State v Kepao [2010] PGNC 136; N4147 (17 October 2010)

N4147

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR 813 OF 2008

STATE

V

KOPOL KEPAO

CR 814 OF 2008

STATE

V

LAURIE KEMUEL PAUGARI

CR 859 OF 2008

STATE

V

RAYWILL PARAPEN

Waigani: Salika DCJ
2010: 10 September,
17 October

CRIMINAL LAW – practice and procedure – customs of Enga – customs taken into account in reaching a verdict.

Counsel:

Mr M Giruakonda, for the State
Mr A Ninkama, for the defendants

17th October, 2010

1. SALIKA DCJ: Introduction: The accused in this matter were charged with one count of Wilful Murder of one Buka Ishmael. The offence was alleged to have been committed between the 8th and 9th of March 2008 at Gerehu Stage 4 in Port Moresby.

2. At the end of the evidence for the State a no case submission was made and the court upheld the no case submission on the charge of Wilful Murder. The court found that the accused had no case to answer on the willful murder charge but found that they had a case to answer on a charge of murder. The trial then proceeded on that basis.

3. All the accused gave sworn evidence and called one other witness to support their case.

Issue:

4. As the case progressed the main issue for determination became clearer. The main issue is who killed Buka Ishmael?

Evidence:

5. The State called Joy Ishmael as the only witness who gave oral evidence. Other evidence was tendered by consent. They were:

(a) Record of Interview of Laurie Kemuel Paugari in English dated 24 June 2008 – Exhibit A.

(b) Record of Interview of Raywill Parapen in Pidgin dated 24 June 2008 – exhibit B1.

(c) Record of Interview of Raywill Parapen in English dated 24 June 2008 – Exhibit B2.

(d) Record of Interview of Kopol Kepao in Pidgin dated 27 June 2008 – Exhibit C.

(e) Record of Interview of Kopol Kepo in English dated 27 June 2008 – exhibit C2.

(f) Statement of Ishmael Pamben dated 10 March, 2008 – Exhibit 2.

(g) Statement of Epen Alo dated 15 March 2008 – Exhibit E.

(h) Autopsy Report by Dr Philip Golpak dated 1 April 2008 – Exhibit G

(i) Statement of Steven Eka dated 24 June 2008 – Exhibit H

(j) Statement of Rodney Pokolai dated 24 June 2008 – Exhibit I

6. The evidence of Joy Ishmael was this:

She lives at Gerehu Stage 4 with her husband Ishmael Pamben. They have been married for 15 years. They have a house and a tucker shop. She said on 8 March 2008 she was in her house with her family. She said at about 8.00pm she saw Kemuel, Raywill, Kopol and Saina. She said they were drinking beer. She said while they were there an argument broke out and she heard Kemuel say "big balls" to Yakoskali Tengen. She said Kemuel was holding a white can of beer then and threw it at Yakoskali, but the can missed him. She said Yakoskali got angry and broke Kemuel's mouth. She said from there they started fighting.

She said her boys, Yakoskali, Leo, Peter Kone, Yakoskali Jr and plenty others were fighting with Kemuel, Raywill, Kopol and Saina. She said herself and her husband tried to stop the fight and eventually the fight stopped.

After the fight stopped she said they then pushed Kemuel, Raywill, Kopol and Saina outside the fence and told them that the boys were drunk. She said Kemuel and others drove away. She said these things happened up to about 12.00 midnight.

She said when they left she thought they had left for good and were staying normal.

But she said Kemuel came back. He drove a blue 10 seater dark tinted vehicle and she said Kemuel was wearing a white 6 pocket trousers. She said Kemuel said "Its lucky that my uncle is around, otherwise I will shoot you people". She said Kemuel said this to her boys. She said her husband Ishmael is Kemuel's uncle.

She said after Kemuel said this they left again. She said they left her and Buka telling stories on the verandah of her tuckershop and said this was around 3.00 am on the 9th of March.

She said when Buka and her were telling stories her husband went to drop off the boys at Manu Autoport Service Station.

