N5009
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 384 & 385 OF 2003

THE STATE

V

JOHN KANUA SIUNE AND KENNETH KUNDA SIUNE

Kimbe: Cannings J
2006: 12-14, 19-22 September, 10 October

CRIMINAL LAW – indictable offences – Criminal Code, Division V.3, homicide etc – Section 299, wilful murder – trial – elements of wilful murder.

Two men were indicted for wilful murder allegedly committed near a haus krai (place of mourning) following the death of another man, which some people thought was due to sorcery. It was the State's case that the two co-accused killed the murder victim, intending to cause his death, during the course of an assault on him and others suspected of being the sorcerers responsible for the other man's death. The first co-accused gave sworn evidence that he was present at the haus krai but not involved in any assaults. The second co-accused remained silent. There were three other defence witnesses. The principal questions of fact revolved around whether the co-accused were involved in the assault on the deceased that led to his death.

(1)	The three State witnesses gave generally credible evidence which in the case of two witnesses directly implicated the two co-accused in the mob attack on the deceased and in the case of the other witness put both co-accused at the crime scene.

(2)	None of the four defence witnesses gave evidence having the same level of credibility as the evidence of the State witnesses.

(3)	The State proved beyond reasonable doubt the existence of the first two elements of the offence of wilful murder – that they each killed the deceased and that the killing was unlawful, but failed to prove that either co-accused intended to kill the deceased.

(4)	Each of the co-accused was convicted of the alternative offence of murder, they each having had the intention of causing grievous bodily harm to the deceased.

Cases cited

The following case is cited in the judgment:

The State v Raphael Kuanande [1994] PNGLR 512

Tok Pisin

The following Tok Pisin words appear in the judgment:

bel sori – sympathy
bel sori moni – compensation
doktaboi – male medical orderly
glasman – witch-hunter, seer
haus krai – place of mourning
lain – relatives or friends of a person

TRIAL

This was the joint trial of two co-accused charged with wilful murder.

Counsel

F Popeu, for the State
O Oiveka, for the accused

10th October, 2006

1. CANNINGS J: This is a decision on the verdict for two men who pleaded not guilty to wilful murder. The incident giving rise to the charge took place at Mandopa oil palm settlement near Kimbe, West New Britain, in November 2001. It is alleged that the two co-accused wilfully murdered a man they suspected of being a sorcerer who caused the death of a relative. On 12 September 2006 they were brought before the National Court and faced the following indictment:

John Kanua Siune and Kenneth Kunda Siune, both of Dumai, Kundiawa, Chimbu Province, stand charged that they … on the 24th day of November 2001 at Mandopa oil palm settlement in Papua New Guinea wilfully murdered Peter Goiye.

2. The indictment was presented under Section 299 of the Criminal Code. The co-accused were present throughout the trial.

GLOSSARY

3. The following glossary lists the names of individuals and places and defines medical terms referred to in the evidence.

Individuals
Aaron Mas – a Sepik man, State witness No 3
Anthony Michael Pumpara – doctor who conducted post-mortem re deceased, Peter Goiye
Blasius Tona – Gabriel Vincent's doctor
Bomai – a relative of the two co-accused
Bridgetta Goiye – wife of the deceased, State witness No 1
Cedric – a Bougainvillean man, referred to in Bridgetta's evidence
Elizabeth Mondo – alias of Elizabeth Pius
Elizabeth Pius, aka Elizabeth Mondo – a suspected sorcerer; Gertrude Pius's mother
Gabriel Vincent – Vincent Kondum's son, now deceased
Gertrude Pius – State witness No 2
Goiye William – aka Joe William Goiye Mondo
Herman Koike – the person who allegedly gave names of sorcerers to the co-accused
Jennifer Kavora – co-accuseds' sister, defence witness No 4
John Bosco – a Sepik man, a resident of Maiwara
John Kanua Siune – the first co-accused; brother of the second co-accused
John Kolina – a person at the haus krai
John Maima – named by one of the witnesses as an assailant
John William Mondo – a person at the haus krai
Kanua Siune – the first co-accused, same as John Siune
Karl Vincent – a son of Vincent Kondum
Karlos – a Sepik man, said to be at the scene of the assaults
Kenneth Kunda Siune – the second co-accused, brother of the first co-accused
Kunda Siune – the second co-accused, same as Kenneth Siune
Moses Philip – a blockholder
Nick Yainde – the person said to have read out names of sorcerers
Paul Kumono – police officer
Paul Siune – co-accuseds' relative
Peter Gare – owner of the block across the road from Vincent Kondum's block, the place where the deceased was allegedly beaten to death
Peter Goiye – the deceased, the victim of the alleged wilful murder
Petha Yakoyagi – Constable, investigation officer
Petrus Peter Tores – a Sepik man, a person at the haus krai
Sako Kawage – State witness No 3
Vincent Kondum – Gabriel Vincent's father, defence witness No 2

Places
Bialla – town in West New Britain, two to three hours drive from Kimbe
Chimbu Province – province of origin of the deceased, the co-accused and most of the witnesses
Kapore – oil palm settlement near Kimbe
Kavui – oil palm settlement near Kimbe
Kimbe – place of trial, WNB provincial centre
Kundiawa – Chimbu Province provincial centre
Lakiemata – correctional institution/gaol/prison, near Kimbe, WNB
Mandopa – village oil palm settlement, near Kimbe, area in which the incident took place
Mosa – a village near Kimbe; also the name of the place of NBPOL headquarters
Section 12, Kavui – place of residence of the co-accused
Sepik – area of the country, comprising two provinces
Simbu – same as Chimbu
Sinasina – place in Simbu Province
Tamba – an oil palm settlement near Kimbe
Wandi – Vincent Kondum's village, in Chimbu Province
Warakindam – part of Mandopa
West New Britain Province – province in the New Guinea Islands region
Yonggamugl – a district in Chimbu Province

Medical terms
bilateral – relating to two sides
blood – red liquid that circulates in the arteries and veins, carrying oxygen to and carbon
bruise – an injury appearing as an area of discoloured skin on the body, caused by a blow or impact rupturing underlying blood vessels
crepitus – a grating sound or sensation produced by friction between bone and cartilage or the fractured parts of a bone
haematoma – a solid swelling of clotted blood within the tissues
haemorrhage – an escape of blood from a ruptured blood vessel
hip – projection of the pelvis and upper thighbone on each side of the body
intracranial – within the skull
joint – structure by which bones are fitted together
knee – the joint between the thigh and upper leg
laceration – deep cut
lumbar – relating to the lower back
metacarpal – any of the five bones of the hand
peritoneum – the serous membrane lining the cavity of the abdomen and covering the abdominal organs
posterior – of or nearer the hind end
post-mortem – an examination of a dead body to determine the cause of death
subdural – situated or occurring between the dura matter and the arachnoid membrane of the brain and spinal cord
subperitoneal – beneath the peritoneum
superficial – existing near the surface
temple – the flat part either side of the head between the forehead and ear
temporal – of or situated in the temples of the head
tissue – distinct type of material from which animals are made
trunk – the part of the body apart from the head and limbs

THE STATE'S CASE

Outline

4. The State tendered six exhibits by consent and called three witnesses to give oral evidence.

The exhibits

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

TABLE 1: SUMMARY OF EXHIBITS TENDERED BY THE STATE

Exhibit	Description	Content 	
A1,
A2 	Record of interview: 
John Kanua Siune, 
first co-accused
24.10.02	Denies allegations – lives at Section 12, Kavui, on his own block – he regarded Gabriel Vincent as his nephew or third cousin – denies concluding that Gabriel had died from witchcraft – others had said that Gabriel died from witchcraft: Herman Koike, Elizabeth Pius and Gertrude Pius – they told him that at the funeral gathering – he was at the place of mourning on Friday and Saturday 23 and 24 Nov 01 – more than 100 people were present – says that he was not a member of the group that took away people for questioning – denies beating the deceased, Peter Goiye, or encouraging others to do so – does not know what caused Peter Goiye's death.	
B1,
B2	Record of interview: 
Kenneth Kunda Siune, second co-accused,
18.11.02	Denies allegations – says that between 23 and 25 Nov 01 he was at Bialla with is elder sister who is teaching there – he went there one week before the incident – came back on Monday 26 Nov 01, then went to place of mourning – says that Vincent Kondum is not related to him, though – Vincent Kondum's wife is related – was told that Gabriel Vincent died from witchcraft at the place of mourning – does not know Herman Koike – denies all involvement in beating Peter Goiye or any other persons – maintains that he was not present.	
C	Affidavit: 
Dr Anthony Michael Pumpara, 
medical practitioner, 
05.04.02	Annexes post-mortem report and death certificate.

