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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR 1400 OF 2004; 1499 OF 2005
THE STATE
V
TITUS AIKO, ANDIKI BUS & NISI BALE
Waigani: Yalo, AJ
2008: 11, 12, 13, 15 February
2 April
Cases Cited
State v Paul Kundi Rape [1976] PNGLR 96
May v O’Sullivan [1995] HCA 38; (1955) 92 CLR 654
Zanetti v Hill [1962] HCA 62; (1965) 108 CLR 433
The State v Raphael Kuanande [1994] PNGLR 512
Counsels
Mr R. Luman, for The State
Mr D. Gavara-Nanu and Mr F. Kirriwom, for the co-accused
DECISION ON VERDICT
1. YALO AJ: Background facts: The three co-accused, Messrs Titus Aiko, Andiki Bus and Andrew Pius also known as Nisi Bale, are alleged to have wilfully murdered Pastor Joe Yapa on the afternoon of Sunday 18 April 2004. Hohola Market, the scene of the alleged crime, is located in Hohola Suburb, National Capital District, Port Moresby. Pastor Joe Yapa was chopped on the right side of his head whilst he stood inside the market innocent of what fate held for him that afternoon. The three accused, are jointly charged, each with one count of wilful murder pursuant to Section 299(1) of the Criminal Code Act Ch 262 (Criminal Code).
2. I acquitted Mr Bus and Mr Bale for lack of evidence. I have discussed the detailed reasons below on pages 9 and 10 of this judgment.
3. Whilst the Court did not visit the site of the alleged crime the following description of the site is based on my personal knowledge of the area.
4. Hohola Market lies between Mango Street at the southern end, Kamarere Street to its north, and Wards Road to the east. A row of about seven shops stand westward from north to south (i.e. from Kamarere St. to Mango St.) facing the market. The distance between these shops and Wards Road is about 20 meters. The market itself only occupies a small area. Hohola Market opens daily.
5. Kamarere Street I have referred to above commences from Wards Road and runs between Hohola Market and Hohola sports fields. This street leads to the suburb of Tokarara via Boragaino Road. The sports fields comprise of a volleyball court, basketball court and a rugby field. The two courts have about a meter high steel fence that runs from the direction of Wards Road following Kamarere Street but stops short at the edge of the rugby field. There is no fence around the rugby field.
6. A few shops shield Hohola Market from the rugby field. The distance between the market and the edge of the rugby field is about 100 meters. At the edge of the rugby field along Kamarere Street is a public bus stop. Opposite the bus stop are two small shops. A ‘mini supermarket’ trading as Elisio Ltd stands about 15 meters directly opposite the bus stop and the edge of the rugby field. Anyone standing at the bus stop on Kamarere Street and at the edge of the rugby field would not be able to see the market.
Undisputed facts
7. On Sunday 18 April 2004 between the hours of 4:00 pm and 5:30 pm Pastor Joe Yapa arrived at Hohola Market with his relatives and members of his congregation. Mr Joe Yapa is a Pastor with the Lutheran Church. At the market, everyone went his or her own way. Pastor Joe Yapa was chewing beetle nut when he was chopped on the right side of his skull with an axe. Pastor Joe Yapa fell to the ground; the axe still sunk into his skull. He was immediately rushed to Port Moresby General Hospital (PMGH). Unfortunately, Pastor Joe Yapa died. An independent post mortem examination conducted by Dr Casper Conny on 28 April 2004 reads:
8. Dr Conny concludes the cause of Mr Yapa’s death as "head injury". He elaborates this to mean that a broken skull injured the deceased’s brain.
9. I do not intend to set out in detail the evidence adduced by both parties. I decide the verdict on a number of findings of fact and inferences I draw from the facts or evidence I accept. I will highlight the facts or evidence which support the inferences I draw.
Disputed facts
10. The Prosecution’s case is that the accused Mr Titus Aiko is the person who chopped the deceased Pastor Joe Yapa on the head, which subsequently caused his death. Mr Rom Yapa and Jacob Yapa saw the accused flee the scene where the deceased fell with the axe on his skull. Both Rom and Jacob chased and attacked the accused. They chopped Mr Aiko on the ankle and the arm.
11. The Defence argues that Mr Aiko did not chop the deceased, Pastor Yapa, notwithstanding that he was present at the relevant time and within the vicinity of the scene of the alleged crime. The accused was at a safe distance away from the alleged crime scene. It was a Mr Samuel Wallen and a Mr Bisop who chopped the accused on his ankle and arm respectively. It was not Rom Yapa and Jacob Yapa who attacked and chopped the accused.
