The State v Okata Talangahin (No 1) (2004) N2581

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 11 June 2004
• Citation: (2004) N2581
• Court: National Court
• Year: 2004
• Judgement Number: N2581

Full Title: The State v Okata Talangahin (No 1) (2004) N2581

National Court: Kandakasi J

Judgment Delivered: 11 June 2004

1 CRIMINAL LAW—PRACTICE AND PROCEDURE—Identification only issue for trial—Effect of—All other elements of the offence not in issue—Need to warn of dangers of mistaken identification—Close examination of circumstances in which identification was made required—Identification save to act on if circumstances in which identification made is good.

2 CRIMINAL LAW—PRACTICE AND PROCEDURE—Claim of Alibi—No prior notice—Claim not put to prosecution witnesses—Effect of—Recent inventions and therefore unreliable.

3 CRIMINAL LAW—Verdict—Killing unborn child—Attack on 9 months old pregnant mother—Strong kick to the abdomen area causing victim to fall—Dragging victim whilst on the ground and on her stomach—Attempted rape—Dead child delivered same day of attack—Identification only issue for trial—Positive identification of accused by victim and witness—Identification by recognition during broad daylight—No disguises or face masks—No serious contest on prosecution evidence—Prima facie case established against accused—Defence claiming alibi without any prior notice—Claim of alibi not put to prosecution witnesses—Effect of—Recent inventions and therefore unreliable—Defence evidence inconsistent—Defence evidence rejected—Guilty verdict return—Criminal Code s347(1).

4 SCR No 1 of 1980; Re s22A(b) of Police Offences Act (Papua); Biyang v Liri Haro [1981] PNGLR 28, The State v Ben Noel (2002) N2253, The State v Peter Malihombu (2003) N2365, The State v Kevin Anis (2003) N2360, The State v Onjawe Tunamai (2000) N1989, Jimmy Ono v The State (2002) SC698, The State v Eki Kondi (No 1) (2004) N2542, The State v Cosmos Kutau Kitawal (No 1) (2002) N2245, The State v Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48, Garitau Bonu and Rosanna Bonu v The State (1997) SC528, Paulus Pawa v The State [1981] PNGLR 498, The State v Tauvaru Avaka (2000) N2024, Gibson Gunure Ohizave v The State (1998) SC595, John Jaminan v The State (No 2) [1983] PNGLR 318, The State v Luke Sitban (2004) N2572, The State v Marety Ame Gaidi (No 1) (2002) N2256 referred to

___________________________

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1403 of 2000

THE STATE

-V-

OKATA TALANGAHIN

(No.1)

WEWAK: KANDAKASI, J.

2004: 8th and 11th June

CRIMINAL LAW – PRACTICE & PROCEDURE – Identification only issue for trial – Effect of - All other elements of the offence not in issue – Need to warn of dangers of mistaken identification –Close examination of circumstances in which identification was made required – Identification save to act on if circumstances in which identification made is good.

CRIMINAL LAW – PRACTICE & PROCEDURE – Claim of Alibi – No prior notice - Claim not put to prosecution witnesses – Effect of - Recent inventions and therefore unreliable.

CRIMINAL LAW - Verdict – Killing unborn child – Attack on 9 months old pregnant mother – Strong kick to the abdomen area causing victim to fall – Dragging victim whilst on the ground and on her stomach - Attempted rape – Dead child delivered same day of attack - Identification only issue for trial – Positive identification of accused by victim and witness – Identification by recognition during broad daylight – No disguises or face masks – No serious contest on prosecution evidence – Prima facie case established against accused - Defence claiming alibi without any prior notice - Claim of alibi not put to prosecution witnesses – Effect of - Recent inventions and therefore unreliable – Defence evidence inconsistent – Defence evidence rejected - Guilty verdict return - Criminal Code ss. 347(1).

Cases cited:

SCR No. 1 OF 1980; Re s. 22A (b) of the Police Offences Act (Papua) [1981] PNGLR 28.

