State v Gala [2005] PGNC 111; N2846 (17 May 2005)

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CRIMINAL LAW – indictable offences – Criminal Code, Division V.3, Homicide etc – Section 299, wilful murder – shooting and knifing death of villager – accused not alleged to have fired shot or stabbed deceased but to have encouraged others to commit those acts – Section 7 – criminal offenders – Section 8 – offences committed in prosecution of common purpose – main perpetrators not brought to trial – whether necessary for main perpetrators to be convicted before convicting an accused under Section 7 or 8 – whether there was evidence to the required standard of wilful murder of the deceased by the main perpetrators – whether the accused aided, counselled or procured the main perpetrators – whether the accused had formed a common intention with the main perpetrators to prosecute an unlawful purpose – prosecution unable to establish aiding, counselling or procuring beyond reasonable doubt – unable to establish formation of common intention to prosecute an unlawful purpose – unable to establish any alternative offences – accused acquitted.

Cases cited:
Porewa Wani v The State [1979] PNGLR 593
R v Fum Boto (No 2) [1967-68] PNGLR 448
R v Potosi (1973) No 730
The State v Thomas Sange and Others (2005) N2805

This is a decision on the verdict for a man who pleaded not guilty to wilful murder of a fellow villager.

The incident giving rise to the charge took place in the Talasea district of West New Britain in October 2002. A village man, Robin Waluka, was allegedly stabbed by a group of men and then shot by another member of that group. There was a dispute about an alleged act of adultery by the deceased’s brother, who had not complied with a compensation demand by the group. The prosecution does not allege that the accused stabbed or shot the deceased but that he encouraged others to commit those acts and is therefore equally responsible with them for the death.

On 10 May 2005 the accused was brought before the National Court and faced the following indictment:

Stanis Gala of Pangalu, Talasea in West New Britain Province, stands charged that he on the 5th day of October 2002 at Pangalu in Papua New Guinea wilfully murdered Robin Waluka.

(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death.

The prosecution alleges that the accused aided, counselled or procured other persons to kill the deceased or formed a common intention to prosecute an unlawful purpose in the course of which the offence of wilful murder was committed. Therefore he is guilty of the wilful murder that took place. Mr Rangan invokes Sections 7 and 8 (and 9) of the Criminal Code for that purpose.

(1) 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) every person who actually does the act or makes the omission that constitutes the offence; and

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and

(d) any person who counsels or procures any other person to commit the offence.

(3) A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

(4) Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, it would have constituted an offence on his part, is—

as if he had done the act or made the omission, and may be charged with himself doing the act or making the omission.

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

(b) in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of the purpose,

(b) an offence is actually committed under that counsel by the person to whom it is given,

(c) the offence actually committed is the same as that counselled or a different one; or

if the facts constituting the offence actually committed are a probable consequence of carrying out the counsel.

(2) The person who gave the counsel shall be deemed to have counselled the other person to commit the offence actually committed by him.

As the accused is charged with wilful murder the question of an alternative conviction under Section 539 (charge of murder or manslaughter) may need to be considered.

(1) On an indictment charging a person with the crime of wilful murder, he may be convicted of the crime of murder or of the crime of manslaughter but not, except as is expressly provided in this Code, of any other offence other than that with which he is charged.

(2) On an indictment charging a person with the crime of murder, he may be convicted of the crime of manslaughter but not, except as is expressly provided in this Code of any other offence other than that with which he is charged.

(3) On an indictment charging a person with the crime of manslaughter he shall not, except as is expressly provided in this Code, be convicted of any other offence.

(4) On an indictment charging a person with wilful murder, murder or manslaughter, the accused person may be convicted of—

(b) unlawfully assaulting such other person and thereby doing him bodily harm; or

The State tendered nine exhibits by consent and called four witnesses to give oral evidence.

Column 1 of the table below gives the exhibit number; column 2 describes the exhibit and column 3 summarises its evidentiary content.

