Unreported National Court Decisions
N939
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
CR648/88
THE STATE
V
OPI AIYO
Goroka
Brunton J
14 December 1989
19-20 December 1989
18-19 September 1990
21 September 1990
21-24 November 1990
7 January 1991
CRIMINAL LAW - Criminal Code s299 wilful murder - tribal killing - payback - defence by alibi - care needed in weighing evidence.
In a case involving tribal killing and payback, where the State Witnesses come from one traditional grouping, and the defence witnesses come from an opposing traditional grouping, there is a likelihood that witnesses on either or both sides will lie to the Court. There is no rule of law requiring corroboration of the evidence of either side. Nevertheless the Court needs to be careful. All testimony needs to be approached with circumspection and intelligent credulity. The onus of proof is on the State to establish its case beyond reasonable doubt, and to negative any alibi.
Verdict:
Not Guilty
Counsel:
Mrs C Ashton-Lewis: For the State
Mr F Terra: For the Accused
INDICTMENT
BRUNTON J:  There were two counts of wilful murder both allegedly committed by the accused at Miarasa Village on the 26th of November 1987 charging the separate killings of Amuya Esenamu and Uwa Esanamu. The accused pleaded not guilty to both charges and there was a trial.
ADMISSIONS:
At the pre-trial review Mr Terra on behalf of the accused made the following admissions of fact.
·         That the deceased Amuya Esenamu and Uwa Esanamu were shot to death by arrows [speared] on the 26th of November, 1987.
·         That the record of interview between the police and the accused was free and voluntary and was not disputed.
·         That a sketch-plan of Miarasa village prepared by the police investigation was an accurate representation of the village.
·         That the medical reports prepared by Dr. Lenard Kaupa on the deceased bodies contained accurate statements of fact.
·         That there was a fight on the 28th of November, 1987 in which the line from Miarasa (the line of the deceased) attacked the Tunuku line (the line of the accused).
DEFENCE:
The defence to the charge was by alibi, the accused saying he was in Lae at the time of the killing.
THE BRIEF FACTS OF THE CASE:
The scene of the crime is located in the Okapa District of the Eastern Highlands Province. An adopted sister of the accused, named Ase died sometime in late November 1987. Her family held a ceremony during which they divined that the cause of her death had been the sorcery of Amuya and Uwa Esenamu (the deceased). The deceased were reputed sorcerers and thought to be responsible for many deaths. The accused and seven others allegedly attacked Mirasa village at dawn on the 28th of November 1987 and, with bows and arrows, killed the two deceased.
As the raiding party approached Miarasa the deceased Amuya was standing near a mumu-pit not far from the road. Other people in the village were beginning to stir themselves. Nine arrows were allegedly fired into Amuya’s body and he collapsed and died.
Uwa, Amuya’s brother, who saw that Amuya had been killed, came out of his house and was shot with seven arrows.
THE LOCATION OF THE KILLINGS:
A sketch-map was in evidence before the Court (attached). It shows that Mirasa is on the Okapa Road. The village is bounded by a fence along the road and there is a gate. The road, so the testimony stated is lower than the village. Amuya was shot about 20 metres from the road. Uwa was shot about 40 metres from the road.
THE MEDICAL EVIDENCE:
The medical evidence of the body of the deceased Amuya showed that he had nine arrow wounds in his body. He died from these wounds. The positioning of the wounds was as follows:
one     right lower chest (front)
one     right shoulder blade (back)
one     left lower jaw
two     right lower back
four    left chest posteriorly (back)
EXHIBIT B
The medical evidence in relation to the body of the deceased Uwa showed that he had been shot with arrows seven times. The positioning of the wounds was as follows:
one     over left shoulder anteriorly
one     right nipple
one     left should blade posteiorly
one     right seventh intercostal space posteriorly
one     lower back posteriorly
one     lower back posteriorly
Uwa died from these wounds.
EXHIBIT “A”
The medical evidence was not disputed and it establishes the fact and the manner of death beyond reasonable doubt.
