N2651
PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 628 0F 2003

THE STATE

V

CHARLIE LANGU (No 1)

WEWAK	: CANNINGS J
19, 20, 23, 26 AUGUST 2004

Criminal Law – indictable offence – Criminal Code, Division V.3, Homicide: Suicide: Concealment of birth – murder – Section 300(1)(b), person kills another person – death caused by means of an act done in the prosecution of an unlawful purpose and of such a nature as to be likely to endanger human life – purpose and act must be distinct – verdict.

Cases cited

R v Kiandari [1967-68] PNGLR 31
R v Koito Kartogati [1974] PNGLR 225
Joseph Maino v The State [1977] PNGLR 404
Herman Pasi, Daniel Tangole and Hubert Bola v The State [1991] PNGLR 254
The State v Tau Ted Lahui and Others [1992] PNGLR 325
The State v Okun John (2000) N1977

Counsel:
Mr J Wala for the State
Mr L Siminji for the accused

CANNINGS J: 

INTRODUCTION

This is a criminal case. The accused, Charlie Langu, is a man aged about 27, who lives in the Maprik District. He faced the following indictment:

Charlie Langu of Samgit in East Sepik Province stands charged that he on the 6th day of November 2002 at Samgit in Papua New Guinea, murdered one Rita Sora. 

The indictment was presented under Section 300(1) of the Criminal Code. This creates the offence of murder. It says that a person who kills another person in any one of a number of prescribed circumstances is guilty of murder. Included amongst the prescribed circumstances is death caused by means of an act done in the prosecution of an unlawful purpose and of such a nature as to be likely to endanger human life. The maximum penalty for such an offence is imprisonment for life.

Section 300 states:

(1)	Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:—

(a)	if the offender intended to do grievous bodily harm to the person killed or to some other person; or
(b)	if death was caused by means of an act—

(i)	done in the prosecution of an unlawful purpose; and
(ii)	of such a nature as to be likely to endanger human life; or
(c)	if the offender intended to do grievous bodily harm to some person for the purpose of facilitating—

(i)	the commission of a crime other than a crime specified by a law (including this Code) to be a crime for which a person may only be arrested by virtue of a warrant; or
(ii)	the flight of an offender who has committed or attempted to commit an offence referred to in Subparagraph (i); or

(d)	if death was caused by administering any stupefying or overpowering thing for a purpose specified in Paragraph (c); or
(e)	if death was caused by wilfully stopping the breath of a person for a purpose specified in Paragraph (c).

Penalty:	Subject to Section 19, imprisonment for life.

(2)	In a case to which Subsection (1)(a) applies, it is immaterial that the offender did not intend to hurt the particular person who was killed.

(3)	In a case to which Subsection (1)(b) applies, it is immaterial that the offender did not intend to hurt any person.

(4)	In a case to which Subsection (1)(c), (d) or (e) applies, it is immaterial that the offender—

(a)	did not intend to cause death; or
(b)	did not know that death was likely to result.

In this case the State relied on Section 300(1)(b).

BACKGROUND

The alleged incident giving rising to the charge occurred on 6 November 2002. On or about 9 December 2002 a complaint was made to the Police at Maprik. On 9 December 2002 the accused was interviewed by the 
Criminal Investigation Division attached to Maprik Police Station. On 11 March 2003 the accused was committed to stand trial. 

On 19 August 2004 the indictment was presented and the accused was arraigned. He pleaded not guilty. He was present throughout the trial on 19, 20 and 23 August.

ORAL EVIDENCE 

State witnesses

The State called three witnesses: the husband of the deceased, one of the deceased’s sons and a village peace officer. 

Sora Yasaku

He is the deceased’s widower. 

His evidence in chief was as follows. Prior to the incident in which his wife, Rita Sora, was killed, on 6 November 2002, there was a mediation session at the village of Nindiko. That village is about 2 kilometres from the village of Samgit, where his wife was killed. Samgit is his family’s village. 

The mediation session was about a bilum (a string bag) that was owned by his daughter, Scholastica. The bilum had been cut by her husband, Rayon Buingu. Sora Yasaku had taken possession of a lamp owned by Rayon. He would not return Rayon’s lamp unless and until Rayon paid Scholastica K16.00 for the bilum that he had cut. 

The mediators agreed with Sora’s proposal that Rayon should pay K16.00. But Rayon said he could not pay. Rayon then started a fight with Sora’s two sons, Bruce Lee Sora and Darius Sora. 

