N3386

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1187 OF 2006

THE STATE

-V-

UPANO MANAKE

(NO. 1)

Kerema: Kandakasi, J.
2006: 17, 18 and 20 October

DECISION ON VERDICT

CRIMINAL LAW- Verdict – Wilful murder charges – Death by drowning – Both deceased hands tied with barbed wire to their backs - Most facts not in issue except for accused involvement and commission of the offence – State establishing a prima facie case against accused - Accused claiming forced by gang he had no dealing with to join in commission of pre-planned armed hold up – Accused had opportunity to escape but did not – Accused failure to report to police or other community leaders - No evidence of direct and continuing threat – Accused account lacking credibility – Verdict of guilty returned.

EVIDENCE – Acceptance or rejection of evidence dependant on credibility of witnesses and their evidence – Logic and commonsense do play major part in acceptance or rejection of evidence – State evidence found credible – State’s evidence accepted - Defence evidence inconsistent with logic and commonsense - Defence evidence rejected. 

Papua New Guinea Cases Cited:
The State v. Cosmos Kutau Kitawal & Anor (No.1) (15/05/02) N2266.
The State v. Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48.
Garitau Bonu & Rosanna Bonu v. The State (24/07/97) SC528.
Paulus Pawa v. The State [1981] PNGLR 498.
Vaii Rocky Maury v The State (20/07/01) SC668.
The State v Ben Noel & 2 Ors. (31/05/02) N2253. 
Regina v. William Taupa Tovarula & Ors [1973] PNGLR 140.
The State v Paul Maima Yogol and Dama Teiye (21/05/04) N2583 
The State v. James Gatana and 3 Ors (19/04/01) N2127

Overseas Cases Cited:
R. v. Coney (1882) 8 Q.B.D. 534.

Counsels:
Mr. D. Mark, for the State.
Mr. P. Kapi, for the Prisoner.

20 October, 2006

1.	KANDAKASI J:	On the 17th of this instant, you pleaded not guilty to two counts of wilful murder contrary to Section 299 of the Criminal Code. In a bid to establish the charge against you, the State tendered into evidence a number of documents, which included your record of interview with the police. The State also called JE who gave a sworn testimony against you. In your defence, you gave a sworn testimony as well.

Undisputed Facts

2.	Most of the facts are not in issue and they in essence constitute the State’s case. The State’s case is this. A group of two boys Hebex and Nanu Mahia with two girls, N and J E ("the Kerema group") from Kerema left Kerema and were heading for Lae on foot from Mamuro after getting there by dinghy from Kerema on 21 September 2005 through the mountains of Kanabea. After walking for a couple of days, the group arrived at Kanabea. On the 4th of October, the group continued its journey but this time joined by a Jacob Mark at Kanabea as the group’s guide or escort. Whilst on the way near the Taure River, a gang of 5 armed men held up the Kerema group, stole their belongings, raped the girls, tied the hands of the boys as well as the girls and threw them into the Taure River. The girls managed to free themselves and swam ashore to safety. The boys however, drowned and died as their hands were tied at the back with barbed wires. One of the boys’ bodies was found by a search party about a week later. The body of the other Mahia boy has not been found. 

Claims of the Parties

3.	The State’s claim is that you were part of the armed gang and was an active participant in the commission of the offences that were committed against the Kerema group. You admit to being there with the armed gang. However, you claim that the armed gang forced you to be part of them by threats against you. The trial that took place on the 17th was to enable the Court to determine whether you were a free and willing participant or someone forced to be part of the armed gang. 

Evidence

(i)	State

4.	The State’s evidence from JE starts with, the Kerema group heading for Lae through the Kanabea mountains. On 21 September 2005, the group caught a dinghy and went to Mamuro. From there, they walked to Kanabea, reaching Kanabea on 3 October 2005. In the afternoon of that day, Hebex Mahia met a man, later became known as Jacob Mark, who decided to take the Kerema group to Lae. 

5.	The next day, being the 4 October 2005, the Kerema group with Jacob Mark who became the group’s escort and guide led the way. On the way, they got to a junction of two tracks, one leading in the left and the other leading in the right direction. Initially, Jacob Mark directed the Kerema group to follow the right track but after following it for some time, he told them that it was not the correct track and directed them to return and take the left track. Jacob Mark then left the Kerema group to follow behind and he went right ahead, to check out a river, the Taure River. When the Kerema group got to the river, they saw Jacob Mark sitting on a graveyard. The group joined him for a rest and proceeded to have their lunch as it was also lunch time by then. 

