State v Amalakwin (No 1) [1996] PGNC 59; N1499 (17 December 1996)

Unreported National Court Decisions

N1499

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO 1721 OF 1995
THE STATE
v
JESSIE AMALAKWIN (NO.1)

Mount Hagen

Lenalia AJ
14-16 October 1996
18 October 1996
2-4 December 1996
13 December 1996
17 December 1996

CRIMINAL LAW - Murder - Not Guilty Plea - Trial - Criminal Code Act S. 300 (Ch No 262).

CRIMINAL LAW -Criminal Liability - Aiding and abetting - Proximity and support - Presence plus wilful encouragement discussed.

CRIMINAL LAW - Joint assault - Murder - Criminal Code S. 7 (1) (c).

The accused was one of a group of about 6-8 policemen which brutally assaulted a group of people from Kindeng Village of Western Highlands Province suspected of forcefully taking away a Department of Simbu government vehicle. On arrival a Kindeng VillaVillage, it was completely deserted but found this minor group of people about 30-40 both young and old who had been gathered together by a village elder purposely to investigatewas actually responsible fole for the theft of the vehicle. Ker based Mobile Squad memd members came upon this group of people and brutally bashed them up using fence sticks and whatever they could find resulting in injuries caused to 24 of them and the dof the deceased. The The accusised a genergeneral defence that although he was present, he did not hit the deceased directly.

Held:

(1) & The vice victim’s death clearly resulted from the attack joint and combined assault by the accused and other policemen who were engaged in the brutal beating of the group of people on the scene of the crihe St Laiala and and MeiriMeiri Gomo Gomosi [1977] PNGLR 470 considered.

(2) &#1ere presence at the scen scene of the crime is not in itself sufficient to constitute aiding for the purpose of S. 7 (1) (c) of the Criminal Code, but presence ed wilful ragemre sufficient: Porewa Wani v ni v The SThe State tate [1979[1979] PNGLR 593.

(3) &##160;; The acce accused psed participated abetted and aided in the commission of the offence charged. He must therefore be found guilty of murder by virtuS. 7 c) of the Criminal Code.

Cases Cies Cited:

The following cases are cited in the judgement:

Thee v Paul Kundi Rape [1976] PNGLR 96

R v Lupalupa Sisa Sisarowe [1967-68] PNGLR 445

Tapea Kawapena v The State [1978] PNGLR 316

The Sate v Smith William (1995) Unreported N1380

R v Watefield [1963] 3 All ER 659

Porewa Wani v The Sate [1979] PNGLR 593

The State v Laiam Kiala & Meiri Gomosi [1977] PNGLR 470

The state v John Badi Wdi & Pengkas Rakan [1987] PNGLR 51

R v William Taupa Tovarula [1973] PNGLR 140

Amowo Yirihim v The State [1976] PNGLR 188

R v Wendo and Ors [1963] PNGLR 217

Materials Referred to:

The Constitution of Papua New Guinea - Ch No 1 SS. 35, 36, 37

PNG Criminal Code SS. 7 (1) (c), 32 & 300 (Ch No 262)

Criminal Law and Practice of Papua New Guinea page 296

Counsel:

S Carter for the State

B Aipe for the Accused

JUDGMENT ON VERDICT

17 December 1996

LENALIA AJ: Thesed stands charged that that on the 16th of May 1995 at Papene Village, Kindeng, Western Highlands Province he murdered, one Jerry Yakamp Puk a male person contto S. 300 of the Criminal Code Act. The accused pleadpleaded not guilty. To establish the Stat17;s 17;s case, the State called six witnesses five of whom were eye witnesses. At the end of tosecution cion case, the defence Counsel made a submisof &#no case to answernswer” to which I overruled and orde ordered the trial to proceed on the basis that on the evidence as it stooe accused could lawfully bely be convicted: The State v Paul Kundi Rape [1976] PNGLR 96.