The accused, Charlie Langu, was at the mediation session. The accused is also from Samgit. Sora Yasaku knows him well. He also knows Rayon well. Charlie supported Rayon in the fight. Charlie and Rayon interrupted the mediation session. Others also joined in the fight. As a result of this fight, the mediation stopped. An attempt was made to injure Sora. But he did not sustain big injuries at this first fight. (The later incident at Samgit, where Rita Sora was killed is referred to as the second fight.)

Sora Yasaku and his two sons and his wife were outnumbered by Rayon and Charlie and their supporters. So they fled to Samgit. Shortly after they arrived, two men appeared. They were Rayon and Charlie. They were both holding spears. It was about 3 o’clock in the afternoon.

Sora said that he was talking to a man called Douglas. Then Rita called out that they were surrounded. Then Rayon threw a spear at him. He received three wounds. 

He looked around and saw Charlie Langu throw a spear at his wife. It missed and Rita took cover at the doorway of their house. Charlie Langu then threw a second spear, which struck his wife at the back of her neck and came out through her throat. She staggered around like a chicken and fell down. Blood flowed from her body like water. She was dead. Rayon and Charlie ran away.

He had a clear, uninterrupted vision of this incident. He saw Charlie Langu with his own eyes throw the spear that killed his wife. Charlie did not have his face covered. He was only about four metres away from Charlie Langu and about five metres from his wife. The incident happened right at the front of their house. Straight after the incident, Charlie and Rayon ran away. 

He has not received any compensation for the death of his wife. 

His family had previously had problems with Charlie Langu. This arose out of an affair that Charlie had with the wife of a man called Martin Pauka. That matter had been taken by Martin to the Village Court. The magistrate who dealt with the case was Jack Kiaparu. Charlie was ordered to pay K1,000.00. Charlie did not accept that decision. He did not agree with it. It was a big issue in the village. Charlie Langu had a grudge against Rita Sora, who was his aunty. 

In cross-examination, it was put to Sora Yasaku by Mr Siminji that there was no enmity between Rita Sora and Charlie Langu’s family. He replied that no, Charlie Langu had a big problem with the Sora family and with Rita in particular. Mr Siminji suggested to Sora Yasaku three times that he was lying. Three times he denied lying. He denied receiving compensation. He said that if he received compensation, his signature would be on "the paper" as proof. 

Charlie Langu was at the mediation session at Nindiko. He was part of the fight that broke out at the mediation. Mr Siminji put to the witness that it was in fact Rayon who speared his wife to death. He denied that emphatically. 

In re-examination by Mr Wala, Sora Yasaku repeated that Charlie Langu was involved in the fight at the mediation session. He repeated that he had not received compensation.

Darius Sora

He is a son of the deceased. 

His evidence in chief concerned both the mediation session at Nindiko and the incident at Samgit where his mother lost her life. 

Charlie Langu and Rayon were involved in the first fight at Nindiko. Charlie is his cousin. Rayon is his brother-in-law. When it became apparent that they were outnumbered, he, his father, mother, and his brother, Bruce Lee Sora, fled to their own village.
 
Rayon and Charlie came up the other track with a number of other people including those by the name of Douglas, Benny and William. Charlie Langu shot two spears at his mother. She avoided the first one but was hit with the second. The incident happened not far from their house. He knows Charlie Langu well. He identified the accused. Charlie did not have his face covered. 

No compensation was paid.

There had been problems in the past with Charlie Langu and his family. His mother had helped to pay bride price for Martin Pauka’s wife. When Charlie Langu got Martin’s wife pregnant that was when a big problem arose. Charlie was ordered to pay K1,000.00.

Under cross-examination by Mr Siminji, it was put to Darius Sora that Charlie Langu was not in the group that chased the Sora family to Samgit. He denied that. It was put to him that Rayon was the one who started the fight back at Nindiko. He replied, yes, Rayon started the fight. It was put to him that Rayon was the one who speared his mother. He replied, no, it was Charlie. 

In re-examination by Mr Wala, Darius Sora elaborated on the problem between his mother and Charlie Langu. His mother was upset about Charlie making Martin Pauka’s wife pregnant. His mother was close to Martin. His mother had contributed to the bride price for Martin’s wife. He confirmed that he saw with his own eyes Charlie Langu shoot his mother with a spear.

