State v Ingilin [2007] PGNC 127; CR 1224 of 2004 (17 August 2007)

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1224 OF 2004

STATE

V

JOHN WARKAUL INGILIN, JOHN LIMLIBUR UMUE, PADIONGO MARAKAN,
ALBERT MATHIAS AKUILA, HERMAN OKOLE KIVUNG, JACK OKOLE
BARIP, NIUT WARPIN MARKUS, AND BEBEL MARTIN MARKUS

Kokopo: Lay J.
2007: 16 and 17 August

CRIMINAL LAW– no case submission - considerations - circumstantial evidence - considerations - unsworn allegations against co-accused.

PNG Cases Cited
The State v Paul Kundi Rape [1976] PNGLR 96
Paulus Pawa v The State [1981] PNGLR 498
R v Sapulo – Masuve (1973) (No.732)
R v Gemai [1974] PNGLR 1
State v Kamo Kawa & Anor (1996) N1523
The State v Henry Sare Kales (2001) N2115
State v Wama Dua & Ors (2005) N2854
The State v Steven Tolira and Benedict Okole (1980) N216

Overseas Cases Cited
R v Duncan(1981) 73 Cr.App.R.359
R v Hamand (1986) 82 Cr.App.R.65.

References
Criminal Code

Counsel
L. Rangan, for the State
P. Kaluwin, for the Accused

DECISION ON NO CASE APPLICATION

17 August, 2007

1. LAY J: The accused are charged with the wilful murder of Jimmy Meneko in the early hours of 1 July, 2004 near Kabeleo Teachers College, Kokopo East New Britain.
   
2. At the close of the State case, the accused have made an application that there is insufficient evidence to call upon them to give their defence. The application is made pursuant to the second leg in the case of The State v Paul Kundi Rape [1976] PNGLR 96. This is not the occasion for considering whether or not the court has a reasonable doubt. The application can only succeed where the judge has no weighing up to do. It must be very clear case that the State evidence is so lacking in weight or credibility that it is clear that no reasonable tribunal could convict upon it.
   
3. On a charge of wilful murder pursuant to Criminal Code Section 299, counsel are agreed that there must be a homicide, the persons who committed the homicide must be identified and the State must establish an intention to kill. It is agreed that there was a homicide, Jimmy Meneko was murdered.
   
4. Where there is no direct evidence to establish who committed a crime, it is said that the case relies on circumstantial evidence. Where the State relies on circumstantial evidence, the guilt of the accused must not be just one possible explanation for the homicide, it must be the only reasonable explanation: Paulus Pawa v The State [1981] PNGLR 498.
   
5. It is not disputed that about 7 p.m. in the evening of 30 June 2004, Jimmy Meneko came to the canteen operated by John Warkaul in Bitagalip village, Kokopo to buy kerosene. There was no kerosene and he sat talking for a while. John Warkaul went to his fermentary to rake the cocoa beans. He heard his wife raise her voice in an angry manner and returned to investigate. Then an allegation arose that Jimmy Meneko had sexually touched Margaret, the child of John Warkaul. John Warkaul attack Jimmy Meneko with the rake he was holding and hit him in the face and Jimmy ran off.
   
6. About 1:30 a.m. on 1 July, 2004 Jimmy Meneko was taken by the Kabeleo Teachers College truck to Vunapope hospital where he was pronounced dead on arrival. The cause of death was haemorrhagic shock caused by loss of blood from a smashed spleen.
   
7. Ulrich Tatak, Joanne Telan Jimmy and Josepher Tiut gave evidence that about 10 p.m. on 30 June, 2004 John Warkaul, John Limlibur, Albert Mathias, Padiongo Marakan, Bebel Marcus and Herman Okole visited them at Ulrich Tatak's and Josepher Tiut's homes enquiring after Jimmy Meneko.
   
8. About 1:30 a.m, Thomas Takaliu, security guard at Kabeleo Teachers College, saw John Warkaul come to the Teachers College, out of breath. He asked Thomas for the use of the College truck to get Jimmy Meneko to hospital. Thomas and the College driver and John Warkaul, then drove down the road in the College truck following directions from John Warkaul to stop when they saw a man standing by the road. Thomas Takaliu saw Padiongo Marakan standing by the road. He saw him in the lights of the vehicle when the vehicle stopped. John Warkaul and Padiongo Marakan loaded the prone Jimmy Meneko onto the back of the vehicle. Thomas Takaliu thought that they then got on to the vehicle. However, when the vehicle arrived at Vunapope Hospital neither John Warkaul nor Padiongo Marakan were on the vehicle. Sisters at the hospital told him Jimmy Meneko was already dead.
   