The history of this case is that, the Kerowagi Mobile based Squad Commander received a complaint from the Secretary of the Department of Simbu in Kundiawa seeking assistance from police to assist recover one of Department of Simbu’s vehicles that was forcefully taken away from his driver at Kindeng village a day or two before the date of this offence. Upon receipt of this cint,aint, four vehicles full of Kerowagi Mobile Squad members and some Kundiawa policemen proceeded to Kindeng village between Chimbu and Western Highlands alon Okuk Highway to enquire and try to retrieve the stolen vehn vehicle. On arrival at Kindeng vil age, the whole village was deserted except for some Mount Hagen Mobile Squad members. A convern took place then then the Kerowagi Mobile Members took offapene Community School a little distance away from Kindeng deng Village. Evidence of the instant case shows that about 6-8 poli were involved in the beatibeating of the group of people that had gathered near the school grounds at the school where the offence wmmitted. Some of the policemen been been acquitted aned and one or two others have been nollied. In the instant case the accused is charged pursuant to S. 300 of the Code.

I propose to go into detail description of each State’s witnesses&#82vidence because the State say that the offence was committed by a number of policemen as itas it is crucial to determination of criminal liability of the accused. The first witness Thomas Paraka currently a village elder at Kindeng and former Provincial Government Member said he went to Mount Hagen town the morning of 16th of May 1995 came back and being aware of the loss of the SProvincial Government vehicvehicle he left his village and proceeded to Papene Community School with the hope of finding out from his people any information about the lost vehicle. As soon asrrived at the sche school he gathered some people with old and young and asking the young people who might have been responsible. As he was still talking to his people, the Kundiawice vehiclme.&#me. Th0; There were four 1ter ater vehicles in number.

On arrival, police immediately surrounded the grountingr guns at them. Thomas observed thate here here were about 50-60 people in that crowdcrowd. Besidese were school childchildren and teachers. As soon as teachers sis, tis, they returned to their classrooms and some children fled for the day. An ords verballyunicated tted to the crowd “no move” 221; that is to say in English “don’t move”. The witnesher sup or lied lied down together with the crowd which by this time were lying down. #160; They werered to look look down.

they were looking down toward the ground, one of the police personnel asked “where iere is the trouble maker”. No had een given when thin this witness saw the policemen stan started to beat the crowd mercilessly. s Paraka stood up onlye toye told that he was a trouble maker. s told the police that that that was the reason wson why he had gathered his people to findwho was really responsible. This witwas some 3-4e 3-4 3-4 metres away from the deceased. He noted policemen engagedgaged in the attack either used coffee sticks or sticks that were pulled out from the nearby school fence. Thit of his evidence is cois corated by the evidence of witness Jackson Plag, Alex Kompamompamong and even the defence case as to the use of sticks.

Mr Paraserved that policemen were using sticks to hit the young meng men and said the deceased Jerry Yakamp Puk was one of them. In ren to the deceased, thd, this witness said as far as he can recall, there were many policemen engaged in the beating until the ded was seen to be unconscious. Athe crowd were badly beat beaten up, he heard one of t of the policemen called out “em inap” meaning “thats enough”. The result of thising was was that the deceased lost his life and about 20-24 members of the crowd were hospitalised. Witness Paraka was quite honest. He said he could not pro irly identify those pmen who actually beat the dthe deceased, but he can recall seeing the accused having in possession of a stick. In relation to wr he identify any othy other policemen engaged in beating his phis people he said he can identify some but not all. Part of his evi is te was was present at Kindeng Service Station junction when police had a similar incidincident during which policemen from Chimb a fight with the people. Apart the assault committemitted upon his people property wrty worth K20,000.00 was destroyed and his pigs were shot at. He recalled there were 7-8e 7-8 policemen involved on this attack on the 16th May 1995 during which the deceased was beaten to death.

Detective Constable Joe Belam was the interviewing officer of the case involving Senior Constable Tony Kure (MFI Ex. I). He rs that during the conv conversation he had with co-accused Tony Kure, Tony mentioned the name of the accused as one of those policemen who were involved in the beating. The record of intervieweentween co-accused Kure and the interviewing officer was tendered by consent. Joe Belam&#8217idence is r is relevant to two factors. First to confhat the ac Jeed Jessie Amalakwin was present at the scene oene of the crime on the 16.5.95 and secondly that state witness Tony Kure ibed ction and reactioaction of the accused at the relevant time. I ted the record ofrd of i of interview as part of the State’s evidence. In question 41 andanswer, wer, Tony Kure related a story to the interviewing officer about an incident that oed on the 11th of May last last year at the Kindeng junction in which the accused was assaulted. Thesed confirmed this in h in his evidence about a drunkard standing in the middle of the road.

