State v John [1992] PGNC 50; N1068 (22 April 1992)

N1068

Papua New Guinea
[In The National Court of Justice]

(C.R. 1371, 1372, 1373, 1374, 1433,
1434, 1435, 1436 & 1437 of 1991)

THE STATE

v

WAIYAKE KOMANE JOHN
JOHN OKATE
MICHAEL KAMEL
MARCUS IMORAI
DANIEL LOUVO
MARKUS PUE
FRANCIS LAWRENCE MARUM
DENIS MOSS
ALPHONSE LAPUN RAPHAEL

Rabaul: Jalina, J.
7, 8, 9, 10, 13, 22 April 1992

Criminal Law - Particular Offences - Wilful Murder - Committed within minutes of armed robbery - Circumstantial Case - Two Deceases dying from shotgun wounds - single shot - Intention to kill - Defence of Accident - Injuries inconsistent with Accused's Demonstration but consistent with Prosecution evidence - Inference to be drawn - Criminal Code s.299 (1).

Criminal Law - Wilful murder - Committed within minutes of armed robbery - Common purpose - Principal offender armed with loaded shotgun - Two deceaseds died from shotgun wounds - single shot - Eight Accuseds failing to Communicate withdrawal or actually withdrawing prior to shot being fired - Failure to express withdrawal or actually withdrawing from scene amounted to encouragement by presence. Criminal Code s.8.

Statute Law - Statutory Interpretation - Common purpose - Wilful murder - Committed with minutes of armed robbery - Two deceaseds dying from shotgun wounds - single shot - Eight accuseds failing to communicate withdrawal or actually withdrawing from scene - Whether wide interpretation necessary - Wide interpretation necessary - It is the duty of the Court to assist the Legislative and Executive Arms of Government to give effect to the intention of Parliament and the people's wishes and aspirations to control or reduce crime committed by gangs - Criminal Code s.8.

Cases Cited

The following cases are cited in the judgement.
The State v Jupui Kapera [1986] N567
The State v Lindsay Yaboshiwa [1990] N818
Paulus Pawa v The State [1981] PNGLR 498
The State v Camilus Pangurenge and Beno Taloh [1991] unnumbered Judgment of Jalina J, dated 9 July, 1991.
R v Wendo & Ors. [1963] PNGLR 217

Legislation Refered to
Criminal Code Act (Ch. No. 262)

N Miviri for State.
E Masatt for Accuseds.

Cur adv vult

22 April 1992

JALINA, J.: Each of the nine (9) accuseds has been charged with armed robbery and wilful murder with an alternative charge of murder. These charges have been brought through two separate indictments. The first indictment relates to armed robbery and the second indictment relates to wilful murder and murder.

There is no dispute that Mr Graham McCutchen the Business Manager of Sonoma Adventist College, was stopped on the Sonoma/Wongawonga road by the nine (9) accuseds who were armed with dangerous weapons such as guns and bush knives and robbed of the properties specified in the first indictment. It is also not disputed that the robbery was the execution of a plan the accuseds had had on the basis of information a student from Sonoma had given to their leader, Waiyake Komane, that Mr. McCutchen would be taking money in his white Mitsubishi sedan to the bank in Rabaul. Although I am yet to determine as a fact whether or not two shots were fired, there is also no dispute that the two deceaseds died from injuries they received to their heads as a result of a shot or shots fired by Waiyake Komane John (hereafter referred to only as Waiyake Komane).

The charges of wilful murder and murder have been brought against Waiyake Komane pursuant to Sections 299 (1) and 300 (1) (b) respectively of the Criminal Code. The other 8 accuseds have been charged with the same offences through the operation of Section 8 of the Criminal Code. I will return to Section 8 later when I consider whether or not all or some of them are liable for the actions of Waiyake Komane as if they committed the offence themselves.

Before going on to determine the number of shots fired, the element of "intention" to kill and the extent to which the other eight (8) accuseds might be criminally liable for Waiyake Komane's actions, it is necessary to indicate through evidence what is alleged to have happened on this fateful morning of 7 November, 1991.

From the evidence before the Court, it appears that as Mr McCutchen was driving along the road near Wongawonga Plantation he was forced to stop when a log was pushed from the side of the road on to the road itself. He pulled his vehicle up on the right hand side of the road and soon thereafter he noticed about 6 or 7 youths come out of the bushes on either side wearing masks and carrying guns and bushknives. One of the youths went to the driver's side, which was his side, pointed a gun at his window (which was then up) and demanded money. Although the window was up, he was still able to hear the youth demanding money. Another youth went to the front left hand side where the male student was sitting. The female student was sitting at the back seat of the vehicle. That youth demanded that the two students get out of the vehicle which they did. Mr McCutchen also got out of the vehicle to go around to the back (of the vehicle) in order to get the money and give to the youth but upon realising that he could not do so due to the key being not open the back door of the vehicle due to the key still being in the ignition, he went back to the front to get the key. The youth pointing the gun at him was still demanding money.

At that point one of the youths, not the one pointing the gun at him, went to the back of the vehicle and took a bag containing the money as well as a bag containing the mail. A two-way radio was also taken. Mr McCutchen was facing the front of the vehicle when those things were taken.

Then the youth who was pointing the gun at him told him to go. He then turned to his side and saw the two students squatting down on the drain on the left hand side of the road with one of the youths pointing a gun at their heads. At this point another youth went up to Mr McCutchen, pointed a gun at him and demanded that he give him his watch and wallet which he did. He also gave his driving licence, some bank cards and an Air Niugini Charge Card. He (the robber) then told him to get going but because he (Mr McCutchen) felt that he had a sense of responsibility towards the students, he did not move off quickly. He noticed that one of the youths was pulling at the two students. Mr McCutchen demonstrated in Court the girl being in the middle and being pulled by the youth and the male student pulling her in the opposite direction. He was pulling them across the road and Mr McCutchen's immediate reaction was that the youth may be going to rape the girl. Mr McCutchen was still standing there and again the youth who was pointing the gun at him told him to go.