6.	After having their lunch, the Kerema group saw a track and asked to find a canoe to cross the river to the other side but Jacob Mark told them that, that track led to a garden and if they took it, they might be attacked. Nanu Mahia then said he could walk down and swim across the river and find them a canoe. Then all of a sudden, a group of five men armed with bows and arrows and bush knives confronted the Kerema group and surround them. The armed gang ordered the Kerema group not to move or do anything and threatened to kill them if they did. Jacob Mark quickly joined the armed gang and took away the Kerema group’s bags. NE, begged the armed gang for mercy and pleaded with them to take only the bags, but the armed gang did not heed that plea. The armed gang proceeded to tie Nanu and Hebex’s hands at their backs with barbed wires. Thereafter, the armed gang separated the Kerema group into girls from the boys. They then took the girls into the bush and each of the 6 armed men including Jacob Mark took turns in raping them. Four of the gangsters went first living two of the armed gang members behind with the Mahia brothers. 

7.	The State’s only eye witness stated that you were part of the armed gang and was one of them that raped her and her sister. She went on to say that, after she and her sister were raped, the gang took them to the place where the Mahia brothers were left behind. Under examination in chief, this witness said you were one of the two men that were left behind with the Mahia brothers. However, under cross-examination, she said you were one of the 4 men that returned with her and her sister after the acts of rape. She explained that her earlier evidence was meant to say that you were one of the assailants that were there at the scene after the rape of her and her sister. 

8.	The State’s witness continued to testify by saying, on return to the scene where they were initially held up, she asked one of the gangsters, a Kaukesa, who appeared to be the ring leader, what happened to the two boys. Kaukesa’s response was I pushed them into Taure River, which was by then fast flowing. The witness then told the gang to tie hers and her sister’s hands as well and throw them into the river so that she and her sister could die with the Mahia brothers. The gang obliged by tying their hands with vines with their hands in front. Thereafter, the gang pushed them into the Taure River. Fortunately however, the girls managed to get their hands freed and swam ashore to safety. They then found their way to Kanabea station, more specifically to a policeman’s house and report what had happened to them. About a week later, a police search party found one of the Mahia brothers’ decomposed body floating amongst some logs at the foot of the Taure River. The body of the other Mahia son has not been found and recovered.

Your Evidence

9.	In your defence, you gave a sworn oral testimony. You testified that, on the relevant date, 4 October 2005, you left your village Hu’yu in Kotidanga, Gulf Province, for your uncle’s place. On the way, you met 4 men, namely, Kaukesa Seras, Raymond Thomas, Martin Joe and Frank Michael, who were all armed with bows and arrows and bush knives. These boys tricked you into following them to the Taure River to cook some food. As you went along with them, they told you that they planned to execute an armed hold up plan against two boys and two girls from the coast. You were unhappy with that and said to them that they should have informed you of their plans at the time when they first met you. If they did, you would have declined going with them. They told you to shut up and threatened to kill you and asked you to cooperate with them. You feared for your life and just followed the gang’s orders. 

10.	Soon the gang came upon the Kerema group at a cemetery close to the Taure River. Jacob Mark was with the Kerema Group. The gang that you went with took the Kerema group with surprise and held them up. The gang then proceeded to forcefully remove the bags the Kerema Group had. The gang then tied the hands of the boys to their backs with wire. You tried to stop the gang by saying words to the effect that they should not be doing what they were doing as the victims were from far away but the gangsters did not take any notice of that. Meanwhile, the girls were taken into the bush by four of the gang members leaving you and Kaukesa with the Mahia boys. Kaukesa then proceeded to push the Mahia boys into the Taure River with their hands still tied to their backs. At that point, you escaped from the scene to your uncle’s place. You maintained that you could not escape any earlier because you were placed in the middle and you feared for your life.

11.	When you got to your uncle’s place, you reported all that had happened. However, your uncle did not believe you and said you should not do the kind of things that were done to the Kerema Group. You then proceeded onto your parents and also reported the incident to them. They too did not believe you and said the same thing as your uncle said to you. Thereafter, you decided not to report the matter to the policeman at Kanabea because your uncle and eventually your parents did not believe you. Meanwhile, the girls managed to escape drowning and got to the Kanabea station where they reported the incident. You learned of this from what the people in the village said. 

