The State v Kelly Minong

• Jurisdiction: Papua New Guinea
• Judge: Anis, AJ
• Judgment Date: 10 May 2016
• Citation: (2016) N6271
• Court: National Court
• Year: 2016
• Judgement Number: N6271

Full : CR NO. 730 OF 2013; The State v Kelly Minong (2016) N6271

National Court: Anis, AJ

Judgment Delivered: 10 May 2016

N6271

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 730 OF 2013

THE STATE

V

KELLY MINONG

Kokopo: Anis, AJ

2016: 17, 18, 21 March & 10 May

CRIMINAL LAW - accused charged with wilful murder under section 299 of the Criminal Code Act Chapter No 262 - State invoked section 7 - identification - sole witness for the prosecution - dangers and requirements discussed

CRIMINAL LAW - intention to kill discussed - pre-planned killing - evidence covered conduct of the accused during and after commission of offence

CRIMINAL LAW - defence of alibi - many crucial inconsistencies than consistencies - prosecution able to disproved the defence of alibi

PRACTICE AND PROCEDURE - confessional statements tendered by consent that were not confessions- exceptions to hearsay rule discussed - hearsay evidence already before the court - court's role under such circumstances discussed.

PRACTICE AND PROCEDURE - record of interview - not counter-signed by accused but tendered by consent - its admissibility discussed - statements in record of interview contrary to sworn evidence of accused - accused not asked to clarify inconsistencies at trial

Facts

The State charged the accused with wilful murder of one Hubert Valaval. The accused denied committing the offence and said at the time of the killing, he was elsewhere and not at the crime scene. The defence said the only time the accused was at the crime scene area briefly was after the killing which, the defence said, was when the accused was mistakenly identified as one of the persons who killed the deceased.

Held

1. 'Confessional statements' tendered by consent at trial that are in fact not confessions, are evidence already before the Court, but the Court may exercise its powers in the interest of justice, and where necessary disregard or give no weight to them.

2. 'Confessional statements' tendered by consent that are not confessions but nevertheless are applied by a trial Judge and weighed against sworn or independent evidence that are properly before the Court in relation to crucial issues before the Court, can amount to improper use or application of evidence which could ultimately lead to miscarriage of justice.

(Cases followed: Keko Aparo and Ors v. The State (1983) SC249; Ishmael Pavo Wrakuhan v. The State (2007) SC895)

3. In the present case, two documents tendered as confessional statements, which were the sworn statements of David Bani and Raymond Kumaina, were in fact not confessions and they contain contentious facts. Therefore, the Court disregarded or gave no weight to them against the sworn or independent evidence adduced herein.

4. A record of interview that is tendered by consent of the parties at trial, which is not counter-signed by the accused, is good evidence before the Court for consideration provided there is evidence, which shows that the record of interview was legally obtained. For example, police must afford the accused his or her constitutional rights. Police must read out or translate the statement to the accused at the end of the interview. The accused must understand and agree with the content of the statement. The interviewer and corroborator may give sworn evidence or file statements to support the admissibility of the record of interview in question. (Cases followed: State v. Goi Mubin [1990] PNGLR 99; State v. Benjamin Garo (1996) N1521; The State v. Peter Raima [1993] PNGLR 230).

5. In the present case, the record of interview, despite the fact that the accused had refused to sign it, was admitted by consent and it was supported with sworn statements from the two police corroborators, and therefore it was regarded as good evidence properly before the Court.

6. The accused's alibi had many crucial inconsistencies than consistencies and was disproved by the prosecution.

7. The prosecution's key witness Lucy Hubert was a truthful and honest witness who gave accurate accounts of the event as it had unfolded.

8. The Court found the accused guilty of wilful murder.

Cases Cited:

Ilai Bate v. The State SC1216 (2012)

Ishmael Pavo Wrakuhan v. The State (2007) SC895

John Beng v The State [1977] PNGLR 115

Keko Aparo and Ors v. The State(1983)SC249

State v. Goi Mubin [1990] PNGLR 99

State v. Benjamin Garo (1996) N1521)

The State v. Michael Nuli (2011) N4198

The State v. Peter Raima [1993] PNGLR 230)

The State v. Raphael Kuanande [1994] PNGLR 512

The State v. Stanis Gala (2005) N2846

Counsels:

Ms T. Aihi, for the State

Ms J. Ainui, for the Accused

VERDICT

10 May, 2016

1. ANIS AJ: The State (prosecution) indicted Kelly Minong (accused) with one count of wilful murder under section 299 of the Criminal Code Act Chapter No 262 (Criminal Code). The prosecution also invoked section 7 of the Criminal Code.