Thinking that one man without protection was of little value at the scene, he turned his back to go and in fact took a few paces along the road away from his vehicle. When he turned his back he heard two shots being fired from a rifle and when he turned around he saw the two students lying on the ground with gun wounds to their heads. The shots were fired almost simultaneously. He did not see any struggle between the students and the person pointing the gun at them prior to the shot being fired. There were considerable amount of blood on the roadway. The others appeared to be dispensing into the surrounding bush.

Mr McCutchen did not actually go near the body of the two students and check them as he considered its risky to do so in view of the number of youths involved and the fact that they were armed with guns and knives.

He then heard a vehicle being driven along the road from the direction he had come so he ran towards it for assistance to return to Sonoma. As can be seen from the evidence below that vehicle was driven by Paul Wani with August Ani as his offsider.

Although during cross-examination, Mr McCutchen agreed to the possibility of the 2nd shot being an echo of the first shot and that because he had his back to the students he could not see the male student pulling the barrel of the gun, he maintained that two shots were fired. He was not sure whether it was after the first shot or the second shot that he turned around and saw the two students lying on the ground. This was because it happened very quickly. After they fell, the youths started dispersing including the two youths who drove off in his vehicle. He did not see the tractor which was parked nearby although he did pass it on the way.

Before proceeding further, let me indicate at the outset that I place little weight on the evidence of Mata Niko Kiwi, Paul Wani and August Ani due to material conflicts in their evidence and the evidence of the only "eyewitness" and the State's principal witness Mr McCutchen and the accused Waiyake Komane in respect of the number of persons who were present with him when he fired the shot or shots.

Mr McCutchen told the Court that the person holding gun was pulling at the female student across the road from the left hand side as if to go to the right hand side while the male student was pulling the female student in the opposite direction. There were therefore three people including the person holding the gun immediately before the shot or shots were fired.

The accused Waiyake Komane, whilst he disputes that what was happening was as described by Mr McCutchen, he does not dispute that he was with the two deceased students immediately prior to the shot or shots being fired. Paul Wani stated, however, that after he passed the Sonoma/Wongawonga sign (which the Court has noted is on the left hand side of the right hand corner in the direction of Rabaul) he heard a person by the name of "Roy" who was inside the bush on the side of the road call out "rascal" but he did not stop. He kept on driving and stopped his vehicle about 100 yards (about 91.44 metres) away from the tractor. From the evidence of Mata Niko Kiwi it appears that the tractor stopped 15 meters behind the white vehicle. He said he saw a man holding a gun fire and smoke come out of the barrel of the gun. He also saw a man fall down to the ground and dust arose. He denied seeing the man who fell down pull the barrel of the gun. The distance between the man holding the gun and the victim was about 1 meter. He heard only one shot.

When asked by the Court as well as the State Prosecutor Mr Miviri (during evidence in chief) as to whether he saw anybody else apart from the man who fired the gun and the victim, his reply was in the negative.

From the Court's view of the scene, it appears that the Sonoma/Wongawonga sign cannot be seen clearly from the scene of the shooting. If Mr. Wani did not stop at the Sonoma/Wongawonga sign but continued driving and stopped 100 yards (about 91.44 meters) behind the tractor as he said, then he would have had a full view of the scene and thus been able to see not only that there were two (2) others persons on the left hand side of the road with a man pointing a gun at them but there were other youths milling or standing around in view of the other accuseds statement in the record of interview that after the log was pushed out they all went out to the road.

Furthermore, in view of Mr McCutchen's evidence that the person who pointed the gun and told him to go prior to the shooting was not the one pointing the gun at the two students coupled with the accused Waiyake Komane's admission that he was the one with the students and that it was the shot from his gun that caused the death of the deceaseds, the description by Paul Wani of the person who pointed the gun at the white man and followed him to the car but ran away after he saw them as being Wayaki Komane could not possibly be correct.

Like his colleague and boss Paul Wani, August Ani, who was sitting in the front with Paul Wani stated in his evidence in chief that when they came past the Sonoma/Wongawonga sign board, they saw a man standing by himself and he appeared to be carrying something like a gun. There were no other people standing close to where this man was standing. He saw this man fire the gun but he saw only one person fall down. The gun was fired once only. After firing the gun he followed the European man who was going towards them. He had his gun pointed at the European man. This man went up, saw them and ran away. He recognised him as Waiyake Komane by the way he walked and ran. He walked and ran with a limp due to injuries he had sustained when he fell from a tree.

For reasons I have given in relation to Paul Wani's evidence I place little weight to August Ani's evidence as well.

With respect, it seems to me that whilst both Paul Wani and August Ani were there as they no doubt assisted Mr McCutchen back to Sonoma, they have tried to reconstruct their evidence out of stories they heard from others about what actually did or may have happened. This is not surprising because Mr McCutchen did not hear any car coming until after the students had been shot. That car was the one driven by Paul Wani. It was Paul Wani who took Mr McCutchen to Sonoma.