Post-mortem examination conducted on 27 Feb 02 – cause of death: increased intracranial pressure due to bilateral subdural haemorrhage – significant findings: superficial bruises, posterior trunk; superficial laceration back of neck; huge subperitoneal haematoma right side of face including temporal region; bilateral subdural haemorrhage.	

D	Medical report re Elizabeth Mondo, 
Dominic N Kaimo,
Clinical HEO – 
OPD 04.12.01	States that Elizabeth was bashed up by relatives – presented to Kimbe General Hospital with generalised bruises to her body; also face swollen; tender haematoma of face; laceration of 4 cm, bleeding to upper lip; painful right posterior hip joint; right hand crepitus swollen, fractured right tall metacarpal.	
E	Medical report re Gertrude Pius,
 Dominic N Kaimo,
Clinical HEO – 
OPD 04.12.01	States that Gertrude was assaulted by relatives of a deceased with swollen face, tender haematoma, swollen right eye; pain in lumbar region; painful right knee; also soft tissue injury.	
F	Statement: Const Petha Yakoyagi, investigation officer, undated	Annexes 12 photos taken by another officer at crime scene on Sunday 25.11.01.	

Oral evidence

6. Table 2 lists and describes the State witnesses in the order that they were called and indicates the days and dates of the trial on which they gave evidence.

TABLE 2: WITNESSES CALLED BY THE STATE

No	Name	Description	Day	Date (2006)	
1	Bridgetta Goiye	Wife of deceased, eyewitness	1, 2	12, 13 Sept	
2	Gertrude Pius	Eyewitness	2	13 Sept	
3	Sako Kawage	Eyewitness	2, 4	13, 19 Sept	

7. The first witness for the prosecution was Bridgetta Goiye. In examination-in-chief, she stated that she is from Chimbu Province. She lives at block No 9, Mandopa oil palm settlement. She was living there in 2001 when her husband, Peter Goiye, was killed. On Friday 23 November 2001 she and her husband were at their house when Vincent Kondum came and told them that his son, Gabriel, had died at the hospital. She wanted to follow him but there was no transport so she and her husband, Peter, walked all the way to Kapore 6. When he was bringing Gabriel's body back, Vincent Kondum saw her and Peter and stopped and picked them up and took them back to his house. While they were at the house, mourning the body, Vincent Kondum spoke and said his son had died because he was sick. Two doctors, Dr Blasius and another doctor, said the same thing. There were two Sepik men there – Aaron and John – who said: 'You people of Section 2 and Warakindam are dying quickly, one after the other, so we should bury this body'. Gabriel's uncle then came and chased them and their daughter. She, Bridgetta, ran away towards Kapore community. Gabriel's uncles took Gabriel's body to Kimbe and put it in the morgue. Her husband, Peter, went to Kimbe too, then came back to Kapore and the two of them walked to their block. When she and Peter were at their house a Buka man, Cedric, came to tell Peter that some things needed to be discussed at the haus krai, so Peter went there. She stayed behind, cooked some kaukau and was on the way to the haus krai when she was intercepted by three men who accused her of being a sorcerer and assaulted her. They were: Junior Vincent Kondum, John Maima and John William. They said she has been eating human flesh, that is why she does not look good. Nothing was covering their faces. That evening, Friday, they slept at the haus krai. The next day, Saturday the 24th, she and her husband, Peter, were assaulted. Junior Vincent Kondum, John Maima and John William took her to Peter Gare's block. More men came, armed with a homemade gun, bush knives and sticks, and also beat her up. They sat her under a tree. Right next to her was Peter. She heard Vincent Kondum say 'These people are sorcerers. Take them away and kill them. They have cut my heart'. She saw John Kanua using a very large branch of a tree to hit Peter all over his body. She saw Kunda holding a homemade gun, also beating up Peter. Junior Vincent Kondum and Goiye William were armed with oil palm fronds and they were also beating up Peter. She saw John William, who had an axe, and John Maima, armed with a piece of iron, and Karl Vincent, holding a guava tree branch. They were also beating up Peter. Peter said 'I am going to die, Leave me alone'. John Kanua and Karl Vincent stood over her and belted her. They put oil palm fronds around her, tied rope a around her neck, poured two bottles of kerosene over her head and threatened to burn her. Kunda loaded the home-made gun with bullets and threatened to shoot her. Later, Paul Siune and Bomai joined the group and forced others to beat them up. Bomai said: 'They have killed my uncle. Kill all of them. There won't be any court about this. Just kill them'. She was afraid that they would burn her so she told them that she was a sorcerer but she did not kill Gabriel. Other victims of the assaults were: Elizabeth Pius, Gertrude Pius, Peter Goiye and Sako Kawage. They were all assaulted on Peter Gare's block.

8. John William was very angry and used the back of his axe to hit Peter Goiye three times on the back of his head. John Kanua was kicking Peter. Peter said 'Thank you Jesus'. That is the last thing he said. His hands and legs shook and he lay on the ground motionless. She ran away after she saw her husband die in front of her. The time was about 3.00 pm. The beating had started in the middle of the day. They had beaten her up badly but she ran in the direction of Mosa, towards Tamba. A lot of the way, she was crawling. When she got to Tamba, someone else beat her up. She named those who assaulted her as:

•	John Kanua
•	Kunda
•	Junior Vincent
•	John William
•	Goiye William
•	Karl Vincent
•	John Maima.

9. All of them are from Kundiawa, she said. She has known John Kanua and Kenneth Kunda for a long time and they know her. She identified both co-accused by pointing them out in the courtroom.

10. In cross-examination Bridgetta Goiye said that she was familiar with the customs of her province, Chimbu, but in the place that she comes from belief in sorcery is not strong. When the first three men assaulted her, Junior Vincent Kondum had an oil palm frond, John Maima a piece of iron and John William, an axe. She was hit mainly on her head and all over her body, with sticks. She was hit with the piece of iron. The man who had the axe did not use it to strike her but hit her with his fists. The axe was used to hit her husband, Peter. They hit her hard and she sustained injuries as a result. Her head was worst hit. She cannot carry a bilum on her head any more. Mr Oiveka put to the witness that her story was not believable. If she had really sustained those injuries, she would be dead by now. She indicated that her story was true. She denied that she had any grudge against Vincent Kondum. Asked whether Vincent Kondum had any grudge against her, she replied that when his son died he was very angry and that is why he forced the men to assault her and the others. At the start he had told the men not to do anything to them but once they were rounded up, he was encouraging them. Asked about the role played by Aaron Mas, the witness said that Aaron did not come to take her away. He did not help her. She ran away by herself. He was encouraging the others to assault her. After she was assaulted she was not treated at Vincent Kondum's house. It was 3.00 pm when she ran away. She went to the police on 26 November 2001. After the incident there were a number of mediations between Vincent Kondum and her people. Vincent Kondum's people gave them K4,000.00 as bel sori money. They asked for other compensation and Vincent Kondum said that he would pay, but he has not paid. She does not think this is right as her husband was killed, a lot of her people were assaulted and their houses were destroyed. She denied lying to the court. 'These people killed my husband', she said. She does not know why John and Kenneth killed her husband. She repeated that they did not cover their faces, her face was not covered and she saw them assault her husband. She denied confusing them with others, given that there were many men involved in the assaults. She could see their faces and it was the middle of the day, she said.