THE RECORD OF INTERVIEW:
In a record of interview with the police Exhibit D, the volunariness of which was not in dispute, the accused denied any part in the killing of Amuya and Uwa. They had been killed at dawn on Thursday the 26th of November 1987. At that time the accused told the police he was in Lae with his wife and family (Q19, Q22). He did not know who had done the killings (Q28, Q29). He knew the killings of the deceased had been in revenge for the death of his adopted sister Ase. On Saturday the 30th of November 1987 he was involved in a fight between the Tunuku’s and Mirasa’s (Q37). Although there was an attempt in the record of interview to confuse the two events (Thursday and Saturday) and to get the accused to implicate himself (Q38) in the end he denied involvement in the killings (Q43).
THE STATE CASE: EVIDENCE OF YARA WARA:
This witness gave evidence as follows:
He was from the same house-line as the two deceased and regarded them as his fathers (17/80 this indicates Judge’s Notebook No.17 page 80). On Wednesday the 25th of November 1987 he became aware that Ase Aiyo had died and that a retaliatory raid was likely (17/83, 17/85). He was of the view that the deceased Amuya was aware of this too (17/81, 17/83). The witness woke up at dawn (17/73) to a clear day (17/80). He went to the toilet (17/73). Other villagers were up and about (17/81). He returned to his house and cooked some kaukau with his wife and child (17/73). By inference it would appear that Yara Wara was sitting in his house with the door open, and could see across the village to the deceased Amuya’s house, which was directly opposite. He could see that Amuya was up and about. He was aware that some pigs had got into Amuya’s garden and he could see that Amuya was preparing to go and chase them (17/82, 17/83). His wife was by the mumu-pit (18/11).
As to next event that occurred the witness first testified that he heard a war-cry “on the road” (17/73). His wife was outside his house; he was at the door (17/74). He saw a group of people jump the fence (17/74).
Later he was to give a different version of events. He first saw the war-party inside the fence (17/84) and that the war-cry was first made by the group inside the fence.
Yara Wara also testified that apart from the group of men inside the fence there were others outside on the road (17/87) (18/14).
The group that jumped the fence and came into the village he identified as Joanis, Tasio, Opi (the accused), Kuku, Miniawe, Arimboa, Kinaro, Anawaria and Yasina (17/74).
It would appear that Amuya saw them and tried to speak to them. He was overheard saying to the war-party “I heard something yesterday, and I’m going to discuss this with you, so we can go through the courts regarding this” (17/86).
The witness then testified that he saw Tasio grab hold of Amuya, and that Joanis broke the bow that Amuya was holding (17/82). Later he admitted that this version of events was incorrect and that it was Joanis that grabbed Amuya, and Tasio who broke the bow (17/88).
Yara Wara said that all nine named persons shot one arrow each into Amuya (17/74, 17/76). This version of events contradicted his police statement in which he said “I saw Tasio Yaro got his spears and fired at Amuya on this left side of his ribs. After that, Tasio got another spear and fired at Amuya....” (17/92, 17/93). On this issue he appears to have changed his story and could well have been lying (18/10).
The next event which the witness testified to was that Uwa came out of his house (17/74). He first testified that nine arrows were shot into Uwa’s body (17/77). He then altered his account and said that seven arrows actually entered Uwa’s body (17/78).
Yaro Wara denied seeing the deceased Amuya fire an arrow at the raiding party (17/84). The testimony of this witness contained a number of unexplained contradictions.
STATE WITNESS: TORARO AMUNA
The witness was the wife of Yara Wara (18/14). She testified that she had spoken with the deceased Amuya on the night of Wednesday the 25th of November, 1987 and that she was aware of approaching trouble (18/16). Early in the morning of the 28th of November 1987 she got up and began to cook kaukau. The door of her house was open. She heard a war-cry and went out with her son, a baby (18/14). She saw that Amuya had his bows and was preparing to go and chase some pigs from his garden 18/16. She saw Tasio grab Amuya (18/15, 18/17); Amuya’s bow as taken from him, broken and thrown away (18/15, 18/17). She then saw the group shoot arrows into Amuya - they shot together (18/17). She identified the persons who shot arrows into Amuya as: Tasio, Joanis, Kuku, the accused Opi, Miniawe, Pakove, Kinaro, Uasina, and Anawaria (18/15). She then saw the shooting of Uwa. The following people fired arrows at Uwa: Tasio, Joanis, Kuku, Opi (accused) Miniawe, Pakove, Kinaro, Yasina, and Anawaria (18/15). She was not sure how many arrows actually hit Uwa (18/21). This witness appeared to be straight forward; broadly her testimony matched that of her husband.