In light of the evidence of Mr McCutchen as to there being more than two persons at the scene soon after the log was pushed onto the road including his evidence that a man pointing the gun was with the deceased students coupled with Waiyake Komane's evidence that he was with the two deceased students and pointing the gun at them, Mr Mata Niko Kiwi's evidence of seeing the two students and the white man came out of the car but not seeing a man pointing a gun at them but instead saw a man pointing a gun at him, cannot be relied upon. It is also unreliable as Mr. McCutchen has denied seeing a tractor parked behind his car. It is surprising in view of the evidence of Paul Wani and August Ani that they stopped about 100 yards behind the tractor and yet Mr McCutchen did not notice something big such as the tractor parked behind his car. According to Mr McCutchen the first vehicle that came along was Mr Wani's vehicle and that was after the students had been shot. Bearing in mind that there is a slight right hand corner between the Sonoma/Wongawonga sign and the place where Mr McCutchen's car stopped, Mr. McCutchen could not possibly have seen the tractor from where he stopped his car but he certainly would have seen it when he was going to meet the vehicle that came which later turned out to be the one driven by Paul Wani.

Between 9 and 10 o'clock on the morning of the offence, the witness Terence Hetty, who was a student at Sonoma Adventist College last year, was travelling towards Sonoma in an open back utility and was seated at the back. After the vehicle turned the junction into Sonoma road and was approaching a corner he heard something like gun shots. When they drove further up towards the bend/corner he saw the white vehicle which belonged to the Business Manager at Sonoma travelling at high speed towards them and creating a lot of dust. He heard the shots before the vehicle passed them at high speed. About 30 metres after they passed it they were stopped by young boys standing in the middle of the road and when he stood up to investigate he saw the back of 3 people just walking into the bush. He could not see if they were armed. Another man was standing in the middle of the road. This man pointed the gun at them (without saying anything) and he indicated to them to turn back. He (Mr Hetty) saw two people lying on the ground and they were shaking. He likened the shaking to chicken moving after its head had been chopped off.

In his statement to the police which has been tendered by defence Counsel as a prior inconsistent statement, he said that he heard a loud bang as opposed to "shots" which he indicated on Oath in this Court. I will discuss later the question relating to the number of shots that were or may have been fired at the time.

The Statements of Blasius and Anita Pelap, Nane Kera, Daniel Raita and Vincent Kapean (which were tendered by consent) are not relevant to the issue before this Court but relates more to the issue of identity of the persons who were involved which is not in dispute.

Medical Report of Dr Kurapa on both deceaseds were tendered by consent. The main body of the medical report pertaining to the deceased Maragret Mavao is as follows:

"History

The deceased was allegedly shot with a gun and killed at road block on the road block on the road between Vunapope and Sonoma on 7/11/91 between 9am and 12.30pm. She was alleged to have lost considerable amount of blood at accident sit (sic). A Kerema male student was said to have been killed in the same incident as the deceased.

External Examination:

The deceased was a Tolai female in early twenties physically well built wearing brown hair. She appeared nulliparas. She weighed about 70 - 80kgs and stood about 160 - 170 cms high. Her mucus membranes on conjunctiva and buccal mucosa showed marked paleness.

The body was wrapped in a white and stripped sheets that showed extensive blood stains specifically around the head.

A large ragged gaping scalp compound wound about 10 - 15cms in diameter was noted at the base of the skull to the left of mid-line over the occipital area. White brain paste like matter was noted to be present on surrounding hair around the wound. Lots of bone fragments was also felt in the wound.

The bony skull (occiput area) under the wound showed a similar size defect tracking anteriorly and in slightly downward direction. The dura underneath the skull was also noted to be extensively torn.

There was no depression of the skull bones surrounding the wound defect.

Internal Examination (Skull)

The skull showed radial fractures extending from the occipit transversely to the (1) temporal area posteriorly to (R) side horizontally. Extensive bony spicules were lodged in the brain.

The dura was torn in a similar fashion underneath the bony defect. There was extensive homogeneous subdural haematoma over both the (R) and (L) cerebral haemispheres and the lobes of the cerebellum. The tract of the defect extended to (L) temporal lobe and slightly downwards to the (L) cerebellum lobe as well a lead pellet was found to be lodged in the (L) Lobe of cerebellum.

The basilar artery was noted to be torn in the tract as well.

Other systems were not examined during the autopsy.

Conclusion:

The deceased died as a result of the injury she received causing gross bleeding over the brain, significant brain tissue damage and extensive acute blood loss."

In his oral evidence he described the bullet as having gone in horizontally (i.e. straight)

The photograph (Exh. F8) shows the point of exit of the bullet as being the area midway between the center of the head and the left ear. It also shows brain matter outside as described by the doctor. Other matters the doctor told the Court of are as contained in the above report.

The main body of the medical report pertaining to the deceased Reddy Kovah is as follows:

"History:

The deceased was allegedly shot whith a gun and killed at road block on the road between Vunapope and Sonoma on the 7/11/91 between 8am and 12:30pm. He was alleged to have lost considerable amount of blood at the site of the incident. A Tolai las was said to have died at this same incident.

External Examination:

The deceased was melanesian male in early twenties sporting a black beard of moderate growth and weighing about 65 - 75 kgs and standing at 165 - 175 cms. He showed marked paleness of mucous membranes. Blood (old) oozed from the (R) nostril.

He was wrapped up in white sheet which showed extensive blood stains over the head. He had four puncture wounds on the head and face. The puncture woulds (2) over the (R) temporal area at the (R) tempora-parietal area measured 2 - 4cms in diameter and was about 6 - 8cms apart. The wounds tracked through the scalp, the skull, the dura and tracking into the brain horizontally in slightly downward angle to the left ear. Brain matter tooth pasted out of the two puncture holes. It felt extensively hollow at the base of the holes in the brain. There were no depressions of the bone surrounding holes. Bony fragments felt in brain tissue substance. The bony edge at the base of the wound waw rough and were several fractures in the connecting skull bones between the two holes making it feel mobile. There was no evidence of bones on the hair or scalp.