Assessment of the Evidence and Findings of Facts

12.	I now need to decide which version of the evidence to accept. As both your lawyer and that of the State correctly submitted, this is dependant on the credibility of the witnesses and the evidence called and or adduced by the parties. As I said in a number of cases for example as in The State v. Cosmos Kutau Kitawal & Anor (No.1), logic and commonsense do play a very important role in determining the credibility of a witness and his evidence. I proceeded on the authority of cases like that of The State v. Gari Bonu Garitau and Rossana Bonu. In that case, the National Court convicted the defendants of murder applying a logical and commonsense approach, even when there was no evidence directly showing that the defendants had killed the deceased. The Court found that the defendants were in a position to provide a reasonable explanation for the appearance of a badly wounded deceased body in their house, but they did not. On appeal, the Supreme Court affirmed the National Court’s approach and dismissed the appeal. 

13.	In your case, I note that your lawyer identified only one aspect of the State’s witness’ testimony that has a bit of a problem. That has to do with what appears to be apparent inconsistency in her testimony. The witness said initially in her evidence in chief that you were one of the two that were left behind with the Mahia brothers when she and her sister were taken into the bush and raped. Under cross-examination, she changed that to say that you were with the four (4) that went and raped her and her sister in the bush and were returning to the original place of the armed hold up. The witness however explained that, she meant to say in her earlier evidence that you were one of those men that were at the scene. 

14.	There can be no argument that what happened to the State’s witness and what she witnessed were horrendous. The incident happened in October of last year. As such, there is the possibility of the witness not recalling every little detail accurately. I observed that the witness was caused to grieve as she tried her very best to recall and tell in open court what happened to her, her sister and the Mahia brothers. This was evidenced by her occasions of crying and or shading tears as she testified. Indeed, I note that your own testimony corroborates the State’s witness’ testimony in most respects. You even said in your testimony that you were left behind with Kaukesa to look after the Mahia brothers. In the circumstances, I do not consider this inconsistency serious enough to cast a shadow of doubt on the overall credibility of the State’s only witness’ testimony. 

15.	In addition, you did not raise any question or put up any argument as against the State’s only witnesses credibility, impartiality and accuracy in her recollection of her evidence. There is no evidence of any animosity pre-existing the incident that could cause the State’s witness to come and falsely testify against you. Furthermore, I closely observed her demeanour in the witness box and I did not find any trace of a witness either lying or being evasive. The witness impressed upon me as a truthful witness. In the circumstances, I find the State’s witness credible and her testimony also credible, which I repeat is supported by a substantial part of your own evidence, including your record of interview. Accordingly, I accept the State’s evidence as credible.

16.	I am not able to find your evidence credible because your testimony does not accord well with any logic and commonsense. There is no evidence either from you or from the State that the armed gang members were people you knew very well to lay the foundation for them to invite you along to the Taure River to go and cook some food. As you testified, the armed gang had a plan to carry out an armed hold-up of the Kerema group. The gang was on its way to executing the plan. Meanwhile, according to your own testimony, you had walked for about an hour or two and said nothing about going hungry in order to be persuaded to go with the gang to cook food. The question that necessarily arises is why did the gang draft you on if you were not part of them and not a player in their plan? 

17.	A similar situation was presented in the case of Vaii Rocky Maury v The State. In that case, there was no direct evidence of the appellant being involved in an armed robbery. However, in his record of interview, he claimed that, he merely stopped a vehicle that approached him and asked for a lift and was given a lift. He did not know the driver or any of the persons in the vehicle at the time. The vehicle was a stolen one and occupied by an armed gang on their way to conducting an armed hold up of a supermarket. The gang carried out the robbery and were about to get away when the police caught up with them and a gun fight ensued. The appellant sustained a gun shot wound. The appellant claimed that he did not see what happened around him as he had gone off to sleep after getting into the vehicle as he was drunk until he sustained the gun shot wound. In other questions and answers in the record of interview, the appellant indicated his involvement. A good example was this question and answer 

"Q.27.	 Next day the four of you drove to East Boroko and robbed the Manager of Jasmire Supermarket of a tin box containing cash money and then escape towards Lahara Avenue and were confronted by police and at that time exchange fire with police and shot the police vehicle and wounded a policeman is that correct? Ans. Yes."

18.	The National court found the appellant guilty. In so doing, the Court reasoned that:

"What he has said is too good to be of any value. First of all, he had to be best friends of the people in the vehicle in order to stop for him. There was no protest when they did not stop for him to get out. There was little to no protest at the robbery scene. Despite the excitement, he dozed off to sleep then he woke up when he heard gunshot, one of which injured his leg.

I disbelieve him. His presence was not accidental. The State's evidence proved that this was not a fun trip, but properly planned and they all participated in all these activities. As to the injury caused to the constable, it was done to save the whole group from arrest." 