STATE WITNESS: KOFU AMUYA:
This witness was the second wife of the deceased Amuya (18/24); the co-wife of Warigo Amuya (29/48). She testified that on the night of the 27/28th November 1987 she and her husband slept in the same house. Early in the morning they heard calls from the next village that pigs had entered their garden. She said that they both went to the garden and inspected it. (18/24) and that at this time other villagers were up and about (18/28). It was put to the witness that this testimony contradicted her statement which she made to the police (18/32, 18/33 EX.H).
The witness then said that after her husband came back to the house, he sat down, put the key in his belt, and then got up and walked out to the mumu-pit (18/25). She thought he was going back to the garden (18/28).
At that point the raiding party arrived. She said that Tasio took the bows and arrows from Amuya, broke them and threw them away (18/25). Tasio then shot Amuya, and the others, including the accused Opi shot him as well. She said she then became confused (disorientated) and could not remember with accuracy what else transpired in relation to Uwe (18/27). On the whole she was not a good witness.
STATE WITNESS: WARIGO AMUYA
This witness, the first wife of the deceased had been sleeping in a separate house on her own. She awoke in the early morning, came outside, then went back into her house to cook kaukau (29/48, 29/53, 29/54). The first indication she had that there was trouble was when she heard people running out of breath (29/49). She came out of her house and saw the raiding party jump over the fence (29/55). At first she said that Amuya was near the mumu (29/51) but on cross-examination she said he was not around (29/68). Amuya remained silent (29/49, 29/55). Tasio came and grabbed Amuya, and threw his bows and arrows away (29/68). Then the raiding party shot Amuya. The witness said on two occasions that they all shot at the same time (29/59, 29/67) and once on cross-examination she said they shot one after the other (29/62).
The arrow hits to Amuya’s body she said were as follows: -
Tasio: left side under the ribs (29/56)
Joanis  under the left armpit (29/59)
Opi:    right side bottom rib cage (waist) (29/59)
Kuku:  right side middle rib-cage towards the rear (29/60)
Miniawe:        right side middle rib-cage further towards the rear (29/60)
Pakove:         right side middle rib cage mid-back 29/60
Eruba: back: spinal-cord (29/61)
Anawaria:      left side near mid-back (29/61)
The witness gave an account of the shooting of Uwa. The arrow hits to Amuya’s body she said were as follows:
Tasio: right chest to the side level with the nipple (29/69)
Joanis: mid-spine (29/69)
Kuku:  mid-back (29/70)
Opi:    mid-spine lower back (29/69)
Miniawe:        spine, upper back near neck. (29/70)
Pokove:         mid-back (29/70)
Eruba: between the should-blades (29/70)
Anawaria:      mid back spine (29/71)
Yasina:         mid back spine (29/71)
It should be pointed out that the medical evidence showed that Uwa’s body was pentrated by seven arrow wounds. This witness testified as to nine hits to the body of Uwa, but then said she was not sure how many arrows were fired at Uwa.
She also stated that she did not know what was the motivation for the killing (29/53). It may be that in her answer she had fixed the time of her knowledge at the time when the killing took place. But at the time of the trial, the motive was a matter of notoriety: a payback for the reputed death by sorcery of Ase Aiyo. At best she was ill-informed or not-observant. At worst she was lying. In either case she is not firm witness.
STATE WITNESS: TAKO UWA
This witness was the wife of the deceased Uwa. She appeared to be bright and responsive to questions in Court (29/77). She testified that at dawn on the 26th of November, 1987 she got up from her sleep, went out to urinate, and returned back inside her house, with her husband, and her daughter (29/77, 29/87). She heard Amuya’s sisters calling out pigs had got into his garden, and she said that Amuya went off to chase them, and then returned (29/78). She was in her house, at the doorway (29/85) and Amuya was sitting near the mumu (29/80). She heard a group of people coming up to the village, out of breath (29/78). Tasio was in front, and there were nine of them. They went straight to Amuya, seized his bow, threw it away. Tasio seized, Amuya, (29/81), they then fired arrows into Amuya. The disposition of the arrows in Amuya’s body was as follows: -
Tasio’s arrow: right side below the chest, came out left waist (29/81)
Joanis: right side above the waise (29/82)
Opi:    left side waist
Kuku:  right waist, towards the back
Miniawe:        right side mid-back
Pakove:         right side
Elah:   left side waist
Anawarai:      right side
Yasina:         left side of the mouth (all 29/82)
When she saw this attack, the witness ran away, and when she returned her husband was dead (29/83). Subsequently she must have found out that her daughter had locked herself in the house after she ran away (29/88).