Senior Constable Tony Kure was called as the third witness.& This was the co-accused with whom the second State witnesstness conducted the record of interview. He was a member of the police force based in Kerowagi at the time of the incident. He conf evidence by other ther state witnesses about police presen Kindeng junction then later at the Papene Community School on the morning of 16th May last last year. He was engaged as a Mobiuad Driver. He corroborroborates evi tnce that the accused was at the scene and this witness had seen the accused held somethinhis hands and started to beat the people in the crowd sitting down under a tree. He w He was sittingnd the the wheels of his vehicle when he saw a group of policeashing up the crowd rowd and he recalled seeing the accused as one of those involved in beaof the persons in that group.

Part of Tony Kure̵’s evidence is that he heard the accused say something in Pidgin to the effect that “yu pala i mekim na klostu mi bagarap” meaning “you almost killed me the other day”. Ths in reference to the inhe incident on the 11th some five days prior to the brutal killing of the deceased in which a police pars proceeding to Mount Hagen when they came across a drunkard who stood right in the centre ntre of the main highway thereby causing a traffic jam particularly from the motorists going toward Chimbu. In their attempt to remois this drunkard, a scuffle arose between police and the village people. Tony’s evidence so rlso relevant to any consideration of the accused’d on the scene of the killing. Askedhief why cony concentncentrated so much on the accused since there were also another 7 polio were engaged in the beatibeating. nswer was that once he heae heard the accused uttered words in relation to the previous incident, he fixed his eyes on him because the accused was in a bad mood that morning. His evidence is the accuseccused used a banana stem compared to evidence by the accused that he used a whole bunch of banana. He also recalled when the the policemen werting the village people, the policemen raised their guns byns by pointing to the crowd.

Senior Constable Triga Kakarabo gave ece corroborating that of the third witness that Kerowagi Mogi Mobile Squad and Mount Hagen Police were at Kindeng Village investigating the car theft. There isence by the defencefence that this witness was one of those policemen involved in the beating. vidence is that as soon ason as he got out of the vehicle he proceeded to where the group of people were sitting down to talk to but policemen went after him and started to indiscriminately beat the people up. He ; He gatheld people ande and put them up in a separate group. He said he he accused grab grabbed a stick from a nearby fence and started to hit the people sitting d#160; He observed that the stick used by the accused broke roke into pieces, then the accused picked up a banana stem and further bashed the victims up. He confirms he heard the athe accused said “yu pala tasol I mekim na klostu mi dai”. He saw onthe men fell down down with his hands and legs shivering. He stome 10 metres away fray from the accused. He also cond that witTony Tony Kure was sitting in his vehicle and also confirms that there were many many policemen involved in the killing.&#1e alsfirmed that therethere were about 30-40 men in the crowd.

There was evidence by the the defence that witness Kakarabo could not present himself on the morning of 31st May 1995 at the identification parade, at Kerowagi, the date appointed for the identification parade to be conducted. This was despite the fact that this witness was informed and was seen and talked to prior to the parade being conducted. Potential witnesses were brought in from Kindeng village to identify suspects. It is abundantly cfrom the defence evidence tnce that that Triga was not on the Kerowagi parade. However Trays that at the second pond parade conducted this time at the Kiminga Police Barracks he was presnt. Evidence shows that he was then identified. He said, on botntifin parades, the accused was not there when in fact fact the the accused was present at both instances. This in my view throws donbt on the credibility of this witness and I do not wish to accept his evidence on the basis that Kakarabo was also engaged in eating. He might be building upse case against the accused to avoid criminal responsiponsibility.

Evidence by Alex Kompamong corroborates that of the first witness. He was by the timehis offe offence a teacher at the Papene Community School. Alexrly said that he was nwas not sufficiently close to carefully identify correctly individual policemen. He estimated h in tassrome some 100 100 to 180 metres away. He however describes police behaviour that that morning to be very rough. He coed seeing 7-8 policeolicemen beating up a crowd of people sitting down near a tree. 160; Some of the menhe groe group were sta up bter being hit felt fell down to the ground. He estimated the total n ober of policemeicemen present on the scene to have been bn 27-38. This witness was honest to say he was not clot close enough to identify those involved or responsible. He recallwever, thasaw polw policemeicemen using sticks.

