State v Korak [1995] PGNC 13; N1330 (23 March 1995)

Unreported National Court Decisions

N1330

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 808 OF 1994 (H)
STATE
v
CLEMENT KEPO KORAK

Mount Hagen

Injia J
8-9 March 1995
16 March 1995
23 March 1995

CRIMINAL LAW - murder - evidence - accused told another person to shoot the deceased - killing occurred to an area next to a tribal fighting area - identification - accused clearly identified in clear daylight - false testimony - motive - witness being part of a tribal group too general and not a good reason to lie - verdict of guilty to murder - Criminal Code Ch. No 262, s. 8, 300 (1) (a).

Cases Cited:

John Beng v The State [1977] PNGLR 115

Counsel:

S Carter for the State

B Aipe for the Accused

JUDGMENT

23 March 1995

INJIA J: The ed pleaded not guilty ilty to a charge that on 15/2/94, at Kanamanda village, he murdered Yakapo Tamupae, a male person, thereby contravening s.300 of the Crimiode. The State’s allegation is that he was a pa a party to the killing in that he told another man one Koren Anton to kill the deceased by saying “kill him, kill him,” referring to the deceased and upon hearing these words, Koren Anton raised his shotgun and shot the deceased. The deceased died the day day at Sopas Hospital. Thee relies on s. 8 of thef the Criminal Code.

The State called two eye-witnesses namely John Ipalain and Daniel Wanako both of whom the State says witd theing. The Sthe State also tendered by consent the medi medical report of Dr. Watts dated 14 April 1994. That medical report shohat that the deceased was admitted to Sopas Hospital at 7.30am with a shotgun wound on the right abdomen. He died within 1 of tmissimission due to damage to his liver from the shotgun wound. The State also tlso tendered, by consent, the Record of Inew conducted between the police informant and the accused on 24/2/94 but is unsigned by they the accused. In the absence of anyn testimony by the police informant or corroborator supportpporting the contents of the interview, I do not intend to use it as evideor the State.

The accused’s defence is one alibi. ccused gave swornsworn tesn testimony supported by 3 alibi witnesses who say the they were with the accused when they heard a call that the deceased had been killed and that he was not and cout have been at the time ande and place of the killing. The defeitnesses are Nael Nael Kaiman, Lucas Taupen and Nangan Anjo.

UNDISPUTED FACTS

The undisputed facts are that the victim, State witnesses Daniel and John and defence witnessel and Lucas belong to the the Mae tribe. Their main village iamandamanda. The accused belongthe Lyai Lyain tribe and his village is Lakayok. The defence wi Nangan belo belongs to the another clan whose name is not given and his village is Ka#160;e tribes inter-maer-marry. Thesed&#s 17;s 17;s paternaternal grandmother comes from the Mae tribe and he is married to a woman from Kamas. The other tribe involvee iere is the Sakaron tribe which occupy the land on which Sopas hospital is. These tribes occue land tond to the west of Wabag town. The distance from Wabag ma Kamas is 1 mile according to the accused. The distfrom Wabaghe placeplace of the killing ist 10-15 kms kms according to John. Th0; The distance from the Sopas - Pogera ronctioJohn Ipalain̵’s house is like from the Mt. Hagen Court House to Hagen “TT” School which is about 3/4 km. Tstancm Lakayok to Kamas imas is about 3kms away or 20-25 mi25 minutes walk. There is no clear eviden t as to the distance from ok to the Sopas/Pogera junction. Nanaid the accused ased and others took 30 min0 minutes to go from Lakayok to the Pogerapas junction and back. He didn’t&#1ay if t if t if this was by car or by foot. If it was by car, ild have have taken shothan 10-15 minutes one way way and if it was by foot, about 10-15 minutes one way. So the two places werse.

The accusednown to the deceased as his father. also knew hiew him throughrough playing card games together and occasional visits to each o village. Daniel likewise knows the accused in a simi similar way. l is also a village elder lder - a committee man. The accused oed a small trll trade store business at Lakayok in which the he had a generator to provide electricity and refrigerator to fresd. He also also had a motor vehicle of his own. He was employethe Secretarretarretary for Department of Enga, one Samson Amean, as the official driver. He waell known person in t in the community.