Issue
12. The issue is whether the accused chopped the deceased, Pastor Jacob Yapa. If he did commit the offence, the nature of the charge against him takes the issue further. That is, whether the accused wilfully murder Pastor Joe Yapa.
The State’s evidence
13. The Prosecution tendered a number of documentary evidence by consent. These include photographs of the crime scene and photographs of the deceased. Other documents include an affidavit of Dr Casper Conny, Post Mortem Report from PMGH relating to the deceased, police record of interview for the co-accused Mr Titus Aiko and Mr Andiki Bus. Police records of interview for Messrs Rom Yapa and Jacob Yapa were also tendered into evidence.
14. The Prosecution called three witnesses, namely Messrs Jeffery Turia, Rom Yapa and Jacob Yapa. Each gave sworn evidence. I have summarized each of their evidence as follows.
1 Jeffery Turia
15. Mr Jeffery Turia is a Village Councilor in Wabag, Enga Province. He estimates his age to be around 50. He lives at Morata in the National Capital District.
16. Mr Turia gave evidence that he was at Hohola on the afternoon of 18 April 2004 when the late Joe Yapa was murdered. He had gone to Hohola to facilitate two separate mediations. When he left his house at Morata he read the time on his television monitor as 2:30 pm. He estimates his arrival time at Hohola Market to be about 3:00 pm. When he arrived at Hohola he drove into the market car park. He parked his motor vehicle behind the public toilet, at the north end of the market.
17. He then walked into the market to buy beetle nut. He saw Peter Maiyole and Kalo Kaipu. Not long after that he saw Andiki Bus, Nisia Bale and Masa standing around a shop that has entertainment and amusement machines. This shop is one of those standing westward facing Hohola Market. These men are from Mr Turia’s enemy tribe in Wabag, Enga Province. Mr Turia particularly noted Masa who had something that looked like an axe hidden at his right under his jersey. Masa was about 5 – 7 meters away from Mr Turia. Mr Turia walked away from these men. He got into his car and drove across Kamarere Street and onto the volleyball court. He maintained a safe distance and kept a look out of his enemies.
18. Whilst Mr Turia was at the volleyball court a councilor and a senior police officer from Hohola Police Station arrived. When the parties to the mediation arrived they conducted the mediation. The parties to the mediation and the rest of the public sat down whilst Mr Turia and the mediators stood and conducted the mediation.
19. Between 4:30 and 5:00 pm Mr Turia heard people running out from the Hohola Market towards the rugby field shouting "holim em, holim em" (stop him, stop him). He thought the public was chasing a common criminal. He saw the person chased being caught at the end of the rugby field. He later heard that a person had been chopped inside the market. They deferred the mediation to a later date and dispersed the mediating parties.
20. Mr Turia’s evidence is that he did not see Titus Aiko, the accused at Hohola Market. He did not positively identify the person chased from the market across Kamarare Street to the rugby field. He did positively identify Andiki Bus and Nisi Bale in Court. He saw them at the market on 18 April 2004.
2 Rom Yapa
21. Mr Rom Yapa (hereafter Rom) is a Security Guard employed by Holiday Inn Hotel. He is related to the deceased, late Pastor Joe Yapa.
22. On 18 April 2004 Rom attended church service at the Gordons Lutheran Church, National Capital District. When the service ended about midday the congregation contributed an amount of K200.00 for a family at Hohola that was mourning the death of a member of the family. Rom accompanied Pastor Joe Yapa and the congregation and took the money to the family at Hohola. They travelled on a truck.
23. At about 4:00 pm Rom and Pastor Yapa, left the funeral home and travelled to Hohola Market. They stopped at the market to buy beetle nut. They walked into the market and towards the front of the shops facing the market. Pastor Yapa went his own way to buy beetle nut. Rom says Pastor Yapa was only three meters away from where he was. Rom had his back towards Pastor Yapa. About 2 – 3 minutes later he heard a loud bang behind him. He turned immediately. He saw Pastor Yapa fall to the ground. At the same time, he saw the accused, Titus Aiko, flee from the scene where Pastor Yapa fell. The public chased Titus Aiko shouting; "holim em, holim em" (stop him, stop him). Rom caught up with others who had run ahead of him to catch Titus Aiko. He punched Titus Aiko on the face. He grabbed an axe and chopped Mr Aiko on the back of his ankle.
24. Rom had his back toward the deceased. He did not see Titus Aiko or ‘a person’ land the axe on the deceased. When asked at cross-examination whether Samuel Wallen, Tony Russell and Bisop had attacked the accused, Rom said that such statement is false. Rom stated that he knew Titus Aiko prior to date of the alleged crime. That he and Mr Aiko are from neighboring tribes and they go to church together. Whilst residing in Port Moresby, Rom has, on occasions, seen Titus Aiko at the market, at ‘the settlement’, and at church gatherings.