The last state witness Jackson Plag is a villager of Papene Village in Kindeng area0; He was present in the crowd that was brutally beaten up by police on the date of this ofis offence. Prior to this incident, ca recalled on a similar incident on the 13th May last year when Kundiawa police came to Kindeng Service Station and caused a lodestruction to property. Three later Kundiawa PolicPolice again came and beat up the the village people at the school. He himwas booted, and hit hit with sticks. The medical report supporss his allegation and he was one of the 24 men that was hosised at the hospital. He said he pararly identifentified four policemen. Asked sked in chief and cross-examination why rer only 4, he said he had juad just been beaten, he was lying on the ground but raised his head and observed the four to be two from the Hids and another two from the coastal region.

The dece deceased was a half a metre away from him. He saw the deceased beintebeaten to death. Part of his nce is that heat he was one of the potential witnesses who identified suspects first at Ker then at Kimininga police stations. id he did not identify they the accused at the idhe identification parades. This is quite the ote of w of what the accused says and the court does not wish to take any further issues with the question of identification beca am of the view that the question of identification is quite irrelevant and would only be a be appropriate if the accused pleaded alibi. This witness said whilng ding down, he saw the accused ran to a nearby fence picked up a stick and joined the group of 7 beating and kicking his people. He also confirmed that when policemen got out of their vehicles they aimed at the crowd and all those standing around.

The Defence case consisted of four witnesses including the accused himself. The accused&;s eve is that that on the the 16th of May last year, the Kerowagi based Mobile Squad received a complaint from Mr Bal, the Secretar the Department of Simbu that some people at Kindeng village had forcefully taken a vehiclehicle away from his driver and wanted the police to assist and try to recover it. On receipt of thislaint Mont Mobile Commander gave orders to proceed to Kindeng with the hope of recovering the stolen Simbu Provincial Government Vehicle. His evidence is that s a ps a passenger in the 1ta vehicle and was the 4th 4th vehicle on the convoy. On arrival ateng village, age, it was completely deserted in fear of poletaliation in relation to the last two incidences on the 11he 11th and 13th. They only found Mount Hbasn based Mobile Unit memb#160; Three Kundiawa policeolice vehicles proceeded to the scene of the crime while the Section Commander of the vehicle on which thesed was in stayed back for some 4-5 minutes talking to the the Mount Hagen policemen.

After the conversation, the vehicle in which the accused was in took off to the school. On arrivathe school, theirtheir vehicle parked near vehicle 11 Alpha and policemen in that vehicle got out and joined other policemen in bashing up the group of people that was sitting down. The ed saior Constable Bese Bese Besy and the Squad Commander gathering older people into one group leaving young people in that crowd.&#He recalled that Senior Constable Triga Kakarabo was one of the policemen who used sticks tcks to beat the people up. The accusme and stood near near Senior Kakarabo. He said he saw an old miedtried to stand up but the accused told him to sit down tl police where they had hidden the stolen vehicle. The old man did nsten to t to the the accused so the accused picked up a whunch of banana near senior nior Kakarabo and threw it at the old man. He also threw it with his left hand while his right hand olding a rifle. The bThe bunch of babroke roke into pieces. I doubtnch of banana throwthrown with the left hand would havken into pieces.

Senior Constable Kakarabo spoke ange angrily to the accused as to why the accused had spoiled the banana since he d to take the bunch of bana banana to his house and suggested that the accused should follow the other policemen to search the coffee garden since the accused was the Section 21C and had a high powered firearm. The accused he walked away away into the coffee garden and while there the Squad Commander gave orders to the police to withdraw. They thendrew soon afterwaterward.Part of his evidence is that S/C Kakarabo was in the midstmidst of the group of policemen beating the people. He saw state witKakarsed ased a coffee stick against the crowd. The aThe accused cond that that the number of policemen engaged in this beatingd have been between 8-9. He was askechief what woul would he say to evidence given byen by state witness Tony Kure that Tony sa accused hit an old man witn with something. The accused said in anshat that witness Tony was referring to the bunch of banana that he threw at the old man. The ac completely denied hied hitting the deceased with any sticks compared to state witnesses S/e, Paraka and Jackson Plag Plag saying they saw the accused used a stick and beat the crowd at the scene. There is evidence that 24 people in that crowd sought medication and the deceased was one of them.