11. In re-examination Bridgetta Goiye said that there were people from many parts of the country at the haus krai. They were not only from Chimbu. That ended Bridgetta Goiye's evidence.

12. The second witness for the prosecution was Gertrude Pius. She is from Chimbu Province and was born and raised in West New Britain Province. In examination-in-chief she stated that she went to the haus krai with her mother, Elizabeth Pius. She was at the haus krai on Saturday the 24th with Petrus Tores, John Kolina and Karl Vincent. Petrus threatened her with a knife, then they took her to the road and assaulted her, then took her to where four others were. Yainde read out the names of sorcerers and said 'you people are killers, tell the truth'. She said the names were lies. John used his hand to hit her and she fell down, lifted her up and threw her against an oil palm tree and she fell down again, unconscious. Then he threw her near a fire, she called out 'thank you Jesus' and the fire burned her hair. At one stage a Sepik man put a rope around her neck. They kept asking her about sorcery and they pulled the rope tighter and told her they would hang her. Vincent Kondum stood between her and Peter and said 'I am worried about my son. They have eaten people and now they have really cut out my heart. I am a big man. Whatever happens later, I will face up to it.' He went away and the assaults continued. Bomai said he was very worried about his nephew and cut up oil palm stems and gave them to the other men so that they continued their assaults. Junior Vincent Kondum had a new axe handle and he hit her on the knee with it. His brother, Karl Vincent, hit her with a tree branch. She saw Peter Tores hit Peter Goiye with a tree branch. At about 4.00 pm or 5.00 pm they took her and her mother back to the haus krai. The women wanted to give them food but they were not allowed to as other people said they were sorcerers. She saw John Kanua with a home-made gun which he gave to Kunda and they guarded them until daybreak. At 6.00 am John Kanua put her on the Association vehicle and she was driven to Kavui Community by Junior Vincent Kondum. There were a lot of men there. They were assaulting her mother when she, Gertrude, was brought in. Others being beaten up were: Sako Kawage, Peter Goiye and Bridgetta Goiye. Gertrude said she did not sustain serious injuries. Those assaulting her were: Petrus Tores, John Kolina and John Kanua. Kanua threw her against an oil palm tree, she fell onto the road, unconscious, then he picked her up and threw her next to the fire. She yelled "Thank you Jesus" and the fire burned her hair. She was taken back to Vincent Kondum's place the same day. Some women wanted to give them food but some men said 'let them die – they are sorcerers. The prosecutor, Mr Popeu, asked the witness more questions about when she arrived at the haus krai with her mother, Elizabeth Pius. Her mother was sitting with other women, and she was taken away first. They took her and her mother to Peter Gare's block. On the way there, Petrus Tores, Karl Vincent and John Kolina assaulted her. John Kanua also assaulted her. Others assaulted were: Sako Kawage, Bridgetta Goiye and Peter Goiye. That night she was held there with her mother and Herman Koike. Herman had been there since Friday. Herman had told the people questioning him about sorcery that he was only a 'doctor boy', so they let him go. She did not see Herman being assaulted, she only heard the story. She was held at Vincent Kondum's place from Saturday to Sunday morning. Kunda kept watch on her on Saturday night. She was released when the police came to pick her and the others and took them to Kimbe police station. She was also taken to the hospital for medical treatment. She knows John Kanua. He lives at Kavui, Section 12. He sometimes comes to her section at Warakindam, which is close to Mandopa. She identified both of the co-accused by pointing them out in the dock.

13. In cross-examination Gertrude Pius said there were a lot of people in the area where the haus krai was. The people there were not only Chimbus, they came from other provinces as well. When she was picked up and taken out, there were a lot of people present but none of the mourners tried to stop them taking her. They just let them take her away. When John Kanua picked her up and threw her against the oil palm tree she landed very hard. It hurt her back and neck. She fell on to the road and became unconscious but no bones were broken. It was put to her that John Kanua was at all times in the haus krai and that he did not assault her, to which she replied, he is lying. She denied that Aaron Mas had released her from her assailants or helped her in any way. She believes that the men who assaulted her intended to kill her but when she and the others said that they were sorcerers they let them go. There was no re-examination. That ended Gertrude Pius's evidence.

14. The third witness for the prosecution was Sako Kawage. In examination-in-chief he stated that he is from the Kerowagi District of Chimbu Province. He lives at his block at Kavui, Section 2, near Mandopa. He has lived there since 1988. On Friday 23 November 2001 he was in Kimbe. He heard that a house had been burned down and that Vincent Kondum's son had died. He went to Vincent Kondum's house then went to his own house that night. He went to the haus krai the next day, Saturday 24 November 2001. Around 12 noon Nick Yainde came with a book and said that he would call out the names of sorcerers so that they could be arrested and beaten up. Petrus Tores, a Sepik, was there with one of his brothers and said that they would take him away as his name had been called out. They took him to Nick Yainde, who questioned him about being a sorcerer. Then they started to assault him, on his back and neck. John Kanua then instructed them to pull him away, which they did. Kanua tied a string rope around his neck. He put oil palm and coconut fronds around him. Dressing him up like a pig they were about to cook. He saw some men pull away Peter Goiye and assault him. Those assailants were: Kanua Siune, Kunda Siune, John William, Goiye William, Junior Vincent Kondum and Petrus Thomas. Peter Goiye told them that if he were a sorcerer he would tell them, but he was not – yet they kept assaulting him. They were armed as follows:

•	Kanua Siune – bush knife;
•	Kunda Siune – homemade gun;
•	John William – axe;
•	Goiye William – oil palm frond;
•	Junior Vincent Kondum – a new axe handle; and
•	Petrus Tores – big stick.

15. They were beating and kicking Peter Goiye then brought him to where he, Sako, was. Kanua told Sako to close his eyes, but he was scared and did not close his eyes completely, then they hit him on the side of the eye and blood ran out like water. Kanua put the sole of his shoe on Sako's face and rubbed his shoe into it. Then he went back to the group that was assaulting Peter Goiye. They assaulted him until he fell to the ground. John William then got an axe and hit Peter Goiye on his head. Peter Goiye said "Thank you Jesus". That is all he said. He made no more noise. Kanua came up to him, Sako, again, and this time he, Sako, said that he was a sorcerer. When he said that Kanua told the others to take the rope off his neck, which they did. Sako said he then went to the road and started walking. He went straight to his house. His family was crying for him, then they ran away into the bushes. The police found him three days later. He knows Kanua and Kunda well as they live at Kavui, Section 12, and he and his family live at Section 2. That marked the end of the second day of the trial, with the examination-in-chief of State witness No 3, Sako Kawage, completed.

16. When the trial resumed on the morning of its third day, Thursday 14 September 2006, the court viewed two places referred to in the evidence. This was done under Section 574 of the Criminal Code, which provides that the court may in any case view any place or thing that it thinks desirable that it should see.

17. The first place was Vincent Kondum's house and the area around it. The second was the part of Peter Gare's block to where the State witnesses said they had been taken and assaulted. The two places are close to each other, in Mandopa, about 20 kilometres from Kimbe. The court party drove along the Kimbe-Hoskins highway for 15 kilometres, then turned right onto a gravel road that leads to Mandopa. The two places are about two kilometres along the dirt road. The two co-accused and the three State witnesses were present when the court party arrived at Mandopa. We first went to Vincent Kondum's house, which is 20 metres off the dirt road. Sako Kawage was asked to identify where the haus krai was held. He identified the spot from where he was taken. The dirt road separates the blocks belonging to Vincent Kondum and Peter Gare. The place on Peter Gare's block where the assaults allegedly took place is about 100 metres from Vincent Kondum's house. Bridgetta Goiye pointed out the spot on Peter Gare's block where she was held. It is close to the spot where Sako Kawage says he was assaulted. Bridgetta Goiye pointed out the spot where she says her husband was assaulted – about 15 metres away from where she says she was assaulted. The other witness, Gertrude Pius, pointed out where she was held and the spot where the oil palm tree previously was, that she was thrown against. We returned to the courtroom on the afternoon of the third day of the trial at which point Mr Oiveka applied for, and was granted, an adjournment due to the first co-accused, John Kanua Siune, being sick.