On the early hours of day of the incident, twas tribal fight in progresogress between the Sakaron and the Lyain. It is not clear if the fight commenced the previous day or had been going on for some time. In fight, the Mae were note not involved. The people of Kamas wero nlso not involved.&#The accused’s clan however was involved because his chis clan was Lyain. Fear of this fight erupting and loss of property cause accused to remove his generator and refrigerator and take take them to Kamas village for safe-keeping the previous day. He we Kamalage with his veis vehicle and stayed there that nightnight. Th not contested by the Sthe State. There is no dispute the deceased was shot with a shotgun in the early hours of the morning between 6am - 8am o8am or thereabouts. There is also noute the Sakarons succesucceeded in chasing away the Lyain clansmen in this period and all the hohe houses and properties of Lyain includin accused’s store was burnt, destroyed or damaged. The exame the deceased wsed wsed was killed in relation to the fight in progress is in dispute. The exlace where the StateState witnesses say they saw the deceased was shot is not in dispute.&#It was on the side of the mthe main Wabag/Pogera highway road. Wheretly that was in relatrelation to Lakayok village or the Sopas - Pogera road junction is not clear.

DISPUTED FACTS

The disputed facts relate to four main areas:

(1)& Th0; The timing of the movements of State witnesses and the deceased on one hand and the accused and his 3 witnesses to various places within the area between Wabag, Kamas, Lakayok, Sopas/Pogera road junction, the place of the killing and nearby areas and exactly when the deceased was killed.

(2) ټ&#Identifentificatiocation.

(3) The motove fvi gifalg tese testimony by either side.

(4) &#1otive for the killing.10;҈
#1160; TIME

Theicritical period invo involved lved here here is beis betweentween 6am - 8am or thereabouts. Nowies foh sides wore any any watchwatch that day. They all gavemastimates baes based on varying degrees of persopersonal experiences. It is therefor necessaryeco decide the whereabouts of the accused, the dehe deceased and witnesses with reference to specific time. The time statethe ml reporreport when the deceased was admitted to Sopas hospital is 7.30am. That rhat report was red ired in handwriting som months later based information received. In the absence of any further evidence supp supporting this exact time, I am not prepto accept that specific time frame either. I would plld place the ki ling and the movements of the accused and his friends betwam - 8am or thereabouts, acs, accepting that he was still able to go to work within time after going to Lakayok from Kamas, then to tgera/Sopas road junction, bon, back to Lakayok and then get a PMV bus to go to work at Wabag.

It is clear from the evidence on both sides that the fight between the Sakaron and Lyain oed in the very early hour hours of the morning in which the Sakaron succeeded in chasing the Lyain away and burning their houses, etc. It seems both clans prepfoed for this war the previay or so because the accuseccused feared this fight and removed his generator and refrigerator and took them to Kamas and spent the nthere. It is reasonable to infet that the accused kned knew of this brewing fight the previous day and therefore evacuated himself and his valuable properties in the form of the generator, refrigerator and his private car. As expected, the fight broke out early next morning. It is rease to infer that that the fight started at daybreak which is say between 5.30am to 6am or thereabouts. Indeed all the defeice wses said they they heard the call of this fight in the early hours of the morning. It is also cfrom the evideevidence of the two State witnesses that the deceased was killed when the Lyain houses were burnt or destroyed andLyain had been or were been chased away and when the fight was still in progress.

Wh

What is critical here is the rate of travel to various places which very much depends on the mobility and the purpose of visits to various places in this period. As for the two State witnesses and the deceased, they were on the main road very close to their house and they were on friendly territory discussing and observing the fight. The deceased wasng his bres breakfast chewing kaukau while Daniel was on his way to catch PMV. Daniel and the ded walked lked a few meters ahead while John walked behind them. They had no reason tr because their clan was noas not involved in this fight. That’s whey saw 3 me 3 men appeared - Koren Anton held a shotgun and first, then John Amapyak and Kepo Korak (the accused). John Amapyakan arrow wouw wouw wound. They d towards the dec andc and Daniel. Then an n an arrow was fired in the direction of Daniel and the deceased which missed Daniel and struck into the j wornhe deceased.&#160 Koren wanted to kie deceaseceased bsed but John and Daniel told him he was another man, not his enemy, so Koren did not kill him. As Koren was tu to go away away, the accused told Koren, “kill him, kill him,” referring to the deceased. He spoke in pidgin and tac exact words he spoke according to Daniel is “Em Tasol, Sutim Em,”. So from a dis of 8 - 10m; 10m; Koren raised his gun and shot the deceased and they all went away. That is a summary of the the eviden the two State witnesses as to the killing incident. The two State wses and thed the the deceased had not gone far from their rea, they did not have multiple purposes to attend to that that morning, they were not in a hurry and they were walking on the main r#160; Their mobility was lias limited by means and purpose. Danho was on his way to cato catch a PMV and not in a hurry.