3 Jacob Yapa
25. Mr Jacob Yapa (hereafter Jacob) is from Tuksanda Village, Suringi District, Enga Province.
26. On the morning of 18 April 2004 he attended church service at Gordons Lutheran Church. After church he accompanied his fellow church members to a funeral home at Hohola.
27. At about 4:00 or 4:30 pm he went to Hohola Market with a Robert, a ship captain who lives overseas. Whilst at the market they sat down under the rain tree and chewed beetle nut. About 2 or 3 minutes later he heard a loud bang behind him. He turned immediately and saw the deceased fall to the ground. Jacob saw Titus Aiko fleeing from the scene where the deceased fell. He ran over to the deceased and said: "Joe, yu dai" (Joe, you die"). The deceased said nothing but waved his hand in reply whilst lying face down. Jacob pulled out the axe stuck to the right side of Joe’s skull with some effort. Jacob lost sight of Mr Aiko when he looked down momentarily to pull the axe out of Joe’s skull. He ran after Titus Aiko who was chased by the public. Jacob was about 15 meters away from Titus Aiko when he started running. He did not lose sight of the accused when he gave chase from the market and to the spot where he caught the accused at the end of the rugby field. Jacob was one of the first persons to catch the accused. He fought with the accused and eventually knocked him down and chopped him on the arm. Jacob ran away when he saw the police arrive.
28. Jacob identified the accused in Court as the person he chased, caught and attacked. Jacob said he chopped the accused on the arm. Both he and Mr Aiko attended the same primary school in Wabag and that he has known the accused prior to 18 April 2004.
29. During cross examination Jacob gave evidence that he did not actually see the accused chop the deceased. However he did see the deceased fall, and at the same time, he saw the accused flee from where the deceased fell with an axe in his skull.
30. When Mr Gavara-Nanu put to Jacob in cross-examination that it was not him but Messrs Samuel Wallen and a Bisop who first chopped the accused he replied, it was he who was first to chop the accused on the arm. When Jacob was further asked if there were many Engans at Hohola Market that afternoon and that it could have been anyone who chopped the deceased, he said he clearly saw the accused flee from where the deceased fell. Jacob said he knows Mr Aiko from his village in Wabag. They are from the same area and they attended the same primary school.
No case to answer submission: Andiki Bus and Nisi Bale
31. When the Prosecution rested its case Mr Gavara-Nanu for the Defence made a no-case to answer submission in respect of the charges against the two co-accused; Andiki Bus and Nisi Bale. In his brief submission Counsel asked the court to acquit and discharge Mr Bus and Mr Bale each of the charge of one count of wilful murder.
32. Mr Gavara-Nanu submitted that Andiki Bus and Nisi Bale are alleged to have acted in concert with Titus Aiko to murder Mr Joe Yapa. The State invoked Sections 7 and 299(1) of the Criminal Code to charge Andiki Bus. The State did not invoke Section 7 of the Criminal Code to charge Nisi Bale.
33. The two co-accused do not deny that they were present at Hohola Market on 18 April 2004 between the hours of 4:00 pm and 5:30 pm. This fact is recorded in their police records of interview. They however, deny the charges.
34. Counsel submitted that at this stage the issue is whether the Prosecution has presented evidence sufficient for the Defence to call its own witnesses or ask the court to acquit and discharge the two co-accused for lack of evidence. Mr Gavara-Nanu referred me to the case of State v Paul Kundi Rape [1976] PNGLR 96.
35. Mr Luman for the Prosecution conceded to the no case to answer submission. Counsel submitted that the evidence against the accused Andiki Bus and Nisi Bale are on record before me. He submitted that ‘there is some evidence but it is insufficient to convict the two accused’.
36. In ruling that there is no case to answer by the co-accused Andiki Bus and Nisi Bale, I undertook to give my reasons later. This I do now.
37. The State charged the co-accused Andiki Bus and Nisi Bale under Section 299(1) of the Criminal Code. It was the Prosecution’s case that the two co-accused acted in concert with Mr Titus Aiko to murder Pastor Joe Yapa. Therefore, they were principal offenders within the meaning of Section 7 of the Criminal Code.