18. The trial resumed on its fourth day, 19 September 2006, with the cross-examination of Sako Kawage. He said that when Petrus Tores took him to the oil palm block where Nick Yainde was, there were plenty of other men there. When he told them that he was not a sorcerer, many men assaulted him. He put his head down at that point and did not see who all the men were. He was struck on the back of his head and on his back and felt pain. He stayed sitting down and did not look up. Then they picked him up and took him to another place where they put the rope around his neck and assaulted him again. He was standing up at that point and did not cover his eyes, though he was in very big pain. He was scared for his life. The men stood around him and he was in the middle. While he was being assaulted, some other men were assaulting the others. Others were just standing around, looking on. Some had put charcoal and ash on their faces. None had their faces covered. At the time the rope was put around his neck, Peter Goiye was being assaulted. He, Sako, was concerned for his own life as he knew that these men were going to kill him. He did not see the Sepik man, Aaron. When he told them that he was not a sorcerer they let him go and he went straight to his house. He agreed with Mr Oiveka that John and Kenneth Siune were at the haus krai but when Nick Yainde called out his name they pulled him out and assaulted him. He was not assaulted at the haus krai, only at the oil palm block across the road. John Kanua hit him on the side. Kunda had a homemade gun and threatened to shoot him. There were others too but they did not do much. The year after the incident, in 2002, there were mediations held and Vincent Kondum and others were asked to pay compensation to him, Sako, and others. Vincent Kondum was supposed to pay compensation but he did not do so as he said that the court should sort it out. He does not know whether Vincent Kondum tried to stop the assaults.

19. In re-examination Sako Kawage confirmed that there were plenty of people present at the haus krai. He was on one side and if someone said something on the other side of the haus krai he would not be able to hear them. That ended Sako Kawage's evidence.

20. The State's case was closed. Mr Oiveka made a no-case submission but I refused it and the case continued.

THE DEFENCE CASE

Outline

21. The defence called four witnesses, including the first co-accused, John Kanua Siune, to give oral evidence. No exhibits were adduced. The second co-accused, Kenneth Kunda Siune, exercised his right to remain silent.

Oral evidence

22. Table 3 lists and describes the defence witnesses in the order that they were called and indicates the days and dates of the trial on which they gave evidence.

TABLE 3: WITNESSES CALLED BY THE DEFENCE

No	Name 	Description	Day	Date (2006)	
1	John Kanua Siune	First co-accused	4	19 Sept	
2	Vincent Kondum	Father of the late Gabriel Vincent	5	20 Sept	
3	Aaron Mas	Sepik man	6	21 Sept	
4	Jennifer Kavora	Sister of two co-accused	6	21 Sept	

23. The first defence witness was the first co-accused, John Kanua Siune. In examination-in-chief he stated that he lives at Kavui, Section 12, Block No 1136. He is an oil palm grower. He is from Yonggamugl, Chimbu Province. On 24 November 2001 he was at the haus krai, mourning the death of his nephew, Gabriel Vincent. He, John, is an in-law to the late Gabriel's father, Vincent Kondum, who is married to his cousin-sister, Anna. Under Chimbu custom, if someone dies, relatives will show their sorrow by rubbing mud and ash on their faces and bodies. Sometimes they get into arguments with their in-laws and tell them they have not looked after their relative properly. If allegations of sorcery are made, there can be a lot of damage and trouble caused, but those who are mourning will just stay there and mourn the death. It was a very big haus krai. Vincent Kondum is a big man so people from all over PNG came. There were also a lot of people from the oil palm blocks. Asked whether he assaulted any of the State witnesses (Bridgetta Goiye, Gertrude Pius, Sako Kawage) John Kanua Siune said that he was at the haus krai when some men with their faces covered pulled some people away and assaulted them. However, he did not assault any of them. Nor did he assault Peter Goiye. He remained at the haus krai, with his elder brother, Bomai, and his mother and a lot of other wantoks. Kunda was not there. He was at Bialla. He does know why the witnesses would have said that he assaulted Peter Goiye. That would be up to them to explain. He has been living at Section 12 for a long time and does not know them. They are from a different part of Chimbu, he thinks. He does not know where they are from. He has no grudges against them.

24. In cross-examination John Kanua Siune said he attended the haus krai because the late Gabriel Vincent was a close relative. He heard that some people had said that sorcerers were responsible for Gabriel's death but he was not with them. It was in the morning that some people, with their faces covered, came and took people away. There were lots of others present at the time. He was not too concerned about them. He was only concerned about him and about mourning. He was crying and had his head down. He does not know who the people with their faces covered were or how many of them, there were. He was not one of them. He did not see who was taken away. He has no problems with his eyes. There were a lot of people present and he could not pinpoint who was taken away or who took them away. He was standing under the main dwelling house, which is some distance away from the spot from, where the people were taken away. He has been living at Section 12, Kavui, for a long time. His parents brought him there when they bought a block. He still lives there with his mother. Kunda lives there too. Section 2 is not close to Section 12. It is far away. He only comes to Mandopa when there is a death and a haus krai. Vincent Kondum used to visit Section 12 when he worked at Mosa. His parents used to have a block at Section 12 but he now lives at Mandopa. He, John, said he has no grudges against Sako Kawage. He only knows him because of the complaint that has resulted in the present court proceedings. At the time of the funeral, he had no mask over his face. He just went to the haus krai on Friday to mourn. Gabriel's body was taken that day back to the morgue. People were still gathering at the haus krai on Saturday and he was still there then. He does not recall Sako being there. He did not know him then. Sako would not have known him either. He has not stayed at Sako's place, talked, or eaten with him. He thinks that the State witnesses must have talked amongst themselves about the allegations that he was involved in Peter Goiye's death. However, he did not hear them say such things. Mr Popeu put it to him that there were so many people at the haus krai on Saturday that he did not know who was around him at the time. He agreed with that. He also agreed that at most times he could not see where Vincent Kondum was as Vincent was attending to people when they came to the haus krai. He does not know what Aaron Mas was doing on Saturday as there were too many people around to see all that was happening.

25. In re-examination John Kanua Siune said that the claims about sorcery were made by Elizabeth Pius, Gertrude Pius and Herman Koike. He is only relating to the court what he actually saw. That ended John Kanua Siune's evidence.

