The State v Alphonse Aia Mohavila (2006) N3385

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 25 October 2006
• Citation: (2006) N3385
• Docket Number: CR No. 915 OF 2004
• Court: National Court
• Year: 2006
• Judgement Number: N3385

Full Title: CR No. 915 OF 2004; The State v Alphonse Aia Mohavila (2006) N3385

National Court: Kandakasi, J

Judgment Delivered: 25 October 2006

N3385

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No. 915 OF 2004

THE STATE

-V-

ALPHONSE AIA MOHAVILA

Kerema: Kandakasi, J.

2006: 19, 20, 23 and 25 October

DECISION ON VERDICT

CRIMINAL LAW – PRACTICE & PROCEDURE – Failure by accused to go into evidence –Effect of - Does not mean accused guilty – Court entitled to draw inferences that are reasonably open to it on the evidence before it.

CRIMINAL LAW- Verdict –Murder – State calling one witness – Death not in issue – Identification and accused not causing death of deceased main issues at trial – Identification of known person from 10 meters in the late afternoon – No obstruction and sight deficiencies – No reason for witness to falsely testify against accused – Accused acting with another to cut deceased with bush knife – Accused failing to go into evidence – No rebuttal of case established against accused – Guilty verdict return.

CRIMINAL LAW – Sentence – Murder – Group attack and murder of one man – Brutal murder of deceased with bush knives – Facts disclosing intention to kill – Prisoner should have been indicted for wilful murder but not - Deceased allegedly causing death of prisoner’s relative with sorcery – Basis for believe not established – No basis for prisoner to hold any such believe – Conviction after trial – Worse case of murder – First time offender only factor in mitigation – Sentence of life imprisonment imposed – Sections 300 and 19 of Criminal Code.

Cases cited:

Jimmy Ono v. The State (04/10/02) SC698.

Masolyau Piakali v. The State (13/12/04) SC771.

The State v. Marety Ame Gaidi (01/08/02) N2256.

Joseph Enn v The State (01/04/04) SC738.

Manu Kovi v. The State (31/05/05) SC 789.

The State v. Maraka Jackson (CR No. 1433 of 2004) decision delivered 23rd October 2006.

The State v. Jude Gena and Four Others (24/09/04) N2649.

Kwayawaka v. The State [1990] PNGLR 6.

Roger Jumbo and Aidan Awatan (26/03/97) SC516.

Public Prosecutor v. Apava Keru and Aia Moroi [1985] PNGLR78.

Agoara Kelo & Anor. v The State (1981) SC198

The State v. Boat Yokum and 10 Ors(04/12/02) N2337

The State v. Laura (No. 2) [1988-89] PNGLR 98.

Lawrance Simbe v. The State [1994] PNGLR 38.

Simon Kama v. The State (01/04/04) SC740.

The State v. Vincent Simbago (26/09/05) N2954.

Joseph Nimagi, Tom Gurua Kerui and David Bawai Laiam v. The State (01/04/04) SC741.

Kepa Wanege v. The State (01/04/04) SC742.

Rudy Yekat v. The State (22/11/01) SC665.

Allan Peter Utieng v. The State (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000.

The State v. Lucas Yovura (29/04/03) N2366.

Counsels:

Mr. D. Mark, for the State.

Mr. P. Kapi, for the Prisoner.

20 October, 2006

1. KANDAKASI J: Yesterday, the State presented an indictment against you charging you with one count of murder contrary to s. 300 (1) (a) of the Criminal Code. You pleaded not guilty to the charge and a short trial immediately followed. At the end of the evidence, the Court received submissions from your lawyer as well as that of the State and reserved its decision to today. This is now the decision of the Court.

Facts Alleged in Arraignment.

