State v Aihi [1979] PGNC 5; N187 (16 March 1979)

Unreported National Court Decisions

N187

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V
AVIA AIHI AND 4 OTHERS

Waigani

Saldanha J
12-16 February 1979
19-23 February 1979
26-28 February 1979
1-2 March 1979
5-7 March 1979
16 March 1979

CRIMINAL LAW - wilful murder - common intent - s.7 Criminal Code - identification parade.

JUDGMENT

SALDANHA J: The five accused perare inre indicted on a charge that on the 11th September 1978, they wilfully murdered a man by the name of Morris Modeda.

On being arraigned Avia Aihi pleaded guilty. The others pleaded not guilty. I put off sentencing Avia Aihi and remanded her in custody pending the completion of the trial of the other four accused persons.

This charge of wilful murder arose in the following circumstances. The deceased Morris Modeda was an Assistant District Commissioner stationed at Bereina. He was being tried by the Chief Justice at the National Court at Waigani for the offence of dangerous driving causing death. It was alleged that by the dangerous driving of a motor vehicle he had caused the death of a man by the name of Mariano at Bereina.

On Friday the 8th September 1978, the Chief Justice announced in open court that he would be going to Bereina on Monday the 11th September to view the scene of the alleged offence (the “scene”). Arrangements for the view had been discussed and made in open court.

Accordingly on the morning of the 11th September the Chief Justice, his associate, the two counsel in the case, the deceased Morris Modeda and a prison warder left Port Moresby for Bereina by car. I shall refer hereinafter to the above named persons collectively as the court party. The court party was accompanied by four policemen from Port Moresby. They were joined at Bereina by nine policemen and a witness, a youth named Aitsi Pui. They proceeded to the scene in three motor vehicles, two owned by the police and one owned privately, and arrived at their destination at about twelve noon. None of the policemen were armed, not even with batons.

The scene is on the Bereina-Waima road approximately midway between Bereina and Waima. Waima is some sixteen miles from Bereina. The part of the road and its immediate surroundings with which we are concerned is a stretch of eighty to ninety yards shown in the sketch Exhibit “P3”.

When looking towards Waima the road starts at the top of a hill where it goes through a cutting. On both sides of the cutting on embankments which rise above the roadway are food gardens. The road is straight and slopes down to the bottom of the hill where there is a small stream which flows under a bridge.

The embankments at the top of the hill continue some way down the sides of the road and give way to kunai grass and thick bush on both sides. There is a kapok tree in the kunai on the right hand side about two yards from the edge of the road - and small clumps of bamboo on both sides of the stream and on both sides of the road at the bottom.

On arrival the three motor vehicles were parked on the left hand side of the road at the top and the court party and the policemen alighted, walked down the road and stopped in the roadway at a spot about ten yards downhill from the kapok tree.

Two witnesses were asked to indicate certain features. One of them was a police sergeant and apparently one of the nine policemen who joined the court party at Bereina. The other witness was the youth Aitsi Pui, who is also a witness in the instant case. After the sergeant had pointed out certain places Aitsi Pui was asked to indicate how far Morris Modeda had driven his motor vehicle before turning back to the place where he had allegedly knocked down Mariano. Aitsi Pui did this by walking down the road for a little distance beyond the stream and returning to where the court party was waiting. The court party then started walking up the hill with a view to getting into the motor vehicles and driving away.

That was when the trouble started. There is no controversy as to the events so far described but after this there was a good deal of confusion and a lot of what happened hereafter is disputed by the defence.

The case for the prosecution is that as the date for the viewing of the scene and the arrangements for the view had been discussed in open court it was common knowledge that Morris Modeda would be brought to the scene and that there had been a pre-concerted plan to kill him and therefore all those who were present aiding and abetting would be guilty of wilful murder.

Alternatively, the prosecution say that even if there had not been a pre-concerted plan to kill, the attitude of the crowd at the scene, the shouts of “kill him, kill him” combined with the fact that a lot of people, some of them armed with stones, sticks, branches of trees, knives and axes, simultaneously converged on the court party from all directions, screaming and shouting at Morris Modeda, surrounding him and chasing him showed clearly that there was a common intent to kill and that all those who participated in the killing would be guilty of wilful murder - and that it is against this background that the evidence against each accused must be viewed.

They say that Porewa Wani had been told by Avia Aihi on the morning of the 11th September that she intended to kill Morris Modeda and had been shown the knife, Exhibit “P2”. Knowing all this she had agreed to accompany Avia Aihi. In the event she did not go with Avia Aihi, not because she had changed her mind but because Avia Aihi had gone without her. The prosecution say that she was heard at the scene shouting in Motu: “Alaia alaia” which in English means “Kill him, kill him”, and that in the circumstances her exhorting people to kill Morris Modeda makes her guilty of wilful murder. The prosecution say that Batai Oata aided and abetted in the killing by punching Morris Modeda in the back and pushing him, and Jack Ume aided and abetted by punching him in the face. The prosecution allege that Taita Itaro had met Avia Aihi at the scene, had seen the knife with her, had been told by her that she intended to kill Morris Modeda and her chasing of Morris Modeda and slapping him in the face makes her an accomplice of Avia Aihi in the crime of wilful murder.

The case for the prosecution rests mainly upon the evidence of policemen. As the evidence of prosecution witnesses differs so greatly I shall set out as briefly as possible the evidence of each one of them.

Aitsi Pui is a young lad. There is no evidence as to his age. He appeared to me to be about 16 years of age. He lives at Bereina Station but at the time of the trial he was living at the Police Barracks at Gordon.

He knew the deceased Morris Modeda. He was an Assistant District Commissioner at Bereina. He lived with Morris Modeda for a time.

In September 1978 Morris Modeda was on trial at the National Court at Port Moresby on a charge of dangerous driving causing death. He himself was a witness in that case.

On the 11th September he was taken by the police to the scene. On arrival the three motor vehicles in which they travelled were parked on the top of the hill on the left hand side. He saw some people standing at the top and others standing near the creek near some bamboos.

The court party walked down the road to take a view. He was asked to demonstrate something and he did so by walking towards the creek and back. The court party then started walking up the hill towards the cars. He saw an old man coming out of the bush on to the road. He saw the police stop this man. At the same time he saw Avia Aihi come out from the kapok tree side with another woman. The other woman started chasing Morris Modeda. When he saw this he became frightened and went and stood at the top near the motor vehicles. He knew this woman before. She was Taita Itaro. While Taita Itaro was chasing Morris Modeda he saw Jack Ume approach from the side of the hill, go down the hill and punch Morris Modeda on the face. Morris Modeda fell to the ground and Avia Aihi stabbed him with a knife. He had seen Avia Aihi carrying a knife before she stabbed Morris Modeda.

He heard people shout in Roro: “Hold him let us kill him”. Many people were saying this; people on the hill, some near the road and some in the bushes. He heard Avia Aihi say in a loud voice: “Hold him tight. Let us kill him well.” Taita Itaro said nothing. He saw some people holding sticks and some holding stones.

When cross-examined by Mr. Alpine he agreed that he was aware that in killing Mariano in a car accident Morris Modeda had done a bad thing and he said that when Morris Modeda told him not to say anything about this he agreed and said nothing to the police until two months later.

When cross-examined by Mr. Unagui he said he heard the words “Alaia alaia” being shouted.

Arnold Karibone Amet is a barrister and solicitor and a Senior Defending Counsel in the Public Solicitor’s Office. His evidence is as follows. He was counsel for Morris Modeda who was being tried by the Chief Justice on a charge of dangerous driving causing death. The trial started on the 6th September 1978. It was decided to have a view of the scene and arrangements for the view were discussed in open court on Friday the 8th September.

On the 11th September, together with the Chief Justice and others, he travelled to Bereina in a motor vehicle. They were accompanied by four policemen from Port Moresby. Other policemen joined them at Bereina. They travelled to the scene in three motor vehicles and arrived between 11.45 a.m. and 12 noon. After parking their motor vehicles at the top the court party and the policemen proceeded down the road. The distance from the top of the rise to the creek is approximately 80 to 90 yards.

On arrival he noticed a number of people at the top and a number of people near the creek, not more than six in each group and consisting of men, women and a few children. The group down by the creek appeared to be washing clothes.

The court party stopped approximately midway between the top and the bottom - and there the sergeant in charge of Bereina Police Station (presumably Sgt. Moitze Sagum) and the principal witness (presumably Aitsi Pui) indicated where the deceased Mariano’s body was found.

Apparently Aitsi Pui had said in his evidence that the motor vehicle driven by Morris Modeda had travelled some distance after knocking down Mariano and Aitsi Pui had been asked to indicate this. He did so by walking a little past the creek and returning to where the court party was waiting.

Whilst the court party was being shown the various locations on the road Mr. Amet noticed an elderly man detach himself from the group by the creek and walk up the road towards the court party and stop and start to watch. He was asked by the police to move along. He did not move so the police pushed him and he resisted. A number of policemen started to grapple with him. Whilst this was going on the court had finished viewing the scene and turned to go back to the place where the motor vehicles were parked. As the court party started to move the man pulled out a knife from his hip pocket and the police were struggling with him and having difficulty in getting the knife from him. The court party had taken four to five steps when he noticed people moving towards the court party from the small rises on both sides of the road. This happened almost at the same time as the man produced the knife. People from the area of the creek were moving up towards the court party. Altogether about 60-80 people were moving towards Morris Modeda. About half of them were armed with knives and branches of trees. About 20 or so were actually on the road and of these most were armed with knives and branches of trees. The people were hurrying, not running but walking fast. Quite a number of them were talking in an excited manner but he did not understand what they were saying. They were brandishing their weapons in an angry and excited manner. They were moving towards Morris Modeda from both sides encircling him almost completely except for the area in front of him leading to the motor vehicles.