38. I find Paul Kundi Rape’s case helpful and I apply it here. The question for me in this no case to answer submission is not whether, at the close of the Prosecution’s case it has presented evidence that go to prove beyond a reasonable doubt the elements of the offence for which the accused are charged. This is the ultimate question of fact to be determined at the conclusion of the trial: May v O’Sullivan [1995] HCA 38; (1955) 92 CLR 654; Zanetti v Hill [1962] HCA 62; (1965) 108 CLR 433 at 442 per Kito J; Paul Kundi Rape [1976] PNGLR 96. That is, this question does not arise prior to, but after the whole of the evidence, including such evidence the accused may wish to adduce, is before the court. In my view this principle takes into account the fact that the Prosecution’s evidence does not end at the close of its case. Where the Defence calls witnesses, the Prosecution still has opportunity to adduce evidence or strengthen its case through cross-examination. Furthermore, there may be an occasion where at any time of the course of the trial, the need arises for the Court or any of the parties to call a witness not initially contemplated. In such instance the Prosecution and the Defence have further opportunity to adduce or rebut evidence.
39. The question to ask in a no case to answer submission is, "whether on the evidence as it stands the accused could lawfully be convicted". In Paul Kundi Rape’s case O’Leary AJ, applied the Australian cases referred to above and distinguished this question from the issue: ‘whether, on the evidence as it stands the accused ought to be convicted. That is, whether there is sufficient evidence on which the accused ought to be convicted.
40. I find that the only evidence before the court is that these two co-accused were at Hohola Market on the day and time in question. No evidence is before the Court that they participated in committing the offence for which they are charged. Their presence and movements within the scene of the alleged crime were alleged to be suspicious. There is evidence in Mr Rom Yapa’s record of interview as well as oral evidence in Court that they were seen jumping onto a waiting vehicle and fleeing immediately after the attack on the deceased. These facts do not directly connect the two co-accused to the alleged crime notwithstanding the fact that they may be enemies of the deceased. I accordingly acquitted and discharged Mr Andiki Bus and Mr Nisi Bale.
41. The Court then proceeded to hear evidence from the accused.
Defence evidence
42. The Defence called one witness, Mr Titus Aiko, the accused. Mr Aiko was age 20 in the year (2004) he allegedly committed the crime. He is 24 in 2008. He is from Lakolam Village, Wabag, Enga Province. Mr Aiko is from Mangin tribe. He is single.
43. The Defence argues that the accused did not murder the deceased. There were other men from the enemy tribe present at the scene of the alleged crime who may have murdered Pastor Joe Yapa.
44. Mr Aiko gave sworn evidence. The following is a summary of his evidence in chief. He left Taurama at about 10.00 am for Hohola to visit a funeral home. He arrived at about 10:30 am and remained there until about 4:00 pm. He then left for Hohola Market where he purchased a 16 litres ice cream box at Elisio Shop located about 100 meters or less away from Hohola Market. He then walked over to the Tokarara Bus Stop on Kamarere Street. He waited for the public bus headed for Wards Road and onto Taurama Road.
45. Whilst he waited for a bus three men, Messrs Samuel Wallen, Tony Russell and a Mr Bisop, all from Wabag, Enga Province approached him. Mr Aiko states that Mr Samuel Wallen chopped him with an axe on the front of his right ankle. The accused showed in Court a long scar across his right ankle. He further stated that a Mr Bisop chopped him on his left arm. The accused showed a long scar across his left arm. He stated that Tony Russell kicked him on his forehead. The accused denied ever knowing or meeting the State’s witnesses, Messrs Rom Yapa and Jacob Yapa. He denied Rom Yapa chopping him on the back of his ankle. He further denied Jacob Yapa chopping him on his arm.
46. Mr Aiko gave evidence that a Mr Nisson assisted him to PMGH. He stated that when he was at the PMGH Rom Yapa and others forced their way into the ward where he was and attacked him. He gave evidence that he was lifted with his bed and thrown on the floor and he injured his head and broke his small finger. He did not produce any evidence or show any physical scar on the back of his head to give credence to his assertion.
47. The Police Homicide Squad based at Boroko, National Capital District interviewed Mr Aiko on 19 May 2004. This is a month after the alleged offence was committed. The Pidgin version of the record of interview is signed by the two police officers who interviewed Mr Aiko. Mr Aiko has also signed the same document with an ‘x’ mark. The two officers, Constable Anthony Hukambari (Interviewer) and Constable Bale Mogish (Corroborator) explained to Mr Aiko his constitutional rights including his right to remain silent and his right to obtain legal representation if he so desired.
48. The summary of Mr Aiko’s police record of interview dated 19 May 2004 is as follows. On the morning of 18 April 2004 Mr Aiko left Taurama (military) Barracks for Gordons. After an hour or so at Gordons he took a bus trip to Hohola. He was at Hohola at around 4:30 pm. He states that he was alone at Hohola Market area. He denies meeting Peter Komba Maiyole, Nasa, Andiki Bus and Kalo Kaipu. When asked about him murdering Pastor Joe Yapa, the accused replies that he will answer the question in court.