19.	On appeal against his conviction, the Supreme Court of which I was a part, dismissed the appeal and affirmed the National Court decision. In so doing, the Court reasoned as follows:

"The approach taken by the trial judge in weighing and making findings of fact and drawing inferences from the only evidence of the accused in the form of the accused's statements in the record of interview, in our view, was not improper. We fail to see how the learned trial judge could have erred in that approached. The undisputed facts gives us the clear impression that, those who were in the vehicle had come with a plan to carry out a robbery and escape in a stolen vehicle. They were armed with guns and were prepared to use them to get away after the robbery. Given that, it was not possible and indeed common sense dictates that the appellant could not have been picked up in the way he describes.

Robbers in most cases act with people who have set out to commit such an offence together. They do not normally take on other and innocent people unless abducted or otherwise taken against their will. There is no evidence of that being the case for the appellant. Robbers also do not prefer taking potential witnesses along for fear of being caught by police and charged on their evidence. In some cases, potential witnesses get killed or are threatened. None of these was the case of the appellant. Further, it is hard to imagine how the appellant could sleep without knowing what was happening including, the exchange of gunshot between the police and the gang he was with. If indeed he was an innocent third party, he could have been taken as a human shield in the gunshot exchange with the police or something like that but the evidence does not go that far."

20.	In your case, I find that there is some truths and some false accounts in your testimony. I cannot easily believe and therefore accept your claim that the armed gang tricked you into following them down to the Taure River merely to cook some food. How did this persuade you to join them when there is no evidence of you getting hungry at the relevant time and you had been walking for an hour to 2 hours only? Were the members of the gang known to you as people you could trust and follow them? Given that the gang’s plan was to conduct an armed hold up and also rape and kill, why did the gang invite you along if indeed you were not an integral part of them? Were you in there way? If so where is the evidence of it? What good were you going to be for the gang that they had to draft you on if indeed you were not part of them and their plan? You were in a position to provide answers to most of these questions but you did not.

21.	You told the truth when you easily named each of the members of the gang. You submitted through your lawyer that you knew the members of the gang well and as such you were able to name them. This was in response to the question, why would you, who did not know the gang or its plan be invited to join them. The question, why would the gang invite you if indeed you were not part of their plan remains unanswered even if they knew you well and you knew them well too. I can only reiterate what the Supreme Court said in the Vaii Rocky Maury case, that offenders such as armed robbers act with people they know and planned to act together in the commission of an offence. They do not go around recruiting strangers and unwilling third parties for fear of such persons spoiling their plans or telling on them after the completion of the offence. 

22.	The primary facts before me and the reasonable inferences that can be drawn there from clearly suggest that you were part of the gang in terms of its planning to rob the Kerema group and possibly the other two offences of rape and murder and the execution of that plan. In your record of interview, you gave answers to a number of questions that are indicative of that fact. The relevant questions and answers in the record of interview are these:

"Q32.	At first we(sic) did they [the Kerema group] sleep?
Ans:	Station.
Q33.	What is that station? 
Ans:	Kanabea.
Q34.	Then in the morning who took them?
Ans:	Jacob Mark.
Q35.	Who told Jacob Mark to take this (sic) four people?
Ans:	They themselves.
Q36.	Where will you meet them?
Ans:	At the river.
Q37.	What things did you people go with?
Ans:	Spear, bush knife and bows and arrows. That (sic) all.
Q38.	What did they [the Kerema group] do when you people [the armed gang] arrived?
Ans:	They were shocked.
…
Q40.	Then what did you six people did to this four coastal people?
Ans:	Threatened them.
…
Q42.	What did you people do when you threatened them?
Ans:	Got their bag. And their knife."

23.	These question and answers clearly show that you had prior knowledge of where the Kerema group slept the night before the 4th of October 2005. They also show that you knew that Jacob Mark was to take the Kerema group to the river where the rest of the armed gang will meet them. In your answers to questions 40 and 42, you indicated that you and the other 5 men threatened the Kerema group and proceeded to get their bags and their knives. The rest of the question and answers touched on the pushing of the deceased into the Taure River and soon thereafter you leaving the scene of the crimes and reporting to your uncle about what happened. Then in question 55 in your record of interview with the police, you were asked "did the boys tell you what they did to the two ladies? Your answer was "Yah. They said that they left them at the river and came back. They searched for the two men and went down."

24.	If indeed you were not part of the gang that planned and executed the armed robbery, rape, murder, and the attempted murders, why was it necessary for the members of the gang to later inform you of what they did with the females? By this time they would have searched for you to kill you or do something against you to ensure that you did not disclose to the police or other authorities or anybody what they did to the Kerema group, particularly if it is true that you ran away from them. Instead of that, we have a situation of what appears to be a friendly passing on of information to you of what the gang did to the females. 