Jessy Kamblapi

He was the third and final prosecution witness. He is a peace officer. He lives in Nindiko. 

His evidence in chief was as follows. He has been a peace officer for 14 years. He performs the normal duties of a peace officer. Amongst other things, he serves documents and arrests people when required. He works alongside the Village Court officials. He covers the villages of Nindiko, Ladnikum and Samgit. 

He was present at the mediation session on 6 November 2002 at Nindiko. It was about a simple bilum and a lamp. But a fight started between Charlie Langu and Bruce Lee Sora. He removed the Soras from the fight. But Charlie Langu had a knife and Bruce Sora had a knife. Charlie Langu joined Rayon in fighting against Bruce. Charlie was fighting about Martin Pauka’s wife. Charlie Langu had made Martin’s wife pregnant. The Village Court had ordered Charlie to pay K1,000.00. Charlie did not accept that. 

He heard about the fight at Samgit via the garamut. But he was not there to witness it. He went there with the other mediation officers. He saw the body of Rita Sora. She was already dead. Her family took her body to the morgue at Maprik Hospital. 

He had no grudges against Charlie Langu. 

He was aware that the Sora family had a problem with Charlie Langu, as Charlie had made Martin Pauka’s wife pregnant. Charlie was ordered to pay K1,000.00 compensation. He had not paid. 

As to compensation, Jessy Kamblapi said it was part of their local custom. If compensation were paid, the village leaders would be present to witness the payment. Sora Yasaku had been given eight rings and K1,000.00 cash was in the courthouse in Maprik. But the eight rings were taken back.

Under cross-examination by Mr Siminji, Jessy Kamblapi was asked to give the names of the people who were presiding at the mediation session at Nindiko. He said they were Jack Kiakoru, Bill Clisso, Toby Narepal and Johnny Kuingu. He confirmed that Rayon and Bruce started fighting and that Charlie Langu got involved. He said the rings were given to Sora Yasaku on 19 July 2003 by Charlie Langu’s relatives. Rayon did not hand over the rings to Sora. 

There was no re-examination.

The State closed its case.

Defence witnesses

There were two defence witnesses: the accused himself and the man who the defence claimed was responsible for the death of Rita Sora, Rayon Buingu.

Charlie Langu

He is the accused.

In his examination in chief he stated that he was at the mediation session at Nindiko, involving the bilum and the lamp. Bruce Lee Sora started fighting with Rayon. He was not involved in the fight.

After the Sora group ran away to Samgit, he went to his own house and stayed with his wife and his mother. He does not know how the second fight started. 

As to the prosecution evidence that he had been charged for adultery and ordered to pay K1,000.00, he admitted that that was so. He was asked when that happened. He replied, 6 November 2002. That was on the day of the incident when Rita Sora was killed. He said he was at the mediation with Martin Pauka.

The accused said that it was Rayon Buingu who killed Rita Sora. He denied having any big trouble with Rita. She was his father’s sister, his aunty. He denied spearing her. He has been in custody over this matter since 7 November 2002. He has not been back to the village. He has not had a chance to pay the money for making Martin Pauka’s wife pregnant. He has not arranged any compensation for Rita’s death.

In cross-examination the accused agreed that he was at the mediation session at Nindiko. But he did not have a bush knife. He was not involved in the fight at Nindiko. Jessy Kamblapi, the third State witness, is a respected person in the community. But Jessy is Sora Yasaku’s uncle. He was asked whether Jessy had any prior conflict or problem with him. He replied no.

He repeated what he said in his evidence in chief about the mediation session on his adultery case. It occurred on 6 November. The same day the mediation session over the bilum took place. The same day Rita Sora was killed. He was given three months to pay the K1,000.00. Rita was not cross with him. He had no problems with Rita. He repeated that he was at his house when Rita was shot. 

In re-examination by Mr Siminji he said that he had heard the garamut, which indicated that a fight was taking place. He went to the place where the fight had been. He saw Rita dead. 

Rayon Buingu

He is married to the first prosecution witness’s daughter, Scholastica. 