There is evidence by the defence that the accuse present at both identification parades at Kerowagi and Kimininga. It is part of the the defence case that in the first identification parade at Kerowagi Senior Kakarabo was not present. Thused said Kakarabo occupoccupies half of the building and tcused the other half. The accused sa recalls&#16s&#16s having seen poken to KakarKakarabo that morning of the parade but policemen were called upon upon to line up, Kakarabo could not be seen in the parade.

S/C Joe Simbratuo confirms the accused evidenat on both identification pion parade, the accused was present. He also confirmed that S/C Kakarabo was not present at the Kerowagi parade despite the fact that Kakarabo was present on the morning of the date the parade was conducted. The third defeitnes Constaonstable David Kuman confirms that on arrival aval at the scene, he observed that policemen were man-handling the villagele who could not listen to police. He saw the accused only used a banana threw it at t at the crowd. No reference was made by whis witness as to the banana being thrown at any specific persons. The third witness also saw S/C Kakarabo used a st#160;last defence witn witness says that he could clearly recall that at both identification parn parade the accused was present but aboutKerowagi one, Senior Kakarabo was not present. That Shat S/C Kao was corr correctly identified by potential witness during the Kimininga identification parade. I accept as part of the defence evidence that on both identification parades, the accusedpresent.

As can be s be seen from the total evidence that there was use of excessive force against the complainants of this ca160; This was a clear abuseabuse of the process of law and quite contrary to the letter of the Constitution SS. 35, right to life, 36 freedom from inhuman treatment and 37 protection of law. esult of police brutality lity that morning was that the deceased died. An autopsy examination cteducted on the deceased on the 26.5.95 shows the following findings:

PM: ټ sed JYary Yary Yakamp Puk

EXTERNAL

A young man well nourished, slightly pale in rigour mortis.

INTERNA

HEvidence of beating on Right head with some slight swelling but no cuts. At0; At oper operationugh ough the right skull there was a clot of about 1 cm thick extending from Temporal area to the parietal area of cranium. Sevareas of bleeding was olas olled the main one being the middle meningeal vessel about bout 2cm from the skull base.

Dura was not opened.

There wasical evidence of severe brain injury sustained at the time time of alleged injury.

CHEST AND ABDOMEN

Normal.

In view of the above findings the deceased sustained severe primary brain damage as well as significant haemorrhage consistent with blunt/closed head injury.

Signed

GEORGE GENDE (DR)

MBBS.M.M.

SMO Surgery

The accused relies heavily on the general defence that although being present at the scene, he did not actually hit the deceased.

In my view there are two questions involved. The first is that thereno e no specific exculpatory defences in the Criminal Code which may be available to policemen who act in the performances of their duties. None of the Lawyersessed tsed this Court on thsue. There are howeveowever some general defences that may be available to policemen on duty such as S. 32 (1) (a) of the Crimiode which provides that a person is not criminally responsiponsible for an act done in the execution of the law. This section says:

̶“(1) Aon iscrit nallinally resp responsible for an act or omission done or made:

(a) ; ecution of the law; or

r

(b) &##160;; in0; in0; in obediobedience to the order of a competent authority thais boy lawbey, s the order is manifestly unlawful; or

(c) #160;&#160  &##10; when the the act is reasonably necessary in order to resist actual and unlawful violence threatened to him, or to another person in his presence; or

(d) ټ&#when es nor omitsomits to d to do the act:

(i)  in oto s ve himself from irom immediate death orvous y harm threatened to be inflicted on him by some person actually present and in a in a posi position to execute the threats; and

i)҈& believing himsehimself telf telf to be unable otherwise to escape the carrying of the threats into execution,

but this protectios notnd to an act or omission that would constitute an offence, punishable with death eath or thor the offence of wilful murder or an offence of which grievous bodily harm to the person of another, or an intention to cause such harm, is an element; nor to a person who has by entering into an unlawful association or conspiracy rendered himself liable to have such threats made to him. (Ad by No 12 of 1982, s. 2 s. 2.)

(2) &#1hether an order is or isor is not manifestly unlawful is a ion of law.”

