The State v Emmanuel Bais and Felix Fimberi (2003) N2416

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 11 June 2003
• Court: National Court
• Citation: (2003) N2416
• Year: 2003
• Judgement Number: N2416

Full Title: The State v Emmanuel Bais and Felix Fimberi (2003) N2416

National Court: Kandakasi J

Judgment Delivered: 11 June 2003

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1483 & 1529 of 2002

THE STATE

-V-

EMMANUEL BAIS AND FELIX FIMBERI

WEWAK: KANDAKASI, J.

2003: 10th and 11th June

CRIMINAL LAW - Verdict – Attempted murder or alternatively grievous bodily harm – Issues for trial as settled at pretrial identification only – Before commencement of trial defence of alibi also raised – Oral indication of intention to kill but action not consistent with that intention – Charge of attempted murder dismissed but the charge of grievous bodily harm could be sustained – Prosecution’s evidence found credible – No reason to find prosecution’s witnesses evidence on identification mistaken – Defence evidence on alibi found containing inconsistency and not logical and not in line with any commonsense – Effect of – Corroborates State’s case - Guilty verdict on alternative charge of grievous bodily harm return – ss. 304 & 319 of the Criminal Code.

CRIMINAL LAW – PRACTICE & PROCEDURE – Identification an issue for trial – Witness recognising known person - Witness coming face to face with accused – Daylight just breaking – Accused not masked –No reason to falsely testify against accused – Raising alibi after conclusion of pretrial and before trial – Evidence of alibi found incredible – Effect of - Supports prosecution case – Prosecution evidence on identification accepted as credible – Need to warn of dangers of purported identification - Court satisfied that the accused were positively identified as persons involved in the robbery – Guilty verdict returned - Criminal Code ss.386.

Cases Cited:

The State v Cosmos Kutau Kitawal & Anor (No 1) (15/05/02) N2266.

John Jaminan v. The State (No.2) [1983] PNGLR 318.

The State v. Tauvaru Avaka & Anor (2/11/00) N2024.

Gibson Gunure Ohizave v. The State (26/11/98) SC595.

John Beng v. The State [1977] PNGLR 115.

The State v. Raphael Kimba Aki (26/01/01) N2039.

John Beng v. The State [1977] PNGLR 115.

The State v. Raphael Kimba Aki (26/01/01) N2039.

Regina v. Joseph Kure [1965-66] PNGLR 161.

Counsel:

Mr. P. Kaluwin for the State

Mr. G. Korei for the Accused

11th June, 2003

KANDAKASI J: Emmanuel Bais and Felix Fimberi, both of you pleaded not guilty to a charge of attempted murder contrary to s. 304 and in the alternative, a charge of grievous bodily harm contrary to s. 319 of the Criminal Code. You were alleged to have committed the offence here in Wewak on 4th of June 2001 against a person called Patrick Lama.

Issues for Trial

At pretrial both of you confirmed through your lawyer that the only issue for trial was identification. But before the trial commenced, you also raised the issue of alibi by filing a Notice of Alibi on the date of the trial. So the issues then for trial were both identification and alibi. Effectively, therefore you claimed that you were not at the scene of the crime at the time of its commission as you were elsewhere. The State thus had the obligation to prove that you were there at the scene of the crime at the time of the offence and committed the offence. All other aspects of the charge against you are not in dispute.

The Evidence

The State called Patrick Lama, the victim to establish the charge against you. In addition, it admitted into evidence your respective records of interview both in their English and Pidgin versions (exhibits “A1”, “A2” and “B1” and “B2”) and a medical report by Sister Joseph dated first July 2001 (exhibit “C”) with your consent. On your part, both of you gave evidence under oath and called three witnesses in a bid to establish your claim of alibi.

Mr. Lama identified you two as the persons who committed the offence against him in revenge of his son, a Joshua stabbing your brother Caleb with a knife on the previous day. Your testimony is that you were not at the scene of the crime committing it but were in your respective houses. Then you headed to and were at Tony Bias’ house at the time of the alleged offence. From the evidence, there are some areas of agreement in that there is no dispute and I find them as undisputed facts.

Firstly, you and Mr. Lama all live in the same area here in Wewak, Perigo, with you living in the Tuonumbo camp whilst Mr. Lama lives at the DCA compound. There is a distance of about 400 meters apart. Secondly, Mr. Lama’s son, Joshua stabbed your brother Caleb on Sunday, the day before the commission of the offence you are charged with. Thirdly, there was a retaliatory attack by the Tuonumbu community in the morning of 4th of June 2001. Both of you and nearly all of your witnesses except for one, belonged to the Tuonumbu community. Fourthly, the attack resulted in injuries to Mr. Lama. His injuries consisted of a fracture of his left tibia and fibula and a fracture of olecranon (elbow bone area). Fifthly, there were attempts to resolve the matter amicably through mediation at the community level but you did not want to participate because of your claim that you were not involved. Finally, consistent with your attitude, you declined to answer all of the questions put to you about the incident by the Police in your respective records of interview. You also failed to put your claims of alibi to the Police during the record of interview as you chose to remain silent and tell only the Court about it. It is therefore a claim that has been introduced on the day of the trial.

A decision on your guilt or innocence is depended on which side’s evidence the Court accepts in relation to the disputed facts. That decision can only be arrived at after carefully considering the accounts of each of the witnesses’ evidence, testing against logic and commonsense and their demeanor in the witness box. Accordingly, I will now proceed to consider the evidence, assess them and decide which version I should accept.

State Witness – Patrick Lama

Mr. Patrick Lama’s testimony is the only oral testimony for the State. He said he has been living at Perigo for more than 30 years now. In the early morning hours of 4th of June 2001, he was sleeping in his house when he was disturbed by the sound of people cutting down his bettlenut and banana trees and breaking his house. He heard Felix Fimberi’s voice, which he knew well because of numerous contacts with him socially and as part of the community they were living in prior to the incident. Felix was heard saying “kill them, fight them”. He could sense that you were serious and he was frightened upon hearing that. Then he got out of his sleep and came down from his house with his wife and a child following him. He went and sat on the veranda of his house. As he did, he was surrounded by a group of men led by you, Felix Fimberi. He therefore got up and you Felix asked, “Do you teach your child?” The witness responded “I used to teach him but the child is now big”. Thereupon he said, you, Felix ordered your group of men to hit him. Emmanuel Bais complied by throwing a stick at him aiming for his head. He tried to avoid that with his hand resulting in a fracture of his hand. That was followed by an iron, which was pulled up by a Denis Sasaro, which landed on his right leg breaking it. Soon thereafter, you and your group of men left the scene leaving him in pain.

Mr. Lama stated that the attack on him happened as the day was breaking and the moon light was still on and he estimated the time was about 5:30 am and it lasted about 30 minutes when asked to estimate both the time of the attack and its duration. He also stated that the distance between him and you were about a meter away. He also said he knows Emmanuel Bais and Denis Sasaro well. Further, he said none of you wore any masks or anything like that to cover your faces. Therefore, he had no difficulty in identifying all of you. He further stated that he could not identify the others, as he does not know them well enough and that they were further away from him and you.

He said furthermore that the attack as far as he could gather, was in retaliation to his son, Joshua stabbing your brother Caleb with a knife. That started with Joshua having an argument with one of your relative’s wife Walina and him (Joshua) kicking her. So your relatives attacked Joshua and he responded with the stabbing of Caleb. Hence he said, if you had come and attacked Joshua, it would have been alright but your attacking him, an innocent man was not so.

Still further, this...