Of the twenty or so on the road some were within a few paces of Morris Modeda. They were moving towards him brandishing their knives talking angrily and excitedly and raising their voices.

Mr. Amet was walking just behind Morris Modeda who was being closely guarded by a prison warder and a policeman. He became apprehensive for his own safety and walked up he road hurriedly, almost running, and stopped at the side of the motor vehicle in which he had travelled.

He then turned round and looked down the bill. He saw Morris Modeda running up the side of the road - the right side when looking down the road from where he was standing - and he noticed he had blood in the stomach area in the region of the diaphragm. He had no shirt on - he had been wearing one before. He saw him run up the side of the embankment but he was forced back by some people who were on the side of the embankment. These people moved towards him as he ran up brandishing branches of trees and knives and attempting to hit him with whatever they had in their hands. Thus he was forced back on to the road after describing a kind of arc (Mr. Amet has drawn this on the sketch Exhibit “P3” - Amet). Morris Modeda found himself then among a number of policemen. There was a lot of confusion at this stage, a lot of people milling about. The people were coming towards Modeda as he came on to the road from both sides almost encircling him whilst the police were trying desperately to prevent people from the sides from coming on to the road. In the midst of all this confusion he saw a fist shoot out in the direction of Modeda’s face and head but he did not see it connect. His attention was momentarily distracted. He looked on either side for his own safety’s sake and when next he looked where Morris Modeda was he heard him cry out in pain and saw him clutching the front of his stomach area and his back and falling on his back on the road. As Modeda fell crying people moved away from him and retreated.

He saw the Chief Justice go towards Morris Modeda and saw him trying to stop the blood from his abdominal area. With the assistance of his associate and one or two policemen he was half dragged half carried and quickly taken up the hill and placed in the back of a police vehicle. The driver was found and asked to drive Morris Modeda to Bereina. Mr. Amet noticed that the left rear tyre was flat but the driver drove on towards Bereina in spite of the flat tyre.

As Morris Modeda was being placed in the motor vehicle the people again became angry raising their voices and talking excitedly and some moving towards the motor vehicle. As the motor vehicle moved some threw sticks and stones and five or six ran after the motor vehicle. He saw one man strike the side of the motor vehicle with an axe.

As the court party prepared to leave and the Chief Justice was about to get into his car he saw a woman come up to the Chief Justice and gesticulate with her hand indicating the cutting of her neck. She had blood on her hands and blood down the front of her clothes.

Mr. Amet said that the time between the court party arriving at the scene and the old man appearing and producing a knife would be about six to eight minutes and the time between the old man appearing and Morris Modeda falling down clutching his stomach area and back would be a minute or two at the most.

Eric Apua is a Senior Constable stationed at Boroko Police Station. In September 1978, he was a court orderly at the National Court and he was court orderly throughout the trial of Morris Modeda.

On 11th September, together with five other policemen, he accompanied the court party to Bereina. At Bereina they were joined by eight other policemen. Together they proceeded to the scene and on arrival parked their motor vehicles on the left of the road at the top of the hill and walked down the road for about 50 or 60 yards and stopped.

The court party having inspected the scene started to go back. Just then he saw a man who tried to infiltrate the court party from the right. He was told by the police to go back and he did so. Then he saw two women come from the bush on the left from under a big tree. One had tattoo marks on her face and body who he later identified as Avia Aihi, and the other was short and light skinned who he later came to know was Taita Itaro. He saw Constable Penunu trying to stop them. The court party walked on and Avia Aihi followed them.

Just then he saw many people hurrying on to the road and some actually running. Some of them had sticks and they were shouting in Motu: “Halaia, halaia, halaia” and “Policeman dano halaia” (which in English means “Kill him, kill him, kill him” and “Kill the policeman as well”).

Deceased left his escort and tried to run away. At the same time a huge man punched him violently on the back and caused the deceased to stumble to the left and fall. Avia Aihi then attempted to stab deceased but missed. The deceased got up and ran to the centre of the road in the direction of Bereina and Avia Aihi then stabbed him and he fell down shouting.

Policemen lifted him up. He helped. They placed the injured man in the back of a police vehicle and drove towards Bereina. But before that he saw a man cut a tyre with an axe. Before they drove off and while the judge was still standing outside his car Avia Aihi came up to the judge and said in Motu: “I do not want to go to jail, I do not want to go to court. Can you cut my neck off”.

Later he identified Avia Aihi, Taita Itaro and Batai Oata at identification parades. He had seen Avia Aihi and Taita Itaro in the National Court gallery on the 8th September. He had never seen Batai Oata before except at the scene punching the deceased.

Gradson Sigabai is a Constable attached to Bereina Police Station. His evidence is, shortly, as follows. On the 11th September he accompanied the court party to the scene. The motor vehicles were parked on the hill on the left hand side and the court party went down and stopped about half way down the road to take a view. He saw some men near some bamboo trees near the creek where cars were parked.

When the court party had finished they started going back. He saw a man walking up the road on the right hand side when facing Bereina. He saw Constable Adam go to stop him and he saw the man produce a knife from behind. Then he saw Constable Kila walk towards the man and saw both constables try to disarm the man. He himself assisted by twisting the man’s arm behind him.

He saw Constable Kila holding Morris Modeda and walking him up the hill. Earlier when he was with the court party he saw two women under a big tree. They were the widow and Taita Itaro. At that time he was with Morris Modeda.

Then he lost sight of the widow and the other woman. He saw the warder fall down. He did not see what made him fall. He heard Morris Modeda shouting: “Ah ye mama, ah ye mama”. He released the man he was holding and ran after Morris. He saw a man run down the hill and punch Morris Modeda on the back and saw Morris Modeda fall down on the left hand side when facing Bereina. He saw the widow try to stab Morris Modeda and miss. He saw Morris Modeda run to the right hand side and saw him slip on a small drain and fall down. He fell on his knees and the widow caught up with him. She stabbed him with the knife on the back on the right side and pulled the knife out downwards.

When the court party had turned to go up the road he saw more than a hundred people come from the right hand side when facing Bereina. Some were carrying knives, others sticks and stones and yelling in their own language which he could not understand, and chasing Morris Modeda and some of these people were seven to eight yards from Morris Modeda when the widow stabbed him.

Morris Modeda was taken up the hill and placed in the back of a police motor vehicle. He saw a man chop the rear left tyre of this motor vehicle with an axe but the driver drove off in spite of the flat tyre. He saw people run after the motor vehicle and pelt it with sticks and stones. He was asked how much time had elapsed from the time the old man appeared and Morris was stabbed He replied: “Things happened very fast and so I can’t tell how long it took”.

Kila Vigi is a Constable stationed at Bereina. His evidence is briefly as follows. On the 11th September he joined the court party at Bereina and went to the scene. On arrival the motor vehicles were parked on the left hand side. At that time there were about three to four persons at the top but plenty of people washing motor vehicles at the creek. The court party and the policemen walked down the road where Sgt. Moitze pointed out certain places in the road. After this the court party started to walk back up the hill. Just then an old man came on to the road. He produced a knife. He disarmed him and handed the knife to Constable Adam.

He noticed Morris Modeda walking up the hill by himself. He ran up and pulled Morris Modeda back and then he, the prison warder and Morris Modeda walked up together. He saw the prison warder fall and he had the impression that the warder had been bumped from behind by one of the villagers who had come on to the road. Many people had come on to the road from the bush and some of them were carrying knives and sticks. They were making for and following Morris Modeda. There were more than a hundred men coming on to the road.

After the prison warder fell down Morris Modeda ran up the road on the left hand side and fell down. He does not know what caused him to fall. He got up and ran to the right. He himself went up the road to prevent people from getting to Morris Modeda and to clear the way for Morris Modeda. When Morris Modeda went to the right he saw the widow with tattoos on her face and body stab Morris in the back and saw the blood flow heavily.

He got into the driver’s seat of a police vehicle while policemen placed Morris Modeda in the back of the motor vehicle. He drove the motor vehicle to the bottom where he turned round and drove back towards Bereina. The left rear tyre was flat and he drove on three inflated tyres only. At the A.D.C.’s house he transferred Morris Modeda to another motor vehicle and drove to Veifa’a hospital. Later he collected Morris Modeda and drove him to the airfield. On the way he met a doctor who examined Morris Modeda.

The evidence of Senior Constable Bari Bakaia is as follows. He is attached to Bereina Police Station. On the 11th September 1978 he and other policemen joined the court party and policemen from Port Moresby, and together they proceeded to the scene.

On arrival the motor vehicles were parked at the top of the hill. He saw about a hundred persons sitting down by the sides of the road, some were lighting fires and others just sitting down. He saw about fifteen to twenty persons near the creek washing a motor vehicle.

The court party alighted and walked down the hill and stopped at a place on the road where Morris Modeda indicated certain places on the road. He himself and two policemen from Port Moresby stayed at the top near the motor vehicles.

When the motor vehicle in which he travelled stopped and he opened the door Porewa came towards the motor vehicle from somewhere in the bush. He knew her well. He has known her for about a year being the length of time he has been stationed at Bereina. Porewa lives at Bereina Station where her husband works for the Plant and Transport Authority.

While the court party was proceeding down the road and Morris Modeda was about fifteen yards away Porewa pointed at Morris and said in Motu: “That man who is dressed in civilian clothes accompanied by policemen he is the one who killed my brother with the motor vehicle”. She was talking in an ordinary tone, just normally.