26. The second defence witness was Vincent Kondum. He is from Wandi village in the Kundiawa District of Chimbu Province. He lives at Mandopa, block No 10. He finished school in 1960 and became a primary school teacher. He held various positions in Chimbu Province with the National Broadcasting Commission and was an advisory committee member to the Reserve Bank of Australia. He worked in the Office of Legislative Counsel and in the pre-Independence House of Assembly as Sergeant-at-Arms. He came to West New Britain Province in 1967. He worked for New Britain Palm Oil Limited for 26 years until his retirement in 1996. His son, Gabriel Vincent, died at 2.37 am on Friday 23 November 2001. Gabriel's body was brought back to Mandopa later that day. He asked Gabriel's doctor, Dr Blasius Tona, to come and explain what kind of sickness Gabriel had died from. He didn't want anyone to have bad thoughts or the wrong ideas. By midday on Friday there were about 500 people at his place, at the haus krai. There were people there from all over the country, not only from Chimbu. Even some expatriates came. At about 3.00 pm Gabriel's uncles came over from Kavui. They are from Sinasina, Chimbu Province. Some of them came with their faces covered in mud. Some had sticks, bush knives and axes. This was consistent with their custom. They use those things to cut down trees as a sign of mourning. He said at first that he could not tell whether the two co-accused were amongst them. There were a lot of them and he only saw them with mud on their faces. However, later in his testimony Vincent Kondum said that the first co-accused, John Kanua Siune, was present. By Saturday there were more than 1,000 people at the haus krai. He did not at any stage go to Peter Gare's block. He knows the two co-accused very well. Their parents are his in-laws. Their father and his wife's father are brothers. Asked whether it was true that he encouraged others to assault Bridgetta Goiye, Elizabeth Pius, Gertrude Pius and Sako Kawage, Vincent Kondum said he did not go to the place where they said they were assaulted. He does not know anything about what they were saying. He didn't know anything about the assaults until about 3.00 pm Saturday. He does not know who took them away. He said sorry to Elizabeth Pius and told her that he did not tell anyone to do such things. He said that as he could see that Elizabeth and Gertrude had blood on their faces, though they could still walk. Herman was injured as well. He heard that on Friday some members of the Naregu tribe had organised themselves to look for a glasman (a witch-hunter, a seer) to look for sorcerers. So he told them they should not get wrong feelings about his son's death. He recalls seeing Bridgetta Goiye at the haus krai. She is a close neighbour. Asked what he had to say about Bridgetta's claim that he had encouraged others to beat her up for practising sorcery Vincent Kondum responded that Bridgetta and her late husband, the deceased Peter Goiye, had lived closed by. It was difficult for him to lay a finger on them or do anything like assaulting them. He heard about Peter Goiye's death early on Sunday morning. Peter was not closely related to him but was from Chimbu and he came to know him when they both worked for NBPOL. Peter acquired customary land from the Mosa people and then they lived next to each other. Asked whether he at any time walked to Peter Gare's block and encouraged anyone to assault Sako and the others, Vincent Kondum said that he never left his house and did not have any sleep for a few days. After Peter Goiye's death there were many mediations, more than 38. Peter's people, from Kerowagi, wanted K4,000.00 as bel sori money as well as other compensation. He and his own people met with Sako, Elizabeth and Gertrude in 2003 but after that they referred the matter to the police. In 2001 and 2002 a committee was formed to collect all those who had damaged houses and other properties but they were unable to complete their work.

27. In cross-examination Vincent Kondum agreed that there were too many people at the haus krai for him to recall exactly who was there. He did not see the faces of most people. Sako must have been there, however, as they are all from the same area. Most of the time at the haus krai he was crying. When people arrived, they came to him and cried with him. It was not customary for him to get up and go to the people who were arriving.

28. Vincent Kondum confirmed that many people from all walks of life came to the haus krai, including white people, though they did not come right in to the haus krai. Probably they were afraid. Asked whether the white people were afraid because his tribesmen were armed, Vincent Kondum said he could not answer that question. He agreed that it was part of Chimbu custom that the uncles of a deceased person would come and destroy properties. They will not harm anyone but they do damage to property to show that they are concerned about the deceased person. He agreed that his tribesmen were looking for a glasman who could find sorcerers who may have killed his son Gabriel. He does not know who brought the injured people back to the haus krai. Nor does he know where those people were assaulted. If he had known that people were being assaulted he would have stopped it. Asked whether the reason he did not stop it was that he, himself, was involved, Vincent Kondum replied that he did not think that he could answer that question. He only became aware of the assaults after they had happened, when the injured people came to the haus krai. He stood up then and said 'enough is enough – after all this, I might have to stand before the law'. He said this to the gathering from where he stood, in front of the three temporary houses where the haus krai was, still inside his premises. He did not know that Gertrude and the others were assaulted – not until late in the night. Elizabeth and Gertrude were identified as sorcerers but he said that was enough. He was told that Peter Goiye had died at Peter Gare's block, on the mountain. But he did not go there. He did not go to the place where the assaults allegedly took place as he was not in the mood to walk around. He was weak due to crying, lack of food and lack of sleep. He had no strength to get up and walk around. Vincent Kondum agreed that Kunda was at the haus krai before others came. His bother could have been there too but he did not see him. Vincent Kondum said that the deceased Peter Goiye was like a brother to him. They had a close relationship going back to the days, in 1980 and 1981, when they worked together at Mosa. Peter was single then and helped him, Vincent, pay school fees for his children. Peter and Bridgetta were married in 1997 and lived at Mandopa. Asked whether he would have been cross if Peter Goiye had been accused of killing his son by sorcery, he replied that he does not believe in sorcery. He never had any grudges against Peter or Bridgetta; and they had none against him. Asked whether it followed that Bridgetta would have no reason to lie about what happened, Vincent Kondum said that he could not comment on that in view of the allegations that had been made following the incident. Vincent Kondum said that Kanua and Kunda don't visit him at Mandopa. He goes to their place at Section 12 as he has another block up there.

29. In re-examination Vincent Kondum stated that he married his present wife at the age of 38. He had no children with his first wife who died after 15 years of marriage. Gabriel was born when he was 42 years old. At the haus krai, he heard some people calling out that Gertrude and Elizabeth were sorcerers. That is why he took them in, to comfort them, so they would not be assaulted. Asked again about the two co-accused, Vincent Kondum said that John Kanua Siune was a small child when his parents came to Kavui, block No 1136, in 1971. Kenneth Kunda Siune lives at block No 1131, Kavui. He was born there. He has known both of them since they were babies. Asked by Mr Oiveka – in light of his answers given in cross-examination – if he was sure that Kunda was at the haus krai, Vincent Kondum responded that he had been asked many questions, and if he had made a mistake he apologises. He said that he did not see Kunda there, but he saw Kanua. Asked to comment on the prosecutor's question about why Bridgetta would lie, he responded that he was still confused about that question. He confirmed that he did not have a personal belief in sorcery but acknowledged that belief in sorcery was widespread in Chimbu culture. It would be very difficult to get rid of it, even by politicians or lawyers. That ended Vincent Kondum's evidence.

30. The third defence witness was Aaron Mas. In examination-in-chief he stated that he is from East Sepik Province. He lives at Mandopa and is a member of the ward committee. He was at the haus krai and heard others say that Gabriel Vincent was killed by sorcery. He saw some masked men, who he did not recognise, come to Mandopa to take away the sorcerers and assault them. Those taken away were Bridgetta Goiye, Gertrude Pius, Sako Kawage and Elizabeth Pius. There were lots of people at the haus krai, so many it was difficult to know everyone there. When the alleged sorcerers were taken away, he followed them as he felt sorry for them and they are from his area and he looks after that area. He told another Sepik man to tell Sako Kawage to run away as he knew Sako was a good man. They did not assault Sako and he ran away into the bush. He saw them assaulting Gertrude Pius and helped her. He moved close to her, pushed some men away from her as they were assaulting her, then took her to the haus krai. She asked him to help her mother, Elizabeth, so he went back. He went to the mountain and saw Elizabeth had a rope around her neck. He pushed the men away and took off the rope and helped her. Then the men assaulted him. He saw another Sepik man, Karlos, standing next to Bridgetta Goiye. He told him to tell her to run away, but she was assaulted like the other women. It is hard for him to say how badly they were assaulted but they were bleeding. He saw some men assaulting Peter Goiye on the mountain but continued to help Elizabeth get back to the haus krai. Eventually when he went back to help Peter Goiye, he was already dead. The assaults took place on the mountain. He said that he was present when the court party visited the site on Thursday 14 September 2006 but does not agree that the place pointed out by the State witnesses was the place where the beatings took place. It was a bit further up, he said. Some of the men who committed the assaults were masked. After he saw that Peter Goiye was dead he went back to the haus krai and told the people there that someone had been killed. At the same time the police came and he told them what had happened. This was on Saturday. Other people told the police that it was Chimbu custom, so they should not worry about it and go back. He stayed there Saturday night. Bridgetta, Gertrude and Elizabeth stayed there also, until Sunday. Asked whether the two co-accused were part of the group that committed the assaults, Aaron Mas said 'he did not see either of them where the assaults took place. He only saw John at the haus krai. He did not see Kenneth. After the incident, there were about seven mediations held and he was the one leading them. Sori moni of K4,000.00 was paid in 2002.