49. The accused told the police during the record of interview that he participated in a tribal war back in Wabag in which many men from his Mangin Tribe were murdered. That he travelled to Port Moresby in fear of being murdered. He denied coming to Port Moresby to seek revenge.
50. Mr Aiko in response to question No 32 tells of Pastor Joe Yapa’s brother, Mr Bas Irit, murdering five men from his Mangin Tribe. The brief background to the multiple murder is that one of Mr Irit’s brother helped Mr Aiko and his Mangin Tribe in a tribal war with another enemy tribe. Mr Irit’s brother was killed in this war. Mr Aiko and five others from the Mangin Tribe carried Mr Irit’s brother’s body to his family. Instead of being grateful to the six men Mr Irit attacked and killed five of the six men from the Mangin Tribe. Fortunately Mr Aiko ran away and escaped death.
51. Mr Aiko explains to the police interviewer that it was for this reason that he murdered Mr Irit’s brother, Pastor Joe Yapa, at Hohola Market. He states that he acted alone.
52. Mr Aiko signed the record of interview after an opportunity to read and amend or withdraw any of his statement, if he wished to. This record of interview was tendered into evidence by consent. The following is part of the evidence in chief given by the accused:
Counsel: Do you recall a record of interview with the police?
Accused: Not sure
Counsel: Did you make the admission under paragraph 33 of the record of interview? [Counsel led the accused to paragraph 33 of his record
of interview where the police interviewer put to the accused that he chopped Pastor Joe Yapa because his brother killed five of Mr
Aiko’s tribesmen. Mr Aiko was the only fortunate one who escaped. Mr Aiko’s response to the question was: ‘Yes
that was the only reason why I killed the deceased and he died".]
Accused: No.
Counsel: Were you assaulted by police?
Accused: Yes.
Counsel: When were you booted by police?
Accused: I do not know. I was injured and was at hospital and am not sure.
Counsel: Where was the record of interview conducted?
Accused: Must be at the police station, not sure.
Counsel: Where were you kicked on the head?
Accused: At the police cell.
Counsel: Did other police officers assault you?
Accused: No, just one, the interviewing officer.
Counsel: What do you say about your admission in response to question 35 of your record of interview? [The accused was asked why he murdered
the deceased in a public place showing no respect for laws of this country. He said: ‘I did it myself and ran away....]
Accused: Not sure, I do not know.
Counsel: Why not sure?
Accused: I do not know about the incident.
Counsel: You do not recall the incident?
Accused: No, I spent eleven days in custody at Boroko police cell and I was very sore and had a lot of germs in my body and I was very sick.
Counsel: When record of interview was conducted, how were you feeling?
Accused: I had injuries and experienced pain all over my body.
Counsel: Did you get proper treatment prior to record of interview?
Accused: No. No proper treatment at Correctional Service clinic.
Counsel: Did you understand questions at record of interview?
Accused: No, not clear.
53. As to the events of 18 April 2004 the accused gave the following evidence.
Counsel: Were there many people at Hohola Market on 18 April 2004?
Accused: I did not go to Hohola Market so I am not sure.
Counsel: Do you know where Samuel Wallen, Bisop and Tony Russell come from?
Accused: Samuel Wallen is from Yomo Tribe; Bisop is from You Tribe; and Tony Russell is from You Tribe.
Counsel: Are you aware of tribal fight at home?
Accused: No.
Counsel: Were you afraid when the three men approached you?
Accused: No they are not my enemies.
Counsel: Was there any commotion at Hohola Market then?
Accused: No.
Counsel: What time did Samuel Wallen and Bisop attack you?
Accused: At about 4:20 pm.
Counsel: Where did Samuel Wallen and Bisop chop you?
Accused: At the bus stop.
Counsel: At rugby field?
Accused: No.
54. At the end of re-examination of the witness, I posed these questions:
Court: Witness were you still in pain during the record of interview that was conducted a month after you were chopped?
Accused: Yes, Your Honour.
Court: Did you take any medication?
Accused: Yes. I still had injuries and was in pain.
Court: What medication were you taking?
Accused: Amoxillin, etc.
Court: Did you go to Hohola Market?
Accused: No, not to Hohola Market.
Court: Where were you then?
Accused: Your Honour, at the bus stop.
Court: What date was this?
Accused: On a Sunday 18 April 2004.
Court: Where exactly is the shop you said you bought ice cream box?
Accused: Your Honour, down the road facing the market.
Court: The State witnesses gave evidence that on 18 April 2004 Pastor Joe Yapa was chopped with an axe inside Hohola Market. Do you recall
that incident?