On hearing this Constable Bakaia said to her in Motu: “Porewa tomorrow is the last day of this case and the judge and the police are here and they are doing the last part of their duties. By tomorrow you can find out what the court will say or do with Morris Modeda but at present let us keep our mouths shut”.

When the court party had finished making their observations on the road and had just started to go back up the hill an old man produced an okapi knife and tried to stab Morris Modeda but policemen grappled with him and disarmed him. Then Mariano’s widow and another woman came out from where there was a big tree and where they had been sitting down. The police tried to stop these two women. Other people came on to the road from both sides. There were plenty of them and they were shouting all sorts of things at the same time. People at the top of the road were trying to come down and he turned round to stop them and the other two policemen also endeavoured to stop them. It was at this stage that he heard Porewa say in Motu: “Alaia, alaia, alaia” which in English means: “Kill him, kill him, kill him”.

He was not aware of what was happening near the court party on the road below him because he had his back to the court party while he was endeavouring to prevent people from the top of the hill rushing down below. All he saw was Morris Modeda falling backwards and some policemen picking him up. A man came past him and slashed a motor vehicle tyre with an axe and he heard the tyre burst. He saw people holding things but he cannot say what they were holding.

Russel Penunu is a First Constable stationed at Bereina. His evidence is briefly as follows. On 11th September he accompanied the court party to the scene. After parking the motor vehicles at the top of the hill the court party walked down the road and started making observations. He took up a position on the roadway near the kapok tree. Hearing rustling coming from the undergrowth under the kapok tree he went near the tree. He saw three women lying down. On seeing him they stood up. He could not see them from the road because of the grass.

He said to Avia Aihi in Motu: “In-law don’t do anything here”. No-one replied. He then turned back and faced the road. He saw an old man walking up the road on the right side facing Bereina. He walked towards the old man but by the time he got there he saw other policemen trying to move him away.

He then saw two women move forward towards the road. They were Avia Aihi and Taita Itaro. He went to where the two women were in order to stop them getting into the roadway. As the court party walked past him on their way up Avia Aihi tried to infiltrate the court party in an effort to get at Morris Modeda but he prevented Avia Aihi from doing so by pushing her away. Avia Aihi said to him in Motu: “Penunu, keep away”. She pulled out the knife, Exhibit “P2”, and swung it at him. He dodged by moving backwards and Avia Aihi then followed the court party.

He saw people from the creek moving up the road, some of them holding sticks and some shouting “Alaia, alaia” in Motu which means “Kill him, kill him”.

When he turned round he saw Avia Aihi chasing Morris Modeda. At the time he himself was busy trying to prevent people from moving up the road but some got past him.

As Avia Aihi was chasing Morris Modeda, the latter fell on the left side of the road when facing Bereina. He got up and ran to the right where he slipped on some ground and fell further down the road. He had described a kind of semi circle. Avia Aihi at once came up from behind and stabbed him in the back on the right upper side. She plunged the knife in and pulled it downwards.

Sgt. Moitze and others held Avia Aihi. He himself came to where Avia Aihi was and assisted by twisting her arms and disarming her.

There were many people on the road, some of whom were chasing Morris Modeda and the roadway was so crowded that from where he was he could not see where the motor vehicles were parked.

The evidence of Moitze Sagum is as follows. He is a Sergeant in charge of Bereina Police Station. On the 11th September he went to Anga Banga River and met the court party coming from Port Moresby. There were four policemen from Port Moresby. After a brief stop at Bereina Police Station where nine policemen joined the court party, they proceeded to the scene where they arrived at about 12.15 p.m.

On arrival the motor vehicles were parked at the top of the hill on the left hand side of the road when facing Waima. The court party and the policemen then went down the road and stopped about half way down and after taking a view started walking back.

He saw a man coming out from the thick grass holding a knife in his hand. He saw Constable Adam try to get the knife and he himself went to assist. He spoke to the man in Pidgin. The man took no notice. At the same time he saw people pouring on to the road from the bush on the right hand side. People on the left hand side surrounded Modeda and tried to attack him.

He saw two women on the left hand side of the road rush on to the road. One of them was Avia Aihi, the widow of Mariano. He knew her. The two women mixed with the crowd and he lost sight of them.

He saw Morris Modeda screaming and running to the right side and being chased by Avia Aihi. He saw her hold a knife and stab Morris Modeda on the upper part of his back with great force and draw it down and pull it out. Morris Modeda tried to run away but it was impossible for him to do this and he collapsed on his back on the road.

Morris Modeda was not wearing a shirt at the time he was stabbed. He had been wearing a shirt earlier.

He did not see Morris Modeda being taken away because he was busy at the time restraining Avia Aihi. There were many people near Avia Aihi when she stabbed Morris Modeda. They were screaming in their own language which he did not understand.

Michael Aitsi is a mechanic who lives at Pone Pone Village and works for the Plant and Transport Authority in Bereina. On the morning of the 11th September 1978, before going to work, he went to Batai Oata’s house. There he found Jack Ume who told him they were going to see Morris Modeda and the judge at the place where Mariano was killed.

Some time after 4.00 p.m. when he got home from work, after having a wash, he went to Batai Oata’s house. He found Batai Oata under the house lighting a lamp. Jack Ume was about fifteen yards from Batai Oata. Jack Ume told him that he had punched Morris Modeda and that after he had punched him Avia Aihi had stabbed him. He then went home.

Nelson Weho gave the following evidence. He is a Constable stationed at Bereina. On 11th September he went to the scene with the court party. On arrival the motor vehicles were parked at the top. He saw people standing on embankments on the sides of the road. He saw a total of seven to ten at the top and about twenty five near the creek.

The court party walked down and started making observations. While this was going on an old man came from the bush on the right hand side facing Bereina and tried to infiltrate the court party. He was stopped by Constables Adam and Kila.

When the court party had finished viewing the scene and started to walk up he saw two women standing in the bush on the left hand side under a kapok tree. Taita Itaro was one of them and the other was the widow. The widow came on to the road and tried to infiltrate the court party and Constable Penunu stopped her.

As the court party proceeded up the hill the old man produced a knife from his back pocket. He was disarmed by Constables Adam and Kila with two other Constables helping them. By this time the court party was about half way up between the place where they had stopped to take a view and the place where they had parked their motor vehicles. Many people had come on to the road and some of them were armed with knives, sticks and axes. They ran towards the court party and started to chase Morris Modeda. He tried to stop people chasing Morris Modeda and other policemen were spread out and were also trying to stop other people from chasing him.

He saw Morris Modeda run up the side of the road on the left hand side and then run to the right. He saw him being punched and saw him fall as a result of being punched. He saw the widow who was standing immediately behind him stab him in the back.

When cross-examined by Mr. Alpine he agreed that in a statement he made to Superintendent Tasion on the 17th September he had not mentioned that he had seen Morris being punched. He said he did not do so because he did not see who punched him. He agreed that he assumed he had been punched because he saw him fall. He would not agree that the people who came on the road came out of curiosity. He said they came in anger.

Morris Modeda was taken to St. Gerard’s Hospital at Veifa’a where he was seen by the Sister in charge and a recently qualified nursing sister by the name of Cecilia Apini. There is no doctor in attendance at that hospital.

Cecilia Apini said that when Morris Modeda was brought to the hospital he was in a critical condition. He had a big deep cut on the right side of the back, 12 cm. long and 6 cm. deep, which was bleeding profusely and from which bubbles were seen to be coming indicating that the lung had been pierced. He had two cuts on the right side above the hip bone and a smaller cut below the umbilicus which were also bleeding heavily. He was given oxygen and intravenous drip and a tetanus toxoid injection.

As there is no doctor either in the hospital or in Bereina and no facilities for the treatment of the type of emergency that Morris Modeda’s case presented, arrangements were made to have him flown to Port Moresby General Hospital.

Dr. John Duncan Brown is a medical practitioner employed by the Public Health Department. On the 11th September 1978 he was stationed at Port Moresby. He flew to Bereina in a Douglas Airways aircraft arriving there at about 2.15 p.m. and drove immediately towards Veifa’a. On the way he met a truck which was carrying Morris Modeda apparently to the airstrip. He examined Morris Modeda at about 2.50 p.m.

Morris Modeda was conscious and talking but in shock due to loss of blood. He estimated the blood loss at four to five pints which would be about half the blood volume for a man of his size.

Morris Modeda had a large bandage around his lower chest and upper abdomen. Dr. Brown did not undo the bandage for fear of causing massive bleeding but on lifting the lower edge of the bandage at the back on the right side he noticed the lower end of a very deep wound which had been packed with dressings which were wet with blood. He had a wound in the lower lumbar area at the back and another wound at the front on the right side below and to the right of the umbilicus. There were a number of small superficial wounds between the umbilicus and the pubic hair and a superficial wound just above the right nipple.

He examined the injured man to see if he had a collapsed lung but he could find no clinical symptoms of a collapsed lung.

He noticed that the patient had an intravenous infusion of plasma in one arm. However, this was not running at the time. He attempted to insert a new infusion but because of the collapsed state of the veins owing to loss of blood the doctor was unable to do so. He attempted further resuscitation by elevating the patient’s feet and they travelled to Bereina airfield as soon as possible. The patient was transferred to the aircraft and at that stage an intravenous infusion was established. The time then was 3.30 p.m. As the plane was taxiing the patient’s blood circulation and respiration diminished and as the plane accelerated for take-off he died. The time was 3.45 p.m.

On arrival at Port Moresby the body was taken by ambulance to the Port Moresby General Hospital.

His clinical opinion is that death would have been due to blood loss.