On cross-examination she admitted that Opi’s sister had died, and he Opi came up from Lae (29/91).
STATE WITNESS: TINGERE AIBO
This witness was a woman of about twenty-two years. Her delivery was firm and straight forward. On the 26th of November 1987 she awoke at about 6am and went out of her house to urinate (29/95). At this time she said Amuya was in his house (30/12). When she returned Amuya was by the mumu pit (30/12). He had his bows and arrows, because a pig had got into his garden. She went into her house and cooked kaukau. In the house were her mother, Toina, and a small girl who was nameless in these precedings. There were other people about the house-line at Mirasa, which she named as Yalo, Tovalo, Walio, Ofano, Tokorave, Robert and Tingafe (29/95). The door of Tingere’s house was open (29/96). She saw a group of people come running up to the village, out of breath. They jumped over the fence and made ready to fire arrows. Amuya, who was by the mumu pit (90/11) told them to “talk this out” (30/12). She identified the group as the nine persons named by other State witnesses, including the accused Opi (27/96). It appears she only learnt after the killings the reasons for the raid (27/97, 30/3). She said she saw Tasio grab Amuya’s bow and arrows break them, and threw them away (27/97). The witness then gave an account of how the group fired arrows into Amuya’s body. The disposition of the arrows was as follows:
Tasio: left arm pit
Joanis: right side below arm pit
Opi:    left side below arm pit
Kuku:  right side middle between armpit and waist
Miniawe:        left waist
Pokove:         right side above the waist
Kinaro: mid section left side
Anawaria:      right side mid section
Yasina:         right side mid section
The shooting was in quick succession (27/98). Amuya went off and died at the back of his house (27/99). She saw Tako Uwa run away (30/3). Uwa came out of his house and fired an arrow at the raiders, it missed, the group fired seven arrows into Uwa (29/100), and ran away.
On cross-examination she gave the disposition of the arrows in Uwa’s body as follows:-
Tasio: mid back between the shoulder blades
Joanis: right side, waist
Opi:    mid back between the shoulder-blades
Kuku:  mid back below the neck (all 90/4)
Miniawe:        left back below the left shoulder
Pokove:         right side, a hand-span below the arm-pit
Kinaro: right side above the waist
Anawaria:      right side kidney area
Yasina:         right back lower shoulder blade.
It should be noted that this witness attributed two more arrow hits on Uwa’s body, than was revealed by the medical evidence.
She asserted that when Asenanta died her relatives went down to Lae and brought up the accused (90/8).
STATE WITNESS: ROBERT UWA
This witness was the daughter of the deceased Uwa; her mother was Tako Uwa. She was made available for cross-examination, by the State. On the 26th of November, 1987 Robert slept at Miarasa, with her father and mother. Her mother woke first (30/15). When Robert woke, the raiders were already in the village (30/14). She noted that they were breathless. Her father was outside the house (30/16); her mother was in the door-way of the house, and she was behind her mother (30/17).
She saw Tasio and Joanis fire an arrow into the right side of Amuya (30/15). She saw Pakove shoot an arrow (30/16). She was not able to recognise the others (30/20). After Amuya was shot she saw her father fire an arrow, but it missed (30/19). She closed the door of her house (30/16) and kept it shut until the fighting was over (30/18).
DEFENCE WITNESS: OPI AIYO
The accused gave sworn evidence. He testified that on Wednesday morning on the 25th November 1987 he was at work at NGI Steel in Lae. At lunch-time he went home and was told by his wife, that his sister Asa was dead (37/49). He was not aware of the cause of his sister’s death (37/63). His wife’s informant Kuku Aiyo, he believed was ready to go back to the village, near Okapa, immediately. At lunch-time he made the decision that he and his wife would travel to Okapa the next morning. He signed a saving bank withdrawal slip for his wife and got her to draw the money out of the bank (37/55). This form was put in evidence, on cross-examination by the State (Exhibit G). The date had been altered from the 25th to the 26th of November 1987. The accused admitted on cross-examination that he did the alterations to give himself an alibi (37/58, 37/59).
