The State v Raphael Kimba Aki (2001) N2039

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 26 January 2001
• Citation: (2001) N2039
• Court: National Court
• Year: 2001
• Judgement Number: N2039

Full Title: The State v Raphael Kimba Aki (2001) N2039

National Court: Kandakasi J

Judgment Delivered: 24 or 26 January 2001

N2039

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 52 of 2000

THE STATE

-V-

RAPHAEL KIMBA AKI

LAE: KANDAKASI, J.

2001: 22, 23 and 26 JANUARY

CRIMINAL LAW — Particular offence — Murder — Intention to cause grievous bodily harm — Defence of alibi raised but no evidence produced — Identification by recognisance not rebutted by any evidence — Guilty verdict returned — Criminal Code (Ch No 262), s 300(1)(a).

CRIMINAL LAW — Evidence — Identification by recognisance — Murder committed in the dark — Need to warn dangers of mistaken identification — Admission of evidence by consent — Treatment of statement from the dock — Less weight to same

Cases cited:

The State v Warun [1988-89] PNGLR 327

The State v. Bill White (No.1)[1996] PNGLR 262

Davinga v State [1995] PNGLR 263

The State v. Raima[1993] PNGLR 230

John Beng v. The State [1977] PNGLR 115

David Kandakason v. The State ( 1998) SC558.

The State v. Amoko-Amoko [1981]PNGLR 373

The State v. John Kasaipwalova (1976) N80

The State v. Kindung [1996] PNGLR 355

Counsel

J. Pambel for the State

A. Raymond (Mrs.) for the Accused

DECISION ON VERDICT

24 January, 2001

KANDAKASI, J: On the 22nd of January 2001, the accused pleaded not guilty to one count of murder under s. 300(1)(a) of the Criminal Code Act (Chp. 262) (hereinafter "the Code"). That followed the State presenting an indictment against him on the same day alleging inter alia that the accused killed one Mika Gelong at the Bundi camp settlement here in Lae at a bout 3:00am on the 9th of October 1998.

Preliminary Issue

At the commencement of the trial, both Counsels informed the court that the State would call about three witnesses and tender other evidence by consent. I raised with both Counsels the appropriateness of evidence by consent and asked Counsel to look up the law on it and call evidence in accordance with that. I am grateful to both Counsels who have been able to do that.

From a quick perusal of some of the relevant cases on point, the following position becomes apparent:

1. An accused person is presumed innocent until proven guilty according to law (s. 37(4) of the Constitution) and he is entitled to a "fair hearing" (s. 37 (3) of the Constitution) and is therefore entitle to a full protection of the law (s.37(1) of the Constitution). That means a criminal trial must confirm to relevant statutory provisions and the underlying law of criminal procedure where the State always has the burden to prove the case against an accused person in conformity with the rules of evidence: see The State v Warun [1988-89] PNGLR 327 at page 328-332.

2. The best way to prove a case against an accused person which accords well with the right to a "fair hearing" within the meaning of s. 37(3) of Constitution is to call witnesses to give evidence under oath and be subjected to cross-examination by the accused person. Admitting into evidence written statements or affidavits by consent may leave unanswered or not clarified questions or points in the evidence. See The State v Warun (supra) at page 333 and The State v. Bill White (No.1)[1996] PNGLR 262 at page 267. This eliminates the risk of the statement or affidavit not necessarily containing what its deponent or author is really saying and may be one that may not stand up under cross-examination. It also accords well with the fundament principle that "the best evidence must be given of which the nature of the court case permits": See The State v. Bill White (No.1) (supra) at page 267.

3. There is however, nothing preventing the admission into evidence affidavits or statements pursuant to statutory provisions such as s. 102 of the District Courts Act (Chp.40) or under ss.34, 35, and 36 of the Evidence Ac (Chp.48) which permits that to be done (The State v Warun (supra) at page 333 and The State v. Bill White (No.1) (supra) at page 267) and or with the consent of the parties: see Davinga v State [1995] PNGLR 263 (a decision of the Supreme Court) at page 266.

4. Admission of statements or affidavits by consent is permissible provided there is no doubt or a challenge to the facts in them; the facts of the case are uncontroverted; they are relevant (Davinga v State (supra) at page 266) and are admissible in form (The State v. Raima[1993] PNGLR 230 at pages 235- 238) and their admission will not prejudice the accused and thus amount to an unfair trial (The State v. Raima (supra) and (Davinga v State (supra) at page 266).

5. If the deponents or the authors are readily available and can easily be called without causing substantial hardship and costs to the parties and a delay in a prompt disposal of the matter, they should be called instead of admitting their affidavits or statements to avoid infringing the "best evidence rule" and to accord the accused person his right to a "fair hearing". See The State v. Bill White (No.1) (supra) at page 269 and also The State v. Raima (supra) at pages 234-244, especially in relation to allowing admission of statements where it was difficult to get the witness to testify in the court because of fear for the witness' life.

6. Ultimately, the Court still has the power to even refuse accepting into evidence statements or affidavits if it considers it is not in the best interest of justice having regard to the above principles and order the witnesses to be called to give the evidence in question. See The State v. Bill White (No.1 (supra) at pages 269-270.

I have been guided by these principles in the case before me in relation to the admission into evidence by consent the record of interview (two versions) and the affidavit of Dr. Patil sworn on the 23rd of January 2001. I found these evidence relevant and admissible. I also found them not being contested. Admitting them into evidence in my view would not amount to injustice and or a unfair trial when the main issue at trial was one of identity only. The documents formed part of the committal proceedings and copies of them have been with the accused well and long before the trial and he has not taken any issue on them. In any event, the State called two eyewitnesses on the issue for trial as well as the whole case. Those witnesses were cross-examined. Further the record of interview was admitted through its author, the interviewing officer, which was in line with the "best evidence" principles.

The State's Evidence

The State called three witnesses. The first was Mete Mika. She is the widow of the deceased. Her testimony is that, in the early hours of the 9th of October 1998 she was asleep in her family house at the Bundi camp settlement here in Lae with her children, other relatives and the deceased prior to the incident. It rained heavily that night and they were fast asleep. Shouts or screams as if someone was holding her, coming from Sima Yanam, the deceased's cousin sister from the next room woke her up. She then opened her room door and got out to investigate. Her small son cried and followed her. By then, the deceased had woken up and got to where the witness was and pushed her and the child back, opened the main door of the house to go out and investigate. As soon as the deceased was out of the house, he turned a corner and the intruder stabbed him with a knife.

She said she saw at first a man running away after the stabbing but could not tell who that person was until that person fell down on his side with his face up and she could clearly recognise and tell that it was "Raphael Aki", the accused. The distance between her and the accused was about three meters. She said there was enough electrical lights coming from her parent's house and a Hagen man's house. That made it easy for her to clearly recognise the accused. Her parent's house was about 12 meters away from her house and was on higher posts with the source of the light from that house being the security light shining into her yard. The Hagen man's house from where the other light came was about 13 meters away. There was nothing obstructing her view of the accused. She also stated that the heavy raining had stopped at the time of the unfortunate incident.

The accused then fled from the scene and the deceased was subsequently taken to the Hospital and was pronounce dead.

Prior to the incident, this witness testified that for about two months the accused always turned up at her house and argued with the deceased because he wanted the deceased's sister. The witness said the accused comes from Sina Sina in the highlands and at the time of the incident, Wormald Security Services employed him. He also had a relative close to her house and she used to see him come...