Accused: Your Honor, "mi no klia (Your Honour I am not sure.).
Court: Evidence was presented that the incident happened between the hours of 4:00 pm and 5:30 pm when you were at the bus stop. Did you
not see anything?
Accused: Your Honour, "mi no klia". (Your Honour I am not sure.)
Court: You said Samuel Wallen and Bisop chopped you. Why?
Accused: "Mi no klia why na ol i paitim mi." (I am not sure why they attacked me.)
55. There is conflicting evidence before the Court. Who should the Court believe?
Findings
56. The deceased Pastor Jacob Yapa was chopped on the head with an axe at Hohola Market on the afternoon of 18 April 2004. He died at Port Moresby General Hospital following the injury to his head. The evidence from Doctor Casper Conny and the post mortem report attributes the death to brain injury from fractured right side of the skull.
57. The Prosecution’s first witness Mr Turia was at the volleyball court during the time of the alleged crime. He was attending to mediation of two separate disputes. Prior to the mediation he had walked to the market to buy beetle nut but upon seeing his tribal enemies he withdrew himself and drove to the volleyball court to keep a safe distance from his enemies. He saw Messrs Peter Maiyole and Kalo Kaipu. Not long afterwards he saw Andiki Bus, Nisia Bale and Masa standing around a shop that has entertainment and amusement machines.
58. Whilst Mr Turia was conducting mediation at the volleyball court he saw the public chasing and calling out to stop a person who was running toward the rugby field. He saw the person chased been held and assaulted at the end of the rugby field. He did not clearly identify this person.
59. The State witnesses Messrs Rom Yapa and Jacob Yapa saw the accused flee from the scene where the deceased was chopped. They both did not see the accused lift an axe and chop the deceased. They only saw the accused flee from the scene.
60. Rom Yapa was only about three meters away from the deceased when the latter was chopped. Rom had his back toward the deceased and did not see who actually chop the deceased. However when he heard a loud bang he turned immediately and saw the deceased fall with an axe stuck on the right side of his skull. At the same instant, he saw the accused flee from the scene where the deceased fell. Rom followed others who ran ahead chasing the accused who ran away from the scene of the alleged crime. He subsequently caught up with the crowd at the end of the rugby field. They had stopped the accused and were assaulting him. Rom chopped Mr Aiko on the back of the ankle.
61. Jacob Yapa had his back toward the deceased at the time the deceased was chopped. He turned around immediately after he heard a loud bang behind him. He saw the deceased fall to the ground with an axe on his right side of the skull. At the same instant he saw the accused flee from the scene where the deceased fell. Jacob rushed to the deceased. He spent a few moments struggling to pull the axe out of the deceased’s skull. Thereafter, he ran after the accused. Jacob was one of the first to catch the accused at the rugby field. He fought with the accused and chopped him on the arm. Jacob ran away when he saw the police arriving at the scene.
62. The third State witness, Mr Turia, gave evidence that he did see the public chase a person from the market, across Kamarere Street, and past the bus stop where the accused was and onto the rugby field. He witnessed the drama from the volleyball court. From the volleyball court where Mr Turia was standing at the relevant time, it is easy to see the rugby field, Hohola Market, Kamarere Street and the bus stop where the accused was. This witness testified that such drama did occur at Hohola Market and the rugby field on 18 April 2004 during the hours of 4:30 pm and 5:30 pm. He corroborates the evidence given by Rom Yapa and Jacob Yapa.
63. I found myself impressed with the demeanour of Mr Jeffery Turia and Rom Yapa. They were calm in their presentation of evidence. There were few instances when they took time to think and respond to examination in chief and cross-examination however I attribute these to the lapse of memory. The trial is conducted four years after the event and I accept that it is not possible to recall every minute detail of the event.
64. I was initially unimpressed with Jacob’s demeanour. It turned out to be that this witness was not fluent with understanding and speaking the Pidgin Language. In addition he experienced memory lapses like the two State witnesses but I have accepted his evidence.
65. I believe there is a further point about both Rom and Jacob’s recollection of the alleged crime. The crime was unexpected. It happened in a public market. I can imagine that it may have been dramatic, horrific and chaotic. It may have caused shock and panic and sent everyone fleeing. As for Rom and Jacob the attack was on their relative and this would have shocked them. It is natural that in such circumstance it is difficult to recall the details of the horrific event.
66. I accept the following relevant Prosecution’s evidence adduced through Mr Jeffery Turia. Peter Maiyole, Kalo Kaipu, Andiki Bus, Nisia Bale and Masa were present at the market at the relevant time. Mr Turia noted Masa who had something that looked like an axe hidden on his right under his jersey. Masa was about 5 – 7 meters away from him. No evidence was adduced in court to suggest that it was indeed an axe. Jeffery walked away to his vehicle and drove out to the side of the volleyball court and maintained a safe distance and kept an eye on his enemies.