2. The Court conducted the trial on verdict on 17, 18 and 21 March 2016, and reserved its ruling.

3. This is my ruling.

INDICTMENT

4. The indictment reads in part:

"Kelly Minong of NODUP, RABAUL, EAST NEW BRITAIN PROVINCE, stands charged that he the said KELLY MINONG and others on the 14th day of July 2011 at Nodup Village, Rabaul in Papua New Guinea, wilfully murdered on Hubert Valaval."

BRIEF FACTS

5. The prosecution allege that on 14 July 2011 at about 10pm the accused and other men assaulted Hubert Valaval (deceased) and killed him. The other men include David Bani, Raymond Kumaina, Raphael Purpur and Warda Karik, The incident occurred at sea close to the beach next to Nodup village in Rabaul. The prosecution allege the accused and others pre-planned the killing because they waited along the beach and when the deceased arrived in his canoe after fishing out at night, the accused and the others went into the sea and attacked him. Witness Lucy Hubert, the prosecution allege, heard people on the beach yelled " kilim em, kilim em" and screams coming from the deceased. The prosecution allege Lucy went down to inquire and there she witnessed the attack and killing of the deceased.

6. The accused denied the charge and raised a defence of alibi.

MAIN ISSUES

7. I have identified three (3) main issues herein. They are:

(i) Whether the prosecution has disproved the defence of alibi beyond reasonable doubt.

(ii) Whether the prosecution has proven beyond reasonable doubt that the accused was part of the group of men that assaulted the deceased that night at Nodup beach.

(iii) Whether the prosecution has proven beyond reasonable doubt that the accused wilfully murdered, or participated in the wilful murder of the deceased.

PROSECUTION'S WITNESS

8. Lucy Hubert (Lucy) is the deceased's sister. Lucy is the prosecution's only witness. She gave sworn evidence at trial.

9. Let me summarise her evidence here: - Lucy said she was at her house next to Nodup beach on the night of 14 July 2011. She said at about 10pm she heard screams coming from the beach and she said she recognised the deceased's voice as one of the voices. She said she immediately ran down to the beach.

10. She said the moon was up in full and bright enough for her to see what was happening. She said she stood 3 meters away from what she described as a fight that was happening at the shallow part of the sea, between the deceased and some men. She said she saw the accused, David Bani, Raymond Kumaina, Raphael Purpur, Warda Karik and some other men whom she could not identify, fighting the deceased out in the sea. She said she walked into the water, stood 2 meters away from the fight and she tried to stop them. She said from 2 meters away, she saw and recognised the accused, David Bani, Raymond Kumaina, Raphael Purpur and Warda Karik. She said she recognised them because they were all from the same village. She said when the attackers saw her, the accused, Raymond Kumaina, Raphael Purpur, Warda Karik and some other men whom she could not recognise, left David Bani and the deceased and they retreated back onto the beach and stood under a tree not far from the beach. She said David Bani left the deceased soon after and returned to the beach. She said she was left with the deceased in the sea water.

11. She said she could tell that the deceased was seriously wounded because she could see the deceased's intestines floating on the seawater. She said she assisted by pulling the deceased back onto the beach. She said not before long, David Bani returned with a knife and tried to cut the deceased. She said she stood in his way and only the tip of the knife cut the deceased's head. She said the four men including the accused who had retreated under the tree threw stones at her and the deceased at that time and she said she heard them shouting "Kilim em Kilim em". She said one of the stones struck her on her leg. She said David Bani left shortly after and teamed-up with the others including the accused and they left to the other side of the beach. She said they tried to help the deceased but he died where she had left him on the beach at about 1am in the morning.

DEFENCE'S WITNESSES

12. The...