Two other puncture wounds were noted over the (R) maxillary area sizes of about 1 - 2 cms. The right maxillar bone felt as if it was fractured.

Internal Examination (Skull)

The skull bone showed linear fractures connecting the two holes in (R) temporal areas and also extending to the occipital area and the frontal area and to the midline.

There was an extensive sub-aponeurotic haematoma was large under the scalp over (R) side of the skull. The dura was torn extensively over large area (6 - 8cm in diameter) under the two holes. The brain beneath the torn dura was soft paste with fragments of bones stuck in the brain tissue. Three lead pellets were found lodged in the brain tissue. The brain tissue was damaged under the same area of damaged dura and the track through the (R) temporal lobe into the midbrain across the midline exiting in (L) temporal lobe tearing the dura on the (L) side. The diameter of the tract in the brain was about 2 - 3 cms.

Conclusion:

The deceased died as a result of the injury he received. And it was due to extensive brain damage and blood loss."

In his oral evidence Dr Kurapa confirmed that the deceased Reddy Kovah had four (4) puncture wounds on the head and face. Two (2) wounds were on the right side. The entry points were small (2 - 4 cms) and were 6 - 8cms apart and broke the skull as well as the surrounding bones. The two (2) tracks started down the right ear and went at an oblige angle and stopped short of the left ear. In other words it did not exit near the left ear. Three (3) lead pellets were found.

In answer to questions (during cross-examination) regarding whether or not he considered the shot to be at a close range to fracture the skull, Dr Kurapa said that the skull bone was very strong and for a pellet to crack the skull bone the pellets would have been from a gun fired at very close range. This would also apply to the fracture of the skull of the deceased female student. The gun would have been fired at her at a close range as well.

A record of interview with each accused together with an English translation were also tendered by the State Prosecutor by consent of defence Counsel. I will discuss them later when I consider the case against each accused.

After the close of the case for the State, only the accuseds Waiyake Komane and Dennis Moss elected to give sworn evidence. The other seven (7) accuseds elected to remain silent which is their right to do. The effect of silence is that the Prosecution is not given an opportunity to test the accused through cross-examination with the result that the Court would never know the accuseds version of what had happened but since the burden of proof rests with the prosecution from beginning to end, an accused person is not obliged to say anything. It is well established in this jurisdiction that silence does not imply guilt. His guilt must be determined upon consideration of all the evidence as well as other materials put before the Court during trial.

The accused Waiyake Komane's evidence is that after the vehicle was stopped he was standing at the back of the vehicle. Other youths among his group ordered the two students out. He was armed with a shotgun and three (3) cartridges. He then ordered the students to sit down on the right hand side of the road which they did. He then told them to stand up which they again did and he told them to go into the bush, but they did not go. The students were about 2 meters away from him when he was telling them to do the things as I have described above. The male student was standing closest to him.

When the two students did not go into the bush when he told them to, he signalled to them to go into the bush and yet they did not go. He (Mr Komane) became upset at the student's failure to go into the bush and the male student got hold of the barrel of the gun unexpectedly. A struggle ensued whereby the male student and him were pulling the barrel of the gun. As his finger was still on the trigger it went off when the butt of the gun hit his ribs. The gun went off once only and he saw both students fall to the ground. He then ran into the bush on the right hand side of Sonoma.

He went on to say that the white vehicle had taken off before he fired the gun. He did not know the persons who had jumped in the vehicle and driven off. His evidence in chief was therefore consistent with the answer he gave in his Record of Interview.

On cross-examination he stated that he did not load the gun prior to the vehicle being stopped. He loaded the gun to scare the white man when he tried to reverse the car. He conceded that the students were unarmed when he told them to sit down and then stand up again. When asked whether it was not enough to let them continue sitting down at the place they first sat down when ordered by him, he replied that the place they were sitting down was a road leading to the bush so he told them to stand up so that he could run away through that road into the bush. He did not want to run into the bush on the other side because his house was there and people might suspect him.

Apart from some answers which did not make sense, Mr. Komane maintained that only one shot was fired, that it was fired after the white vehicle had taken off and that it was fired as a result of a struggle between the male student and himself and as such he did not intend to kill the students.

After the State Prosecutor and Defence Counsel had questioned the accused Waiyake Komane a re-enactment of what took place at the scene was required of the accused by the Court. This was to enable the Court to determine whether the version given by Mr McCutchen or the accused should be believed. This was after the shotgun which the accused admitted to using as well as the accused himself were checked/searched by a Correctional Officer upon request of the Court.

From his demonstration which I observed very carefully, it appeared that prior to the barrell of the gun being allegedly grabbed by the male student, the two students were squatting down - the female student on the accussed's right hand side and the male student on his left. The accused was holding the gun in his right hand with a finger on the trigger. When they refused to comply with his directions to move into the bush, he walked past the female student towards the male student. He still had the gun in his right hand as well as his finger on the trigger. His right hand was fully stretched down his side and the barrell was pointing to the ground. When he was close to the male student after passing the female student, the male student grabbed the barrel of the gun and stood up. The accused was sitting down and pulled the butt of the gun causing the barrell to point at the stomach and hip area of the male student. This caused the accused to pull the trigger at the male student. I will analyse this demonstration later when I consider the question of "intention" to kill.