31. In cross-examination Aaron Mas said he was on the ward committees for Mosa 2, Mandopa and Warikindam. He is not on any Kavui committee as he has no business there. Vincent Kondum is a popular person in his area but it is him, Aaron Mas, who plays the leading role in solving problems in the areas he is responsible for. Vincent Kondum is a big man and he, Vincent, helps Aaron sort out problems sometimes. Aaron respects Vincent Kondum but he is not a good friend. He saw Bridgetta Goiye and Gertrude Pius at the haus krai and has no grudges against them. There were a lot of people at the haus krai, particularly on Saturday. Apart from the block people, Mosa employees were there but no foreigners. He does not know whether Vincent Kondum had talked to people. It is possible that Vincent Kondum got up and he did not see him. He saw what happened when people were assaulted. He tried to help them. He saw John at the haus krai but not Kunda. John did not have his body covered with ash or mud. He just came to mourn. He has known John and Kenneth for a long time, through soccer at Kavui. Mandopa people go to Kavui community to play sports. He does not know who a lot of the men committing the assaults were. He only recognised those who assisted him when he was helping the victims of the assaults. Some of the men committing the assaults had masks. Though some people said what happened was normal according to Chimbu custom, he does not feel good about it. He stayed at the haus krai to try and stop more killings. Asked whether Gertrude and Elizabeth Pius were forced to stay at the haus krai, he replied that he would not know anything about that. He was at the haus krai on Saturday night though he did go to Joe Time's house at one stage to help him move out his things in case they burned down his house. Various people were assaulted as others said that they were sorcerers. But he himself does not believe in sorcery. Three people made speeches on Friday night: Paul Goiye, Moses Kauboi and Peter Agua. They said they would get the sorcerers. He tried to explain to them that they had come to this place to work on the oil palm and should not bring their custom with them. They said it was not his custom, it was theirs, so he sat down. Asked what Bridgetta Goiye and Gertrude Pius had said in their evidence that he had not helped them, he said he thinks that they lied to the court.

32. In re-examination Aaron Mas stated that he attended Gabriel Vincent's funeral out of respect. He was a committee member so he had to show respect. At all times he was trying to stop the assaults. That ended Aaron Mas's evidence.

33. The fourth defence witness was Jennifer Kavora. In examination-in-chief she stated that she is the headmistress of Tiauru Primary School, near Bialla. The late Gabriel Vincent was her nephew. She heard of his death on Saturday and made her way to the haus krai on Monday. She was living at Bialla. She went to the haus krai with her two children and with her brother, Kenneth Kunda, who she identified to be the second co-accused. Kenneth had been staying with her for two weeks and some days prior to them going to the haus krai. Mr Oiveka pointed out that the State witnesses had said that Kenneth was involved in assaulting people, including the deceased, Peter Goiye. She replied that her brother does not know anything about it and he has been accused for nothing. He was in Tiauru, Bialla, all the time.

34. In cross-examination Jennifer Kavora said that her husband was with her when Kenneth was staying with them. Kenneth and her other brothers visit her once in a while, when they have a need to. She could not recall the exact date that Kenneth came to visit. Nor could she recall what day it was. Her children were present when Kenneth visited them. They are now aged 15 and 17. She does not want to see her brother go to jail and that is why she is in court, to give her story. She has heard of Bridgetta Goiye's name but does not know her. She does not know Gertrude Pius or Sako Kawage. She was brought up in Kavui Section 12 and has absolutely no grudges against any of those people. Kenneth visited her plenty of times in 2001 as they were new there then, and he visited regularly.

35. In re-examination Jennifer Kavora said that her brother, Kenneth, had been accused for nothing and there was no good reason for him going to jail. That ended Jennifer Kavora's evidence. The defence case was closed.

SUBMISSIONS BY DEFENCE COUNSEL

36. Mr Oiveka conceded a number of undisputed facts. Vincent Kondum's son, Gabriel Vincent, died on Friday 23 November 2001. There was a big gathering at the haus krai at Vincent Kondum's block at Mandopa that day, and even more people were present the next day. Allegations of sorcery were made. Assaults took place on Saturday, the most serious on the deceased, Peter Goiye. It was a mob attack. The photographs (exhibit F) show that his face was badly disfigured, indicative of many assaults on his person. One of the other people assaulted, Elizabeth Pius, was assaulted seriously as borne out by her medical report (exhibit D). However, Mr Oiveka disputed the seriousness of the assaults on the three State witnesses. There was no medical report for either Bridgetta Goiye or Sako Kawage and the report on Gertrude Pius (exhibit E) did not reflect the type and extent of the injuries she said she suffered. The medical evidence or the lack of it, cast doubt on the credibility of the evidence of all those witnesses. Such doubt was strengthened by their oral testimonies.

37. Bridgetta Goiye presented as an untruthful witness, with a motive to lie: she is the deceased's widow and has not been paid compensation. If she had really been assaulted in the way she said, she should be dead. Her story about walking or crawling all the way to Tamba is not believable. That is a long distance and for someone in the condition she described it is unlikely that they would make it. She contradicted herself. On the one hand, in her oral testimony she said her husband Peter, the deceased, was right next to her when they were being assaulted. On the other hand, when the court visited the crime scene, she said the deceased was 10 to 15 metres away. Gertrude Pius's evidence was largely irrelevant as she did not implicate either of the co-accused in the assault on the deceased. Her evidence contradicted Bridgetta Goiye's evidence and, indeed, supports the co-accuseds' claim that they were not at the crime scene. Sako Kawage's evidence is intrinsically unreliable as he was covering his head when he was being assaulted. He was thinking about his safety and his life. His evidence as to the events is generally consistent with that of Aaron Mas. The evidence points to the emotions amongst many people being very high after allegations of sorcery were made. If Aaron Mas had not intervened others may have been killed. Both co-accused had a strong defence: they were not present at the crime scene. John Kanua was at the haus krai. Kenneth Kunda was in Bialla. Their stories have been consistent since the start of the police investigation, as evident from their records of interview (exhibits A and B). Kenneth's alibi notice was filed more than a year ago when the case was first set down for trial.

SUBMISSIONS BY THE STATE

38. Mr Popeu agreed with the undisputed facts set out by Mr Oiveka but disagreed with the defence's contention that neither of the co-accused was at the crime scene. The evidence of all State witnesses was consistent. Bridgetta Goiye identified both co-accused as being among those who assaulted her husband, the deceased. She gave clear details about who was involved and the methods of assault used. She did not allege that all of Vincent Kondum's relatives were assaulting people. Three she omitted were Paul Siune, Bomai and Vincent Kondum himself. If this case was really part of a scheme to get money from Vincent Kondum's relatives, she would have implicated everyone in the assaults. As to her alleged change of story, there was no material change. As to the alleged unbelievable part of her evidence about escaping to Tamba, this was consistent with the state of confusion she would have been in. Furthermore, it was not put to her in cross-examination that her story was too incredible to believe, so her story stands. Gertrude Pius's evidence was not inconsistent with her medical report (exhibit E). She is an unsophisticated person who did not give the appearance of not telling the truth. She said that Kenneth Kunda kept watch on her on the Saturday night. Sako Kawage's evidence was similar to that of Bridgetta and Gertrude. Indeed there were no material inconsistencies in the evidence of any of the witnesses, either in their oral testimonies or in what they pointed out at the crime scene. As to the defence witnesses, John Kanua's evidence was markedly different to that of the State witnesses and he presented as an unreliable witness. Vincent Kondum's evidence was selective; on the one hand he says he was too concerned about mourning, on the other hand he could remember seeing John Kanua at the haus krai, and then he changed his evidence about whether Kenneth Kunda was there too. Aaron Mas tried to portray himself as the hero of the day but the entire assault victims (the State witnesses) deny that he helped them. Aaron had a reason to lie as he is closely aligned with Vincent Kondum. Jennifer Kavora's evidence was tainted by her admission that she wanted to help her brother stay out of jail. Besides that she could not remember any dates, so her evidence was very unreliable. Summing up, Mr Popeu submitted that the State had proven beyond reasonable doubt that the two co-accused were part of the group that continuously assaulted Peter Goiye until he died. They aided and abetted each other and they are criminally liable for the deceased's death under Section 7 of the Criminal Code. If the court does not conclude that they intended to kill the deceased an alternative verdict of guilty of murder should be entered.