Dr. Aiken, who worked in the Pathology section of Port Moresby General Hospital, did a post mortem examination on the body of the deceased Morris Modeda. Dr. Aiken was not available to give evidence having retired and returned to his native land, Australia. His deposition was read at the trial pursuant to s.109 of the District Courts Act. His deposition reads as follows:

“My full name is Graham Henry Aiken. I am now working at the Taurama general hospital. I am working in the Pathology section. My qualifications are M.B.B.S. F.R.C.P.A. I have been working in Port Moresby general hospital for 6 years. During those 6 years I have conducted post mortem examinations on dead bodies on many occasions. I can remember conducting a post mortem examination on a dead body on 12/9/1978. That would have been about 2 o’clock in the afternoon. The name of the man whom I conducted the examination on was Morris Modena. After the examination I put down my findings on paper, the findings were in the form of a report on a standard report. I have a copy of my report with me now. PROSECUTOR ASKS THAT WITNESS BE ALLOWED TO REFER TO HIS NOTES - Granted. WITNESS SHOWN REPORT - This is a copy of the report that I made on the body of Morris Modeda. I have another copy here with me.

The body I examined was that of a young nourished Melanesian man 155 cm. in height, blood soaked bandages were present around the chest and abdomen. The body was in a good state of preservation. Rigor mortis was present. 5 wounds were apparent and these were located as follows:- 1 on the front of the chest on the right side 1.8 cm. in length at the skin surface. 2 on the front of the lower abdomen just to the right of the midline 1.5 cm. in length. 3 on the right flank region 6 cm. in length. 4 on the lower part of the back on the right side 4 cm. in length. 5 on the upper part of the back on the right side 14 cm. in length. Sutures were present in the exposed muscle layer of the chest wall. All of the wounds were of incised type i.e. that they had clean cut edges. Wounds 3 & 4 communicated beneath the skin and appeared to represent entrance and exit wounds. I next made an internal examination of the body further exploration of the wounds were carried out. The wound on the front of the chest involved only skin and subcutaneous tissue. The wound on the front of the abdomen penetrated the full thickness of the abdominal wall and a small opening into the abdominal cavity was present, however no vital structures appeared to have been injured. The wounds on the right flank and lower right side of the back extended deeply into the subcutaneous tissue but had not entered the abdominal cavity. The large wound on the upper right side of the back had opened the right chest cavity between the 10th & 11th ribs, it had produced a cut in the diaphram and superior surface of the liver approx. 3 cm. in length. There was also a small cut in the lower lobe of the right lung, the right lung was collapsed. There was a large amount of blood in the right chest cavity a small amount of blood was present in the abdominal cavity. No significant disease state was noted during the examination. The chest abdominal and cranial cavities were opened and examined. The cause of death - death would have been mainly due to haemorrhage, collapse of the right lung and consequent impairment of respiration would have been an additional factor. TENDERED AS AN EXHIBIT - NO OBJECTION - ADMITTED AND MARKED EXHIBIT “L”.

EXAMIN IN CHIEF

Q. ; A60 youeable to say whichwhich of the 5 wounds you mentioned in your report would have been the cause of the death

A. &#116und Non ther riide o be o back would have beve been then the woue wound whnd which cich caused death

Q. Could you ite tocouatlochef the wound as you found it

A.&#>A. &160;ټ The wound was locatethis rhis region atback ess dtratep>

>

(sgd)(sgd) G. A G. Aiken

G.H. AIKEN

TAKEN AND SWORN BEFORE ME THIS 14th day of November, 1t Poresby

(sgd)(sgd) G.E. G.E. Bail Bailey

G.E. BAILEY

Magistrate”

On the 21st September 1978 the accused Porewa Wani was interviewed by Sub Inspector Michael Hairai at Bereina Police Station. Apparently the Sub Inspector had recorded a statement made by her on the 17th September. The Sub Inspector first of all put to her some of the things she had said on the 17th September and asked her if they were true. The accused agreed that she had said the following.

Mariano Aitsi was related to her. On Monday the 11th September 1978 she went to Korio store and bought some food. On the way back she saw Avia Aihi sitting in front of the District Office. She asked Avia Aihi: “Why are you sitting here?” Avia Aihi replied: “Last time I went to court in Port Moresby and this is the last day and to-day Morris will come and see this place. I told the Bereina people ‘Help me to kill this person Morris’ but the Bereina people did not want but now I went and told my village people and they will go and stand and see me kill Morris”. Avia Aihi then took out a knife from her bilum. At this stage the Sub Inspector produced the knife Exhibit “P2” and the accused agreed that it was the knife which Avia Aihi had shown her.

Avia Aihi had then said: “I will kill this man with this knife because very long time I was poor and I will kill him and everything will finish”. The accused went to her house but when she came back Avia Aihi had gone.

So she took her daughter and went to the place where the accident had happened. On arriving at the hill she stood under a mango tree. Then she walked down and washed her face in the creek where the bamboo trees were and then walked back to the hill where the mango tree was.

She knew there would be people hiding in the bushes. She cooked a yam in a fire in the garden. She waited for a long time for the police car and the judge to arrive. When the party arrived she walked up and saw a police car in front, the Bishop’s car in the centre and a police car in the rear. She saw the judge, policemen, the A.D.C. and another European walk down the hill past a kapok tree.

She heard people call out “Kill that man”. She shouted out: “Don’t kill that man. He is my son”. She was referring to her son Aitsi Pui.

She saw an old man wearing a yellow T-shirt walk towards the judge and the police and saw policemen pushing him away.

She saw Batai Oata and Jack Ume hit Morris when he tried to run away from the police, and saw Morris fall down and Avia Aihi stab him in the back.

The abovementioned are matters from her statement of the 17th September which the Sub Inspector put to her and which she agreed she said. Upon further interrogation she said as follows. She knows Senior Constable Bakaia - and agreed that Bakaia said to her in Motu: “This is the last work and don’t talk, the judge and the lawyers want to work”. She agreed she had been shouting in Motu to the people as well as in her own language. She said that the words she said in her own language were: “My son, don’t kill him”. However, when she was told that Senior Constable Bakaia had heard her shout in Motu: “Alaia, alaia, alaia” she denied having uttered these words. She also said that she pointed to her son and said: “This is my son and that is the offender so don’t kill my son”.

She saw Batai Oata, Jack Ume, Avia Aihi and Taita Itaro at the scene. She was asked by the Sub Inspector: “What did you say to Avia Aihi when she told you outside the District Office that she was going to kill Morris Modeda?” She replied: “I said ‘you stay here and I will go home and cook some food for my children and then I will come back and then we will go together’ ”.

She saw Avia Aihi when she arrived there and saw Taita Itaro with Avia Aihi. She heard people shouting: “Kill that man”, and when she heard these words she showed them Morris Modeda. She saw plenty of people coming from the bush. She saw that the old man was holding a knife.

She was asked: “What did you tell her after she told you that she was going to kill Morris?” To which she replied: “I did not say anything but I wanted to come back and go with her to the place of the incident”.

On the 16th September Constable Robert Guyolo interviewed the accused Batai Oata at Boroko Police Station. The accused said as follows. On the 11th of September he and Jack Ume went to the scene. He had heard people on the station saying that the judge was going to visit the place where Mariano died, so he went to see the judge. He saw people from the station going to the scene so he joined them.

He arrived at the scene at the same time as the court party. He stood where the police truck was parked. There were a lot of people present. The court party was about 50-100 yards away from him. He saw the man with the knife and saw the police disarming him.

He had not seen or talked to Avia Aihi before he arrived at the scene. He saw her for the first time at the scene when she started fighting. He did not talk to her.

He saw Taita Itaro tearing off Morris Modeda’s shirt. He was quite close by when he saw this and at that time Taita Itaro was with Avia Aihi. He saw Taita Itaro slap Morris Modeda on the face.

He was asked: “Avia Aihi told us that when she stabbed the man he ran into the bush. You and Jack hit him and forced him back again on the road?” Accused replied: “No, I did not hit him but I pushed him towards the police car when he was trying to run away”. He said he pushed him hard on his head and he pushed him because he did not want blood to come on his clothes.

He calls Avia his sister and Mariano his brother-in-law. Avia Aihi and he are descendants from the same grandparents.

On the 22nd of September 1978 the accused Jack Ume was interviewed by Inspector Bai at Bereina Police Station. Inspector Bai asked the accused: “Would you like to tell me what happened at Waima Road on Monday the 11th September, 1978?” The accused made the following reply:

“Yes, in the morning I was in Ponepone village. I was there till 10 ’oclock and I walked up. That time in the morning I heard people talking about this police and the Judge and the patrol officer going to visit the scene of the accident that happened before. I walked up there with my uncle. When we were there we saw some people working in their gardens. When we were there, my uncle left me and went down and see the people. I was by myself. We were staying there a long time, I dont know how many hours when we were up there. The Police drove up with the Judge and the patrol officer. When they arrived at the spot they went down and he was showing them where the place that the accident happened before. As they were coming back up the hill I saw this woman coming out from the right side of the road. When she came I didn’t see any knife on her but only laplap, she was going to the patrol officer. And than some villagers people came out from both side of the road in the bushes. Some of them were coming onto the road towards the police and the patrol officer. And the police were trying to send the woman back but she refused to move away from the patrol officer and the spot they were trying to get her away. While they were trying to take her away the village moved in and they crowded around the policeman. Next thing I heard them shouting and everybody running into the main road. When they were chasing the patrol officer around he was trying to escape out from the crowd. When he was broke through from the crowd he was running up the hill and a woman was running behind him and this time I saw that she was holding a knife. When they were running up the people were following behind the woman. They chased the patrol officer up the hill and he came running towards me. When he came he was trying to hold on to me. I was frighten because the crowd was almost on top of us. I pull my hand away from him and ran into the bush side. At the same time I saw this woman stabbed him on the right side of his back. When she stabbed him, the patrol officer fell on the road. The police came and they held the woman and pulled the knife out from her hand. After that some of the police came and put the patrol officer into the police car. They took him away to Bereina station. When the police took the knife away from the woman they didnt arrest that woman. They took the knife and they came to Bereina Station. All the people were moving away to their homes. Myself I came back home to my house. That morning I went to the garden and the police came to look for people who were at the scene of the fight.