As for the accused and his three witnesses, the situation is different. The accused and Nangan hige highly mobile. wo other wses were alse alse also mobile. The accused also had equally competing interest or purposes to attend to at various dationhin the area all within the time frame of 6am - 8m - 8am or thereabouts. The combinedbined evidence of the accused and Nangan it they woke up at Kamas ands and both got dressed up to go to work and checked the oil and water of the vehicle. Then they hear call the fihe fight between Sakaron and Lyain was in progrprogress and “someone” had been shot. So they got on thecle w ot 4 other guys and drove to Lakayok and saw that the accused’s trade store hade had been burnt. After seeing this,accusd tand the other guys left behind Nangan to gather the remains of the burnt house, in , in particular, the iron roof, and went t Sopas/Pogera road junction. Itot clear from their evid evidence whether the accused used drove to the road junction or walked down. They returned to Lakayok fter some thirty minutes. He h over the car keys to s to Nangan and then walked down to the bus stop to catch a PMV bus to go to work. While he went to work,an ugan used the vehicle to ferry to and fro between Lakayo Kamas transporting the bure burnt materials. The accused arrived atwork workplace and proceeded to ask his boss for permissiono and attend the funeral seal service of the deceased. Then he went ought some blme blankets and bedsheets for the deceased&#82burial, took them up presumresumably by PMV, and handed them over to Nael at the Sopas/Pogera road junction to take to the deceased&#s funeral place. Acco Accordingael, this wais was sometimes after 12 o’clock.

Defence witness Nael arrived at the Sopas/Pogera road junction well after the killing and he saw the accused there. Later he receive blankets kets and bedsheets for the accused. The accused was ith him beim before the killing so his evidence is not material to the accused’s alibence.

Lucas Taupen heard the deceased had been killekilled while he was at the house. His evi is relevant only wnly where he says John Ipalain was with him when they heard the call that the deceased was killed and therefore, he could not have been at thne of the killing. However, his evidence as to where exactlxactly he was, whether inside his house, on the way to the village market place or at the market place, was vague. He was also evasid vague ague as to where exactly he first met John Ipalain. He unreliable witness.&#1s. I wouject his evidence on e on that basis.

On the whole of the evidence, I am left whe ontional factual coal conclusion that it is practicably possible, for the accused to be physiphysically present at the scene of the killing in the material period. Hethe means, the motivatiovation or purpose to be in the area of the fighting and the scene of the killing. Indeed he was at Lakahich hich was already a battle field. He moved around at will bntween Kamas, Lakayok, Pogera - Sopas junction and the road between Lakayok and the main road in the material period.

2. ; IDENTIIICATVIN ECE

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There is n is not much in dispute about the identification evidence. It was inmorhewas c&#160 a160 allencidecurred on the side of main road road and and not inot in then the bush bush.&#16. Th0; The accused ressed uped up for work.&#1he two State witnesses and accused know each other. T60; They saw hie with theh the other two. Theyd his voice and tecifiecific words spoken. The accused is well figurfigureigure in the community. He is related to the deceased’s line th hisrnal grandmother.ther. The deceased is lifather ther ther to him according to the accused. There was a fin progress bess but tad nothing to fear because their tribe was not involved in d in the fight. They themselves were not involved in the fight. Theinking fac vision and oand other senses were not distorted rted by fear of getting killed. There is no dohat the two two witnesaw tcused, Koren Anton and John Amapyak clearly.&#160 I am aware of the rs inherinherent rent in accepting eye-witnesses evidence aidentification, even in cases where they witnesses is able able to recognise someone he knows. I remyself of the principlnciplethat regard set out in John John Beng v The State [1977] PNGLR 115. think the evidence of idef identification in this case is od quality.

3. ;&#1660 MOTIVE FOVE FOR GIVI GIVING FALSE TESTIMONY

That beingcase, the real issue is whes whether the two State witnesses are lying and if they are lying, what motive do they have for lying. The related issue is wr the accused and his witnewitnesses are lying and if so, what motive would they have for lying. Botes flatly accused eachreachr of lying. It is difficult to find that they are lying in a situation like this.&#16. I think the s test is the the motor lying.

