The State v Moses Nasres (2008) N3302

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 25 March 2008
• Citation: (2008) N3302
• Docket Number: CR NO 1365 OF 2006
• Court: National Court
• Year: 2008
• Judgement Number: N3302

Full Title: CR NO 1365 OF 2006; The State v Moses Nasres (2008) N3302

National Court: Cannings J

Judgment Delivered: 25 March 2008

N3302

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1365 OF 2006

THE STATE

V

MOSES NASRES

Kimbe: Cannings J

2007: 5, 6 December

2008: 25 March

VERDICT

CRIMINAL LAW – trial – wilful murder – Criminal Code, Section 299 – identification evidence – alibi – whether the accused intended to kill the deceased – assessment of the accused’s state of mind.

The accused was indicted for the wilful murder of a 30-year-old man. It was undisputed that the deceased was killed when someone pushed an iron rod through his head. He was attacked several hours after he and others watched a State of Origin match on television. The State produced an eyewitness, the deceased’s sister, who said she was with the deceased shortly before and when he was attacked. She identified the accused as the attacker. The accused gave sworn evidence that he was at his house asleep at the time of the incident.

Held:

(1) The deceased’s sister was a credible witness. Her demeanour was sound and she was not shown to have a motive to lie. After the court warned itself of the inherent danger of convicting on the strength of only one identification witness and taking into account that it was dark, her identification evidence was considered sound.

(2) The other evidence supported the State’s case and there were no significant gaps in the State’s case.

(3) The accused was not an impressive witness and his alibi was vague, uncorroborated and not believable.

(4) There was sufficient evidence to conclude beyond reasonable doubt that the accused was the person who attacked the deceased with the iron rod, thereby killing him.

(5) There were no defences available to the accused so the killing was unlawful.

(6) An intention to kill was inferred given the nature and force of the attack and evidence of a motive to kill.

(7) The accused was accordingly convicted of wilful murder.

Cases cited:

Biwa Geta v The State [1988-89] PNGLR 153

John Beng v The State [1977] PNGLR 115

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

The State v David Yakuye Daniel (2005) N2869

The State v Paul Gambu Laore & 11 Others CR Nos 914-925/2005, 11.12.07

TRIAL

This was the trial of an accused charged with wilful murder.

Counsel

C Sambua, for the State

B Tanewan, for the accused

25 March, 2008

1 CANNINGS J: On the night of Wednesday 14 June 2006, the Queensland Maroons played the New South Wales Blues in the second match of the annual State of Origin Rugby League series. The Maroons won the match. Saina Balos, a 30-year-old man from Enga Province, was a Maroons supporter. He watched the match on television with a number of his relatives and friends at a squatter settlement called Wabag City, home to people mainly from Enga Province, on the edge of the suburb of Section 21 in Kimbe.

2 A fight broke out soon after the match ended, at around 10.00 pm. Things then settled down but within a few hours Saina Balos was dead. Someone pushed an iron rod through his head. The State says that the accused, Moses Nasres, a young Engan man who also watched the match that night at Wabag City, is the killer. He has been charged with wilful murder. The State relies on the evidence of the deceased’s sister who says she was with her brother when he was killed, she saw what happened and she saw that it was the accused who did it.

3 The accused denies involvement. He gave sworn evidence that he was at his house asleep when the incident happened.

4 It is undisputed that Saina Balos was killed in the early hours of 15 June 2006 and that the cause of his death was an iron rod being pushed through his head. What is in issue is whether the identification evidence of the deceased’s sister is good enough to convict the accused and whether the accused’s alibi evidence provides him with a good defence.

THE OFFENCE

5 Section 299 of the Criminal Code states:

(1) 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 wilful murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death.

6 The prosecution has the onus of proving beyond reasonable doubt that:

· the accused killed the deceased;

· the killing was unlawful; and

· the accused intended to cause the death of the deceased.

7 They are the three elements of the offence. If the court is not satisfied as to the third element – intention – an alternative verdict of murder or manslaughter (the maximum penalty for which is life imprisonment) can be entered.