The evidence of the accused Dennis Moss was short. He gave evidence of being present when the vehicle stopped. After the robbery Francis and Lapun took off in the vehicle and five (5) of them ran into the bush and later they heard gun shot. This was while they were inside the bush. In the afternoon they heard stories from the people in the village about the death of the two students. On Cross-examination he agreed that if they had not committed the robbery the students would not have died.

In accordance with normal procedure, the Defence having called evidence, made its submissions first followed by a reply by the Prosecution.

Submissions for the Defence

Mr Masatt, Counsel for the nine (9) accuseds made two basic submissions which were based on two issues namely, who was responsible for killing and whether that person "intended" to kill.

As regards the first issue Mr. Masatt submitted that it was clear that the accused Waiyake Komane was responsible. He acted on his own.

Whilst I am yet to determine whether or not any one or all of the other eight (8) accuseds are liable for the actions of the accused Waiyake Komane, which issue I propose to address after I have considered the issue of whether or not the accused Waiyake Komane "intended" to kill the deceased students, there is no dispute, as I have indicated earlier in this judgment, that the deceased students died from injuries they received as a result of a shot or shots fired from the gun that Waiyake Komane had at the time. There is no suggestion by anyone - not even by the accused Waiyake Komane himself, that one or both deceaseds died as a result of a shot or shots fired by someone else.

The real issue under this head relates to the number of shots the accused Waiyake Komane is alleged to have fired. Mr Masatt has addressed this issue in his submission on the issue of "intention" to kill.

Whilst I may not necessarily accept the basis of his submission relating to the element of "intention" to kill, I do accept such a submission in relation to the number of shots that may have been fired and that is that Mr McCutchen was mistaken when he said he heard two shots in light of his agreement during cross-examination that the second shot could have been an echo of the first shot. This was because the shotgun was not a self-loading gun but a single barrel shotgun. For the accused Waiyake Komane to have fired a second shot he would have had to reload his gun which would have taken some time thus giving Mr McCutchen enough time to observe what happened at the time. Here, it happened very quickly and before Mr McCutchen realised, the two students were lying dead on the roadway with a considerable amount of blood flowing from their heads. I therefore find as a fact that that the two students died from a single shot fired from the gun that the accused Waiyake Komane had at the time. Whether or not it was as a result of a struggle and therefore accidental is yet to be determined in relation to the element of "intention" to kill.

Defence Submission on the Element of "intention" to kill

Mr Masatts' first submission on this element was that there was no evidence of intention to kill since the accuseds went out to rob on the basis of information they had received from the student from Okapa that Mr McCutchen would be carrying money.

He further submitted that this Court should accept the accused Waiyake Komane's evidence about the male student grabbing the barrel of the gun which caused the bullet which was originally intended to only scare Mr McCutchen, to go off. This was because Mr McCutchen was still alive as the accused allowed him to walk away. Being the Business Manager, Mr McCutchen would have been the first to have been killed had the accused had the intention to kill. Furthermore, Mr Masatt submitted, there was no reason to kill the two students and as such there was no intention to kill.

Mr Masatt's other submission on the issue of intention was based on the gun itself. He submitted that the gun was a single barrel shotgun and not a self-loading rifle. If he intended to kill he would have shot one student first, re-loaded and shot the other student. Instead, both students were killed from the single shot which was accidental. What had occured was consistent with what the accused had told the police in the record of interview.

As regards the injuries, Mr Masatt submitted that there was a deficiency in the State case. He submitted that this being a serious case, there should have been evidence from a ballistics expert to show the impact of the shot. A ballistics expert would have stated whether it was the pellets from the same bullet. It was not put to him (the accused Waiyake Komane) that there were two shots fired.

He submitted in closing that the only reason the two students died was because the accused Waiyake Komane had a loaded gun, (it having been loaded whilst Mr McCutchen was present) and the only reason it was discharged was that it was an accident. If Mr Komane had something other than a gun and there was a struggle, the two students would not have died. Consequently, in the circumstances, he submitted that the accused should only be convicted of manslaughter.

Prosecution Submission on the Element of "Intention" to Kill

Mr Miviri, Counsel for the State, submitted at the outset that the accused Waiyake Komane, at the time he fired the shot, had the intention to kill the two students. He submitted that the Court should infer such an intention from the circumstances.

He submitted that Mr Komane has explained in his evidence that he wanted them to move out of the way so that he could effect his escape. That contention, Mr Miviri's submission cannot be upheld because he was out in the open and there were plenty of space with bush on either side of this remote stretch of road for him to escape. This was not as if he was in a house where there was only one door so that he could be justified in killing the person blocking the door in order to effect his escape.

He submitted that what happened was as stated in Mr McCutchen's evidence and that was that there was a struggle with Mr Komane pulling the female student across the road one way and the male student pulling the female student the other way. The female student was close to Mr Komane than the male student as is evident from the extensive injuries she had sustained. She received the full impact of the blast while the male student did not receive the full impact of the shot in view of the distance that he was. This, he submitted, was clear from the demonstration by the accused Waiyake Komane when giving evidence.

Mr Miviri further submitted that Mr Komane intended to kill the students because there was no reason for him to have fired the shot. The students were unarmed. They were no threat to him. There was no need for the accused to approach them a second time and signal to them to move. As regards the claim by the accused that the male student grabbed the barrel of the gun, Mr Miviri submitted that the male student did not grab the barrel. It would have been stupid for a unarmed person to confront a person with a loaded gun.

He submitted that in the circumstances it was safe for the Court to infer that the accused Waiyake Komane fired the shot at the two students and that he intended to kill them.

If the court was not satisfied as to intention to kill, he submitted that the accused should be convicted of murder as an alternative verdict in view of the accused's action in being present and pointing the gun, a loaded gun, in the circumstance when he should have known that a loaded gun was dangerous and that the deceased were killed when the accused and others went there to rob which was an unlawful purpose.