 REPLY BY DEFENCE COUNSEL

39. Mr Oiveka submitted that the State had called no independent witnesses and supplied no explanation for the failure to charge a number of other people who were named as part of the assault on the deceased. Aaron Mas was a key witness and the State had not shown any proper motive for him to lie. There were too many doubts raised by the State's case to warrant any conviction, Mr Oiveka stressed.

THE LAW: ELEMENTS OF THE OFFENCE

40. The two co-accused have been charged with wilful murder. The prosecution therefore has the onus of proving beyond reasonable doubt that in relation to either or both of them:

•	the accused killed the deceased;

•	the killing was unlawful; and

•	the accused intended to cause the death of the deceased.

41. They are the three elements of the offence. If the court is not satisfied as to the third element, intention, an alternative verdict of murder or manslaughter can be entered under Section 539 of the Criminal Code.

ASSESSMENT OF EVIDENCE

42. The following approach will be taken:

1	I will comment on the submissions of both counsel, indicating in general terms whether their approach to assessment of the evidence and identification of the key issues is accepted.

2	The non-contentious facts will be laid out.

3	I will assess the credibility of the different pieces of evidence that have been adduced: both the documentary evidence and the oral testimony of the witnesses.

4	I will examine the death of the deceased and determine whether either or both of the accused was involved. I will assess the evidence in relation to each co-accused separately.

5	I will conclude by addressing the three elements of the offence. I will say whether the prosecution has proven, in relation to each co-accused, that all elements of the offence are established beyond reasonable doubt.

COMMENTS ON SUBMISSIONS

43. I agree with Mr Oiveka's submission that the medical evidence or lack of it, regarding the injuries suffered by the three State witnesses is significant as this will be relevant to an assessment of the credibility of each witness. I also agree with Mr Oiveka that he has exposed a possible motive for the State witnesses to lie: not much compensation has been paid for Peter Goiye's death. Only K4,000.00 sori moni was paid and since then there has been a number of unsuccessful mediations. Furthermore, the State witnesses are not independent as it is reasonably to be expected that if more compensation were to be paid they would be recipients as they were amongst the group of suspected sorcerers and they were assaulted. This does not mean that their evidence cannot be believed. However, it is something that I, as the tribunal of fact, need to be conscious of – that the State witnesses are not independent – when I assess the evidence; and I warn myself of the dangers of convicting the co-accused on the basis of this sort of evidence.

44. By the same token, I agree with Mr Popeu that none of the four defence witnesses can be regarded as independent, in the sense of being someone who has no vested interest in the outcome of the trial or is not linked or associated in some way with the co-accused or their lain. John Kanua Siune is one of the co-accused. Vincent Kondum is the person whose son's death triggered the killing of Peter Goiye, the incident happened next to his block and he is related to the co-accused; so he cannot be independent. I agree with Mr Popeu that Aaron Mas – though a Sepik – is aligned with Vincent Kondum. The fourth defence witness, Jennifer Kavora, is the co-accuseds' sister. Again, the fact that none of them are independent does not mean that their evidence is intrinsically unreliable. However, I warn myself of the dangers of accepting their evidence for similar reasons as those applying to the evidence of the State witnesses.

NON-CONTENTIOUS FACTS

45. Vincent Kondum's son, Gabriel Vincent, died in the early hours of the morning of Friday 23 November 2001 at Kimbe General Hospital. Gabriel was a young man, aged about 20. The cause of his death is not known to the court, other than that a number of people claimed it was due to sorcery. Later that day Gabriel's body was brought to the haus krai at his father's oil palm block at Mandopa. Vincent Kondum is a prominent person – a 'big man' – in the community around Kimbe. He hails from Chimbu Province, as do most of the protagonists in this case. He has spent most of the last 40 years of his life in West New Britain.

46. There was a big gathering at the haus krai that day. Allegations were made that Gabriel's death was due to sorcery. At one stage one of the people at the haus krai announced a list of suspected sorcerers. They were:

•	Bridgetta Goiye
•	Elizabeth Pius
•	Gertrude Pius
•	Herman Koike
•	Peter Goiye
•	Sako Kawage

47. With the exception of Herman Koike, who escaped attention by saying that he was a doktaboi, the suspected sorcerers were assaulted on Saturday 24 November 2001. The assaults took place on Peter Gare's block, just across the road from Vincent Kondum's block in the middle of the day. The assault victims (alleged sorcerers) were taken from the haus krai to the neighbouring block. The most serious assault was on the deceased, Peter Goiye. It was a mob attack. The photographs (exhibit F) show that his face was badly disfigured, indicative of many assaults on his person. The post-mortem report indicates that he sustained heavy blows to his head. One of the other people assaulted, Elizabeth Pius, was assaulted seriously as borne out by her medical report (exhibit D). Peter Goiye's death was reported to the police at Kimbe and within a day or two of the incident a police investigation was started. The co-accused were not subject to formal police interviews until almost a year later. The first co-accused, John Kanua Siune, said he was at the haus krai but was not involved in any of the assaults. The second, Kenneth Kanua Siune, said he was in Bialla on the day of Peter Goiye's death.

CREDIBILITY OF EVIDENCE

48. All six documentary exhibits were admitted into evidence by consent: the two records of interview; the post-mortem report; the medical reports for Elizabeth Pius and Gertrude Pius; and the statement from the investigation officer annexing the photographs. The authenticity of none of the exhibits has been challenged.

49. State witness No 1 Bridgetta Goiye was a generally credible witness for these reasons:

•	her demeanour was not of someone who was obviously lying;
•	her evidence was not vague: she gave the names of a number of persons she saw beating her husband, the deceased, including the two co-accused;
•	she gave details of how each assailant assaulted the deceased;
•	the credibility of her evidence and its believability were not unduly damaged by cross-examination;
•	the lack of medical evidence to support her claims about being assaulted and injured was not significant, as it was not disputed that she was assaulted;
•	the attempt by defence counsel to challenge her evidence by putting it to her that she could not have possibly walked or crawled to Tamba in her condition was unsuccessful, as the distance from Mandopa to Tamba was not established through the evidence, so it was not clear that she could not have got there by, eg, bush tracks;
•	there was no material inconsistency between her evidence in court and her evidence at the crime scene, – about how far away from her the deceased was when he was being assaulted – as in court she said he was 'right next' to her (which is a general description of proximity) and at the crime scene she specified how proximate he was to her.

50. State witness No 2 Gertrude Pius was a generally credible witness for these reasons:

•	her demeanour was not of someone who was obviously lying;
•	she gave the names of a number of persons who assaulted her, including the first co-accused, John Kanua;
•	the credibility of her evidence and its believability were not unduly damaged by cross-examination;
•	the fact that she did not give detailed evidence about who assaulted Peter Goiye does not diminish the credibility of her evidence, which put the first co-accused John Kanua at the crime scene and the second co-accused Kenneth Kanua at the haus krai on Saturday night;
•	she did not materially contradict herself when giving evidence.

51. State witness No 3 Sako Kawage was a generally credible witness, for these reasons:

•	his demeanour was not of someone who was obviously lying;
•	his evidence was not vague: he gave the names of a number of persons he saw beating the deceased, including the two co-accused;
•	he gave details of how each assailant assaulted the deceased;
•	the credibility of his evidence and its believability were not unduly damaged by cross-examination;
•	the attempt by defence counsel to challenge the reliability of his evidence by submitting that he had his head covered as he feared for his life is unsuccessful, as that was not his evidence: he said he saw Peter Goiye being assaulted;
•	he did not materially contradict himself when giving evidence.