THE EVIDENCE

8 The State’s case was based on the following evidence:

· the oral testimony of the deceased’s sister;

· six exhibits, five documents plus the iron rod.

9 For the defence, the accused gave sworn evidence.

ORAL TESTIMONY OF THE DECEASED’S SISTER

10 Epa Balos described her occupation as a housewife. She lives at Wabag City and she is from Enga. On the night of Wednesday 14 June 2006, she watched the State of Origin at James Karapus’s house at Wabag City. She is a Blues supporter and her big brother, Saina, was a Maroons supporter.

11 People had been betting on the match. When the match ended Saina and other Maroons supporters went to the snooker table and distributed their winnings. Then a fight broke out between two drunkards, Johnny and her younger brother Moses (not the accused). It was not a really serious fight and people separated them. Things quietened down and she was watching people playing cards.

12 Then Paul Mark, who runs a trade store at Wabag City, came on to the scene, complaining about someone breaking his light bulb. He said there were too many drunkards around and one of them must have smashed his light. Someone mentioned that her husband, Larson, and her brother, Saina, were the ones responsible. Paul Mark said to those present to go and kill one of them and he would pay compensation of K2,500.00.

13 She got worried when she heard that as Saina and a young fellow, Wanpis Jim, were playing snooker nearby. She told them what Paul Mark had said and told them to go with her to her house.

14 They did not go all the way, however. They sat in front of her store, telling stories. By this time, it was around 12 midnight and they were discussing the game. Saina was saying that the Maroons would go on and win the last test while she was saying that the Blues would win. They stayed at the store for about 30 minutes then Saina and Wanpis said that they were hungry so she accompanied them towards her house.

15 Wanpis was walking first followed by Saina and she was at the back. Her house is only 15 or 20 metres away from the store. On the way to the house the accused came out from where he had been hiding amongst the flowers. She knew it was the accused, Moses Nasres, as she knows him well and he had been staying at Wabag City. He is a tall person. He stood up and attacked Saina. Though it was the middle of the night and dark, there was light coming from a double florescent light at her store and from the veranda of her house. There were also lights on in her kitchen house and underneath her house, which is on posts. The accused was wearing the same clothes he had been wearing during the day, a light blue, collared shirt and long black trousers, the ones he always wears.

16 The flowers were about 1.2 metres tall, not hibiscus but of the thick sort that is commonly used for hedges. The accused was only about one metre from her when he came out from the flowers.

17 When he stood up he was holding a rod, which has since been given to the police. He lifted the rod and stabbed Saina on the right-hand side of his head behind his eye. He pushed it hard with both hands and it penetrated Saina’s head and came out the other side. It was stuck in his head. Then the accused went to Wanpis and held his hand and took him away.

18 She cried and ran for her life but when she realised that the accused had taken Wanpis up the hill she ran back and pulled the rod out of Saina’s head. People heard her crying and came to the scene. They included Saina’s wife and Ene Kimbun and James Karapus.

19 She identified exhibit H, an iron rod, 1.8 metres long and 1 cm in diameter, tendered by consent, as the weapon which the accused used to spear her brother.

20 Her relatives took Saina to the hospital but by the time she pulled the rod out of his head he was dead. He was put into the morgue. Later that day she told the police that it was Moses Nasres who killed her brother. He admitted it, surrendered himself to the police and was kept in the police cell.

21 In cross-examination Epa Balos said there were a lot of drunkards present that night but Saina was not one of them. When Paul Mark was talking about his broken light he was very angry.

22 She did not see the accused when she was watching the match and did not see him immediately after the match. When she approached Wanpis Jim and Saina to tell them about what Paul Mark had said she told them to come to her house to eat some bananas. By that time not a lot of people were playing cards. There were only about three games going on and she was watching one of them. There were some non-Engan people present that night, some were from Arowe.

23 She was only one metre away from Saina when the accused attacked him. Wanpis was...