67. Between 4:30 and 5:30 pm Mr Turia heard people running out from the market towards the rugby field shouting "holim em, holim" (stop him, stop him). He saw the person chased being caught at the end of the rugby field. He later heard that a person had been chopped inside the market. The mediation was postponed to a later date.
68. I further find that both Rom Yapa and Jacob Yapa had their backs to the deceased, Pastor Joe Yapa. They both heard a loud bang behind them. They both saw Joe Yapa fall to the ground with an axe on his right side of the skull. They both did not see the person who chopped Joe Yapa. They both saw Mr Aiko fleeing from the spot Joe Yapa fell. I agree with Counsel for the Defence that since both Rom Yapa and Jacob Yapa are relatives of the deceased I should exercise caution in considering their evidence. The Prosecution chose to call only one witness to corroborate Rom and Jacob’s evidence.
69. I find certain amount of inconsistencies in the evidence presented to assist the Court. First, Rom Yapa’s evidence is that he chopped Mr Aiko on the back of his ankle. Mr Aiko has a big dark scar on the front of his right ankle. Rom Yapa states in his record of interview that he grabbed the axe from Jacob. As I have observed earlier I attribute this inconsistency to lapse of memory.
70. Secondly, Mr Turia referred to seeing a Mr Tandius at the Hohola Market. I infer from my questions and the response from the witnesses Jeffery Turia and Jacob Yapa and Mr Rom Yapa’s record of interview that the name ‘Tandius’ may be the common Engan pronunciation of the name ‘Titus’.
71. I find the following in respect of Mr Aiko’s evidence. He was present around the Hohola Market and Tokarara bus stop area between the hours of 4:00 pm and 5:30 pm on 18 April 2004.
72. I do not accept the following evidence from Mr Aiko:
he never entered Hohola Market on 18 April 2004 between the hours of 4:00 pm and 5:30 pm, therefore he could not have fled from the spot where the deceased Pastor Joe Yapa was chopped.
73. I do not accept Mr Aiko’s evidence that Messrs Samuel Wallen, Tony Russell and Bisop approached the accused when he was standing at the bus stop. Samuel Wallen chopped Mr Aiko on the ankle. Mr Bisop chopped him on the arm. Mr Aiko does not know why they almost took his life. Messrs Wallen, Bisop and Russell are not his enemies. In addition Mr Aiko has not mentioned this to the police during the record of interview when he was asked to say anything he wished to say.
74. If he was attacked for no reason, I ask if he reported to the police the attempt on his life. If not, why not? Immediately after the attack either Mr Aiko or his relatives would have investigated the reason for the attack. By now Mr Aiko should know why he was attacked. A claim for compensation would have followed. This is the custom common in our country, particularly in the region where the accused hails. No evidence was given and no reference was made in Court about what has been done in relation to the attack on Mr Aiko. Was he truly attacked by the three men as he asserts? No witness was called to corroborate this evidence.
75. When the Court asked about the alleged drama on 18 April 2004 at Hohola Market area, or across Kamarere Street and onto the sports fields, or anywhere within the vicinity of the market, between the hours of 4:00 pm and 5:30 pm, Mr Aiko’s evidence was that the only drama was the attempt on his life. No other drama happened around the same area at the relevant time on 18 April 2004.
76. Mr Aiko could have seen the public chase from the market a person who allegedly chopped the deceased. This person was chased across Kamarere Street past the bus stop where he was and onto the sports fields. In order to get to the rugby field from the north end of the market, one has to cross Kamarere Street, past the basketball and volleyball courts (a steel fence runs along them), past the bus stop where Mr Aiko was waiting and onto the end of the rugby field. How could Mr Aiko not possibly hear or see a noisy public shouting and chasing a person from the market across Kamarere Street, up to where he was and onto the rugby field? Was Mr Aiko made deaf and blind momentarily for some unexplained medical reasons or by an act of God, so as he could not hear anything or see what happened at the relevant time the drama unfolded?
77. In addition, if the attempt on his life was the only drama at that time, the crowd from the market or from the mediation camp sitting on the courts nearby would have gathered around him. Anyone concerned could have called the police, who would then investigate and arrest Messrs Wallen, Russell and Bisop. Mr Turia gave evidence that a senior police officer from Hohola Police Station was at the volleyball court nearby facilitating the mediation. He could have walked over and attended to Mr Aiko or try to record eyewitness accounts of Mr Aiko’s attack. Mr Aiko could have lodged a complaint against the three men who attacked him. He gave no evidence that he has lodged a complaint with the police. I reiterate that he did not refer to the attack on him during the record of interview. Did he, and has he simply forgiven the serious and unjustified attempt on his life? If he has, it is uncharacteristic gesture by a person from his part of the region and province of Papua New Guinea. He should be commended.