This section envisages a number of general defences available to e to persons who execute their duties acco to ld sec to those whse who havo have to e to execute their duties in response to orders by competent authority. In relation to s. 32 (1) (c) Frost J expressed an obiter view that it only excuses an act done for the purpose of defence and its provisions cannot derogate specific provisions of SS. 269-271 in relation to self-defence against unprovoked assault:ault: R v Luaplupa Sisarowe [1967-68] PNGLR 455. The provisions excuts for for the purpose of defence but not covered under s. 269. There need not be a prior assault to invoke the defence. Sect1 (1) (c) offers a defa defence for an act reasonably necessary to resist actual threatenedence. The test for what is reasonably necessary is subjective: Tapeapena vena v The StateState [1978] PNGLR 316, 321. In relation 32 (1) (a) mya) my brother Injia J said that the defence is available and would only apply to policemen who act in the proof exng an order of thof the Court: tate v Smith William (1995(1995) unreported N1380.&#16. I note S. 32 (1) (b) may amay also be available where a policemen executes an order from his superior.

To decide whether the accused acted within the limits of cope of responsibility given him by the statutes it is nece necessary to look at the accused’s behaviour, action and motive at the scene of the crime and ask the question whether or not he acted in accordance with law. Ashworth J said in R v Waterfield [1963] 3 All ER 659 at pp. 661-662:

“In the judgement of this court it would be difficult, and in the present ct is unnecessary, to reduce within specific limits the general terms in which the duties ofes of police constables have been expressed. In most cases it is pro moly more convenient to consider what the police constable was actually doing and in particular whether such conduct was prima facie an unlawful interference with a person’s liberty or property. If so, it is then rel to c to consider whether (a) such conduct falls within the general scope of any duty imposed by statute or recognised at commonand (b) whether such conduct, albeit within the general scope of such a duty, involved an u an unjustifiable use of powers associated with the duty. Thus, whilis no doubt righ right to say in general terms that police constables have a duty to prevent crime and a duty, when crime is committed, to bring the offender to justice, it is also clear from the decided cases that when the execution of these general duties involves interference with the person or property of a private person, the powers of constables are not unlimited. To cite one example in Davn Davies [1937] 2 All ER 213, it was held that even if a police officer had a right to enter a garage to make enquiries, he became a trespasser after the appellant had told him to leave the premises, and that he was not, therefore, acting thence forward in the execution of his duty, with the result that the appellant could not be convicted of assaulting or obstructing him in the execution of his duty.”

In this jurisdiction many of those powers and responsibilities are contained in legislation like the Police Force Act Ch No 65, Arrest Act, the Search Act, Bail Act, the Motor Traffic Act and Regulations: Section 139 of the Police Force Act says:

“139. &#1owers, duties, rights ants and liabilities of members of the Force.

Members of the Force have the same powers, duties, rights and liabilities as Constablder the underlying law, except for as far as they are modifmodified by or under an Act.”

It is generally known that it is part of the obligation and duties of policemen to take all necessary steps appearing to him to be necessary and reasonable to keep the peace and prevent crime, to protect life and property and to bring offenders to justice. Where the situation call tfor the use of force to prevent the commission of crime the force use ought to be justifiable and reasonable in all the circumes of each case.

The second issue is that from the total evidence can it be said thad that the accused was a party to the offence charged. I am gratefuloth Counsels sels for their helpful addresses on parties to offences. Evidence both by the Stat and Defence clearly show that the accused was present at the scene of the crime. The State&#8 evidence show show that thused himself used a stick to beat the people in the crowd one of whom was the deceased.&#16. Evidencthe defence alone sone show the accused used a bunch of banana and threw it at an elde elderly man. This part of the defence evidence contradicts its casethat of the state that elderly people had been removed and and seated in a separate group. There isence by the State tate thataccused uttered words in the following terms “yu pala pala tasol I mekim na klostu mi dai”. This was followed by thused beating the 24 victims in which group the deceased wasd was in. What is clear is that there was a group of 6-8 policemen ied in the beating which lead to the death of the deceased and near death of others. I60; I was urgedhe defencefence Counsel thathe basis of the evidence as it stands I should not find thnd the accused guilty.

The question of joint participation in crime been discussed both in the Supreme and National Courts.&#1s. Tpreme Court said in PorewPorewa Wani v The State [1979] PNGLR 593 at 597.

“It is well established that mere presence at the scene of a crime is not enough to constitute aiding.&#1owever, presence and wilfulilful encouragement are enough. In tll known prize-fight cght case of R v Coney (1) Hawkins J said:

‘In my opinion, to constitute an aider and abettor some active steps must be taken by word, or action, with the into instigate the principal, pal, or principals. Encouragement dot of necesnecessity amount to aiding and abetting, it may be intentional or unintentional,a man may unwittingly encourage another in fact by his presence, by misinterpreted words, or gestures,y his silence, or non-interinterference, or he may encourage intentionally by expressions, gestures, or actions intended to signify approval. In the latter casaids and and abets, in the former he does not.’” (mphasis is ours.)