She said herself, Buka and Nomi were telling stories and the time was around 3 to 4.00 am. Then she saw the 10 seater vehicle come again and it came and stopped at her gate.

She said she saw Kemuel come out first with a bush knife and then a white land cruiser open back came and plenty of men on that white open back landcruiser came. She said she saw Saina, Kopol and Raywill coming with these men at the back. She said the men killed Buka who was sitting with her. She said she was afraid and went inside her gate. She said the men came with full force.

She said they smashed and destroyed her house. She said she was very close to Buka when he was hit and that there was plenty of light. Kemuel came first and others also hit him. She said Kemuel hit him on his left side of his face with a bush knife once. She said Saina also used a knife and Kopol used a iron handle axe. She said Saina, Raywill and Kopol were all involved in hitting Buka.

She said she has known Kemuel for 15 years. She said Kemuel, Kopol and Raywill are her husband's blood and that Kopol was her husband's cousin. She said that there was plenty of lighting in the area when the incident took place.

7. On cross – examination she said there were plenty of men drinking that night including the accused. She said Buka was also drinking and that he was drinking with the accused because they were good friends.

8. She said when the accused arrived she was sitting on the verandah with Buka and Kemuel hit the deceased with a knife. She said the accused was with plenty of other men.

9. It was put to her that the accused did not attack Buka and that others did. Her answer was that they did attack the deceased.

10. It was put to Joy that she only blamed these accused because Buka was killed in her yard and that in Enga custom if anyone was killed in her yard she would be responsible for his death and that her husband and herself would have to pay compensation to Buka's relatives for his death. Her answer to that suggestion was that "Kemuel went and loaded a lot of men and they came and attacked and hit Buka".

11. The State's other evidence were the statements of Ishmael Pamben and Epen Alo which was tendered by consent. Their combined evidence in general is only relevant in so far as timing is concerned and what happened at those various times the accused were in his premises. Both Ishmael and Epen were not present when Buka was killed and when Ishmael's house was destroyed by Kemuel and others.

12. The States other evidence is the Record of Interview of the 3 accused men which speak for themselves and the autopsy report by Dr Philip Golpak. The cause of death is subdural hemorrhage due to multiple incision wounds on his head.

13. The defence called 4 witnesses namely:-

(i) Kopol Kepao

(ii) Laurie Kemuel Pangari

(iii) Raywill Parapen and

(iv) Monica Balakau.

14. The 3 accused all gave similar evidence. Kopol Kepao said on 8 March 2008 it was a Saturday and at about 6.00 to 6.30 pm him and Kemuel went to Ishmael's house at Gerehu Stage 4. He said Kemuel went to Ishmael's house and after some time Buka came out with Kemuel with Buka carrying a carton of SP bottle beer. He said from there they went to Hohola to buy white can beer. He said he, Buka and Kemuel went to Hohola. They bought the white can beer and then went back to Ishmael's house at Gerehu Stage 4. When they reached the house Buka and Kemuel went to Ishmael's house and Buka started playing a cassette he usually plays in the bus on a cassette player. Kopol said when Buka and Kemuel went in, the car engine was on and the music was on and he went into the driver's seat. He said some minutes later he realised Kemuel had blood on his lips when he and Buka came out of Ishmael's house.

15. Then he said Kemuel went to the driver's seat and Raywill moved over to sit with Buka on the off sider's seat. As they were about to drive off someone threw a bottle and broke the rear vision mirror of Kemuel's vehicle. Kopol said they drove to Gerehu Stage 3 and stopped in front of a tucker shop and cleaned the vehicle from all the bottles and glass in the car. After they cleared the vehicle they wanted to drop Buka at Stage 4 at Ishmael's house. Kopol said "we wanted to drop him off and Buka said if I go back the people in the house will assault me".

16. So instead of dropping him at Ishmael's house he said they dropped him at the junction of the road at Gerehu Stage 4 at the gambling place.