When I came back from the garden people told me that police were looking for me to question me about the fight. I then came to the Station. I came here and the policeman from Moresby came and brought us to Moresby and we gave our statement.”

In reply to further questions the accused said that he had gone to the scene with his uncle Batai Oata, that the woman who stabbed Morris was Avia Aihi and she came from Waima Village. He said she was the widow of Mariano Kaipa and that Mariano was related to him on his mother’s side.

The accused also made a statement to the police in which he said the deceased tried to hold him and he pulled his arm away because he was afraid the old woman might hit him or stab him.

On the 15th September 1978, Constable Robert Guyolo interviewed the accused Taita Itaro at Boroko Police Station. Among other things the accused said as follows.

On the 11th September 1978 she went to the scene at Orue. She had heard from a boy by the name of Bahau Kokori that on that day the man who had killed her brother in a car accident would be coming with the judge to view the place of the accident and she was anxious to see the man’s face.

There she met Avia Aihi.

She was asked: “When you met Avia Aihi what did she say to you?” She answered: “She did not say anything. But when I saw her carrying the knife I asked her what she was going to do with the knife, she told me that she was going to kill this man who killed her husband”.

She said she had never seen Morris Modeda before but was shown the man when the court party arrived. When she first met Avia Aihi she was with a woman from Waima by the name of Taita. She did not know her second name.

She was asked: “By the time Avia Aihi jumped out on to the road from the side of the road, did you go close to her?” She replied: “Yes, I went close to her and asked her about the man. She showed me and I was very angry. I walked up close to the man and slapped him”. She said she slapped him on the ear as he walked past when she was on the road and that at the time Avia Aihi was close to her but she did not see her. She also said that Avia Aihi at that stage had the knife hidden in her lap-lap.

She said she was aware that there were people hiding in the bush and she saw them coming out but did not know what they did.

She said she saw the wound of the back of Morris Modeda but did not see him being stabbed because there were a lot of people about. When the policemen took the wounded man away she walked home with Batai Oata and his wife.

She agreed that she saw the deceased being escorted by policemen. When asked why she did not tell the police that Avia intended to kill Morris with the knife she said at first she forgot and later added that she thought that Avia Aihi was joking but she was surprised when she saw Avia Aihi stabbing the man.

The accused Porewa Wani has given evidence on her own behalf but called no witnesses. Her evidence is briefly as follows. She went to the scene because her son Aitsi Pui went. She went with her little child. On arrival she stood at the top of the hill where the motor vehicles were and did nothing but merely watched what was heppening. She shouted to the court party in her own language: “He is my son do not do anything to him, leave him alone”. When she said this and saw what was happening she was afraid. She grabbed her child and fled into the bush. There were a lot of people at the top of the hill and in the vicinity of the motor vehicles.

She knows Constable Bakaia but cannot remember seeing him near the motor vehicles.

She did not shout “Alaia” and indeed did not say anything in Motu. She saw nothing at the scene. When the court party was on the way up and she saw what was happening she feared for her little child, grabbed the child and ran off.

She did not see Avia Aihi earlier that morning, did not see her at the scene and did not see her at all that day.

When cross-examined by Mr. Alpine she said that the police motor vehicles arrived shortly after she did.

She told Mr. Cassells when he cross-examined her that a lot that was recorded in the record of interview was not true. She is implying that a lot that was recorded was never said by her. At another time she said that she was so scared that she cannot remember what she said and then at another time she said she could not remember what she said because it was so long ago. She denies she knew there were people hiding in the bush. In fact, she says, there was nobody hiding.

She did not see either Batai Oata or Jack Ume hit Morris, nor did she see Avia Aihi stab Morris. She herself did not say “Alaia, alaia” nor did she hear anyone else utter these words.

She knows Constable Bakaia well because both of them live at Bereina Station but she did not speak to Bakaia.

She did not know what the crowd who had assembled there had in their hands. All she said was: “Run to the motor vehicles and get into one of them”. She said this to Aitsi Pui.

She is not related to Mariano. He was not her brother and she was not related to him in any way.

Batai Oata gave evidence on oath which is briefly as follows. He went to the scene to see the judge because there was news of his coming to see the place. The police were already at the scene when he arrived and the court party was down the road. He stood near the motor vehicles about five yards away on the road on the left hand side when looking towards Bereina. By the time he arrived the trouble had already started. He saw the old man approach and be surrounded by policemen but did not see what happened to the old man because there were too many people on the road. He saw people running here and there and a man covered with blood running towards him. He pushed him away from him because he did not want his clothes soiled with blood.

He said there were some inaccuracies in the record of interview but basically his record of interview was correct.

When cross-examined by Mr. Cassells he said he did not know what people who were running about were doing. He did not see what they were holding in their hands. He did not see anyone at all do anything to Morris Modeda. He did not see people chasing Morris Modeda. He said he did not remember being asked in the record of interview if he had seen anybody pulling off Morris Modeda’s shirt. He said he could not remember saying that it was Taita Itaro who pulled off the shirt. He said he could not remember being asked how far he was from Taita Itaro when she pulled off Morris Modeda’s shirt and cannot remember saying that he was close by when he saw this. He could not remember saying that he saw Taita Itaro slapping Morris Modeda. He said he remembered the questions the police asked him about Taita Itaro. But when he was asked whether he told the police the truth about Taita Itaro he said he could not remember what Taita Itaro did there.

He was then questioned as to what he had said about Avia Aihi. He agreed that the police asked him if he saw how many times Avia Aihi stabbed Morris Modeda and remembered saying that he saw only two wounds. He said he remembered being asked on what part of the body he saw the two wounds. He agreed he said: “First she stabbed him in the stomach and then another one at the back” but he stated that he said this because he saw blood coming from the front and blood coming from the back. He was asked: “Do you remember that question - ‘Did the victim run away from Avia Aihi or was he at the same place?’” At first he said he could not remember being asked that question. But when he was asked whether the interpreter had read that question to him he agreed that he had and subsequently agreed that that question had been asked. He agreed that his answer was: “She stabbed her first in the stomach and he ran away. When she stabbed him again at the back he fell on to the ground”. He agreed that he had seen that and what he had told the police was true. He said he could not remember being asked the question: “This man who was stabbed by the woman was trying to run away into the bush but you hit him and forced him to come to the road where he was stabbed by Avia Aihi to death, is this true?” Nor could he remember having answered: “No, I did not hit him but I pushed him when he was running towards the police car”.

Jack Ume gave evidence on his own behalf. His evidence is briefly as follows. He knew Morris Modeda. He was an A.D.C. at Bereina. Morris was a friend and a drinking mate. He used to play sports with Morris.

On the 11th of September he went to the scene with his uncle Batai Oata. He had gone because he heard that the judge would be coming to view the scene. When he reached the place he found that the police had already arrived. He was in time to see the court party walking up the hill.

He saw Avia Aihi come from the bush in the vicinity of the kapok tree - and saw her resist the policemen who were trying to prevent her from approaching the court party. He saw people come on to the road from both sides, he saw people from the top come down and people from the bottom come up towards the court party. There would be more than a hundred persons altogether. They had surrounded the court party and they were screaming and shouting and chasing Morris Modeda. Morris Modeda ran up the hill towards him on the left hand where he was standing. He then punched him in the face. It was not a hard blow. It did not knock down Morris Modeda. He used medium amount of force which caused Morris Modeda to swerve to the right. He was angry because Mariano was a friend and Modeda had killed him. His intention in punching Morris was to hurt him not to kill him. After punching Morris Modeda he himself went to the top of the embankment from where he saw Avia Aihi stab Morris on the right side of the back.

After the incident at the scene he went home. The following day when he got home from gardening he heard that the police had been looking for him so he went to the Police Station at Bereina quite voluntarily to find out why the policemen were looking for him.

He said that in his record of interview he had lied in denying that he had punched Morris Modeda. Asked why he denied it he said: “I was frightened but on the day when Morris Modeda was killed I did not know that it was going to happen like that. So when they interviewed me I was frightened so I told the police officers that I did not punch the deceased”.

When cross-examined by Mr. Cassells Jack Ume agreed that in saying he did not punch Morris Modeda he had lied. He said all the other things in the record of interview were true, he was quite sure about that. He said he had heard the record of interview read out in court and agreed that the contents were true (except presumably about the one matter which he had said he had lied about).

Mr. Cassells then handed over to the accused the record of interview and asked him to refresh his memory by reading the long answer to question No. 43. After he had done so he agreed that apart from the part where he said he had pulled his arm away from the patrol officer the rest was true.

The following exchange then took place between Mr. Cassells and the accused:

MR. CASSELLS: ـʔ In question 4ion 43 and the answer to it, Mr. Ume, it reads as follows: ‘When they were chasing the patrol officer around he was trying to escape out from the crowd, when he was broke through from the crowd he was running up the hill and a woman was running behind him and this time I saw that she was holding a knife. When they were running up the people were following behind the woman. They chased the patrol officer up the hill and he came running towards me. When he came he was trying to hold on to me. I was frightened because the crowd was almost on top of us.’ You then go on to say you pulled your hand away from him. It was at that point of time, Mr. Ume, was it not, that you punched Morris Modeda?