Nature of the Case against the Accused.

Although not pointed out by both Counsel during submission, the case against the accused is circumstantial. I must exercise great care in such cases and I am aware that any inference I draw must be tested against the exclusion of any reasonable hypothesis that would indicate innocence. I warn myself of the dangers of convicting on circumstantial evidence.

The law relating to circumstantial evidence are as contained in the Supreme Court decision of Paulus Pawa v the State [1981] PNGLR 498 where Andrew J said at p 501:

I am in agreement with Miles J in The State v Tom Morris [1981] PNGLR 493 at p 495 when he said:

I take the law as to circumstantial evidence in Papua New Guinea to coincide with what was said in the High Court of Australia in Barca v The Queen [1975] HCA 42; (1975) 50 ALJR 108 at p 117):

"When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than quilt of the accused'; Peacock v The King [1911] HCA 66; (1911), 13 CLR 619 at p 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw' Plomp v The Queen [1963] HCA 44; (1963), 110 CLR 234, at p 252; see also Thomas v The Queen [1960] HCA 2; (1960), 102 CLR 584, at pp 605-606. However, an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference, of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence.: Peacock v The Queen at p l661. These principles are well settled in Australia. It was recently held by the House of Lords in McGreevy v Director of Public Prosecutions, (1973) 1 WLR 276, that there is no duty on a trial judge to direct the jury in express terms that before they could find the accused guilty they should be satisfied that the facts proved were inconsistent with any other reasonable conclusion than that the accused had committed the crime. That decision goes only to the form of direction necessary to be given to the jury, and although its effect may be that the practice in this respect is less rigid in England than in Australia, it does not reflect upon the correctness of the principles stated, which are really principles of logic and common sense".

This was applied by Wilson J in The State v Jupui Kapera (1986) N567, by Hinchiffe J in The State v Peter Noki Manda and William Henry Langer N805 and by me in The State v Lindsay Yaboshiwa (1990) N818.

It appears from those decisions that these principles are well settled in Papua New Guinea.

Decision on the Element of "Intention" to Kill

I have considered the submissions in respect of the element of "intention" to Kill and I must say first of all that I accept Mr Masatt's submission that because a student from Okapa gave information that Mr McCutchen would be carrying money and that the intention was to rob and not to kill the students as the accused did not know that the students would be travelling in that vehicle, they did not intend to kill. That, however, did not mean that an intention to kill could not be formed later if and when circumstances permitted such an intent.

In regard to Mr Masatt's submission that there was no intention to kill in view of the accused Waiyake Komane sparring Mr McCutchen's life and the reason the students were killed was due to the shotgun being fired when the male student grabbed the barrel of the gun, I do not think that I can accept such a submission. The reason why the accused Waiyake Komane allwoed Mr McCutchen to go is something that no one would ever know. It is something that he personally had knowledge of.

In regard to his submission based on the gun being a single barrel shotgun and not a self-loading rifle such that if he intended to kill, he would have shot one student first, re-loaded and then shot the other student, I do not think that I can accept that submission for the simple reason that they were both killed from a single shot. They were both dead. There was no need for him to re-load the gun and fire a second time.

As regards his submission that the Court should accept the accused Waiyake Komane's evidence and find that the shot was fired accidentally due to the male student grabbing the barrel of the gun, the rule regarding the defence of accident is clear. That rule is that where such a defence is raised, the onus is on the prosecution to negative that defence.

Has the defence of accident been made out? To determine whether it was accidental and not intentional, it is necessary to consider whether or not the injuries found by Dr Kurapa are consistent with the accused Waiyaki Komane's demonstration of the incident before he ended his evidence and in this respect it should be noted that I have described the demonstration earlier in this judgment.

From my analysis of the accused Waiyake Komane's demonstration, it is interesting to note that the barrel pointed downwards when the male student allegedly grabbed the barrel. The accused then grabbed the butt thus causing the barrel to point upwards and in the direction of the hip and stomach area of the male student. It did not point to his head while the accused was sitting down and pulling the butt of the gun and the male student was standing up and pulling the barrel of the gun while the female student was still squatting down where she originally was. It appeared that if the gun went off in that position, it was impossible for the male student to sustain injuries to his head. It would not have been possible for a shot fired upwards to have hit the female student in the head let along the way the bullet entered her body as described by Dr Kurapa. It certainly would have been almost impossible for the female student to sustain the extensive injuries she has been found by Dr Kurapa to have sustained. At the very least the male student would have sustained injuries to parts of the body other than his head and therefore not died. At the very least the female student would have only received wounds from pellets.

As there is no dispute that the students died from injuries they sustained from a shot fired from the gun that the accused Waiyake Komane had, I do not think that it is necessary to call a ballistics expert to determine whether the pellets found in their respective heads were from the bullet fired from Mr Komane's gun. I also do not think it necessary under these circumstances to call a ballistics expert to determine the direction the pellets travelled.

When I considered the injuries sustained by the deceased students I noted that according to Dr Kurapa the bullet entered the deceased Margaret Mavao's head from the front and travelled horizontally and its point of exit was mid way between the centre line and the left ear. The skull was torn off thus causing the brain matter to be on either side of the hair near the wound (See Photograph in Exh "F8").

The injuries sustained by the deceased Reddley Kovah is clearly shown in the photograph in Exh "F2". That photograph shows the three points of entry, all of which are on the right hand side of his head. The first entry point is near the right eye and the other two entry points are above his right ear.