Oral evidence for the defence

52. Defence witness No 1, the first co-accused John Kanua Siune, was not clearly a reliable witness for these reasons:

•	though his demeanour was not of someone who was obviously lying, his demeanour was not of someone who was obviously telling the truth;
•	his evidence was generally consistent with the version of events he gave in his police interview: he was present at the haus krai but not involved in any assaults;
•	he denied seeing anyone removed from the haus krai to be assaulted, which is hard to accept given the commotion that would reasonably be expected to have accompanied such an incident.

53. Defence witness No 2 Vincent Kondum was not clearly a reliable witness for these reasons:

•	though his demeanour was not of someone who was obviously lying, his demeanour was not of someone who was obviously telling the truth and I accept the prosecutor's submission that his recollection of the events seemed selective;
•	he was unwilling to answer some difficult questions – eg: were white men afraid of coming into the haus krai because his tribesmen were armed? did he not stop the assaults because he was involved? – suggesting that he knew the answers but was unwilling to say the truth;
•	he gave inconsistent answers to questions about whether Kenneth Kunda was at the haus krai: after first saying he was there, he changed his answer.

54. Defence witness No 3 Aaron Mas was not clearly a reliable witness for these reasons:

•	though his demeanour was not of someone who was obviously lying, his demeanour was not of someone who was obviously telling the truth;
•	his inability to identify any of the assailants responsible for the assault on Per Goiye made his evidence vague and difficult to believe;
•	his evidence about his role in rescuing the assault victims other than Peter Goiye was opposite to that of the State witnesses, and given the overall credibility of the evidence of the State witnesses their evidence is to be preferred, which tends to lead to the conclusion that Aaron Mas was not a truthful witness.

55. Defence witness No 4 Jennifer Kavora was not a reliable witness for these reasons:

•	though her demeanour was not of someone who was obviously lying, her demeanour was not of someone who was obviously telling the truth and indeed I thought she was the least impressive of all witnesses;
•	her evidence was vague in that she could not remember the dates that her brother, Kenneth Kunda, was staying with her and her family and she did not say what he was doing when he was in Tiauru, Bialla.

Summary

•	The documentary evidence is reliable.
•	The State witnesses gave generally credible evidence. There were no material inconsistencies between the evidence of each of the witnesses.
•	The defence witnesses were not clearly reliable witnesses.

THE DEATH OF PETER GOIYE: WAS EITHER OF THE CO-ACCUSED INVOLVED?

The first co-accused, John Kanua Siune

56. The evidence against him is:

•	Bridgetta Goiye gave generally credible evidence that she saw him use a very large branch of a tree to hit Peter Goiye all over his body. She saw him join others in beating up Peter Goiye.

•	Gertrude Pius gave generally credible evidence that she knows him and saw him at the crime scene and he assaulted her. However, she did not give direct evidence of seeing John Kanua assault the deceased.

•	Sako Kawage gave generally credible evidence that he saw him join a number of others in assaulting Peter Goiye, and that he was armed with a bush knife.

•	The State witness's evidence therefore puts him at the crime scene – which he denies – and this suggests that he is lying.

•	Apart from his own evidence, which was not convincing, there is no evidence that he was not at the crime scene.

Therefore there is a reasonable body of evidence on which to conclude that John Kanua was at the crime scene and was involved in the assault on Peter Goiye.

The second co-accused, Kenneth Kunda Siune

57. The evidence against him is:

•	Bridgetta Goiye gave generally credible evidence that she saw him holding a homemade gun, beating up Peter Goiye. She saw him join others in beating up Peter Goiye.

•	Gertrude Pius gave generally credible evidence that he was at the haus krai on Saturday night, guarding her with a home made gun given to him by John Kanua.

•	Sako Kawage gave generally credible evidence that he saw him join a number of others in assaulting Peter Goiye, and that he was armed with a homemade gun.

•	The State witness's evidence therefore puts him at the crime scene – which he denies – and this suggests that he is lying.

•	The alibi evidence – constituted by the statements in his record of interview (exhibit B) and the evidence of his sister Jennifer Kavora – was unreliable, short on detail and, given the generally credible nature of the evidence of the State witnesses, not convincing. In his police interview he does not mention coming to Mandopa with his sister, a significant event if it had happened; yet that is what his sister's evidence was. Doubts about the alibi were sharpened by Vincent Kondum's evidence, which at one point had him at the haus krai – not in Bialla.

Therefore there is a reasonable body of evidence on which to conclude that Kenneth Kunda was at the crime scene and was involved in the assault on Peter Goiye.

Other considerations

58. I remind myself, again, that the defence has established a possible reason for the State witnesses to lie – they have not been paid enough compensation – and they are not independent witnesses. However, considered individually and collectively the evidence of the State witnesses is clear and implicates both co-accused in the death of Peter Goiye. The version of events portrayed by their evidence is believable, given the evident concerns, indeed hysteria, prevailing in regard to the death of Gabriel Vincent. It is beyond dispute that Peter Goiye was the victim of a brutal mob attack. I conclude that he was beaten to death in daylight hours on Peter Gare's block on Saturday 24 November 2001 and that the assault was witnessed by two of the State witnesses, who have identified the two co-accused as being involved in the assault. I am satisfied beyond reasonable doubt that both of the co-accused were involved in the attack on Peter Goiye.

DETERMINATION OF THE CHARGE

59. I reiterate that the offence of wilful murder has three elements:

1	the accused killed the deceased;

2	the killing was unlawful; and

3	the accused intended to cause the death of the deceased.

60. I am satisfied beyond reasonable doubt as to elements (1) and (2) in relation to each of the two co-accused, for the following reasons:

•	They each killed the deceased by acting together and with others so that each one was enabling and aiding the other to kill the deceased, for the purposes of Section 7(1)(a), (b) and (c) of the Criminal Code.

•	There was no lawful justification or excuse for killing the deceased.

61. However, I am not satisfied beyond reasonable doubt as to the third and final element of the offence. I have applied the principles set out by Injia AJ, as he then was, in the National Court in The State v Raphael Kuanande [1994] PNGLR 512:

Intention is a matter which goes to the state of mind of the accused at the time he acted. It may be proven by direct evidence of the accused's expression of intention followed by the act itself or by circumstantial evidence. In either situation, it is necessary to examine the course of conduct of the accused prior to, at the time and subsequent to the act constituting the offence. [Emphasis added]

62. I do not think the prosecution has provided enough evidence to explain why Peter Goiye suffered the most serious assault of all the alleged sorcerers. It may have been that he struggled more than the other assault victims and the mob that attacked him had to assault him with greater force. The inference to be drawn is that this was a hysterical attack on a group of alleged sorcerers by a group of men, including the two co-accused, who were angry and almost out of control. I am not satisfied beyond reasonable doubt that any of Peter Goiye's assailants intended to kill him. I find each of the co-accused not guilty of wilful murder. I now consider whether an alternative verdict should be entered and I address that issue by applying two provisions of the Criminal Code.

63. Section 539(1) (charge of murder or manslaughter) states:

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.

64. Section 300(1)(a) (murder) states:

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

if the offender intended to do grievous bodily harm to the person killed or to some other person.

65. I am satisfied that the prosecution has proven beyond reasonable doubt that, due to circumstances in which Peter Goiye was assaulted, and the ferocity of the assault, each of the co-accused intended to, at least, cause grievous bodily harm to the deceased. This means due to the combined effect of Sections 300(1)(a) and 539(1) of the Criminal Code that each is guilty of murder.

VERDICT

1	I find that the first co-accused, John Kanua Siune, is guilty of the murder of Peter Goiye and convict him accordingly.

2	I find that the second co-accused, Kenneth Kunda Siune, is guilty of the murder of Peter Goiye and convict him accordingly.

Verdict accordingly.
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Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused