was about. When she saw the defendant and his wife, they had left the store and were heading home. She saw the defendant was bleeding heavily, and his wife was supporting him as they walked home. She also said, as she got to the store, she saw some men about to attack John Yaks (State’s last witness) and because she knew John Yaks, she stopped those men from attacking him. John Yaks confirms that. In his evidence he said, a short man, using the same piece of timber, that he (a short man) had hit the deceased with, also hit him on his shoulder whilst others tried to attack him too but a woman there helped him by stopping them from attacking him. 
Based on that, I disagree with the State’s argument that the evidence by Yakam Ben has no value. On the contrary, it has a lot of value. It confirms a crucial matter and that is, the defendant and his wife left when the fighting was still on, which is confirmed by John Yaks.

53.	Moving now to the State witnesses. To the extent that the Defence did not destroy the State witnesses’ evidence in cross examination, I agree with Mr. Done. However, I do not agree that because of that, I should find them as truthful witnesses or that I should accept their evidence to be the true version of what happened on that fateful afternoon for three (3) reasons: firstly, because their evidence do not support each other, secondly, they are contradictory and lastly, they go against logic and common sense. 

54.	I start with the evidence of Samob Kaukesa. He said, whilst seated in the middle of the 2nd cabin of the deceased’s vehicle which was parked about 5-6 meters from the store, he heard the deceased asking someone, “why did you hit me,” but yet, John Yaks, who was with the deceased at the store counter, the closest to the deceased said nothing about that. Common sense dictates that, one would expect John Yaks who was with the deceased to hear him utter those words. But Yaks didn’t. It makes no sense that someone who is about 5-6 meters away can hear the deceased utter those words but not the person closest to the deceased. That is incredible. It was also Kaukesa’s evidence that, when he heard the deceased uttered those words, he looked to the store and saw a man, he later identified to be the defendant, punched the deceased and when he saw that, he got out of the mv, went to them (deceased and the defendant) and told them to stop fighting, but they didn’t listen. The deceased fought back and the fight continued between them, then others joined in and the fight got worse. Again, the story that he went on and tried to stop the fight between the deceased and the defendant, and that the deceased fought back is not supported by the other 2 witnesses. Most especially John Yaks, who was with the deceased. He never said anything about Kaukesa going to them and trying to stop the defendant and the deceased from fighting, nor anything about the deceased throwing punches back at the defendant. If what Kaukesa said were true, why didn’t John Yaks say that in his evidence. He was with the deceased when the incident started. Again, it makes no sense that, John Yaks who was with the deceased said nothing about Kaukesa going to stop the fight and that the deceased fought back. John Yaks’ evidence is that the deceased was punched 3 times. On the 3rd punch, he and the others who were with the deceased at that time attacked the defendant. This evidence contradicts that of Kaukesa but confirms the story by the defendant himself. The only thing that he (Kaukesa) said which is consistent with John Yaks as to what happened at the store area is that the fight got bigger when John Yaks and the other friends of the deceased joined in the fight to help the deceased, and others joined in to help the defendant. After the fight got bigger this witness said nothing about what he himself did next or where he went. When his story continues, he is in front of the deceased’s vehicle. He said there, he saw the deceased move away from the fight, ran to his mv, got in and whilst he was trying to start his mv, the defendant holding onto a piece of timber 3 inches by 2 inches thick and 50- 60 cm long, went to him (the deceased) held him by his neck pulled his head out of the mv door and using maximum force hit the deceased on the left side of his head. He saw all that during the fight which he himself said had gone worse. In other words, this witness who calls the deceased his son, who was in the middle of a big fight, had no fear of being attacked, stood there and watched his son being attacked in detail and did nothing to help. The question I ask is, is that possible? Common sense would dictate that it is not possible for someone to be in the middle of a fight in a big crowd unharmed and able to see every detail as this witness said he did. This is too incredible. I do not believe this witness is telling the truth. I think he ran for safety and did not see anything because it makes no sense for him firstly to be just standing there and watching a fight involving a large group without feeling scared of being attacked and secondly noting everything in detail and thirdly but more importantly, he says the deceased is his son. Why would a father stand by and watch his son being attacked in the way he described. Common sense would dictate that; as a father, he would react to helping his son. But he did nothing. Against this version, is the defendant’s evidence which I find is more logical in that, as soon as he assaulted the deceased, he was attacked by a mob and whilst trying to fight them all on his own, his face was smashed with a bottle, and he was bleeding profusely making it difficult for him to see. The evidence of John Yaks is that he and the others ganged up on the defendant when he punched the deceased the third time. This to my mind confirms the evidence by the defendant that because of the attack on him, he was disoriented from the blow to his head. And his face profusely bleeding did not help his vision. So, if that was the condition, the defendant was in, how then can he, whilst in such a state, be able to see the deceased in the crowd and follow him to the mv, then find a timber, then pull the deceased’s head out of the mv and hit him. The description by this witness of the defendant doing what he said he saw is one that does not fit someone who is injured. 

55.	The next witness is Satrack Madu. When asked if he knew the defendant, he said he does not know him at all but yet he said, he also saw the defendant hit the deceased with a piece of timber which he also described exactly as Kaukesa did. The question is, did he really see the defendant hit the deceased. Like Kaukesa, his evidence too is that, whilst seated in the deceased vehicle, in the back tray, he heard the deceased called out “why did you hit me”, but yet, John Yaks who was with the deceased when accused punched the deceased, said nothing about the deceased questioning the accused why he hit him. How is it that John Yaks who was with the deceased, did not mention this but this witness who was in the same vehicle as Kaukesa, which is about 5-6 meters away heard that. And like Kaukesa, this witness also said when he looked to see who the deceased was talking to, he saw a big built man who was wearing a shirt with sleeves cut off, whom he later said was the defendant, punched the deceased. He said, the deceased was punched either twice of 3 times and when he saw that, he jumped off the vehicle went to them, held onto the deceased’s hands, told the deceased to stop and pulled him away and helped him to his mv. As they got closer to the deceased’s mv, the defendant followed them and punched the deceased a third time right next to the deceased’s mv whilst he and others were holding him. When that happened, he and the other boys on the vehicle jumped down to help the deceased and that’s when the fight broke out. Clearly, this last statement contradicts what this witness said earlier. That is, he jumped off the vehicle and went to where the defendant and the deceased were, then he held the deceased and brought him back to the vehicle after witnessing him being punched twice or 3 times by the defendant. This witness’s evidence not only contradicted Kaukesa but also John Yaks on one important aspect. That is, Kaukesa said, when he saw the defendant punch the deceased, he got out of the vehicle and went to the deceased and the defendant and told them not to fight, but they did not listen and continued to fight resulting in the others joining in, and in the midst of the big fight, the deceased got away from the crowd and went to his mv himself. Madu on the other hand said, when he saw the defendant punched the deceased the second time, he went to them and pulled the deceased away from the defendant and he (Madu) and 2 others held the deceased and as they were escorting him to the mv, the defendant went after them and punched the deceased a third time before the deceased got into the mv. Both Kaukesa and Madu speak of going to the deceased whilst he was still at the store where Yaks was also there, but none of them acknowledge each other’s presence. They speak as if they were attending to 2 different people. Then one goes on to say, he held onto the deceased with 2 others and they walked the deceased to his mv whilst the other witness said the deceased managed to get out of the crowd fighting and walked himself to the mv. And what is more interesting is, John Yaks who was with the deceased said nothing about wither of those 2 witnesses going to help the deceased who he was with when the defendant assaulted him. To my mind this is a serious contradiction. It creates the uncertainty as to what the Three (3) State witnesses say they saw. It makes no sense at all. Kaukesa says he left the mv to go stop the fight between the deceased and the defendant, Madu who was also in the mv says he left to go pull the deceased away from the defendant but says nothing about Kaukesa being there and Yaks who was with the deceased says nothing about those 2. That makes the State evidence weak and more unbelievable.

56.	The final State witness is John Yaks. He was with the deceased at the store when the defendant assaulted the deceased. Being the person who was with the deceased, he would be the one in the best position to know what happened there at the store area. His evidence in essence is that, the defendant punched the deceased 3 times, then he and those with him and the deceased ganged up on the defendant when he punched the deceased the third time. However, his evidence does not support either Kaukesa nor Madu on the following crucial matters: 

1.	the deceased questioning the defendant why he punched him. Yaks said nothing about that.
2.	Kaukesa going to both the deceased and the defendant and telling them not to fight. Yaks was there with the deceased but said nothing about Kaukesa telling them not to fight. 
3.	Madu going to the deceased and the defendant and pulling the deceased away from the defendant. Again, Yaks was with the deceased but says nothing about Madu doing that. 
4.	the boys trying to stop the defendant from further assaulting the deceased. He said the defendant punched the deceased 3 times at the store. On the third punch, he and his boys attacked the defendant, then everyone joined in the fight and it got worse.	

57.	As to what happened at the vehicle, like the other 2 witnesses, Yaks said whilst they were fighting, he saw the defendant go after the deceased who was already in his mv, and when he got to the mv he pulled the deceased’s head out and punched him again whilst deceased was in the mv. When he saw that, he went to help the deceased, but the defendant pulled the deceased out of the mv and hit him with a piece of timber 3x2 and about a meter long, on the side of his head. That caused him to fall. This evidence contradicts what the other 2 witnesses said. Their evidence is that the defendant pulled the deceased’s head out of the mv window and hit his head with a piece of timber. Apart from John Yaks’ evidence being contradictory, I find his evidence to be incredible as well, in that, a person who is in a fight involving so many people, was able to see exactly what someone else did in detail. Logically, that is not possible. And what is more incredible is his evidence that he stood in front of the deceased’s mv which was facing the store and observed the assault that took place at the mv. That would mean he had his back to the store where the fight started, and it was still going on. Most illogical and nonsensical thing for someone to do that, when you are exposed to danger. It is incredible. It is also incredible that, this witness is able to stand there and do nothing to help the deceased who he claims to be beaten up by the defendant right in front of him. Logically, someone standing in his position would jump in to help his friend, but this witness just stood there and observed. Incredible. 

CONCLUSION

58.	After considering and assessing all the evidence and submissions from each side, I have reached the conclusion that the State evidence together cannot be believed as there are inconsistencies, contradictions and mostly not logical on crucial matters to place the defendant there. In other words, the quality of the evidence by the State is poor because of inconsistencies, contradictions and they make no real sense on crucial matters. Also, State has not ruled out the possibility that it could have been the short stocky man who all 3 State witnesses referred to in their evidence that, they also saw hitting the deceased with a timber. On the other hand, the defence evidence tells a logical story which I believe. Accordingly, I find, State has not proven beyond reasonable doubt that the defendant, John Ben was the one who hit the deceased on his head with a piece of timber that resulted in his death.

59.	Having determined that State has not satisfied me beyond reasonable doubt that it was John Ben who killed the deceased, that is the end of the matter.  
 VERDICT
60.	John Ben is found not guilty.

61.	Verdict accordingly.
____________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the accused: Public Solicitor