>

That dictum was applied by the Courts-Martial Appeal Court in R v Clarkson (2), where the court said:

“It is not enouhen, that the presence of the accused has, in fact, given even encouragement. It must be proved the accu accused intended to give encouragement; that he wilfully encouraged.”

In R v William Taupa Tovarula (3) Minogue CJ said:

“Ho, encouragement in one form or another is a minimal requirequirement before an accused person may properly be convicted as a pral in then the second degree of any crime - see R v Allan (4) per Edmund Davies LJ.”

As to the question whether theh of the victim in the instant case could have been attributed to any of the blows by any oany of the policeman engaged in the beating of the victims, the National Court said in The State v Laiam Kiala and Meiri Gomosi [1977] PNGLR 470 at 473:

“I do not think it is possible to come to a firm conclusion as to whether Philip’s death is to be attributed to the punch, the kick or to a combination of the effects of both. But I doider the other sugr suggestion that it may be attributed merely to a fall to be so far-fetched as not to amount to a real possibility. If it were attributable e the fall, that fall woulany event seem to result frlt from Laiam Kiala’s punch. There o evidence before thre the Court that Philip was hit or kicy anyone other than Laiam or Meiri Gomosi (apart from the rthe reference in Laiam’s record of interview). I consider Phil217;sh clea clearly to have have resulted from the attack by Laiam and Meiri and no other cause. One which I think is opentopenthat this became a joint assault in prosecution of a common purpose once Laiam Kiala indicandicated by taking his shirt off and movinan obviously aggressive mood towards Philip, and Meiri Gomo Gomosi moved to his support. Such ae notorious usual coal compulsions in Papua New Guinea society among tribal brothers immediately to move to the support when a fight develops. But I do nonk thsecution nion needs to rely upon Section 8 of the Crim Criminal Code to obtain a conviction.”

I am urged by Mr Cartat the accused participated or acted in concert, aided or abetted in the unlawful kill killing of Jerry Yakamp Puk. The defencues the contrarytrary. Looking rious authorities ties I have cited can it be said that the accused’s action falthin rmbit of S. 7 (1) (c) of the Code. Sn tion 7 (1) (a) (b) (c) (c) and (d) say:

“When an offence is committed each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence and may be charged with actually committing it:

(a) ҈ peryon rson who acho actually does the act or makes the omission that constitutes the offence; and

(b) &#16ery person who does or s or omits to do any act fe purof eng or aior aiding ding anothanother person to commit the offence; and

(c) ټ every pery person who aids ar pern comng the offenoffence; ace; and

(d) ;ټ every pery person rson who counsels or procures any other person to comme off&#822>

It

It is established beyond reasonable doue doubt thbt that the accused was present at the scene together with other policemen for purposes of retrieving the stolen vehicle. It is also establishat whet where a number of accused were responsible for the death resulting from attack where both in the presence of each other intent to were were aiding and abetting each other in the k. I not to the the point thnt that it could not be elicited whose blow caused the death: The Statohn Badi Woli &amn &amngas [1978] PNGLR 51.R 51. Mere presencehe scene woul would not suffice, but it must be w be willed and not accidental and with thention to encourage or assist in the commission of the crimecrime charged. It was stated in R v William Taupa Toverula [1973] PNGLR 140 that in some circumstances the fact that a person was voluntarily and purposely present at the commission of the offence and ded no opposition to it although he may have expected to doto do so or at least to express his dissent, may not afford cogent evidence that he wilfully encouraged the commission of the offence.