Exhibit	Description	Content
A	Post-mortem report, medical certificate of death and affidavit: Dr Laupu Bussim, Kimbe General Hospital, 10.10.02	Body of the deceased examined on 10.10.02 – cause of death: loss of blood and right lung injury – significant findings: knife wound to right elbow with fractured right humerus; pellet wounds, right lower chest posterial and right pectoral region, fractured ribs right pectoral region, ruptured right lung – external injuries: knife wound left ankle, right elbow with fractured lower end of humerus – external apertures: close range shotgun wound right-mid chest wall posterial and out through right/mid pectoral region with haematoma – significant observations: ruptured right pulmonary artery and main vein; pellets penetrated right lung, which collapsed, right chest full of blood.
B	Statement: Mathew Neomb, investigating officer, CID, Kimbe police station	Obtained confessional statements on 07.10.02 – Kevin Wakore freely admitted shooting Robin Waluka with a homemade gun after pulling it from the deceased – conducted record of interview of Stanis Gala, the accused, on 11.10.02.
C	Statement: Rhema Luckie, CID, Kimbe police station	Corroborated interview of accused on 11.10.02.
D	Confessional statement, Stanis Gala,	States that he came home around 3.00 to 4.00 pm on 05.10.02 and met Ben Wakore Gala, Kevin Wakore, Benny Mandaro, Gabriel Gala, Esron Panga, Peter Panga, Charles Kaona, Polikap Pake and others – they told him they wanted to demand compensation from Andrew Waluka – he told them not to go but they refused so he followed them and saw Nick Uma and Joe Banavo and told them they should have solved the problem – then Andrew’s relatives shouted and charged towards them – then his boys retaliated and charged towards them – then he tried to walk away and then he heard a gunshot – then went home.
E1/E2	Record of interview, Stanis Gala	States that Kevin Wakore told him that he (Kevin) shot the deceased, using the deceased’s gun – he and others had asked for compensation from Andrew Waluka for committing adultery with Ben Wakore Gala’s wife but Andrew’s relatives tried to fight with them and Kevin shot the deceased – he arrived first at the road and told others to move to the side and pulled a knife from Pius Moga – after that, his accomplices ran to Andrew’s house but he did not follow them – has no knowledge of what happened at Andrew’s house – was not holding any weapon – he tried to stop the other boys but they did not listen.
F	Statement, Joe Banavo, reserve police officer, 08.10.02	States that he left his house and went to Andrew Waluka’s house to attend a break, enter and steal which occurred at Andrew’s tradestore – there he met Andrew and his brother, Robin, the deceased – Andrew told him that the people who broke his store will come and ask for K1,000.00 compensation for having an affair with a married woman – witness knew there would be trouble so he sent for police assistance – as he was waiting for the police the accused arrived and shouted that others were to move aside and not to take part – then the accused tried to pull a bushknife from Pius Moga but did not succeed – then the accused ran to Andrew’s house – witness followed him – met Polikap Pake – saw Ben Wakore Gala struggling with the deceased for the deceased’s homemade pop gun – as they were struggling Polikap Pake cut Robin with his bushknife on his right hand and Robin fell down next to Blasius Ipa, who held on to him – witness was some metres behind, then heard gunfire among the crowd, then saw Robin lying in pool of blood – he does not know who pulled the trigger, but saw Kevin Wakore holding a gun.
G	Statement, Herwin Kulu, villager, 08.10.02	States that he was walking to the creek to have a bath but on the way heard many noises coming from Robin Waluka’s house and returned back – saw Ben Wakore Gala struggling with Robin to get Robin’s homemade gun – witness tried to stop them but John Lutu came and tried to cut the witness with his bushknife – turned around and saw the following: Charles Kaona (armed with a bushknife) – Benny Mandaro, Gabriel Gala, Stanis Gala, Alex Malala, Esron Panga, Polikap Pake and Kevin Wakore (holding a homemade gun) – Ben Wakore Gala pulled the homemade pop gun from Robin and then Polikap Pake cut Robin’s right hand – Robin fell next to Blasius Ipa’s leg – John Lutu, Charles Kaona, Benny Mandaro, Alex Malala, Esron Panga, Gabriel Gala and Ben Wakore Gala cut Robin all over his body – then Kevin Wakore pointed his homemade gun at Robin and shot him – the suspects then ran away as they knew Robin was dead.
H	Statement, Blasius Ipa, 07.10.02	States that he left his house around 5 to 5.30 pm and went to a tradestore in the village that had been already broken into – went to another tradestore and saw Benny Mandaro, Polikap Pake, Ben Wakore Gala, Stanis Gala, Kevin Wakore, Gabriel Gala, Charles Kaona, John Lutu, Esron Panga, Alex Malala, Peter Panga and some others – they were armed with homemade guns, bushknifes and a fishing gun – they were chasing Andrew Waluka and Robin Waluka – Robin stood near his house and Ben Wakore Gala pulled Robin’s homemade gun from him and they both struggled over the gun – the others came and started swinging their bush knives at Robin – then Polikap Pake cut Robin on his right hand – Robin fell next to the witness and the others came and cut him all over his body – Kevin Wakore then pointed his homemade gun at Robin and shot him – witness was holding on to Robin but then dropped him.
I	Statement, Nick Uma	States that between 5 and 5.30 pm went to Andrew Waluka’s house and met Stanis Gala who was looking very serious – Stanis told him they wanted to demand compensation from Andrew Waluka for committing adultery with Ben Wakore Gala’s wife – Stanis said that his boys were coming behind – shortly after, Stanis’s boys came, namely Ben Wakore Gala (armed with a bushknife), Polikap Pake and others armed with bush knives and spears – they were running to Andrew’s house – he saw that they were armed, so he did not go close to Andrew’s house and stood on the road – Stanis instructed the witness and others who were standing on the road not to come to Andrew’s house – witness then walked into a nearby bush and hid – he later heard gunfire and ran down to Andrew’s house to see what was going on – saw Robin Waluka sleeping on the ground in a pool of blood – the suspects were no longer there so the witness and others stopped a passing vehicle and took Robin to Bitokara Health Centre but he died on the way.