78. There is further question. Why Did Jeffery Turia not say anything about this attack on Mr Aiko? Did he not see or hear the attack on Mr Aiko? Did Mr Turia deliberately conceal this fact from this Court? Or was he, like Mr Aiko made deaf and blind momentarily for some unexplained medical reasons or by an act of God, so as he could not hear or see the attack on Mr Aiko? The bus stop where Mr Aiko was said to have been attacked stands within a close distance from the volleyball court where Mr Turia was conducting mediation.
79. According to Mr Aiko, a Mr Nisson took him to PMGH after he was attacked by Messrs Wallen, Russell and Bisop. He could have called a Mr Nisson to corroborate his evidence.
80. The Defence did not call anyone from PMGH to corroborate Mr Aiko’s evidence that Mr Rom Yapa and others attacked him at PMGH.
Verdict
81. The charge of willful murder is serious. The Constitution at Section 35, subject to exceptions set out therein, recognizes right to life as a Fundamental Right. If found guilty, serious consequences follow. Therefore the Court has onerous task considering the interests of the State and the accused.
82. The Court must be satisfied that the State has through its evidence proved beyond reasonable doubt that the accused committed wilful murder. Only then can this court return a guilty verdict. Otherwise the court must discharge the accused of the charge.
83. If I am to believe the State witnesses and not the accused it seems to me to be established beyond a reasonable doubt that the accused did in fact murder the deceased. If the accused did indeed murder the deceased, I ask if he did have the necessary intention to do so. If he did then he must be guilty of the charge.
84. In this particular case, I have considered the evidence from both the Prosecution and the Defence. The issue for me is whose evidence to believe. I rely on the strong circumstantial evidence before me to conclude that the accused chopped Pastor Joe Yapa on the right side of his skull. There is no direct eyewitness account.
85. However, first I rely on the evidence of Rom Yapa and Joe Yapa. Rom was only about three meters away from where the deceased was chopped. He turned immediately after the attack and saw the accused flee the scene.
86. Secondly, Jacob Yapa was not too far away from the deceased when the latter was chopped on the head. Jacob turned around immediately after he heard a loud bang. He saw the deceased fall and the accused flee from the scene. Jacob ran over to the deceased and pulled out the axe from his head and chased the accused. There is no counter evidence that both Rom and Jacob’s vision of the deceased and the accused at the time of the attack were obscured. The witnesses clearly saw the accused flee the scene of the crime and the public gave chase.
87. Thirdly, it follows from this fact that the attack on the deceased happened during broad day light and at full view of the public. They could not simply chase anyone fleeing the scene.
88. Next, Mr Jeffery Turia’s evidence corroborates both Rom and Jacob’s account of the attack on the deceased, and in particular a person being chased from the market to the rugby field, caught there and assaulted by the public. Mr Turia does not incriminate the accused, however he confirms that there was an attack on a person at Hohola Market on 18 April 2004 between the hours of 4:00 and 5:30 pm. I am convinced that he has no reason to lie to this Court just to ensure a guilty verdict against the accused.
89. Such a horrendous cold-blooded attack is a drama that is likely to make everyone panic and flee. It may have been anyone who chopped the deceased. I ask if the accused had the necessary motivation and intention to chop the deceased, Pastor Joe Yapa. I determine that the statements the accused made to the police during the record of interview on 19 May 2004 are truthful. Mr Aiko had reason to seek revenge for the loss of five of his clansmen in the hands of Mr Bas Irit, the brother of the late Pastor Joe Yapa. More than that Mr Aiko himself almost lost his life in Mr Irit’s fury. There is evidence before the Court that the accused and the deceased are traditional enemies in Wabag, Enga Province. A lot of men from Mr Aiko’s tribe have been killed by late Joe Yapa’s tribe. Furthermore, the venue of the attack (a public market in a city suburb), the nature of the attack, the weapon used, the force applied and the critical part of the body the attack was aimed at all demonstrate beyond reasonable doubt that not only did Mr Aiko have the necessary intention to wilfully murder his victim but cause instant brutal death. There is strong circumstantial evidence that proves his intention: The State v Raphael Kuanande [1994] PNGLR 512 at 514. Unfortunately, I do not believe much of Mr Aiko’s evidence given during the conduct of the trial. I find Mr Aiko guilty of the charge of wilful murder.
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Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused
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