In their commentary in relation to parties to the offences “Criminal Law and Practice of Papua New Guinea” by Chalmers, Weisbrot and Andrew at page 296 it says:

“When several persons being present together attack at the same time the same man, using similar weapons or directing similar blows with the common intention to injure and that man dies as a result of injuries so inflicted, each of the attackers is guilty of wilful murder, murder or manslaughter, according to the intent proved, because each of those several persons is acting in concert with the others at the time, each did the acting constituting the offence under subs. (a), and aided the others under (c). However, if it is not proved that there was any other plan or preconcert to which those several persons were parties, and the hypothesis has not been excluded that the deceased met his death because of injuries inflicted during a later assault by another person or persons, acting alone or together in a common design or concert to which those several persons were parties, and at a time when those several persons were not shown to be present or participating in the attack or keeping watch or using any dangerous weapon, then those original several persons who were parties to the first assault are not criminally responsible in any degree for the death of the man, the reason being that it has not been shown that those several persons did the act under s. 7 (1) (a) or aided another person committing the offence under s. 7 (1) (c) or, there being no preconcert, that they counselled or procured any other person to commit the offence under s. 7 (1) (d). The position under the Code goes further than the common law for under the Code a person may be convicted as a principal if he counselled or procured the offence, whereas at common law foraccused to be guilty as a principal in the first or second cond degree, the accused must be shown to be actively or constructively present at the scene. R v Sa-Masuve and Ors (197 (1973) No 732.”

The Supreme said in Omowo Yirihim v The State [1976} PNGLR 188 said that where two or more persons participate in a crime each is responsible for the act of the other. Althoere presence at the sthe scene of the crime is not enough to constitute aiding, presence and wilful encouragement are sufficient0; To come under the armbit of S. 7 (1) (c), intentional encouragement of the crime is suff sufficient whether by word, action or even by mere presence. Where accused join in a co a common purpose to kill but did no physical arm other than being present and walking around the scene it may be open on the finding of facts that they aided by their presence and readiness to assist R v Wendo and Others [1963] PNGLR 217.

Having discussed those authorities and the principles there laid where does the position of the accused fits in, in relation to s. 7 (1) (c) of the Code. There is evidence that the accused was present at the scene. I find that not only was he present but was ready to act to fight back at the people had the people fought with the pol#160; Prior to beating the people in that crowd the accusedcused uttered words of what I may safely say anger or frustration about the incident on the 13th of May. are evidences I find to b to be subsidiary only to the cogent evidence put by the State that the accused himself engaged, participated aided or acted in concert with other policemen in the brutal killing of the deceased. Iatisfied that I may safelsafely accept the evidence of State witnesses, Thomas Paraka, S/Constable Tony Kure and Jackson Plag the accused was seen with a stick and was seen using it to beat the 24 victims and from whichwhich the deceased died instantly. Hd the stick himself untiluntil it broke into pieces.

I must describe the action by the policemen engaged in this killing utal and merciless. It was a toisregard to theo the first and most basic human right ight is that to life itself. Nobody shouldeprived of&#1of his life intenlly except uept under a sentence of the Court which carries a death penalty. The requnt of s. 3the Cons Constitution is set out in explicit terms:

35. & &160; Right toht to Life

<&#(1) ; No perhon sbell prived of d of his life intentionally except:

(a)&#160 &ـ in exec executioa tioa sen of at followin convn of fence fore for whic which the penalty of death is prescribed ibed by laby law; orw; or

(b) ҈ e resf resf the use of forc force to e to such an extent as is reasonable in the circumstances of the case and is permitted by any other law:(i)&ـ for the defence ofce of any person from violence; or

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(ii)&(ii) ҈ de oro e to effect fect a lawful arrest or to prevent the escape of a person lawfully detained; or

(iii) fo purpose of essiniot, sut, surrection or a mutiny; or

(iv)&(iv) #160; &##160; in ; in order to prto prevent him from committing an offence; or

(v);ټ&##160; for the purpose of supp suppressiressing ping piracy racy or terrorism or similar acts; or

(c) as the result of a lawfuloact of war.

Subsection (2) of this section provides that there is nothing in subsection (1) (b) to re anyon friminabilitrespect of the killing of another person. The; The poli police actioaction tion was awas also contrary to SS. 36 and 37 of the Constitution. The former sectiovides fors for freedom from in human treatment and says that no one should be tortured whethysical or mental or to be o be subjected to treatment or punishment which is cruel, inhuman or inconsistent with respect for the inherent dignity of the human person.

I find therefore that the accused acted in concert and aided in the brutal killing of the deceased Jerry Yakamp Puk pursuant to S. 7 (1) (c) and therefore find him guilty as principal offender to the charge of murder contrary to S. 300 (1) (b) of the Code. I convict the accuseordingrdingly.

Lawyer for the State: The Public Prosecutor

Lawyer for the Accused: Alphonse Yerr