The first witness for the State was Joe Banavo, a reserve police officer and a Pangalu villager. His police statement is exhibit F.

In examination in chief he stated that he saw how the incident that led to Robin Waluka’s death started and finished. He confirmed the correctness of his police statement. He was talking to Andrew and Robin at Andrew’s tradestore when the accused arrived. The accused told him and others not to get involved in the incident. The accused was about 10 metres away from the witness when he heard him say that. The accused did not have a weapon. He tried to grab hold of a bushknife from another bystander, Pius Moga. But he did not succeed. The accused did not say anything else. There were other members of the group who were coming that were making a lot of noise and the witness could not hear what the accused was saying. Those in the group included Ben Wakore, who is the younger brother of the accused, and Polikap Pake. The accused did not stop the group and the group headed into Andrew’s place. There was lots of shouting. He could not hear exactly what the accused was shouting but he was saying some things with anger. It was a very angry group. They had earlier demanded some compensation from Andrew and it had not been forthcoming so they were coming again and this time they were very angry. The witness said he is related to the accused but they are not closely related. He knows all the members of the group very well. They are village boys. Andrew Waluka is related to the accused. It was a clear afternoon and sunny. It was the dry season. The accused had not seen him previously to solve the adultery problem. While the accused was struggling with Pius to try and get his bushknife the other members of the group went on the track that lead to Robin’s place. After the accused had left Pius and headed towards Andrew’s place he was moving very quickly. He was angry. After he left Pius, the accused said ‘we have given time and the time is over’. The witness said he did not see Robin Waluka being shot. He heard gunfire and saw smoke coming from the scene. Robin was shot on the lawn in front of the house. The witness was about 15 metres away from that spot when he heard the gunfire. This happened about 3 minutes after the accused had struggled with Pius. The accused had headed in the direction of the gunfire.

In cross-examination Joe Banavo stated that he had not heard any previous talk about Andrew committing adultery with Ben Wakore’s wife. The first time he heard about it was in the afternoon of the incident. He denied that the accused had told him and others that they should have solved the problem already. He confirmed that he was standing on the road when the accused and the group came along. He was on the road because he had gone to buy a packet of rice, as Andrew had a store at his place. Others with him were Nickolas Uma, Pius Moga and Blasius Ipa. He did not see anybody else hiding in the bush at the time. The accused was not holding a weapon. The accused told the witness’s group not to get involved. The witness was asked whether the accused stopped the others from fighting. He replied, no, ‘he only told us not to get involved’. His group had already come in. Andrew was not prepared for them. There was only himself and his wife and some small children. He confirmed that he did not himself go to Andrew’s house. He was afraid because the group had knives, spears and homemade guns. He was asked how he could be sure that the accused had gone to Andrew’s house. Maybe the accused had left to go back to his own house. The witness said that the accused had followed the others towards Andrew’s house. He did not see him there. But if the accused had left to go back to his own house he would have seen him as he would have come close towards the witness. However he conceded that there are other tracks leading away from Andrew’s house. He said he did see the accused after the gunshot.