JACK UME: &##160; Yes.

A

A littlerlater there was another similar exchange:

MR. CASSELLS: ټ Would you look at Ex ̶“P7”. I would like you to read. Do you agre agree you said this in your statement on 13 Seer: &;Ther patrficertrying to hold on to my arm and I got away from himm him beca because Iuse I was was scarescared otherwise this old woman might hit me or stab me too’. Do you remember saying that?

JACK UME: /p>

Jack Ume said that that before punching Morris Modeda he had not seen a knife with Avia Aihi. He agreed that both in his statement to the police dated thh Sepr (Ex R”) and in his record ofrd of inte interviewrview (Exh (Exhibit “P6”) he had lied in saying that Avia Aihi had a knife. He said he lied because at the time of making these statements he was frightened.

The evidence of Taita Itaro is as follows. On the 11th September she met Batai Oata on her way to the garden and heard from him that the judge was coming to view the scene. She had never seen a National Court judge before. She thought this was a good opportunity to see one and decided to go. She was aware that Morris Modeda would be coming with the court party.

She went by herself. The police were already there when she arrived and the judge and the court party had gone down the road. She could not see what was going on because of the number of people on the road but she saw the old man and walked down to have a look.

She saw Avia Aihi on the road. She wanted to approach her and talk to her but Avia Aihi moved further on the road so she stayed where she was. She could not see what Avia Aihi did because of the many people on the road. She saw the old man being stopped by the police who were in the process of taking him to the motor vehicles. She then went home.

When she first arrived she stood by the kapok tree. She did not see Avia Aihi then. She only saw her after the old man came on the road after which Avia Aihi also came on the road. Avia came out from the vicinity of the kapok tree. She herself was standing about five yards from the kapok tree and Avia Aihi was standing about ten yards on the other side of the kapok tree so that the total distance between her and Avia Aihi was about fifteen yards.

There were some people from Waima standing at the place when she first arrived. She did not see the knife with Avia Aihi at the time when the policemen were trying to stop her but she saw the knife in her hand when she was on the road. However, she did not notice what Avia Aihi did with the knife because there were a lot of people on the road and she herself was watching the old man.

She did not see Morris Modeda being stabbed but saw him being lifted up by policemen and noticed a big wound on his back. At this time Morris Modeda was about fifteen yards from her. It was only later at Boroko Police Station that Avia Aihi told her that she had stabbed Morris Modeda.

When cross-examined by Mr. Cassells she denied that she had met and spoken to Avia Aihi at the scene. She denied that Avia Aihi had shown her the knife and told her that she intended to kill Morris Modeda. She denies having told the police any of the incriminating things the police have recorded as her having said. She alleges the police invented those things and did not read back to her her record of interview. She says she did not tell the police she was very angry and had slapped Morris Modeda and denies chasing him or tearing off his shirt. She denies having said: “Hold him and we will kill him properly” and denies that Avia Aihi said those words. She did not see the people who rushed on to the road carrying knives, axes and sticks.

Taita Itaro called Mrs. Wapu Ali as her witness. She is the sister of the deceased Mariano and her brother is married to Taita Itaro.

This witness said that she attended the trial of Morris Modeda in the National Court and sat throughout in the public gallery with Avia Aihi and her brother Mini Aihi. She did not see Taita Itaro in court and she was certainly not in court on the 8th September.

From the evidence of the prosecution witnesses it is obvious that there was a good deal of confusion at the scene. Some witnesses have deposed to having seen events which others had not noticed. Other witnesses have given different explanations for the same happening, as for instance the reason why Morris Modeda fell just before Avia Aihi stabbed him. There are discrepancies as to places and times at which certain incidents occurred. It is my experience that one encounters such discrepancies even in the simplest of cases. In this case however, as defence counsel have been quick to point out, there has been more confusion and there have been more inconsistencies than one normally encounters, and the reason for this is fairly obvious.

Nobody expected trouble on that day. The court party and the police were taken completely by surprise. There were only thirteen policemen present and they were unarmed. The trouble erupted suddenly and unexpectedly. It all happened within a small space, along a stretch of road from just below the kapok tree to about half way between the kapok tree and the place where the motor vehicles were parked, a stretch say about forty yards in length by eight feet in width.

Within this space were confined the Chief Justice, his associate, the two counsel in the case, the witness Aitsi Pui, the prison warder, the deceased Morris Modeda and ten policemen, leaving out of account the three policemen who were at the place where the motor vehicles were parked. That makes seventeen persons in all. There were, in addition, twenty or so of the villagers, as some witnesses have called them, who had got on to the road, to say nothing of the sixty or more who were converging on the court party from all sides. The police were busy trying to disarm the old man, trying to prevent Avia Aihi, the woman accompanying her and the villagers from coming on to the road. They had to guard the prisoner, who had taken fright and tried to run up the road for safety. They had also to guard the rest of the court party. They were running here and there and everywhere, going where they thought their presence was most necessary. They were scattered all over the place. To add to the confusion the villagers were brandishing axes, knives, sticks, branches of trees and raising their voices and shouting angrily. According to the evidence of Mr. Amet the time between the old man with the knife emerging from the bush and Morris Modeda being stabbed was not more than a minute or two. So a lot of things happened within a very short time and within a very small crowded space.

In these circumstances it is not surprising that there was chaos and confusion which gave rise to the inconsistencies and discrepancies that we have found in the evidence in this case. Most of the witnesses are policemen. They could be mistaken about some of their observations and there might be good reasons for the court to disregard the evidence of some of them, as will appear hereafter. But they would have no motive for telling deliberate lies and none has been suggested by the defence.

Some of them were of limited intelligence and some not very articulate. Those who gave evidence in English mostly spoke basic English and others spoke in Motu or Roro or Pidgin. As expected the best witness was Mr. Amet. He had the advantage of being a trained lawyer and of being able to speak English fluently. It was obvious that he was striving to be scrupulously accurate and fair. He gave his evidence clearly and precisely. Unfortunately he did not see all that happened. I accept his evidence upon matters which he claims he saw and heard where there is a conflict between his evidence and the evidence of other prosecution witnesses. I have set out his evidence in great detail, albeit briefly, and it is not necessary for me to repeat it.

It is against the background of the situation described by Mr. Amet that I shall be examining the case against each of the accused persons. In addition I shall be taking account of the fact that Morris Modeda had been punched violently in the back causing him to stumble and fall, that shouts in Motu of “Kill him, kill him, kill him” and “Kill the policemen as well”, and in Roro “Hold him and we will kill him” were heard.

As mentioned earlier Avia Aihi has pleaded guilty. There is ample evidence of her guilt. She used a knife with a blade about twelve inches long. The blade is razor-sharp, it has been sharpened to a point and resembles a dagger, except that it is sharp only on one side. With this knife she pursued the unfortunate Morris Modeda with great determination, plunged it deep into his back and drew it downwards before pulling it out thus causing an enormous wound which penetrated the right lung and made it collapse making it difficult for him to breathe. He died from loss of blood from this wound and the other complications I have mentioned. There can be no doubt that she intended to kill.

For the case against the other accused persons the State relies upon the doctrine of common intent. In view of the fact that it was common knowledge that Morris Modeda would be brought to view the scene and having regard to what appears to have been a concerted attack upon Morris Modeda from different directions, all at the same time, it does appear as if there had been a pre-concerted plan to kill him. But in my view this amounts to no more than a suspicion. Before the four accused persons can be convicted on the basis of a pre-concerted plan there must be either evidence that the accused had formed such a plan or circumstances from which an irresistible inference can be drawn that the accused were a party to such a plan. I find that there is no such evidence and no circumstances to warrant the drawing of the necessary inference.

The State is on firmer ground in their submission that even if there was no pre-concerted plan, as events developed at the scene on that day there was an intent on the part of the hostile crowd that surrounded and chased Morris Modeda either to kill him or that he should be killed by Avia Aihi and that when the case against each accused is examined separately it will be seen that each accused was present at the scene and aided and abetted in the wilful murder of Morris Modeda.

I shall now examine the case against each of the accused persons. First of all the case against Porewa Wani. The strongest evidence against her is what she said in her interview with Sub Inspector Hairai. She admitted that Avia Aihi had told her that Morris Modeda would be brought to view the scene and she would kill him and that she produced the knife with which she intended to kill him. She agreed that the knife, Exhibit “P2”, produced by the Sub Inspector, was the knife she was shown by Avia Aihi. She said she told Avia Aihi to wait there and after cooking food for her children she would join her and accompany her to the scene but that when she returned she found that Avia Aihi had already gone and so she followed taking her daughter with her.

She said that at the scene she had seen Avia Aihi with Taita Itaro. She had seen the old man walking towards the judge and seen the police push him away. She had seen Batai Oata and Jack Ume hit Morris Modeda when he was running away, had seen him fall and seen Avia Aihi stab him with a knife. She agreed she had been talking with Constable Bakaia and agreed that when she heard people shout “Kill that man” she had pointed out Morris Modeda.

She agreed she had said that she knew there would be people hiding in the bushes. In her evidence however, she denied having seen Avia Aihi on that day either at the scene or at Bereina and denied having had any conversation with her. She said she knew Bakaia but denied having seen him or having had any conversation with him.

Now, Constable Bakaia has said that he had a conversation with Porewa Wani and that when the trouble started and he was trying to prevent people from coming on to the road he heard her say in Motu: “Alaia, alaia, alaia” (which in English means “Kill him, kill him, kill him”). Porewa Wani denies having said these words but I am satisfied that Constable Bakaia is speaking the truth and that Porewa Wani did say these words.