In his evidence in chief Rayon Buingu agreed that the mediation was about the bilum that he had cut and a lamp. The bilum belonged to his wife, Scholastica. The mediation officer made a decision. It was not a big issue and the problem was solved. But then Bruce Lee Sora wanted to fight Rayon’s sister. Bruce threw two coffee sticks. So Rayon got his bush knife and, aided by his brother Rex, fought with Bruce Lee Sora and other members of the Sora family. They chased them away. Before he left the mediation place Bruce Lee Sora put to Rayon that if they wanted to continue the fight they should come to Samgit. ‘If you are man enough, come to my village. I will catch you one by one, like fish,’ Bruce said. So they went to Samgit, prepared to fight. 

When they got to Samgit, Bruce and the others were prepared for them. Another fight started. He fired a spear at Darius Sora, meaning to shoot him. Darius’s mother, Rita Sora, was standing at the back. Rayon did not see her. The spear hit Rita, by mistake. He killed Rita, accidentally. Charlie Langu was not present.

Under cross-examination by Mr Wala, he stated that he was a cousin- brother of Charlie Langu. 

He conceded that he had injured Sora Yasaku in the second fight at Samgit. He was trying to get Darius but he got Sora. He repeated that Charlie Langu was not there. He repeated that he accidentally shot Rita Sora, who was his mother-in-law. 

It was put to him that Rita Sora had a prior dispute with Charlie Langu, who had been ordered to pay K1,000.00 cash. Rayon replied yes that is correct. Mr Wala put it to him that that was some time before Rayon replied, yes. Mr Wala pressed him on that point. He put to Rayon that, on 6 November, the only mediation session was the one involving Rayon and the Sora family. Rayon replied, yes. 

He was asked a series of questions about compensation for Rita Sora’s death. Rayon said that he had paid eight rings and two vanilla gardens as compensation for Rita’s death, which he caused. Originally he said he had paid no cash. Mr Wala then pointed to a statutory declaration that Rayon had made for the purposes of proceedings in the District Court at Wewak, in which he seems to have said that he had paid K10,660.00 cash as compensation. He was asked twice if he understood English. He changed his answer to that question. 

In re-examination by Mr Siminji, Rayon Buingu said that he had paid eight rings compensation and two vanilla fields and K1,000.00 cash was in the courthouse. He was asked whether, on the day of the mediation, there was any other mediation. His reply was no. He was asked when the mediation about Charlie Langu and Martin’s wife too place. His first response was that it was on a Saturday. He was asked: how long before? He replied three months before. 

The defence case was then closed.

DOCUMENTARY MATERIAL

Exhibits

The following documents were tendered in evidence. 

Exhibit
No	Date 	Description	
1	18.11.02	Post mortem report on Rita Sora – prepared by Dr Steven James	
2A	09.12.03	Record of interview of Charlie Langu – Tok Pisin version	
2B	09.12.03	Record of interview of Charlie Langu – English version 	
3	09.11.02	Crime scene sketch	
4	15.10.03	Statutory declaration of Rayon Buingu – filed in District Court, Wewak	

Document marked for identification

The following document was marked for identification.

No	Date 	Description	
MFI1		Clinic book – Sora Yasaku	

ASSESSMENT OF EVIDENCE

Undisputed facts

On 6 November 2002 at Nindiko there was a mediation session. It was about a bilum and a lamp. The bilum belonged to the wife of Rayon Buingu. Her name is Scholastica. 

A number of people were present, including: 

•	Rayon Buingu (the deceased’s son-in law, the accused’s cousin, the second witness for the accused); 

•	Scholastica (the deceased’s daughter, Rayon’s wife – she did not give evidence); 

•	the accused, Charlie Langu (the first witness for the accused, the deceased’s nephew); 

•	the deceased, Rita Sora; 

•	Sora Yasaku (the deceased’s husband, the first State witness); 

•	Darius Sora (one of the deceased’s sons, the second State witness); 

•	Bruce Lee Sora (another of the deceased’s sons – he did not give evidence);

•	Jessy Kamblapi (a peace officer, the third State witness). 

A fight broke out at the mediation session. It involved, at least, Rayon and Bruce Lee Sora. There are questions about Charlie Langu’s involvement. But that is a disputed fact. People took sides in this fight. Nobody was badly hurt. The Sora family ran away to their own village at Samgit. They were chased by a group of people. Rayon was in that group. 

Before the mediation about the bilum and the lamp, there had been another mediation session, at some stage, involving Charlie Langu. He had allegedly had an adulterous affair with the wife of Martin Pauka. He had been ordered to pay K1,000.00 compensation to Martin. That had been taken to the village court. He had not paid that money.