In re-examination Joe Banavo said that he saw the accused after the gunshot with a group of other people in the area.

Answering questions from the bench the witness said that there were more than ten people in the group that attacked the deceased. They all came from Pangalu village, from different clan groups. He only heard one gunshot.

In examination in chief he stated that he actually saw Robin Waluka being shot. He was only five metres away. He saw Kevin Wakore shoot Robin. The accused was present. He was only five metres away. The accused was holding a knife. He was in the company of Polikap Pake, John Lutu and others. Robin was shot outside his own house, which is not far away from Andrew’s house – about 30 metres. He did not see the accused using the knife. He saw Ben struggling with Robin. He did not see the accused try to stop them but he himself tried to stop them. When Robin was shot he fell to the ground, while Blasius Ipa was holding on to him. Nobody cut Robin after he fell onto the ground. But before Robin was shot, Polikap Pake cut him. The accused did not try to stop Polikap Pake cutting Robin with a knife.

In cross-examination Herwin Kulu stated that he only saw Polikap Pake cut the deceased with a knife. Mr Lupulrea asked the witness to compare that statement with his written statement, which said that he had seen a number of others cut Robin all over his body. Which version is true? He replied: ‘the court version’. He denied that the accused was attempting to stop his boys from causing trouble or fighting with Andrew Waluka’s people. He denied that the accused was absent when Robin was shot.

Answering questions from the bench Herwin Kulu stated that Robin Waluka was shot with a homemade gun and that there was only one shot fired.

In examination in chief he stated that he had gone to Andrew Waluka’s store about 5.30 pm to buy milk for his baby. He discovered that the store had been broken into. So he headed to another store, about 150 metres away. On the way he saw the accused who was carrying a knife and a small basket. He heard the accused say ‘I have come to collect a demand. If not, my lain [people/group] are coming to do something.’ The witness then saw the accused’s lain coming towards them. The accused was still standing near Andrew Waluka’s store when his lain arrived. Andrew’s store is close to Robin’s place. He and the accused’s lain arrived there together. The witness tried to stop them causing any trouble, to no avail. He saw the accused at Robin’s place. He saw Robin struggling with Ben. He did not see the accused trying to stop people from going to Andrew’s place or Robin’s place. The witness tried to stop them but he was alone. He and the accused arrived at Robin’s place before the accused’s lain did. The witness did not hear the accused say anything after his lain arrived as there was too much noise. The accused was present when Robin was shot. He cannot remember clearly what happened after Robin was shot as he was shocked and confused.

In cross-examination Blasius Ipa confirmed that there was a lot of shouting at Robin’s place. He tried to stop the accused’s lain but they were shouting back at him. When the witness was coming with the accused’s lain towards Robin’s place, they were shouting ‘let’s go and shoot them’. The accused did not say those things, as he was already at the place. His lain were saying those sorts of things when they were approaching the place. The distance from where the witness heard the lain shouting ‘shoot them’ and Robin’s place was about 30 metres.

In re-examination Blasius Ipa stated that he saw Kevin Wakore shoot Robin Waluka with a homemade gun from about 1½ metres away. He saw John Lutu, Alex and Polikap Pake stab Robin. The accused did not stab Robin.

In examination-in-chief he stated that he had met the accused shortly before the incident and the accused talked to him about the adultery problem. The accused did not approach him properly. He was speaking very seriously and said they were demanding compensation from Andrew Waluka. This was at the time when the accused’s lain were on their way to Andrew Waluka’s place. The witness had not been notified about the adultery problem. The first thing he knew of it was when the accused spoke to him shortly before the incident. He confirmed the correctness of the statement to the police.

In cross-examination Nick Uma denied that the accused had told him that he should have sorted out the adultery problem the day before. He confirmed that when the accused approached him, the accused was alone. The members of his group arrived later. He told the accused to tell his lain not to come. But the accused threatened him so he ran away and hid in the bush. There was a lot of noise and he thought that there would be trouble. The bushes were about 30 metres from Robin’s house. It was a clear afternoon, but there was bamboo between where he was hiding and where the incident took place. He heard gunfire and when he came out he saw Robin on the ground.