17. Kopol said they dropped off Buka and one of Kemuel's brothers came in a white land cruiser and then he said Kemuel's brother said lets go and tell these people to resolve the matter tomorrow. He said they went to Ishmael's house. He said Kemuel and his brother went into Ishmael's house while he remained in the car. He said "what happened in the house I don't know."

18. He said after that Kemuel and his brother came out and then they took Raywill to his house and dropped him there and he said Kemuel went and dropped him at his house.

19. In relation to Buka's whereabouts when Kemuel and Johnson went into Ishmael's house Kopol said Buka was not in Ishmael's house.

20. He said on this occasion when they left Ishmael's house it was about 11.00pm. He said after leaving Ishmael's house they dropped Raywill. He said he was dropped off between 11.00pm and 12 midnight.

21. In cross examination he was asked if he went back with Kemuel to Ishmael's house in the early hours of the morning and he said he did not go back once he was dropped and that he went to sleep after that.

22. In re examination of this witness he was asked "Did Buka die at 11.pm to 12.00 midnight" and his answer was "I did not see that". This accused said he was not there when Buka was killed.

23. Laurie Kemuel's evidence is that on that day he had been drinking earlier from about 4.00pm and was in company of some uncles. He said at about 6.00pm he went to Ishmael's place to get some beer which was promised to him. When he got to Ishmael's place he was given a carton of beer in bottles. As he drank white can beer he gave the bottle beer carton to Buka and they left to go to Hohola to buy white can beer. They said Buka went with them to Hohola. He said Kopol and other boys were also in the car. He said after getting the white can beer they went back to Ishmael's house. He said he went inside with Buka with a carton of beer.

24. He said when they went into the place where they sell beer there were a lot of people there. They were listening to music and Buka went and put off the music and told the people that they must listen to the music coming from the blue 10 seater vehicle.

25. He said the boys who were there earlier started arguing with Buka. He said the boys inside were from the same tribe as Ishmael Pamben. He said when he saw them arguing he saw that Buka was only one and if there was a fight it would not be fair. So he said he went between them and stopped them and they stopped and then James Alo started crying and Buka went and asked him why he was crying. Then Yakoskali pushed Buka and he threw a can of beer at Yakoskali but missed him. He said he swore at them and told them to leave Buka alone.

26. He said Yakoskali then came and punched him and he said at that time he realized him and Buka were outnumbered because all the boys inside were from Laip and Kali Tribes. He said when he realized this he got Buka and came out of the fence. He said when he and Buka came out Kopol was in the car with Raywill. He said he then got into the car. He said when he was reversing the car someone threw a bottle of beer and broke the rear vision mirror. He said he did not stop for fear that if he did, more bottles will be thrown at the vehicle and smash the windows of the 10 seater vehicle. He said after that he drove to Gerehu Stage 3B to a tuckershop which sold Coca Cola. He said at the tuckershop lights they assessed the damage to the rear vision mirror. He said he told Buka he would drop him off at Ishmael's place. He said Buka was scared that if he was dropped off the boys who fought with him earlier would fight him and so Buka suggested he be dropped off at the gambling place junction.

27. He said while parked dropping Buka, Johnson his cousin must have seen him and he came and stopped and asked him what he was doing there. He said Johnson saw his bleeding mouth and asked him what happened and he told him that he was bashed by some boys at Ishmael's place.

28. He said they then went to Ishmael's place. They parked their cars and went inside Ishmael's house. He said, Raywill, Saina, Johnson and himself went inside. Inside he said he asked the people who were there where the Kali and Laip boys were. He said the people who were there said they were wrong people and that those boys had left. He said that upon hearing that he got frustrated because he said Ishmael was his uncle and why should he allow his tribesman and his neighboring tribesman to punch him and break his vehicle glass. He said because of this he destroyed Ishmael's house and broke his louvers and pushed the tables around. He said he told the drunkards in the house to tell Ishmael that he would sort out the issue about the broken glass tomorrow. Kemuel said he reversed his 10 seater vehicle and dropped Raywill close by at his house and then dropped Kopol at Gerehu Stage 3.

