The State v Tony Pandau Hahuahori (2002) N2185

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: (2002) N2185
• Date: 19 February 2002
• Year: 2002

Full Title: The State v Tony Pandau Hahuahori (2002) N2185

National Court: Kandakasi J

Judgment Delivered: 19 February 2002

1 CRIMINAL LAW—PRACTICE AND PROCEDURE—Defence raising alibi in his evidence without giving notice of same to the State—Defence calling alleged co–accused to rebut State case without putting his evidence to the State's witnesses—Effect of—Evidence rejected as unreliable and as recent inventions—Criminal Practice Rules 1987 O4 r4

2 CRIMINAL LAW—Verdict—Murder—Death resulting from failed or attempted robbery—State's case circumstantial—Reasonable inference open on the evidence properly before the Court points to guilt of accused—Return of guilty verdict—Criminal Code, s7 and s8

3 The State v Robert Wer [1988–89] PNGLR 444, John Jaminan v The State (No 2) [1983] PNGLR 318, Browne v Dunn (1893) 6 R 67(HL), The State v Francis Natuwohala Laumadava [1994] PNGLR 291, The State v Gigere Undamu [1990] PNGLR 151, The State v Simon Ganga [1994] PNGLR 323, The State v Yakoto Imbuni [1997] PNGLR 400, The State v Anis Noki [1993] PNGLR 426, Paulus Pawa v The State [1981] PNGLR 498, The State v Tom Morris [1981] PNGLR 493 and Garitau Bonu and Rosanna Bonu v The State (1997) SC528 referred to

Facts:

The Accused was seen with two other (co–accused) planning the robbery of a PMV the night before the intended date of the robbery. He was seen at the scene of the attempted robbery that failed resulting in death of one victim and serious gun shot injuries to several others. He was rounded up with his co–accused by village leaders or elders and handed over to police. His co–accused pleaded guilty and were convicted and sentence for murder.

At his trial the accused called one of his co–accused without putting his evidence in cross–examination to the State's witnesses. He also gave evidence of being elsewhere at about the time of the committing of the offence without giving any notice of that to the State.

The accused cross–examination of the State's witnesses failed to establish any basis to reject their evidence.

Held:

1. Guilty of the accused was the only inference open to the Court on evidence presented. He was therefore, found guilty of murder.

2. In the absence of any reason or satisfactory explanation provided for the rejection or . . . the correctness of village leaders identifying an accused as the offender, the Court should accept and act on such efforts or actions of the leaders. Doing so gives credence and responsibility to village or community leaders in the maintenance and enforcement of law and order.

3. Evidence of a convicted prisoner should be treated with care and caution because of the dangers of either implicating or exonerating a co–accused.

4. A defendant is under an obligation to give notice of any defence of alibi and put in cross–examination the existence of evidence that will directly contradict State evidence or complete exonerate him or her.

5. Evidence of any alibi or evidence in rebuttal of a State case not put on notice or put to witnesses on cross–examination may be treated as recent inventions and are therefore unreliable.

Judgment on verdict

___________________________

Kandakasi J: You pleaded not guilty to one count of murder contrary to s300(1)(a) of the Criminal Code. The only issue you took was one of identity as the offender. The State therefore called 6 witnesses and produced and admitted into evidence a number of documentary evidence with your consent.

Ronald Juale was the first State witness. He comes from Japaraka No 1 village in the Kubalia area in the East Sepik Province. This witness was able to recall the incident as happening on 9 March 1999. He said he was at his village in the evening of 8 March 1999. He was with a group of men, which included you, a Ben and a Nick who were planning a robbery of a PMV the next day. At that time, Ben had a gun: he described it as a rifle. You, Ben and Nick left his house at about 6.30 pm after having planned the robbery.

He positively identified you in Court and told the Court that the other two men are at the Boram CIS. This witness is your brother–in–law as you are married to his sister. He said you come from a village called Nungori, which is next to his village. It is only a walking distance away.

He said he did not participate in the planned robbery and only learned of an attempted robbery resulting in the death of a person the next day, in the early hours of 9 March 1999. Later around 9.00am, on the same day, the police went to his village looking for you, Ben and Nick. However, you, Ben and Nick were not in the village, so the police left the village without any arrests. He said that eventually you and the two men were arrested in the village.

Your cross–examination of this witness only asked him to reconfirm his evidence and also state that the witness did not witness the murder being committed either by you or by any other person. No suggestion was put to him that you were not part of the group of men who planned the robbery and was not apart of the suspects the police were looking for. No reason was put forward as to why he was able to come into Court and testify against you, his brother in–law. He was not even asked to comment on your claims that, you were at your own village or was heading that way at about the time the murder took place. Similarly, you did not put to him the fact that you were going to call Ben Wango, a person already convicted of the crime to give evidence specifically stating that you were not involved.

I find this witness truthful and I accept his evidence in its entirety.

The State's second witness was Sona Finga. She is the wife of Nick Sengi Pori who comes from Japaraka No 1 as well. She confirmed her husband is at the Boram CIS in connection with the attempted robbery and murder at Japaraka No 1 on 9 March 1999.

She said she was at Japaraka No 1 on the date of the murder. She woke up that morning between 4.00 and 5.00 am. She then went to the road to see your sister get on a PMV to go to town. When she got to the road she saw her husband, Nick with you. That was between 4.00 and 5.00 am. Your sister got on a vehicle and left for town. That is about the time she left you and Nick on the road and she returned to her house.

She says she did not see her husband again until some three days later. Under further examination in chief, the witness was not able to say exactly when she saw her husband again as she was speaking of her husband going to Angoram and returning a week before the murder.

Under cross–examination, this witness, admitted to it being still dark when she got to the road and saw your sister getting on a PMV to go to town. Because of that, she also admitted to not seeing persons clearly. However no suggestion was put to her that she was mistaken in her evidence that she saw you and her husband on the road and leaving you both there before returning to her house. Further, as with the first State witness, your claim of not being involved in the commission of the offence and Ben Wango coming into Court to testify in your defence were not put to this witness. Nothing was put to her or suggested that could form the foundation for me to find this witness otherwise than a truthful and credible witness. I therefore accept her evidence in full as being both truthful and credible.

Nokon Seri was the next State witness. He is married to your wife's sister. He is therefore, your brother through marriage. His evidence is similar to the earlier witnesses. He too was at Japaraka No 1 in the early morning hours about 5.00 am on the 9 March 1999. He assumes you had seen your wife off to town and as not seen you again at the village.

He also stated that, later that day, police went looking for the suspects of the robbery and returned without arresting anybody the same day. He also confirms seeing you on the road with your wife for your wife to catch a vehicle to town.

This witness was not cross–examined in any respect. I therefore accept his evidence as truthful and uncontested.

The...