Answering questions from the bench the witness said that after he emerged from the bush and went over to see what had happened, he saw Robin Waluka lying on the ground. He and others carried Robin and got him on to a truck and took him to the health centre. He was still alive at that stage. He was talking a bit. Robin said that the money for the compensation was with his wife. The witness could see where his arm had been cut. He did not see the accused after he came out of the bush. There were a lot of people around and he did not see the accused.

In examination in chief he stated that he had been at Valupai plantation on the day of the incident, where he worked as a chainsaw operator. He finished work about 4 pm and followed the main road back to the village. He met Ben Wakore Gala on the way plus a number of others. He met them near Andrew’s house. They were heading to Andrew’s place to collect a demand for compensation for adultery by Andrew. Ben told him that they had asked for compensation earlier in the day. That was the first he knew about the compensation issue. He also met Nick Uma, Herwin Kulu and Joe Banavo on the way. He asked Nick Uma what he had been doing the day before and why he did not sort out this problem earlier. Nick Uma did not reply. He asked Herwin Kulu why he was holding a bushknife and sitting on the road. Herwin Kulu did not reply. He did not talk to Joe Banavo. The accused stated that he was not present when Robin Waluka was shot. He did not shout at anybody to shoot anybody. He had not any previous meetings with Ben Wakore and the others about the adultery issue. He did not tell Kevin or any of the others to attack Robin or Andrew. He told Ben Wakore not to create any problems. He repeated that he was not present when Robin Waluka was shot. One of the councillors told him that Robin had died. He was about 400 metres away when he heard the gunshot. He confirmed the correctness of the statements he had made to the police in his confessional statement and in his interview.

In cross-examination he repeated that he did not go to Andrew’s place where the incident took place. He met Blasius Ipa. But he did not see Blasius Ipa at Andrew’s store. He met Blasius on the road. He denied that he was carrying a knife. He was only carrying a basket. After he met Blasius he met Nick Uma plus some other people from Bamba. He also met Pius Moga. He stated that he was trying to pull a knife from Pius’s grip but he was not successful. He denied calling out that he was heading to get compensation. He was trying to get the knife from Pius as he had asked Nick why he had not sorted out the problem. He was angry and tried to get the knife from Pius. He did this because he was angry with Nick who was not replying to his questions. He was not angry with Blasius. He saw Blasius trying to stop his lain. He told Ben to stop the group causing trouble but they would not listen. He held no grudge against any of the four State witnesses before this incident took place.

The accused was the only witness for defence. So the defence case was then closed.

Mr Lupalrea submitted that the State had failed to establish beyond reasonable doubt that the accused was involved in any meaningful way in the murder of Robin Waluka. The evidence was clear as to who slashed the deceased with the bushknife and who shot the deceased. The accused’s evidence should be believed – that he was not present at all when the stabbing and shooting took place. He was somewhere else. By the time of the incident, he had disassociated himself from the group that attacked the deceased.

As to whether accused encouraged, aided, or counselled other people to attack the deceased, the evidence suggested that his role was minimal. Joe Banavo’s evidence was that the accused was just standing around. Herwin Kulu stated that he did not see the accused trying to stop the accused’s lain fighting. But his evidence did not exclude that as a possibility or rebut the accused’s sworn evidence that that, in fact, was what he was doing. Blasius Ipa’s evidence implicated the accused more than the other evidence. This witness said that the accused was carrying a knife and that the accused said that his lain were coming to do something. However, this witness gave no evidence that the accused was encouraging anybody to commit violence. Nick Uma’s evidence was not worth much as he was hiding in the bushes.

If the court finds that the accused was present at the incident, it should consider that to fix him with responsibility under Section 7, it is not sufficient to show that the person was present. The accused was, in effect, a bystander. Even if the court accepts that the accused was present and demanding compensation, the fact is that he took no active part in the killing of the deceased.

If the court believes the State witnesses’ evidence that the accused was present, none of them gave any evidence that the accused stabbed the deceased. Nor is there any evidence that he offered any words of encouragement to the people in his group who inflicted the injuries on the deceased. There was no evidence that the accused incited any of the others to shoot the deceased. There was someone encouraging the shooting of the deceased. But that was not the accused.