I am satisfied also that the accused did say in the record of interview the things she is alleged to have said and which she now denies having said. I see no reason why the police should invent and insert in the record of interview things she never said. They would have no motive for doing so and none has been suggested by the defence.

She knew Avia Aihi intended to kill Morris Modeda and had seen the knife. She had every intention of accompanying Avia Aihi, obviously to see Morris Modeda being killed. At the scene she must have seen the man being chased. She had heard people say “Kill that man” and she herself joined in the chorus by saying “Alaia, alaia, alaia”. She was exhorting people to kill Morris. She is lying about not talking to Bakaia because she appreciates that an admission of having said these words is incriminating. Avia Aihi did in fact kill Morris Modeda. Porewa Wani is thus a principal offender under the provisions of s.7(c) of the Criminal Code and I therefore find her guilty of wilful murder.

Batai Oata, Jack Ume and Taita Itaro had been put up for identification at identification parades. As their identification is disputed by the defence I shall first state my findings with regard to the identification parades.

Sub Inspector Henao Wini of the C.I.B., Boroko Police Station, conducted two identification parades at Bereina, one on the 21st September, and another on the 22nd September. He conducted two more identification parades at Bomana Corrective Institution on the 28th September, in one of which all the participants were males and in the second all the participants were females.

There is no evidence as to who was put up for identification at the identification parade held on the 21st September. But on the 22nd September Jack Ume was put up for identification and the only identifying witness was Aitsi Pui. Aitsi Pui identified Jack Ume as the person he had seen punching Morris Modeda on the face.

All four defence counsel have criticized the manner in which the identification parades had been conducted and in my view a lot of the criticism is justified.

But as far as the identification of Jack Ume by Aitsi Pui is concerned it was not necessary to hold an identification parade because Aitsi Pui had seen Jack Ume before the 11th of September and knew his name. In a statement which Aitsi Pui made to Sergeant Hobart Mavirit on the 19th September, Exhibit Def. “1”, Aitsi Pui said at first that the person who had punched Morris Modeda on the face was a man from Bereina Village whom he could identify but whose name he did not know. But a little later he remembered the name and appears to have said spontaneously and without being prompted: “I just remember now that Jack Ume was the person who punched Morris on the face and Morris fell down”. In any event the question of whether or not Jack Ume punched Morris Modeda in the face is no longer in issue as Jack Ume now admits having punched Morris Modeda in the face.

At the identification parades at which Batai Oata and Taita Itaro were put up for identification it appears that Sub Inspector Henao used prisoners as participants in the parade. At the parade at which Batai Oata was put up for identification there was only one other person who came from the Bereina area, all the others were from other parts of the country. At the identification parade at which Avia Aihi and Taita Itaro were put up for identification only these two women were from the Bereina area, one was a Goilala, one came from Tapini and the other six women came from the Highlands.

It appears that it is possible to say what area persons come from because of certain physical characteristics peculiar to them which distinguish them from persons in other areas. Thus it is apparently possible to distinguish a Mekeo from a person who comes from Kerema and a person who comes from Kerema from a person who comes from Samarai. Senior Constable Apua said with great conviction that he could identify a Goilala, a Chimbu, a Samarai, a Maiwa, a Mekeo and men from many other clans by just looking at them and he proved his ability by saying unerringly when Mr. Sakora asked him to say where he (Mr. Sakora) came from that he came from the Tufi area.

In these circumstances I think that when people from the Bereina area were being put up for identification that most if not all participants should have been from the Bereina area. Bereina is not far from Port Moresby and it should have been easy to arrange for this to be done.

I do not think for a moment that Sub Inspector Henao intended to be unfair in doing what he did. He just did not give the matter sufficient thought. It was much easier and much more convenient to use prisoners as participants. Sub Inspector Henao appears to be not a very imaginative person. Nor was he a good witness. He hesitated a long time before giving some of his answers. He did not conduct the identification parades with that meticulous attention to detail and the scrupulousness which are essential to insure that identification is properly made. I have therefore decided to place no reliance at all upon the identification of Batai Oata and Taita Itaro made at the identification parades.

The evidence against Jack Ume is that of Aitsi Pui and his own record of interview. Aitsi Pui’s evidence was to the effect that when Taita Itaro was chasing Morris Modeda the latter ran up the hill and that he saw Jack Ume come down the hill from the top and punch Morris Modeda violently in the face causing him to fall, whereupon Avia Aihi stabbed him with a knife.

When Jack Ume was being interviewed by Sub Inspector Bai on the 22nd of September he said that he saw Morris Modeda being chased by Avia Aihi with a knife and by other people and that Morris Modeda ran towards him and grabbed him by the arm but he was frightened as the crowd was very close to him and he withdrew his arm and then Avia Aihi stabbed Morris Modeda with the knife. Sub Inspector Bai told him that Aitsi Pui had said that he (Jack Ume) had punched Morris Modeda on the face causing him to fall after which Avia Aihi stabbed him. Jack Ume denied hitting Morris Modeda.

At the trial Jack Ume changed his story. He agreed that he had punched Morris Modeda in the face but denied that Morris Modeda fell as a result of the blow. He said that when he punched him he meant to hurt him and not to kill him. He said that when the crowd was screaming and shouting and chasing Morris Modeda, Morris ran up the hill towards him and as Morris approached him he felt angry because Morris had killed his friend Mariano. The blow he struck was of medium force and Morris did not fall but swerved.

When Mr. Cassells cross-examined him he agreed he had lied at the interview in saying that he had merely withdrawn his arm. He said he had lied through fright because in view of the fact that Morris Modeda had died an admission that he had struck him a blow in the face would be damaging. He said it was the only thing he had lied about. Mr. Cassells gave him his record of interview for him to read and refresh his memory as to his answer to question 43. After reading this he again maintained that that was the only falsehood he had told.

He was then asked: “You have said in answer to question 43 before you punched him he was being chased by a woman with a knife and by a crowd”. He agreed he had said this. He also agreed he had said something similar in his statement to the police dated the 13th September. He said he said this because he was frightened.

Now, I can appreciate his saying that he lied about punching Modeda because he was frightened. I understood him to mean that he was frightened of the consequences of admitting that he had punched Morris in view of the fact that Morris had died. But he was unable to explain how fright should prompt him to say that Avia Aihi was chasing Morris with a knife if it were not true. I myself cannot see how such a lie can be of the slightest assistance to him. The only inference to be drawn is that Jack lied about punching Modeda but did not lie about Avia chasing him with a knife. To admit taking one’s arm away when Morris is being chased by a woman with a knife provides a plausible excuse; he might have been injured. But to admit punching him when he is being chased by a woman with a knife is an admission that he was trying to prevent the man from escaping. It is tantamount to an admission that he is aiding and abetting in the killing. That is why he is now denying having seen Avia Aihi with a knife. There is ample evidence that Avia Aihi was chasing Morris Modeda with a knife. I am satisfied that Jack Ume had seen Avia Aihi chasing Morris Modeda with a knife in her hand and that Jack Ume punched him in the face in order to prevent him from escaping. Having admitted punching him in the face he must give a good reason for doing so. The reason he gives is instant anger, which has a hollow ring.

The picture Jack Ume has drawn of Morris Modeda being chased by Avia Aihi and the hostile crowd is almost as horrifying as that drawn by Mr. Amet except that Jack Ume says he did not see the crowd armed with any kind of weapons. He was standing at the same place as Mr. Amet and presumably saw the same thing that Mr. Amet saw. I am satisfied that he is lying about the crowd not being armed.

I am satisfied that Jack Ume is also lying when he denies that he went down the hill to strike Morris. Aitsi Pui’s evidence is supported by the fact that Morris never at any stage reached the area where the motor vehicles were parked and where Jack Ume claims he was standing all the time until he got on to the embankment, and, therefore, he must have come down the hill in order to punch Morris Modeda.

There is also force in Mr. Cassells’ contention that at the time when Jack Ume struck Morris he must have been injured. Mr. Amet saw blood in the stomach area and Batai Oata claims to have seen injuries at the front of Morris. Moreover at that stage Avia struck only one blow the one at the back. Morris had several injuries including some in front which must have been inflicted earlier and which Jack must have seen.

Morris was being chased by Avia with a knife. She was followed by a crowd that had surrounded him, a crowd that was armed with assorted weapons which they were brandishing. They were screaming and shouting. Morris Modeda was fleeing for his life. He was probably injured. In these circumstances to strike him a blow on the face which caused Morris to swerve, even if he did not fall, clearly shows an intent to aid and abet in the killing of Morris pursuant to s.7(b) of the Criminal Code, and, for these reasons I find him guilty of wilful murder.

The case against Batai Oata is based upon the evidence of Senior Constable Eric Apua and what Batai Oata himself said in his record of interview. Senior Constable Apua said that when the old man appeared on the right, the two women on the left and many others rushed on to the road, some of them carrying sticks, and shouts of “Halaia, halaia, halaia” and “Policemen dano halaia” were heard, Morris Modeda who was being escorted by himself and a prison warder, tried to run away. Just then a huge man struck him a hefty blow at the back causing him to fall when Avia Aihi attempted to stab him and missed. He says that the man who punched Morris Modeda in the back is the accused Batai Oata.

Now, Morris Modeda was undoubtedly struck on the back and knocked to the ground. Senior Constable Apua’s evidence on this point is supported by the evidence of Constable Sigabai. He said that he saw the warder fall and heard Morris Modeda shouting: “Ah ye mama, ah ye mama”. At the time he himself was holding the old man. On hearing Morris Modeda cry out he released the old man and ran to Morris Modeda and saw a man run down the hill and strike Morris Modeda on the back causing him to fall on the left of the road when Avia Aihi tried to stab him but missed.