The State v.Ben Noel & Ors (Unreported judgment delivered on 31/05/02) N2253

The State v Peter Malihombu (Unreported judgment delivered on 29/04/03) N2365.

The State v. Kevin Anis and Martin Ningigan (Unreported judgment delivered on 7/04/03) N2360.

The State v. Onjawe Tunamai (Unreported judgment delivered on 29/04/03) N2365.

Jimmy Ono v. The State. (Unreported judgment delivered on 04/10/02) SC698.

The State v. Eki Kondi & Ors. (Unreported judgment delivered on 24/03/04) N2542.

The State v. Cosmos Kutau Kitawal & Anor (No 1) (Unreported judgment delivered on 15/05/02) N2266.

The State v. Gari Bonu Garitau and Rossana Bonu 1996] PNGLR 48.

Garitau Bonu & Rosanna Bonu v. The State (Unreported judgment delivered on 24/07/97) SC528

Paulus Pawa v. The State [1981] PNGLR 498

The State v. Tauvaru Avaka & Anor (Unreported judgment delivered on 2/11/00) N2024.

Gibson Gunure Ohizave v. The State (Unreported judgment delivered on 26/11/98) SC595.

John Jaminan v. The State (N0.2) [1983] PNGLR 318.

The State v. Luke Sitban (Unreported judgment delivered on 07/06/04) N2572.

The State v. Marety Ame Gaidi, (Unreported judgment delivered on 01/08/02) N2256.

Counsels:

J. Walai for the State

L. Siminji for the Accused

11th June 2004

KANDAKASI J: You pleaded not guilty to one charge of killing an unborn child on 11th August 2000 by attacking the mother, Evelyn Samson, who was then 9 months pregnant at Mamalimbi village in the Wosera District of this Province. This resulted in a trial on 7th this instant. The State called two witnesses in addition to some documentary evidence, and you called two witnesses as well in your defence.

The Offence and its Elements

The Charge against you was under s.300 (1) (b) of the Criminal Code, which reads as follows:

“300. Murder.

(1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:—

…

(b) if death was caused by means of an act—

(i) done in the prosecution of an unlawful purpose; and

(ii) of such a nature as to be likely to endanger human life;”

This presents a number of elements, which the State must establish beyond any reasonable doubt to secure a conviction against an accused person like you. These are:

1. A person who;

2. kills another person;

3. by means of prosecuting an unlawful purpose; and

4. of such a nature to endanger human life.

The State always has the burden to prove beyond any reasonable doubt every element of an offence with which an accused is charged. The Supreme Court, per Greville Smith J, at page 34, confirmed this in SCR No. 1 OF 1980; Re s. 22A (b) of the Police Offences Act (Papua).

[1981] PNGLR 28.

1 In a number of cases as in The State v.Ben Noel & Ors,

(Unreported judgment delivered on 31/05/02) N2253.

2 I referred to the relevant passage and applied it.

What this means in your case is that, the State is under an obligation to prove each of the elements outlined above beyond any reasonable doubt. The question then for this Court to resolve is, has the prosecution proved all of the elements of the charge of murder against you beyond any reasonable doubt? However, this question has to be in the context of the issue for trial in your case, which was one of identification.

In view of the issue for trial, you do not dispute a number of essential facts. Firstly, Evelyn Samson was pregnant with a 9 month old baby which was and due for delivery any time. Secondly, in the morning of 11th August 2000, she felt her baby move in her womb and so therefore well and alive. Later that morning, she went to her coffee garden and was picking coffee cherries with her earlier 2 children and a nephew, Raphael Samson. Thirdly, between 1:00 and 2:00pm, a man armed with a bush knife attacked her by threatening her with placing the knife on her neck while the nephew was in the creek washing. Fourthly, a struggle ensued between her and her assailant and in the process, the assailant kicked her so hard on her abdomen area, causing her to go out of break temporarily and then fall on the ground. Fifthly, her assailant then pulled and dragged her down a hill whilst she was on her stomach. Next, her assailant pulled his zipper down and tried to rape her. However, her shouting and screaming for help alerted Raphael Samson and he came to...