He, his wife and 6 month baby caught a PMV at 9am on the 26th November, 1987, from Lae; they arrived in Kainantu at lunch-time. From Kainantu they took another PMV at 3pm to Okapa, arriving there at about 5pm (37/52). Then they met Enos Nemema, who told them there had been fighting in the village. The accused and his wife took a bush-track from Okapa to Tunuku. They arrived there after dark, according to the accused, some twelve hours after the murder of Amuya and Uwa in the late evening of Thursday the 26th November, 1987 (37/80).
DEFENCE WITNESS - KENOVO AIYO:
This witness was the wife of the accused. He evidenced followed closely the main assertions of the accused. In particular she testified that Kuku Aseka was Ase’s blood brother; the accused was Ase’s brother by virtue of adoption (37/73, 37/76). She testified that Kuku had told her his sister was dead, when he visited her at about 8am on the 25th of November 1987 (37/73, 37/77). She had a calm, impassive demeanour, appeared to be a straight-forward witness, that maintained eye-contact with the State Prosecutor during cross-examination. She testified that she and Opi arrived in Tunuku at about 10pm on Thursday the 26th November 1987 (37/80).
DEFENCE WITNESS: ENOS NENEMA
This witness, was a labourer with Provincial Affairs at Kainantu. His wife and Opi Aiyo’s wife are sisters (37/84). On the 26th of November, 1987 he was at his village Emasa, one and a half miles outside Okapa. He had heard that there had been trouble that day at Miarasa. He went to Okapa station, and at about 5pm he met Opi Aiyo (37/83). He told them about the fight, and advised them to be careful, as they were going to the village. This witness could not give a satisfactory explanation of why he had not come forward with this alibi evidence before (37/88).
DEFENCE WITNESS: TASIO YABU
This witness was serving a sentence of imprisonment for ten years, after pleading guilty to the murder of Amuya and Uwa on the 26th of November, 1987.
He testified that he was the cousin of both Ase and the accused Opi Aiyo (37/94). Ase had been sick for about two weeks (37/96). In his testimony he made it clear that Joanis had sent a message to Kuku to tell Kuku that Ase was dead (37/96). (Joanis being the blood-brother of Opi (37/97). But it was the State’s position that when the message was sent Ase was not dead (39/48). This contradiction was never resolved, although all the evidence before the Court pointed to the message being sent to Kuku after Ase had died.
Tasio gave evidence that he was in Tunuku village on the Wednesday 25th of November, 198, all day, until dark. He did not see the accused Opi there at all that day (37/93). He first saw Kuku on that day (38/10), but it appears that it was not until late at night (38/10) after Kuku arrived about in the village at about 5pm.
At first Tasio gave evidence that Ase died on the Thursday, at nine o’oclock at night (37/95) and that the following morning the attack on Miarasa took place (37/96). Then he changed his story because the killing took place on the Thursday (38/10).
37/95
Q        “On what day did Ase die?”
A        “She died on a Thursday”.
Q        “Did she die on the day of these killings or before?”
A.       “It was the same day”
Q.       “What time did she die?”
A        “About 9 o’clock at night
38/10
Q.       “Did he (Kuku) sit with you around Ase,’s body on Wednesday?”
A.       “He was with us on Wednesday night and she died on Thursday”.
Then he changed the date of Ase’s death to Wednesday.
38/11
Q.       “What time of the day did Ase die?”
A.       “At night - 9 o’clock approximately”
This appears to be the correct day, although the time may only be approximate. In evidence-in-chief he had testified that he participated in a secret ceremony to find out who had killed Ase, at 5 o’clock (37/92). But on cross-examination he changed the time to 9 o’clock (38/11). It is clear that Ase died at Akagaveneti, in the evening of Wednesday the 25th November, 1987, where she had been brought to be near the health-centre (38/8, 38/9), that after she died a ceremony was held to find out who had killed her (37/96), because it was believed that the death of a young woman could only be attributed to sorcery (38/4). The participants in the ceremony were Tasio, Nake, Kuku, and Joanis (37/92). Kuku had arrived in the village at about 5pm, and was surprised to find that she was alive (38/11).