Senior Constable Apua had never seen Batai Oata before. He would have seen the man who punched Morris Modeda for a fleeting moment under difficult circumstances. The man ran away after striking Morris Modeda. I have given earlier my reasons for rejecting the evidence of the identification parades and therefore no reliance can be placed upon Senior Constable Apua’s identification of Batai Oata at the identification parade. There are other reasons for rejecting this witness’s evidence on this point. He said he had recognized Taita Itaro at the scene because he had seen her in the public gallery in the National Court at Waigani on the 8th September during the trial of Morris Modeda. Taita Itaro has denied throughout that she attended the trial of Morris Modeda. She called on her behalf a witness by the name of Wapu Ali. Wapu Ali is the sister of the deceased Mariano and Taita Itaro is married to the brother of Mariano and Wapu Ali. Wapu Ali testified that she attended Morris Modeda’s trial daily and did not at any time see Taita Itaro at the trial. I accept her evidence. If Senior Constable Apua can be mistaken about Taita Itaro he could be mistaken about Batai Oata. It would be unsafe to accept Batai Oata’s identification by Senior Constable Apua in these circumstances and I find therefore that the State has failed to establish beyond reasonable doubt that it was Batai Oata who had punched Morris Modeda in the back.

When Batai Oata was told by Constable Robert Guyolo that Avia Aihi had said that when she stabbed Morris Modeda he ran into the bush but he (Batai Oata) and Jack Ume hit him and forced him back again on the road he said he had not hit Morris Modeda but pushed him towards the police car when Morris Modeda was trying to run away. He said he had pushed him hard on the head because Morris Modeda was covered with blood and he did not want his clothes to be soiled.

I have set out earlier in some detail the evidence of Batai Oata and what he said in his record of interview. Both Batai Oata and his counsel said that the record of interview was basically correct but there were certain questions he could not remember having been asked and certain answers he could not remember having given. He has a peculiar memory in that the only questions he could not remember having been asked were questions the answers to which were incriminating and similarly the only answers which he could not remember having made were those which were incriminating. He said at first that he was so busy looking at the old man that he did not see what was happening. He had said in his record of interview that he had seen Taita Itaro tear off Morris Modeda’s shirt, that he had seen Taita Itaro slap Morris Modeda and that he had seen Avia Aihi stab Morris Modeda. In his evidence he said he could not remember having said these things and had not in fact witnessed them. He was asked if he remembered being asked: “Did the victim run away from Avia Aihi or was he at the same place?” At first he said he could not remember being asked that question but when he was asked if the interpreter in reading the record of interview to him during the trial had not read that question he agreed that the interpreter had read that question, agreed that that question had been asked and agreed that he had said: “She stabbed her (sic) in the stomach and he ran away, when she stabbed him again at the back he fell to the ground”. He further agreed that he had seen this and that he had told the police the truth.

I am satisfied that the accused Batai Oata said in his record of interview all the things that he says he cannot remember having said. He cannot remember them because they are incriminating. He is lying out of a consciousness of guilt.

He would be aware that Morris Modeda was being chased by Avia Aihi with a knife and by a hostile crowd armed with various weapons and that he was trying to escape. On his own admission Morris Modeda was covered with blood. So he had been injured. I find it difficult to accept that Batai Oata should have pushed Morris away merely because he did not want to be soiled with blood. After all he was only wearing a T-shirt and shorts and he could have stepped aside. There is no allegation that Morris was trying to get hold of him and no reason why Morris should do this.

Batai Oata says that he was at the top of the hill where the motor vehicles were parked, about five yards away from the motor vehicles. So he must have come down the hill to push Morris because at no time did Morris Modeda get anywhere near the motor vehicles.

In these circumstances it seems to me that the reason why he pushed Morris Modeda with some force was in order to prevent him from escaping and to enable either Avia Aihi or the others who were chasing him to kill him.

I find Batai Oata to be a principal offender under s.7(b) of the Criminal Code and find him guilty of wilful murder.

The evidence against Taita Itaro is that of Aitsi Pui, First Constable Russel Penunu and her own record of interview.

Aitsi Pui has sworn that he saw Taita Itaro and Avia Aihi come on to the road from the vicinity of the kapok tree and that he saw Taita Itaro chasing Morris Modeda. I am asked by the defence to disregard the evidence of Aitsi Pui for several reasons. They say that he should not be believed because he has a conviction and has been to prison. They say that knowing that Morris Modeda had knocked down Mariano he had agreed to keep the matter quiet and said nothing to the police until about two months later. They say that he should not be believed because of the inconsistencies between his evidence and the statement he made to the police on the 13th September (Exhibit “Def. 1”).

When cross-examined Aitsi Pui said he had known Taita Itaro and had known her name before the incident. In his police statement he had said that he did not know the name of the woman he had seen with Avia Aihi. When this was pointed out to him he said he had known Taita Itaro before but came to know her name afterwards, meaning presumably after the incident.

Another inconsistency that the defence point to is that whereas in his evidence he said that it was Avia Aihi who said: “Hold him. Let us kill him” he had said it was the other woman who had spoken and she had said: “Hold him and we will kill him properly”.

In spite of all these allegations against Aitsi Pui I do not think Aitsi Pui is dishonest and I do not believe he is lying. He was certainly not lying about Jack Ume. Although he said in his police statement that he did not know the other woman’s name he did say that he had seen her before and would be able to identify her. He could have been genuinely mistaken when he said he had known her name before the incident. And as to the discrepancy with regard to which woman had said what words, there is not a great deal of difference between the words “Hold him and we will kill him properly” and the words “Hold him tight, let us kill him well”. He has said that both women were chasing Morris Modeda and it is possible that by now he has forgotten which of them he heard saying the words. I shall be referring later to evidence which shows that the woman he saw with Avia could be no other than Taita Itaro.

First Constable Penunu had taken up a position on the road near the kapok tree at the time the court party were viewing the scene. He heard rustling in the undergrowth, went to investigate and saw three women lying down under the kapok tree. They could not be seen from the road. They stood up when they saw him. Presumably Taita Itaro was one of the three women. Later he saw Avia Aihi and Taita Itaro move towards the road. Avia Aihi was then trying to infiltrate the court party.

The reason why I am satisfied that the woman that Aitsi Pui and Constable Penunu saw with Avia Aihi is Taita Itaro is this. In her record of interview Taita Itaro admitted she had met and spoken to Avia Aihi, she admitted she was close to Avia Aihi when the latter went on to the road and that Avia Aihi was close to her when she slapped Morris Modeda. In these circumstances the other woman that Aitsi Pui, Sergeant Moitze and Constables Apua, Penunu, Bakaia and Sigabai have been talking about could be no other than Taita Itaro.

In her record of interview Taita Itaro said that she met Avia Aihi at the scene and saw her carrying a knife and when she asked Avia Aihi what she was going to do she said she was going to kill the man who had killed her husband. She agreed that when Avia Aihi went on to the road she herself went close to her and asked her about the man. Avia Aihi showed her the man, she was very angry and she walked close to the man and slapped him as he went past her.

In her evidence Taita Itaro denied having said these things in her record of interview. She contends that the interviewing officer put into the record things she had not said. I am satisfied, however, that Taita Itaro did say the incriminating things about herself that she is now denying. Constable Guyolo would have no motive for putting into the record things she had not said. He has no axe to grind. If he wanted to tell a damning story against her why did he not make it much more incriminating than it is.

The evidence against Taita Itaro then amounts to this. She knew that Avia Aihi intended to kill Morris Modeda. She had seen the knife. Her excuse that she thought Avia Aihi was joking is too puerile to be credible. She knew people would be hiding in the bushes. She must have seen Avia Aihi chasing Morris Modeda with a knife and seen the people who surged on to the road brandishing weapons, shouting angrily and surrounding Morris Modeda and chasing him. She herself took part in the chase and on her own admission slapped Morris Modeda on the face. She lied about what she said in the record of interview out of a consciousness of guilt. There was a common intent in that crowd that Morris Modeda should be killed. Taita Itaro by her actions aided and abetted in the killing. I find her to be a principal offender under s.7(b) of the Criminal Code and guilty of wilful murder.

Before I leave this case I would like to comment on Mr. Alpine’s suggestion made in his cross-examination of almost every prosecution witness and adopted by the other counsel that the situation was similar to that of a drunken brawl or a street fight in which innocent by-standers get caught up in the excitement, get involved and sometimes take sides, the implication being that there was therefore no intent to kill. It has been the defence contention throughout that it was common knowledge that the court would be coming and bringing Morris Modeda to view the scene. There were present the Chief Justice, the two counsel, Morris Modeda and an escort of fourteen policemen. It would be clear to all present that what was happening was a court viewing the scene in the presence of the accused. The situation that developed was nothing like a drunken brawl or a street fight but more like a party of hunters chasing a wild animal. There were sixty to eighty men, most of them armed, chasing one man who was unarmed and fleeing for his life.

I find that the case against all four accused persons has been proved beyond reasonable doubt and I convict them of the offence of wilful murder.

Solicitor for the State: K.B. Egan, Public Prosecutor

Counsel: B.J. Cassells

Solicitor for the Accused: C. Maino-Aoae, State Solicitor

Counsel for first and fourth accused: A.J. Alpine

Counsel for second accused: M. Unagui

Counsel for third accused: J.E. Byrne

Counsel for fifth accused: B.B. Sakora