Shortly after the Sora family arrived at Samgit, there was another fight. This time there were spears involved. Rita Sora was speared in the neck and she died. 

Contested facts

These can be put into two categories. First, facts that relate to the credibility of the various witnesses. Secondly facts directly pertinent to the elements of the offence with which the accused has been charged. 

Facts that relate to the credibility of the witnesses

A number of contested facts have a bearing on the credibility of the witnesses. They are as follows:

1	Was Charlie Langu involved in the first fight, at Nindiko? 

2	When did the mediation about Charlie Langu and Martin Pauka’s wife happen? 

3	Was Rita Sora, the deceased, upset with Charlie Langu? Did she have some grievance with Charlie? 

4	Where was Charlie Langu at the time of the death of Rita Sora? 

5	Was any compensation paid for Rita Sora’s death?

Facts directly pertinent to the elements of the offence

The contentious and crucial question of fact is: 

•	Did the accused Charlie Langu spear Rita Sora? 

Submissions for the accused

I heard detailed submissions from Mr Siminji, for the accused, who said that the State had not made out the case it had alleged in its opening submission. He took the court through each of the witnesses and their evidence. He said that Jessy Kamblapi’s evidence added very little to the substance of the case. There were question marks over his credibility as a witness. He argued that the evidence of Sora Yasaku and Darius Sora should not be believed. They attempted to demonstrate that Charlie Langu had had differences with the deceased. The State tried to establish a motive for Charlie Langu to murder his aunty. But it had failed. 

Charlie Langu was unshaken in his denials. Rayon Buingu was unshaken in his admission – his confession – that he was the one who speared Rita Sora. Rayon was the one who was the cause of the disturbance at the initial mediation session at the first village. He was the one who started the fight with Bruce Lee Sora. He was the one who had led the mob that went to Samgit. He was the one who speared the deceased by mistake. He had come to the court to confess. The evidence showed that Rayon was a person of a violent disposition. He was the one who had chopped the bilum in the first place, that led to the mediation. 

Putting Charlie Langu’s denial and Rayon’s confession together, this should be sufficient to create doubt in the Court’s mind as to whether Charlie Langu was the one responsible for the death of his aunty. There was no reason for Charlie Langu to kill his own aunty. 

There was some inconsistency in the evidence of the two witnesses on the timing of the earlier mediation session involving the adultery matter. But that was not material, Mr Siminji asserted. 

Submissions for the State

Mr Wala, for the State, asserted the credibility of each of the three State witnesses. As to Sora Yasaku, the first witness, it was not a question of identification because Charlie Langu was well known to Sora. He was not mistaken about what he saw. It happened in broad daylight in the front of the family home. It was not shown that Sora had any reason to lie about who it was that killed his wife. He should be believed on the fact there was no compensation paid.

Darius Sora also had no reason to lie. Darius’ evidence was clear and concise. He recognised Charlie Langu. He saw Charlie Langu spear his mother. Darius had no prior personal conflict with Charlie Langu.

As to Jessy, the third witness, his evidence proved that Charlie Langu was armed with a bushknife at the time of the mediation at the first village. 

The accused’s witnesses should not be believed one bit. It was clear that Charlie Langu was lying when he said the mediation happened on the same day as the mediation session on the bilum. Everyone else testified that it happened at an earlier time.

Rayon’s role was to try to help out his cousin brother. Rayon’s evidence about payment of compensation was confusing. He kept changing his story. The State established a motive. Charlie Langu was presented with an opportunity to end the complaints that had been made to him on many occasions by Rita Sora. 

Reply 

There was no submission in reply. 

Findings on contested facts regarding credibility of witnesses

As indicated earlier, this case depends very much on the credibility of witnesses. On the one hand there are two witnesses, the husband and a son of the deceased, who say they were at the scene of the incident when the deceased was killed. They say they saw with their own eyes what happened. They each said they had a clear and uninterrupted view. It was in front of the house in broad daylight. They each said that they know the accused, Charlie Langu, very well. They each identified him as the killer.

On the other hand, there are two witnesses who say the accused was not responsible. The accused himself says he was not there. The other witness, Rayon Buingu, says likewise. Rayon testified that he was the one who speared Rita Sora. 

Who does the Court believe? In determining that question, I have looked closely at the five questions of disputed facts outlined earlier as relevant to the credibility of the witnesses. 