Early next morning, about 6am on Thursday the 26th of November, 1987, the witnesses testified, that he, Kuku, Yabu and Joanis left Meari Village for Miarasa, where they intended to kill the deceased, the reported sorcerers, Amuya and Uwa, who they believed were responsible for the death of Asa (37/91, 38/29,). It was about one and a half kilometers from Agavaneti to Miarasa (38/13); they ran silently, expecting to find on four men in Miarasa (38/14, 38/29, 38/19). There was enough light to see by (38/28).
There were two versions of the attack. The first said Uwa was on guard, he fired an arrow and hit Joanis. Kuku grabbed the bow and arrow, and they all shot Uwa. Then Amuya appeared and he was killed. The raiding party then returned to Tunuku (37/93).
The second version of the raid said that it was not Uwa who was shot first but Amuya (38/21). Amuya was near the fence (38/33), he did not see them creep up (38/53), but he was on alert and was able to fire an arrow at Joanis (38/21) Joanis was hit on the right leg (38/25) while he was standing on the road. Amuya was near the mumu pit (38/25) Kuku jumped the fence (38/24) and grabbed Amuya (38/31) and the others fired arrows into Amuya from the road (38/24, 38/22, 38/23). The fence is higher than the road (38/25). When he was hit Amuya fell into the mumu pit (38/33).
Uwa suddenly appeared from near the gate (38/26). He shot at Kuku and missed (38/27). Later Tasio placed Uwa between the mumu pit and the fence (38/34), but after he fired at Kuku, Tasio said they all jumped the fence (38/28, 38/33), which contradicted an earlier statment he made that they shot from outside the fence (38/32). Tasio said he shot four arrows at Uwa (32/31) and that the raid was all over in a short-time (38/53).
THE ANALYSIS:
The only issue in this case was whether or not the accused was present and participated in the killing of Amuya and Uwa. These killings were a traditional payback for the death of Ase, the accused’s adopted sister. It was thought that Ase had died from sorcery and that Amuya and Uwa were responsible.
In cases like these, were the State witnesses and the defence witnesses each come from opposing lines in a traditional dispute, a Court needs to be careful. It is not a matter of the Court looking for corroboration for the State’s case; the law does not go that far. Nevertheless the Court needs to recognise that in these situations witnesses on both sides frequently lie. All testimony needs to be approached with circumspection and intelligent credulity. In this case there was evidence before the Court, that persons had been picked, and offered up to the Police, to stand in for those suspected of the killings. These persons had assumed the names of those suspected by the Police.
Both sides had a motive for lying. The State witnesses were aggrieved because of the death of their kinsmen, Amuya and Uwa. Any conviction and imprisonment of a member of the Tunuku line, in these circumstances, would constitute a satisfying revenge, particularly so, if the convicted person was “known” by the community to be “innocent”. Conversely the Tunuku line had an interest to see that the accused was acquitted. The accused would wish to escape imprisonment, and his line would wish to see that the Miarasa’s did not contribute to any further losses on them.
The only objective evidence in this case was the medical evidence, from the post-mortem reports. Mr. Tera for the defence, submitted that there was no correlation between the evidence of the eye witnesses, and the medical evidence. A closer examination of this evidence shows that there was a general correlation (see table below).
TABLE 1
Post Mortem Report	Warigo Amuya	Tako Uwa	Tingere Aibu	
Amuya	 	 	 	
Right lower chest	Right side bottom rib cage	Right side below chest	Right side below armpit	
Right shoulder blade	 	 	 	
Right lower back	Back spinal cord	Right side mid-back	Right side between arm-pit and waist	
Right lower back	 	Right waist towards the back	 	
Left chest (back)	Left side under arm-pit	Left side waist	Left side below armpit	
Left chest (back)	Under left arm-pit	Left side waist	Left waist	
Left chest (back)	Left side near mid-back	 	Left side mid-section	
Left chest	Left side near lower back	 	 	
Left lower jaw	 	Left side mouth	 	
UWA	 	 	 	
Over left shoulder	Spine upper back near neck	 	Left back below left shoulder	
Right nipple	Right chest to the side of the nipple	 	Right side, hand-span below arm-pit	
Left shoulder	Between shoulder blade	 	Mid back below the neck	
Right 7th intercostal space	mid-spine	 	Mid back between shoulder blades	
Right shoulder	mid back spine	 	Mid back between shoulder blades	
Lower back	mid-back	 	Right side kidney area	
Lower back	mid-spine lower back	 	 	
 	(She added 2 wounds that were not on the dead body but said she was not sure of how many arrows hit Uwa	 	 	
The eye witnesses all saw the bodies of the deceased. The events occurred eighteen months to two years before the witness were examined in Court. The attack took place very quickly. Undoubtedly the witnesses were frightened. Some of them testified to wounds that obviously were never inflicted. They did this under cross-examination; frequently witnesses do give an answer to questions for the reason that they consider all questions should be answered, rather than saying “I do not know”. These types of error are not necessarily fatal when dealing with the detail, of evidence in such cases. They are to a certain extent natural, and do not necessarily have a poison fruit effect that is, they do not necessarily taint the other evidence of the witness.