It is the two State witnesses against the the accused and defence witness Nangan because I have already rejected the evi of Lucas Taupen and Nael Kauman as being unreliable. #160; As fe two State witnewitnesses, the accused says they are lying against him to take revenge because he gave evidence as a witness against 5 men from their clan accused of killing a man from anda.; 160; That is Enga cuga custom he says. That may as well be a n toon to lie in a general sense. But I think this relacks particularity as per the specific characters involved in this trial, that is, the twoe two State witnesses as against the accus160; not disputed thad that prior to the incident, the two State witnesses and the deceased hadd had no differences between them, rather they were on friendly terms. So how come they have differences now? When did this killinghe Tehe Teremanda man take place, were they convicted as a result of the accused giving evidence, how are the two witnesses related to those five men on gr othen tribal affiliatiliation. Perht may be that thet thet the accused is from another clan and does not know. Nael and Lucas shouow beca because they are from the same clan as the two State witnesses. But they did not mentiothinything about this.&#160any case, Nael and Lucas broke tribal ranks to join the accused in his defence. I thiI think being pf a tr a tribal group aloneot a good motive why the two State witnesses would lie.&#16. It is toad a claim which Iich I cannot accept.

The accused he cannot tell someone to kill the deceased because the dece deceased was like a father to him. Whenearned that the deceaseceass killed by someone from hiom his clan, that is the Lyain clan, he bought blankets and bedsheet for the deceased’s burial and p it on through Nael. He also sael and Lucas bros brok broke tribal ranks to come and give evidence for him because they knew he was innocent. The two State wies say Naey Nael and Lucas are lying because they are related to the accused by marriage and they fought on the Lyain side after the killing. Nael admits that ined the the Lyain side and went to war with the Sakaron over the killing. He says he followedinstrucstructions of an elder who spoke and told them at Sopas hospital after the deceased ronounced dead, to divide uide up between the Sakaron and the Lyain and go to war. I have already red the evie evidence of Lucas and Nael as being unreliable. I wolso reject their evideevidence being biased. They showed no resfor thei their slain tmen, well knowing he was slain by the Lyain, and went to wato war with the Lyain and fought the Sakarons who no doubt were supported by th after the deceased was killed.

Now I come to the cohe combined evidence of accused himself and Nangan. There is much toesired of d of their evidence, their credibility and their demeanour. Nangan is an in-law of thu accused. The accuseyed with N the pthe previous night at Kamas and it is at his house that the accused sought ught refuge in time of need occasioned by #160; both worked in the same office and were well attl attired for duty. Yet when they heey heard of the fight, they loaded up other guys and went to Lakayok and upon seeing the destruction, the accused and others went to the Sopas/Pogera road junction while n stayed back to collect the burnt iron roof. Nangan ngan valuemuch the the burnt iron roof. when the accused and otherothers returned after some 30 minutes, Nangan chose to stay back and attend to collecting and transporting the accused’s buron rhilst the accusedcused himself valued his job more than then the burnt iron roof and went to work by PMV. Nangan also distancedelf felf from the accused at the critical times - that is when the accused and others went to the Sopas/Pogera junction, then red to Lakayok,then went to the bus stop to catch PMV to Wabag. Iunrealistic for afor a yo a young man like Nangan to forget his office job and set to work for somebody else for no immediate monetary reward, risking his life, and driving the accused’scle in a battlefield when then tensions are so high and the fight involving use of firearms is in progress, and when the accused’s store would still be burning at this time and the corrugated iron roof would still be hot. I think he is an unreliable witness. I also think, to the t that that he seeks to totally remove the accused from the scene of the killing, he is lyi160; The accused was a highly mobile person who left him twice in the material period - the- the first time to go to the Pogera/Sopas road junction and the second time to catch a PMV bus to work. n would not have seen or k or known what the accused did when he was away at these times.

As for the accused, there are several things. First, his demea He ; He appeared to quick, alert and mentally ally and physically active person when he gave evidence. He answered questions ly akly and appeared te an f arrogance in his outlook. He was nbtdoubt a quick thck thinker. Hn evideevidence of what hhat he did the previous day, n the day of the incident between 6am - 8am or thereabouts outs and for the rest of the day just demonstrates how alert, quick and active of a person he is. Th0; The com evidence of t of the accused and Nangan is that he was quick to apprehend danger and evacuate himself and move his valuable properties to Kamas the previous night, quick to wake up the next morning and get ready and attired for work, quick to check the oil and water in the car, quick to hear the call of the fight, quick to load up 4 other guys and drive up to Lakayok, quick to inspect his burnt store, quick to go and check at the Pogera/Sopas road junction, quick to come back to Lakayok, quick to deliver the car keys to Nangan and give him instructions as to what to do, quick to walk to the main roacatch bus, quick to catch atch a bus and arrive at Wabag in time for work, quick to get permission from his boss to attend the funeral, quick to buy blankets and bedsheets for the burial, quick to catch PMV back to the Pogera/Sopas road junction, quick to locate Nael and give him those things and so on. These are the s he said heid he did. What of hings he says he d he didn’t do which the two State witnesses say he did and said? They s came up and utteredtered words and in no time, Koren shot I fhad that the accused haed had the physical abilitbility and ability in character to be present at the scene within the mateperio utter these word words.