In conclusion Mr Lupalrea submitted that there was no tangible evidence linking the accused to the crime that took place.

Mr Rangan submitted that it was not necessary for any other person to have been convicted of the wilful murder of Robin Waluka before the accused could be found guilty of wilful murder. The court only had to be satisfied that an offence had taken place and that the accused had aided or counselled it.

It is established beyond reasonable doubt that the offence of wilful murder was committed. Robin Waluka was unlawfully killed by those who stabbed and shot him and they intended to cause his death. The basic elements of wilful murder are present. The accused is responsible for wilful murder as he is caught by both Sections 7 and 8 of the Criminal Code.

As to Section 7 the court can safely infer that the accused counselled others to kill the deceased. He was the head of the group that was claiming compensation over the adultery issue. His evidence that he tried to stop them causing any trouble ought not to be believed. It lacked corroboration.

As to Section 8 the evidence showed that on the way home from work the accused met Ben Wakore and the others and armed themselves with guns, knives and spears and went looking for Andrew Waluka. The accused was the leader of the raid.

The State witnesses were clear as to the involvement of the accused in the incident.

The accused has been charged with wilful murder. As previously indicated, it is not alleged that he physically killed the deceased, ie it is not alleged that he stabbed or shot the deceased. It is alleged that the accused aided, counselled or procured others to do those things or that he was involved with the others in the prosecution of an unlawful purpose, in the course of which the offence of wilful murder was committed. Mr Rangan invoked Sections 7(1)(c), 7(1)(d) and 8 of the Criminal Code.

On 5 October 2002 there were two violent incidents at Pangalu village connected to a dispute about an alleged act of adultery committed by the deceased’s brother, Andrew Waluka, with the wife of another village man, Ben Wakore.

In the first incident – the full details of which are not known – a group of village men connected with the accused demanded compensation of K1,000.00 from Andrew Waluka. That group is referred to as the accused’s lain. The demand was not met and Andrew Waluka’s tradestore was ransacked. Nobody was physically injured.

The second incident – which is generally referred to in this judgment as "the incident" – took place in an area outside the deceased’s house, near his brother Andrew’s house and tradestore. It was the late afternoon, around 5 o’clock, and sunny. The accused’s lain, who in the earlier incident demanded compensation for the alleged adultery, returned. They included Kevin Wakore, Polikap Pake, Charles Kaona, Benny Mandaro, Gabriel Gala, Alex Malala, John Lutu, Peter Panga and Esron Panga. This group had a confrontation and then a physical struggle with the deceased, who was killed. He was cut on his right arm by Polikap Pake with a bushknife. Moments later he was shot at close range by Kevin Wakore with a homemade gun. Only one shot was fired. He fell to the ground. He was not stabbed or cut after that. The accused did not stab, cut, shoot or otherwise physically injure the deceased. Bystanders rushed the deceased to the local clinic but he died on the way from injuries sustained in the second incident. It can be reasonably inferred from the medical evidence that it was the gunshot, not the knife wounds, which directly led to the deceased’s death. Two of the State witnesses were present at the site of the incident: Herwin Kulu and Blasius Ipa. When the deceased was shot he fell on to Blasius Ipa. Two were not close to the site of the incident. Joe Banavo was some metres away and heard the gunfire. Nick Uma sensed that there was trouble, hid in the bush and also heard the gunfire.

Shortly before the second incident – a few minutes before – the accused was in the vicinity of the place where it occurred. He was on his way home from work when he met up with his lain who were heading to the site of the incident to collect their demand for compensation. The question of whether he was at the site of the incident when it occurred is a contentious issue and will be considered later. On the road leading to the site of the incident he met the four State witnesses: Joe Banavo, Herwin Kulu, Blasius Ipa and Nick Uma. At that stage the accused was on his own and his lain was heading towards the site of the incident. He was angry with Nick Uma, the village court magistrate, for not sorting out the adultery problem. He tried to get a bushknife from a bystander, Pius Moga, but was unsuccessful. He told some or all of that group of four not to get involved. Blasius Ipa tried to stop the accused’s lain heading to the site of the incident, to no avail. As the accused’s lain approached the site of the incident there was a lot of noise, a commotion. The noise continued until the shot was fired by Kevin Wakore.