25.	There are other aspects of your evidence that appear to support the suggestion that you were an active member of the gang and an active participant in the commission of the offences. A good example of this is your claim of having reported the matter to your uncle and your parents. These people did not believe your story and they in fact, told you according to your own testimony, that you should not be doing the kind of things you told them about. You did not provide any reason for their refusal to believe you. Perhaps, they knew that you did not go that day to visit your uncle. You did not call either, your parents or your uncle to confirm your claim of reporting the commission of the offences to them. So your claim remains uncorroborated, not that corroboration is required in this kind of cases.

26.	Another aspect is your failure to report to the policeman in Kanabea, whose house you had to pass on your way to your village, if indeed you were not part of the gang. Your explanation is the policeman’s house was far away, without indicating how far it was. In The State v Ben Noel & 2 Ors., I found that it was difficult to make a finding of fact that the deceased in that case, died from injuries he received from the defendants, because amongst others, the deceased did not report to the police which was on the way to his home. If in fact, you were not a member of the gang and was not involved in the commission of the offenses, you could have reported to the police or any other authorities at the Kanabea station whilst on your way home but you did not do that.

27.	In all of the circumstances, it is clear to me that you were a very active member and part of the gang from the beginning. It is clear to me that the plan was for Jacob Mark to escort the Kerema group under the pretext of guiding them to Lae. Meanwhile, you and the rest of the members of the gang would meet up with the Kerema group at the Taure River and there you would proceed to execute your planned robbery and the other offences. In pursuance of that plan, you left your house in the morning of 4 October 2005 to meet up with the rest of the gang for the planed robbery and other offences. You did not go to visit your uncle because you had no reason to, in fact you did not say why you were going to your uncle’s place. In accordance with the plan, Jacob Mark led the Kerema group to the rest of the armed gang members. The gang then proceeded to rob the Kerema group of their belongings, tied the hands of the Mahia brothers, took turns in raping the Eae sisters, and pushed the Mahia brothers into the Taure River with the clear intent to kill them through drowning and attempt to similarly kill the E sisters. I accept your testimony that, you and Kaukesa were the only ones with the Mahia brothers before Kaukesa pushed them to their certain death by drowning in the Taure River. 

28.	You tried unsuccessfully to exonerate yourself from the gang, its plan and execution of the offences by coming up with a claim and or explanation that defies any logic and commonsense. In the process, you provided corroborating evidence for the State placing you at the scene of the offence and committing the offences. Indeed the State’s evidence confirms that you were an active member and part of the gang that held up the Kerema group, raped the female members of the group and pushed Mahia brothers into the Taure River into their certain death. The only problem is that there is no direct evidence that you pushed either or both of the deceased into their certain death. It is clear however, that you and Kaukesa were the only ones that were last with the deceased. 

29.	As the Supreme Court said in the Vaii Rocky Maury case, it is a well accepted principle of law that a person's presence at and or during the commission of an offence whether actually lending a hand to the commission of an offence or not can be made a principal offender of a crime as much as the principal in certain cases. Legislative expression of that is in s.7 and s.8 of the Criminal Code. In order for a person to be held responsible by virtue of these provisions, there must be both presence and a wilful or intentional encouragement for the commission of the offence. In your case, you were both there and did participate in the commission of the offences. Even if you did not directly push the deceased into the Taure River leading to their certain death, you are responsible by association and by being there with the gang. It is now well accepted law that people who commit offences in the company of others provide more strength and encouragement to each other regardless of what role they play in relation to the question of whether or not they are guilty. However, when it comes to sentencing, the part that each one of the offenders played in the company of each other can be taken into account to determine appropriate sentences. 
 
30.	The end result of all these is that there is sufficient evidence to find beyond any reasonable doubt that you were an active member and part of an armed gang that planned and executed on the 4th of October 2005, the armed hold up of the Kerema group, rape of J and NE and the wilful murder of Nanu and Hebex Mahia as well as the attempted murder of the E sisters. The wilful murder of the deceased were achieved by tying the deceased hands to the back with barbed wires and pushing them into the fast flowing Tarue River in Kanabea, Gulf Province with full knowledge and appreciation that the deceased would certainly die. Accordingly, I return a verdict of guilty against you on both counts. You shall be remanded in custody pending your sentence.

___________________________
Public Prosecutor:	Lawyers for the State 
Public Solicitor: Lawyer for the Prisoner