He says he got permission from his boss to attend the funerfuneral service knowing that his own clan was responsible for the deceased’s death. The story his clan was ress responsible for the killing did not matter to him because the deceased was like a father to him. State witneseny this and sand say one cannot buy burial clothes for somyou or your clan kills.&#16. I acceps statement of the the two State witnesses. The deceased&#8217an was awas at war wit accused’s clan over over his death. There is no time for a funeral and a decent burial on the same day he was killed. Nho is fromdeceased’8217;s clan broke ranks and foughtought alongside the Lyain, which is the accused’s side. There way uld hcceptedeptedepted those clothes and given them to the deceased’s relatives.&#160 Otherwis would have incensncensed tfeelings and provoked an attack on him or he would have been killed. That is also theo the reason why the accused didn’t d the funeral or go near it, if there was one. If he f he was innoced thed the attendance of the funeral was foremost in his mien he first went to work, then he would have taken his own own vehicle to the workplace, bought the clothes and quickly driven to theral, attended the funeral,eral, handed over the clothes to the deceased’s relatives and broken ranks with his own clansmen and speak to the deceased’s relatives and distanced himself from the actions of his other clansmen. I find that he and are bote both lying about the burial clothes. I also find that ccused ised is lying about not being present at the scene o killing and uttering the words “ Em tasol, Sutim em.”

The two State wite witnesses say the accused did not shoot eceased himself. Ther There wasne else ther there except the accused, John Amapyak and Koren Anton on one side and the deceased and the two State witnesses on the other side. The other men wighting furg further away. Thesee men came on the roae road where there was no fighting. All these 2 State witnessenesses are saying is the accused instructed, excited, incited or ragedn Anton to shoot hoot after he was told the deceased even tven though Koren Anton was reluctant to shoot after he was told the deceased was a different man or not any enemy. If the two State witnewant wanted to lie, they would have easily concocted the story that the accused shot the deceased. I find them as truthful witness and the accused and his witnesses as untruthful or unree witnesses or both.

4. THE MOTOVE FE THLINIL/b><

The Statness John Ipalain says the the accused told Koren Anton to kill the deceased because the “Sakaron killed plenty of the accused7;s cen any killed the deceased to make thke the Sake Sakaron aron feel bitter to put weight on the Sakaron.” Now on the facthat assertisertion, that sounds illogical to me. Why would then kill an innn innocent man from a tribe they are not at war with? The Sakaron were tcused’s enemy. I think one needs to the cthe cuhe customs and tradition of these people to really understand how this works.&#There is no evidence of custom on this so I will not dwell on this suggestion.

I thiI think there is another motive for this killing. On the accused’s het, he lost his trade store at the hands of the Sakaron. He wno doubt have been incn incensed by this and set out to find the persons responsible. He was wiren Anton and Johd John Amapyak when he set out. The was stillrogress at t at that time. An afired ired in that dirt direction landed on the deceased after it missed Daniel. n Ants cautious aThe accuseccused, as quick as he was, most likely interpreted the landing of thof the arrow on the deceased as a sign of guilthe deceased’s past and uttered these words, knowing that even though the deceasedRd’s clan was not involved, they may have played a role in the fight and burning his store. Theen Anton relied on the the accused’s judgment and shot the deceased. That is the only ral and rand reasonable inference of motive for the killing I can find on the evidence.

5.&#>5. ;ټ < < CONCLUSION/p>

In concluonclusion, I accept the evidence of the 2 State witnesses as evidence of the truth. ect the evidence of the ache accused an 3 alitness been untruthful or unreliable. I am satissatd fied beyonbeyonbeyond reasonable doubt that the accused and Koren Anton in conjunction wich other formed a common inon intention to kill the deceased and in the prosecution of that unlawful purpose, Koren Anton shot dead the deceased. The accused’ions in s in telling Koren Anton to kill the deceased is covered by s. 8 of the Criminal Code. d him guilty of committingtting an offence under s. 300 (1) (a) in conjunction with s. 8 of the Code.