2. In the late afternoon of 12 January 2004, the deceased, one Lei Lakea was with one Laea Ariamo at Pekoe village, Ihu District, Gulf Province. You, your father and others approached the deceased and questioned him about the death of one of your relatives through sorcery. That led to an argument. In the course of argument you got a bush knife and cut the deceased on his left hand. The deceased retaliated by cutting you on the left side of your head. Thereafter the deceased sought cover by going behind the back of a John Maia, dropping the bush knife has he did. You then picked up the bush knife and cut the deceased on the back of his head causing the deceased to fall to the ground. Whilst the deceased was on the ground, you cut the deceased again twice on the deceased forehead. The deceased eventually died from the wounds you inflicted upon him. The State alleged that, when you did what you did, you intended to cause the deceased grievous bodily harm.

The Evidence

3. The State called only one witness, namely Lea Ariamo, who gave a sworn oral testimony. His evidence is that, on the relevant date, he and the deceased went to the village councillor for the councillor to help resolve a problem the deceased had with your family. That concerned the death of one of your relatives which you believed was caused by the deceased through sorcery. The councillor told the deceased and the witness that he would attend to that problem the next day. The witness and the deceased were heading out from the councillor’s house when you, your father, your brothers and others confronted them and attacked the deceased. You got a bush knife and were trying to cut the deceased and the deceased on seeing that, lifted up his hands and the bush knife landed on the deceased’s hand.

4. The deceased got a bush knife also and retaliated by cutting you and then tried to escape dropping the bush knife as he did but a John Maia held him. You picked up the bush knife and cut the deceased again on the back of his head and he fell to the ground. You continued to cut the deceased twice on his forehead as he was on the ground and the deceased died. Later the deceased was buried.

5. The witness said, you and the others that went with you fought with the deceased. That included some of your brothers who look alike with you. However, he said he saw only two people cut the deceased with a bush knife. One of them was you and the other was your father. Under cross-examination, this witness changed his story to say that your father cut the deceased on the head and he fell to the ground. Also under cross-examination this witness said there was no prove that the deceased was a sorcerer, although he was aware that there were talks about it. Further, under cross-examination, the witness said he could not identify the colour of the clothes. He also said the incident took place very late in the afternoon, getting toward dark. Furthermore, the witness stated that he knows you and your family very well and that he was not mistaken on his identification of you.

6. You decided not to go into evidence. Accordingly, the State’s evidence stands, unchallenged. In your submissions, you say that although you do not dispute that the deceased died, you dispute the allegation that you caused his death.

Assessment and findings of facts

7. I now need to decide whether the State’s evidence is credible and is sufficient to find you guilty on the charge presented against you. Your submission is for this Court to reject the State’s only witness’ testimony unreliable due to the inconsistencies in his testimony and that he may be mistaken in his identification of you as one of the persons that cut the deceased and therefore causing his death.

8. The inconsistency argument comes from where the State witness changes from initially saying you did all of the cutting of the deceased to later say that your father cut the deceased on the back of his head which caused the deceased to fall down. Whilst I accept that there is this inconsistency, I do not consider it is of any significant consequence. The witness’ testimony is otherwise clear that, out of all of the people who were fighting with the deceased, you and your father are the only persons that attacked the deceased with bush knives.

9. As to the witness’ identification of you as one of the persons responsible for the death of the deceased, you submit that, because the witness was not able to identify you with the colour of the clothes you wore at the time, there were many people including some of your look alike brothers, and that it was very late in the afternoon getting toward dark, the witness was mistaken. The law requires me to exercise care when dealing with identification. With the subsequent endorsements of the Supreme Court in its decisions in Jimmy Ono v. The State

xxxix (04/10/02) SC698.

xxxix1 and Masolyau Piakali v. The State,

xl (13/12/04) SC771.

xl2 I summarized the relevant principles in The State v. Marety Ame Gaidi

xli (01/08/02) N2256.

xli3 as follows:

“1. It has been long recognized that, there are dangers inherent in eye-witness identification evidence;

2. A trial judge should warn the jury in the case of a jury trial system or himself as in our case, of the special need for caution before convicting in reliance on the correctness of the identification because for example:

(a). a convincing witness may be mistaken; or

(b). a number of witnesses could be mistaken;

3. Provided such a warning is given, no particular form of word need be used;

4. There should be a specific direction to closely examine the...