The deceased Opi Aiyo was identified by the following witnesses as being on the raiding party:- Yara Wara, Tavaro Amuna, Kofu Amuya, Warigo Amuya, Tako Uwa, Tingere Aibo.
Tasio Yabu’s evidence contained some unexplained contradiction and on its own could not establish a case beyond reasonable doubt.
Tovaro Amuna was a good witness; straight forward. Her testimony was not shaken on cross-examination. The testimony broadly accorded with that of Tasio Yabu. Kofu Amuya’s evidence contained unexplained contradictions and on its own would not establish a case beyond reasonable doubt. But it was in general conformity with that of the first two witnesses.
Warigo Amuya’s evidence conformed with that of the other witnesses. She was not a good witness in that she got the number of arrow hits on Amuya wrong, and she was probably not as observant, or well-informed as the other State witnesses.
Tako Uwa gave an eyewitness account of the killing of Amuya. She admitted that she got frighten and ran away, and did not see what happened to her husband Uwa. She identified the accused as one of the attackers. She was an intelligent witness, bright and responsive to the question of Counsel.
Tingere Aibo was a good witness. Her account supported that of Tako Uwa. She was a firm and straightforward witness. She identified the accused as participating in the killings.
All in all on the State case there were some inconsistencies and some contradiction. Three of the State witness gave testimony that was uneven, and could not on their own establish a case beyond reasonable doubt. But three of the witnesses were sound, capable of belief, and did confirm the State’s case.
The effect of the three witnesses who did not show up well, was not to destroy the State’s case. If they had been on their own, certainly that would have been the effect. Broadly their testimony conformed with the stronger witnesses. Their testimony did not put in doubt that of the stronger witness, it merely indicated that the weaker witnesses could not their own establish a case beyond reasonable doubt.
On the issue of the identification of the accused Opi Aiyo as being a participant in the killings the State evidence, on its own, was capable of establishing the guilty of the accused beyond reasonable doubt. But the State’s evidence was met head-on by the defence case.
The defence was by alibi. If the defence could establish its alibi on the balance of probabilities, then the accused must be acquitted. The State must over-come the alibi.
The evidence of the accused on its own was suspect. He was found to have forged a document (savings bank withdrawal) in order to give himself an alibi. That was a very serious act of dishonesty, and puts his credibility in question. It does not, and cannot convict him. Lies and dishonest acts do not necessarily point to complicity. What they do signal is a need for the Court to be cautious.
The witness Kenero Aiyo, the accused’s wife, was a good witness. Her account of events mirrored that of her husband, and supported his alibi. There was nothing to suggest that she lied.
Enos Nenema provided an account of a meeting with the accused and his wife at Okapa which supported the alibi. He did not explain why he had not come forward with this important evidence earlier, although it may be appreciated that the reputation of the police and courts in Okapa is not such as encourage volunteers. It was also pointed out by Mr Tera, that the hand-up brief system, is quite formal, and does not encourage alternative views to the police case. There was nothing to show on the balance of probabilities, that he was lying.
The witness Tasio Yabu was not capable of establishing a case even on the balance of probabilities. His testimony contained a number of unexplained inconsistencies and contradictions. In particular he was most unsure about dates and times. His account of the raid was quite different from that of the State witnesses. The State produced six eye-witnesses of the raid. On the whole their account of the raid was coherent, but it was materially different to that of this witness.
On this point the State case was stronger than the testimony of Tasio Yabo as it related to the raid and should prevail because of the number of witnesses who testify to the same facts.