When those injuries are considered in light of the demonstration by the accused which I must again say I observed very carefully, it is inconceivable that the accused in the course of a struggle whilst sitting down and the deceased Reddley Kovah standing up and the barrel pointing to the hip and stomach area, would have accidentally shot Reddy on the right hand side of his head with pellets extensively damaging Margaret Mavoa's head also when the demonstration showed her to be away from the direction the barrel was pointing. For two people standing apart to be shot in the same part of the body, namely the head, with such drastic consequences would have been inconceivable let at one impossible.

From my visualisation of the injury in light of the evidence from Mr McCutchen that the gunman was pulling the female student one way and the male student pulling her the other way, coupled with Mr Komane's evidence that when they refused to move after he ordered them he become angry, it appears that the injuries are consistent with the evidence from Mr McCutchen of the female student being pulled across the road, the male student pulling her the other way. I therefore find that the female student was more or less facing the accused and the male student standing sideways to enable him to pull the female student away from the accused. The accused then became angry and shot the female through the front of her face. The bullet went out through the back of her head and the pellets entered at four different points on the right hand side of the male students head as he was standing sideways. The impact of the shot was greater on the female student as can be seen from the extent of the injuries and not so great on the male student as the pellets fell short of exiting near his left ear.

Applying the principles of logic and common sense as stated in Tom Morris's case (supra) I can come to no other reasonable hyphotesis than one of guilt of the accused. I find as a fact that what has happened is as I have just described above. The death of the two students was not by accident. The evidence the accused has given which was consistent with what he told the police in the record of interview was a mere exculpatory statement intended by him to cover up what actually happened. I find that the Prosecution has negatived the defence of accident. I accordingly find the accused Waiyake Komane guilty of wilful murder. Having found him guilty of wilful murder it is not necessary for me to return a verdict on the murder charge.

Are the other Eight (8) Accuseds caught by Section 8?

Section 8 of the Criminal Code Act Ch. 262 provides:

8. Offences committed in prosecution of common purpose.

Where-

(a) two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another; and

(b) in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of the purpose, each of them shall be deemed to have committed the offence.

To determine whether or not they were present at the time of the shooting, it is necessary to consider the evidence of the prosecution including each accuseds record of interview. Having placed little weight on the evidence of Paul Wani, August Ani, Mata Niko Kiwi, the only State Witnesses whose evidence would be relevant would be Mr McCutchen and Mr Terence Hetty. Mr McCutchen stated that after the shooting the robbers appeared to be dispersing which meant that they were all there until after the shooting. He also stated that the vehicle did not take off until after the shooting.

Mr Terence Hetty heard a shot when the vehicle he was travelling in was turning the junction into Sonoma road and when they were about to reach the corner where the incident took place, he saw the white vehicle which belonged to the Business Manager at Sonoma being driven towards them at high speed and creating a lot of dust. When they arrived at the corner he saw a man standing on the road with a gun pointed at their car and he also saw the back of three (3) people disappearing into the bush.

The person standing on the road when Terence Hetty saw him was no doubt the accused Waiyake Komane. Dennis Moss who had the home made gun has given evidence to the effect that he ran away to the bush after getting the money. There is no suggestion by the accused Waiyake Komane that someone else was there.

Mr Masatt for the Defence has submitted relying on my decision last year in Camillus Pangurenge and Beno Taloh an unreported judgment dated 9 July 1991 that mere presence was not enough to make one caught by section 8 of the Code. He has also relied on R v Wendo and Others (1963) PNGLR 217. He submitted that in view of Mr McCutchens evidence that before the shot was fired the others did not appear to be interfering with the two students as well as his (Mr McCutchen's) evidence that the others appeared to be dispersing when he looked sideways in the direction of the students, it is consistent with their respective statements to the police in the Record of Interview. Consequently, they cannot be caught by Section 8. If the court found that all or some of them were present, then it is not enough in view of the lack of evidence of them taking an active part in the shooting.

Mr Miviri has submitted relying on the discussions of Section 8 in Andrew, Chalmers and Weisbrot's Book 'Criminal Law and Practice of Papua New Guinea' that for a person to avoid being caught by Section 8 he must not only have withdrawn from the common purpose but must have communicated to the other accuseds his intention to withdrawn from the common purpose. In this case, he submitted, they did not withdraw until after the shooting. The vehicle did not take off until after the shooting. Mr Hetty saw three (3) people moving off into the bush when he arrived at the scene after the shooting. They had embarked an a common purpose which was to rob which was an unlawful purpose. In the course of the robbery the deceaseds were killed and as such the eight (8) accuseds are caught by Section 8 and are therefore guilty of wilful murder.

As I have indicated earlier, apart from the accused Dennis Moss who give sworn evidence, the others have opted to remain silent. Silence does not imply participation in the common purpose but in view of the need for withdrawal from the common purpose to be communicated to the other co-accuseds, silence may for purpose of Section 8, depending on the circumstances, imply acceptence of the actions of a co-accused in the prosecution of a common purpose. To determine whether or not one or all of the eight (8) accuseds did in fact withdraw from the scene after the robbery, I propose to consider each accuseds Record of Interview.

The Accused Dennis Moss

He told the police at page 2 of the Record of Interview that Waiyaki and Marcus were on the road with the two students and that he had gone off. Francis and Lapun took the car when he was still on the road.

The Accused John Okate

On page 3 of the record of interview he said that they took the money and ran away. He then heard a gun shot. He ran away with Daniel after Daniel got the money. Francis and Lapun had taken off in the car when they heard the shot while they were inside the bush. He further said that they only wanted the money. They did not know what Waiyake had in mind.