9. Henry Kiliu, the Kabeleo Teachers College driver saw John Warkaul about 1:30 a.m. on 1 July, 2004. He was woken by Thomas Takaliu and advise that the deputy principal had authorised the use of the College truck to take a man to hospital. John Warkaul got into the cabin of the vehicle with him and told him where to drive. He told him to stop when he saw a man standing by the road. He saw a man standing by the road and stopped quite close to him and in the lights of the vehicle recognised him as a person living nearby who went to and fro from the village past the College. It was Padiongo Marakan. After Jimmy Meneko was loaded on to the vehicle he drove to Vunapope hospital. At the hospital he found that John Warkaul and Padiongo Marakan were not on the vehicle. Sisters at the hospital told him Jimmy Meneko was already dead. At that time he only knew Padiongo by face, but the following day Padiongo came to his house to inquire about Jimmy Meneko. Henry Kiliu's wife told him Padiongo's name. She is from a neighbouring village and familiar with the names of persons in the area.
   
10. About 3 a.m. Michael Kalimut, a security guard at Kabeleo Teachers College saw John Warkaul in the security light of the College walking past in the company of two others. There was another group of three also walking up taking a slightly different route. Mr Kalimut did not recognise any of the others.
    
11. That is the State evidence apart from the records of interview and statements given by the accused.
    
12. It has long been the law in Papua New Guinea that a statement made by an accused not made in sworn evidence at trial is not evidence against a co-accused, accomplice or other person he may implicate: R v Sapulo – Masuve (1973) (No.732) at p6; R v Gemai [1974] PNGLR 1; State v Kamo Kawa & Anor (1996) N1523 (following and applying R v Sapulo Masuve); The State v Henry Sare Kales (2001) N2115); State v Wama Dua & Ors (2005) N2854. The accused in their records of interview name other people. I cannot take into account that evidence which names others.
    
13. Confessional material in a record of interview is prima facie evidence of the facts as against the maker of the statement and can be given full weight. Full weight need not be given to exculpatory statements: See The State v Steven Tolira and Benedict Okole (1980) N216; R v Duncan(1981) 73 Cr.App.R.359 followed in R v Hamand (1986) 82 Cr.App.R.65.
    
14. John Warkaul in his record of interview admits to being part of a group which attacked Jimmy Meneko on his return from hospital at the place where he was picked up by the Kabeleo Teachers College truck and that Jimmy died as a result of the mission initiated by John Warkaul to hunt him down.
    
15. Markus Bebel said in his record of interview that he was there and saw others hitting Jimmy Meneko but he was standing a long way off and did not see where they hit him. He admitted to being a member of a party to capture Jimmy and bring him to the police station.
    
16. Niut Warpin said in his record of interview he went along with the group that was hunting Jimmy Meneko. He was there at the scene of the attack on Jimmy. He said he was not involved in the actual assault on Jimmy.
    
17. Jack Okole said in his record of interview that apart from what he heard from his co-accused he knew nothing about the matter.
    
18. Herman Okole said he was with a party hunting for Jimmy Meneko. His intention was to fight Jimmy Meneko. He stood at the back on the side of the road while Jimmy was being attacked.
    
19. Albeit Mathias said in his record of interview he was with a group who were searching for Jimmy Meneko. He did not find Jimmy and turned back while others went on. He does not know anything about what happened when the others went down.
    
20. Padiongo Marakan said in his record of interview that he was one of three who met Jimmy and chased him until he fell down. He said "I alone will bear the burden of everyone".
    
21. John Limlibur's statement and record of interview were not admitted into evidence.
    
22. There is no evidence placing Jack Okole, Albert Mathias or John Limlibur at the scene of the murder or in any way associated with the group looking for Jimmy Meneko after 10 p.m. on 30 June, 2004. In my view, no Tribunal acting reasonably, could on the evidence as it stands convict any of those accused. There are so many circumstances which might have arisen over the next three and half hours after they were sighted at 10 p.m. to safely infer that they were at the scene of the murder at 1:30 a.m. on 1 July 2004. I therefore find that Jack Okole, Albert Mathias and John Limlibur have no case to answer. They are acquitted and discharged.
    
23. The other accused are placed at the scene of the murder by admissions in their records of interview. I do not consider the State case to be so lacking in weight the tribunal could not convict, some of the accused being caught by Sections 7 and 8 of the Criminal Code. Whether I find that I should not accept statements in their records of interview which place them at the scene of the crime, but treat this simply as a statement of what they heard from others, is a matter which cannot be determined without weighing the whole of the evidence. As the authorities say, it is not appropriate for me to weigh the evidence to determine whether or not I have a reasonable doubt at this stage of the trial. It must be clear that the weight of the evidence is insufficient to support a conviction.
    
24. In my view there is sufficient evidence, subject to it being weighed at the end of the trial, to support a conviction of John Warkaul, Padiongo Marakan, Herman Okole, Niut Markus and Bebel Markus. Whether the conviction would be of the charge with which they are indicted or some lesser charge is also not a matter which I should determine on this application, as it involves a weighing of what inferences, if any, I can draw from the injuries suffered by the deceased Jimmy Meneko. Consequently I call upon those accused to present any defence they wish to place before the court.
    

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