Question No 1: Was Charlie Langu involved in the first fight? 

All three State witnesses say yes. One of them, Jessy Kamblapi, in my assessment, is an independent and credible witness. That is the conclusion I draw from observing his demeanour in the witness box. Rayon gave evidence that Jessy was related to Sora. But there was no evidence that Jessy had a vested interest in this case. I concluded that Jessy Kamblapi was a credible and independent witness. He did not try to embellish his evidence. He restricted his evidence to what he witnessed. He saw the first fight at Nindiko. His only evidence about the second fight was that he went there afterwards and saw the body. He saw that Charlie Langu was involved in the first fight. The court believes that evidence. It was corroborated by Sora and Darius. 

The answer to the first question is yes. That conclusion clearly has an effect on Charlie Langu’s credibility as a witness. 

Question No 2: When did the mediation over Martin Pauka’s wife take place? 

As the case unfolded, this became a material issue. There was no doubt that there had been an earlier mediation. But when did it occur? The reason it is significant is that Charlie Langu in his evidence said that the mediation about his alleged affair with Martin Pauka’s wife took place earlier in the day of the mediation session at Nindiko, on 6 November 2002. All three State witnesses said it happened some time before. Rayon Buingu, in his evidence, said it happened three months before. He confirmed that in re-examination. 

The Court concluded that the mediation had indeed taken place some time before, a matter of months.

The Court then had to ask itself: how could Charlie Langu be mistaken about such a thing when he was asked a number of questions about it? I concluded from this that Charlie Langu’s credibility as a witness was severely depleted. He was lying. I then had to conclude that if he could lie about that, and if he could lie about his involvement in the first fight at Nindiko, he could lie about his involvement in the death of Rita Sora. 

Question No 3: Was Rita Sora upset with Charlie Langu?

Here again, I rely on Jessy Kamblapi’s evidence. I regard him as a credible witness. He was not shown to have any reason to lie. I was impressed by his demeanour. He is a peace officer. It was not suggested by anyone that he had been bribed or corrupted in some way. Or that he had some grudge against Charlie Langu. I regarded him as a witness of truth. Jessy’s evidence was that Rita was upset with Charlie over the alleged affair with Martin’s wife and the failure of Charlie to pay K1,000.00 he had been ordered by the Village Court to pay. Once Jessy’s evidence on that issue was accepted, the accused’s evidence had to be rejected. 

Rita Sora was upset with Charlie Langu. She had a grievance with him. He was annoyed by her complaining. That conclusion also had an adverse effect on Rayon Buingu’s credibility as a witness. 

Question No 4: Where was Charlie Langu at the time of the death? 

Jessy Kamblapi was not able to give evidence on that. The Court was left with two witnesses against two. In his evidence in chief Charlie Langu said he was at the house with his wife and his mother when Rita Sora was killed. The question the Court had to ask was: why were his wife and/or his mother not called to give evidence? If Charlie Langu was at his house with his wife and his mother, presumably one or both of them would have wanted to come to court to give evidence. In a similar vein, the question must be asked: why did some of the others involved in the second fight, at Samgit, besides Rayon, not come to the Court and give evidence? There is evidence that there were others involved. Given that Rayon put himself forward as the killer, why was there no corroboration? There are no satisfactory answers to those questions. 

I therefore cannot accept that Charlie Langu was not present. I find that he was present at Samgit, and involved in the fight with the Sora family, at the time of Rita Sora’s death. 

Question No 5: Was compensation paid? 

Here, there were at least three different versions of facts. Sora Yasaku said no compensation was paid. Jessy Kamblapi said eight rings were paid but taken back. Rayon Buingu changed his story a number of times.

I considered Rayon’s evidence on this issue to be unreliable. He was exposed in his cross-examination on the statutory declaration that he had made for the purposes of proceedings in the District Court at Wewak. He shifted ground and did not give straight answers to simple questions. Jessy Kamblapi was a reliable witness. Sora Yasaku, I considered, made a good point: if he had been paid the eight rings and cash as claimed, it would be documented. The Court had to ask: if the compensation had been paid, where was the proof of this? I accepted Jessy’s evidence on that point. 

The conclusion was reached that compensation of eight rings had been paid by Charlie Langu’s relatives. But it had been taken back. 

The crucial factual issue

The findings on the issues that relate to credibility of witnesses mean that I cannot accept the evidence of Charlie Langu or Rayon Buingu on the crucial factual issue. Neither could be regarded as a witness of truth. Two eyewitnesses said Charlie Langu speared the deceased. I did not consider that their credibility was diminished sufficiently to put into my mind any reasonable doubt about the cause of her death. It was not shown that they had any reason to lie about it. 

The Court concludes that the accused, Charlie Langu, speared the deceased. As a direct consequence of that, she died.

ELEMENTS OF THE OFFENCE 

Actus reus and mens rea

The accused has been charged with murder, under Section 300(1)(b) of the Criminal Code. It must be proven beyond reasonable doubt that:

•	the accused killed another person; and 

•	under circumstances that the death was caused by means of an act done in the prosecution of an unlawful purpose; and

•	the act was of such a nature as to be likely to endanger human life.

They are the three actus reus elements of the offence. 

In determining the first actus reus element, whether the accused has killed by another person, Section 291 is relevant. It states:

Subject to the succeeding provisions of this Code, any person who causes the death of another, directly or indirectly, by any means, shall be deemed to have killed the other person.

The second and third actus reus elements must be separately proven. The unlawful purpose (second element) and the dangerous act (third element) relied on by the prosecution must be shown to be distinct. The dangerous act must be done while prosecuting some purpose other than the doing of the dangerous act itself. The provision is aimed at a situation where an act, eg striking, occurs when some other and distinct purpose, eg armed robbery, is being pursued. (R v Kiandari [1967-68] PNGLR 31, pre-Independence Supreme Court, Clarkson J; R v Koito Kartogati [1974] PNGLR 225, pre-Independence Supreme Court, Kelly J; Joseph Maino v The State [1977] PNGLR 404, Supreme Court, Frost CJ, Raine J, Williams J; Herman Pasi, Daniel Tangole and Hubert Bola v The State [1991] PNGLR 254, Supreme Court, Kapi DCJ and Salika J, Los J; The State v Tau Ted Lahui and Others [1997] PNGLR 325, National Court, Hinchliffe J.) 

If an accused is charged only under Section 300(1)(b) and the elements are not proven, the Court cannot substitute a conviction for murder under another paragraph of Section 300(1), eg Section 300(1)(a), which applies if the offender intended to do grievous bodily harm to the person killed or to some other person. The only alternative verdict is manslaughter, under Section 539(2). (Herman Pasi, Daniel Tangole and Hubert Bola v The State [1991] PNGLR 254, Supreme Court, Kapi DCJ and Salika J; Los J dissenting on that issue.)

Section 300(1)(b) does not expressly prescribe the mens rea element that has to be proven. Section 300(3) states that in a case to which Section 300(1)(b) applies, it is immaterial that the offender did not intend to hurt the particular person who was killed. It is to be inferred that it must be proven beyond reasonable doubt that:

•	the accused voluntarily committed the act, with the intention of doing it, and with honest and reasonable knowledge that it was not an innocent act (see The State v Okun John (2000) N1977 (Kirriwom J).

Killing

In the present case it has been proven beyond reasonable doubt that the accused, Charlie Langu, directly caused the death of Rita Sora, by shooting her with a spear. He killed her. The first actus reus element is proven.

Unlawful purpose

It has been proven beyond reasonable doubt that the accused was involved in a pursuit from Nindiko village and an armed attack on the Sora family at Samgit. He was taking part in a riotous assembly (see Criminal Code, Sections 63, 64). That was an unlawful purpose. His killing of Rita Sora took place in the course of prosecuting that unlawful purpose. The second actus reus element is proven. 

Endangering human life

It has been proven beyond reasonable doubt that the act that caused Rita Sora’s death – throwing a spear in the direction of a person at close range – was inherently dangerous. It was of such a nature as to be likely to endanger human life. The third actus reus element is proven.
Intention

It has been proven beyond reasonable doubt that the accused intentionally chased and attacked the Sora family and threw the spear that killed Rita Sora. He was fully conscious of his actions. There was no evidence or suggestion that he thought he was engaging in an innocent act. The mens rea element of the offence is proven.

VERDICT

All elements of the offence have been proven beyond reasonable doubt. I find the accused, Charlie Langu, guilty of the murder of Rita Sora, as charged, and convict him accordingly.
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Lawyers for the State		: 	Public Prosecutor
Lawyers for the accused	: 	Public Solicitor