The Accused Daniel Louvo

This accused stated in his answer to question 58 of the record of interview that he received the money from the white man. In his answer to Q.61 he said that he got the money and ran into the bush and later he heard the shot but when it was put to him in Q.62 that he had earlier stated that he ran away after Waiyake shot the man and he fell, he agreed that it was true and that he had forgotten when he answered the earlier question. He was however inside the bush and therefore did not see whether it was a male or female who fell down.

The Accused Francis Marum Lawrence

In answer to question 37 he stated that when he took off in the car he did not hear the gun shot. It was later in the village that he was told about the death of the students and he thought it must have been Waiyake who shot them because Waiyaki had the gun.

In his answer to question 46 he basically mentions what he said in his answer to Q.37.

The Accused Alphonse Lapun.

This accused went with the accused Francis Marum Lawrence. His statement to the police through his record of interview is similalr to that of Francis Marum Lawrence. In other words he had taken off in the vehicle before the shooting.

*The Accused Markus Pue

This accused has given a somewhat detailed description of what had happened through his answer to Q.39 and Q.48 of the record of interview which is of course different from what the accused Waiyake Komane has said in his evidence. This description appears to be consistent with the evidence of Mr McCutchen of the female student being pulled across the road and the male student pulling her in the opposite direction. This accused was no doubt present at the scene prior to the shooting of the two students.

*The Accused Marcus Imorai

In his answer to questions on page 2 of the record of interview he said that after they got the money they ran away but later on he said that he was telling lies that he ran into the bush. He was with Waiyake on the road when the others ran into the bush. He said that while they were there the male student tried to fight Waiyake trying to get the gun from him but Waiyake was too strong and turned and shot both of them with the gun. Waiyake fired one shot and Mr. Imorai was close to him. He saw both students fall to the ground. He became frightened and ran away leaving Waiyake on the road. Waiyake did not ran away. He denied seeing which part of the body Waiyake shot them. He also stated that the teacher was close to them when the students fell down.

The Accused Michael Kamel

He ran away into the bush after they got the money and heard one shot whilst he was in the bush.

Decision on Whether the Eight (8) Accuseds are Caught by Section 8 of the Criminal Code.

I have considered the statement of each accused as contained in his respective record of interview and find at the outset that the accuseds John Okate, Michael Kamel and Dennis Moss had run away into the bush after the money and other things were stolen from Mr McCutchen. They were not present at the time of the shooting of the two students. I am not satisfied that the extent of their action were such as to bring them within the ambit of Section 8 of the Criminal Code. I accordingly find them not guilty of both wilful murder and murder.

With respect to the accused Marcus Imorai, Daniel Louvo, Markus Pue, Francis Marum Lawrence and Alphonse Lapun, I find from their respective statements through the record of interview that they were present until after the two students had been shot by Waiyake Komane.

The accused Markus Pue gave an account of what happened through his answers to Q.39 and 48 of the record of interview which is consistent with Mr McCutchen's evidence regarding the female student being pulled by the gunman. There was no way he could have given such a consistent story had he not been present.

The accused Marcus Imorai gave an account which is only part of the version given by the accused Waiyake Komane. Like the accused Markus Pue, Marcus Imorai was there. Otherwise he would not have given such a story.

The same applies to the accused Michael Louvo. He only left after the shot had been fired and a student fell down.

The sighting of three (3) people walking into the bush when the utility that the witness Terrence Hetty was on is consistent with their statement of being present until after the shooting. The fact that they were not identified by names is not relevant for purpose of Section 8 in these circumstances.

I do not accept the statement by Francis Lawrence Marum and Alphonse Lapun that they took off before the shot was fired. Terence Hetty saw the vehicle after he heard the shot. Mr. McCutchen gave evidence that the vehicle took off as soon as the students fell down. I cannot imagine why they had to remain at the scene when the money they went to steal had in fact been taken from the car and carried into the bush. Normally one would expect all the robbers to be together to share the fruits of their illegal act. The others who took the money were not from their own village so that they could trust them to give them their share later. The only rational inference I can draw from the circumstances is that they stayed behind to see what Waiyake Komane would do to the students. When he shot them they become scared and fled by the fastest way available, namely by car. Waiyake Komane was armed with a loaded gun which at that stage became a deadly weapon. The students were innocent. They were not armed. These accuseds by not taking steps to prevent or convince Mr. Waiyake Komane not to do what he did, they had encourged him by their presence and silence. If they were against it, not one of them has said so. I am satisfied beyound reasonable doubt that the accused Francis Marum Lawrence, Alphonse Lapun, Daniel Louvo, Marcus Imorai and Marcus Pue are caught by Section 8 of the Criminal Code and as such I find them guilty of wilful murder. There is no need to return a verdict on the charge of murder.

I have given a very wide construction to the provisions of Section 8 of the Criminal Code in view of the prevailing law and order situation in this country. Offences such as armed robberies are committed by groups of armed youth and grown up men who on occasions have not hesitated to kill or injure innocent people under circumstances which did not justify any killing or injury as has happened in this case.

In my respectful view, it is the duty of the courts to develop the principles of the underlying law so as to give effect to the intention of Parliament when it passed Section 8 into Law. By doing so the Courts would give effect to the wishes and aspirations of the majority of our people to control or reduce crime. It is also by wide construction of the legal provisions when the need arises would the Judicial Arm of Government assist the Legislative and Executive Arms of Government in their effort to control criminal activities such as armed robberies in this country and make co-offenders realise that it dose not pay to form gangs and commit serious crimes together.

Lawyer for the State: Public Prosecutor
Lawyer for the Accused: Public Solicitor.