However there is something that gave rise to the appearance of an important discrepancy in the defence alibi.
The alibi says that Amuya and Uwa were killed at dawn on Thursday the 26th of November 1987. At that time the accused was in Lae. He and his wife had been told by Kuku on the morning of Wednesday the 25th of November, 1987 that Ase was dead. Kuku spoke to the wife at 8am.
In evidence in chief the Accused said:
“I came home at lunch time I drove the company car. My wife told me that Kuku came to my house and told her that my sister had died”.(37/49) at 37/50 “I told my wife that my sister has died and that they (Kuku and his wife) have left on a vehicle on Wednesday. That was at lunch.”
At 37/51
“I told my boss my sister had died and I wont be able to come to work next day”
At 37/63
Q.       “When your wife told you your sister had died, at lunchtime on the 25th, did you believe shd died from sorcery then?”
A.       “Nobody told me anything and I didn’t know the cause of her death at that time”.
At 37/69
Q.       “When you heard about the death of Ase on the 25th at that time, was Kuku Aseka working in Lae?”
A.       “No”.
In evidence in chief the accused’s wife Kenavo Aiyo says:-
37/72
“I was in my house on the 26th of November when my husband was away on his normal duties. I was doing laudnry, when Kuku came to our house in the morning. I did not have a watch but it was about 8 o’clock in the morning and he told me something. It was lunch and Opi returned for lunch. When he came home I gave him the lunch and I told him what Kuku told me about his sister”.
at 37/77
Q.       “When Kuku came to your house that morning was he upset?”
A.       “His sister died, he just came and told us. I dont know about his feelings.”
at 37/78
Q.       “When you told Opi that Ase had died and Opu upset?”
A.       “He just stayed”.
This evidence does not establish the fact that Ase was dead, at least by 8am Wednesday 25th of November 1987. It is hear-say as to those facts. If believed, it establishes that the accused thought Ase was dead, when he was told by his wife, at noon on the 25th of November, 1987.
The timing of Ase’s death is important. If Ase died at 9pm on the 25th of November 1987, the news of her death could not have been sent before that time, and could not have arrived at 8am on the same day.
Two inferences may be drawn:
1.       The message received was garbled. Instead of saying that Asa is dying, or is sick, it said she was dead.
2.       The message received was correct; Ase in fact died before the 25th of November.
Tasio Yabu testified that Ase died at 9pm on the 25th of November 1990. But his testimony is unreliable.
The State witness Yara Wara testified that he became aware that Ase had died on Wednesday the 25th November 1987. His evidence did not say at what time she had died; and in any case it was hear-say as to the facts asserted. Yara Wara was not a reliable witness.
On the re-examination of Tasio Yabu, Mr Terra for the defence asked the following question.
Q.       “If Suabe is from the enemy, would it be proper to send your brothers to advise of the death of Ase?”
A.       I dont now that...(objection)
Counsel for the State objecting:
“At the time the message was sent Asa had not died. There is no evidence that Suabe told Kuku”.
Mr Terra withdrew the question.
This then appears to resolve the issue. The State view, was that Ase was not dead when the message was sent to Kuku in Lae, and Kuku relayed it to Opi’s wife. Even though the State did not cross-examine on the basis of the view it may nevertheless be taken as the State’s position.
In that case, it follows that there is no substantial inconsistency in the alibi. Broadly it holds together. There is sufficient evidence, on the balance of probabilities to show that Opi Aiyo was in Lae on the morning of the 26th of November 1987. Accordingly he should be acquitted.
The view may be taken that in order to sustain the defence case on the balance of probabilities, it is necessary to weight the testimony of four defence alibi witnesses against the six State witnesses. As there were six against four, so this view might run, then the alibi could not be established on the balance of probabilities.
But the two cases are diametrically opposed to one another. It is either one or the other. The one cannot be used to overcome the other as a matter of rationality. To say that six must beat four is to decide like a feudal circuit judge on the basis of oath-takers. A modern court must decide according to the burden of proof on the State, which is to negative the defence case, beyond reasonable doubt, and upon the rational inferences that can be drawn from the evidence.
This is very much a border-line case. The evidence on either side does not over-come the other by force of rationality. There are two competing versions. Probably, it is wise to say “I do not know”. And in that case it is a matter for the onus to play its role.
Verdict: Not Guilty.
Sketch