None of the four State witnesses or the accused were particularly impressive or unimpressive in their testimony. Some of the evidence was inconsistent but I do not label any of the witnesses as intrinsically unreliable. All witnesses made statements to the police a matter of days after the incident.

I will now address the contentious issues of fact, in increasing order of relevance to the legal issues to be determined.

I refer here to Section 291(definition of killing) of the Criminal Code, which 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.

I am satisfied beyond reasonable doubt for the purposes of this case that Kevin Wakore, who shot the deceased, directly caused his death and that Polikap Pake, who stabbed him immediately before he was shot, indirectly caused his death. Kevin Wakore and Polikap Pake therefore killed the deceased.

It is unlawful to kill a person unless the killing is authorized or justified or excused by law.

I am satisfied beyond reasonable doubt for the purposes of the present case that the killing of the deceased by Kevin Wakore and Polikap Pake was not authorised, justified or excused by law. They killed him unlawfully.

I am satisfied beyond reasonable doubt for the purposes of the present case that Kevin Wakore and Polikap Pake intended to cause the death of the deceased. I am therefore satisfied that they each wilfully murdered the deceased.

DID THE ACCUSED AID, COUNSEL OR PROCURE THE FIRST PERSON(S) TO KILL THE DECEASED?

I am not satisfied beyond reasonable doubt that the accused aided, counselled or procured Kevin Wakore or Polikap Pake to kill the deceased. Section 7(1) of the Criminal Code is not satisfied. I accept Mr Lupalrea’s submission that an accused person does not become criminally liable simply by reason of being present when a crime is committed. Likewise, an improper motive on the part of the accused does not, without something extra, make him criminally liable (R v Potosi (1973) No 730, R v Fum Boto (No 2) [1967-68] PNGLR 448, Porewa Wani v The State [1979] PNGLR 593. As stated earlier, the accused was present at the incident and had a knife but did not say or do anything to incite Kevin Wakore or Polikap Pake towards violence. He did not try to stop them but he was acting separately from the main group.

DID THE ACCUSED FORM A COMMON INTENTION WITH THE FIRST PERSON(S) OR ANY OTHER PERSON TO PROSECUTE AN UNLAWFUL PURPOSE AND PROSECUTE THAT PURPOSE AND COMMIT WILFUL MURDER, THAT BEING A PROBABLE CONSEQUENCE OF THE PROSECUTION OF THEIR PURPOSE?

I am satisfied that Kevin Wakore and Polikap Pake prosecuted an unlawful purpose. They demanded compensation and threatened to cause injury, which is a crime under Section 390A of the Criminal Code. I am satisfied that in the prosecution of that purpose the offence of wilful murder was committed and that its commission was a probable consequence of the prosecution of the unlawful purpose. Section 8(b) of the Criminal Code is satisfied. However, I am not satisfied that the accused formed a common intention with Kevin Wakore or Polikap Pake to demand compensation or threaten to cause injury. Section 8(a) is not satisfied. Therefore the accused must be acquitted of the charge of wilful murder.

HAS IT BEEN PROVEN THAT THE ACCUSED SHOULD BE CONVICTED OF AN ALTERNATIVE OFFENCE UNDER SECTION 539 OF THE CRIMINAL CODE?

The prosecution has failed to adduce the necessary evidence to link the accused with the death of the deceased.

Unfortunately this is yet another case I have dealt with in Kimbe in the last few months where the wrong person has been brought before the court. A proper and prompt criminal investigation has been carried out. The bulk of the investigation was done within a matter of days after the incident in October 2002. A man has been wilfully murdered. There is clear evidence as to who is primarily responsible and for the purposes of dealing with the present case I have named them. It is those persons who should be before the court. The police must make every effort practicable to arrest them, so that they can be brought before the court, afforded their constitutional rights and dealt with according to law. (See The State v Thomas Sange and Others (2005) N2805, National Court, Cannings J.)

The order of the National Court is that Stanis Gala is acquitted of the charge of wilfully murdering Robin Waluka.

Lawyer for the State : Public Prosecutor
Lawyer for the accused : Lupalrea Lawyers

National Court of Papua New Guinea

State v Gala [2005] PGNC 111; N2846 (17 May 2005)