29. In relation to timing Kemuel said when he destroyed Ishmael's house it was about 1.00pm. From that time he said he never returned to Ishmael's house.

30. Raywill Parapen was the last accused to give evidence. He said on 8 March 2008 from 5.30 pm to 6.00pm he and his parents went to church for the afternoon church fellowship. After church they went back home. At about 7.00pm while in the house with his parents he decided to come outside and go to Ishmael Pamben's house. He said he met up with Kopol and other boys there and they listened to music. He was told that Kemuel and Buka were drinking inside Ishmael's house. He said he did not know what was going on inside. He said a few minutes later he saw Kemuel and Buka coming out of the gate and saw that Kemuel was bleeding from the mouth. He said he and Buka sat in the front seat with Kemuel who was driving. He said when Kemuel was reversing the vehicle someone threw a bottle and broke the rear vision mirror of the vehicle.

31. He said from there they went to Gerehu Stage 3 where they stopped at a Tucker Shop. In the lights of the tucker shop they checked the broken rear vision mirror and cleaned the broken glass pieces which were in the vehicle. He said from there they wanted to go and tell Ishmael and his wife that the matter would be discussed tomorrow but he said that Buka said the boys at Ishmael's place would bash him up so he told them to leave him at the gambling place while they go and talked to Ishmael and his wife.

32. He said when they were still at the tucker shop at Gerehu Stage 2 a white land cruiser open back came. He said it was Kemuel's cousin. Kemuel's cousin asked what happened and Kemuel told him how he got the bleeding mouth and his cousin said to go back to Ishmael and he asked him who did this and he said we told him the Kali boys and Laip boys drinking at Ishmael's house.

33. He said Kemuel's cousin knows Ishmael too and he said "so we went with him".

34. He said "when we went there, there were a lot of people".

35. He said "when we arrived he saw the Kali and Laip boys" but when they saw Kemuel they ran away.

36. He said Kemuel, his cousin and Saina went inside and he said he followed a few seconds later. He said he wanted to hear what they were saying. He said Kemuel went and asked for Ishmael and his boys and one of the boys said "Ishmael just left". He said Kemuel was drunk and got frustrated and he went to Ishmael's house and destroyed the louvers. He said he heard glass breaking but said he did not do anything. He said after this Kemuel told the people there to tell Ishmael that the problem will be solved tomorrow.

37. He said Kemuel then drove back and they dropped him at his house which is only 2 houses from Ishmael's house.

38. He said in Kemuel's vehicle were Kopol, Saina, Eric and Steve.

39. The final defence witness was Monica Balakau. She said on 8 March 2008 she went to church and came back to her house at about 6.30pm. Her house is on Lot 11 while Ishmael's house is on Lot 10. Their houses are therefore side by side. Monica also has a tucker shop on her premises but Ishmael sells beer in his tucker shop as well.

40. Monica's house is on high post while Ishmael's house is on low post. Between their houses is a corrugated iron fence.

41. She said she went upstairs and went to sleep about 8 or 9 pm but could not sleep as people were making a lot of noise in Ishmael's yard and was hard to get some sleep. She said around 11pm or 12 midnight she heard a big noise. She said she heard people fighting. She heard someone asking "why did you break the vehicle glass". She heard banging on the fence and heard glass breaking. She then went and stood on the verandah. She said she saw Kemuel and there were plenty other people there as well.

42. She said after 12.00 midnight after the fight there was no noise. She said she then went to sleep again.

43. She said she heard some more noise and someone was saying "kill him". She said this was about 2.00 and 3.00am.

44. She said they were fighting outside and she went to peep outside. When she peeped out she saw people drunk running around and she went back to sleep.

45. She said around 4.00 am and 5.00 am she heard shouting and people were saying that they killed negro who is also known as Buka.

46. She said she quickly ran out to see and she said Joy and Ishmael came out too and she saw Buka, his heart was still beating. She said she joined in looking for a vehicle to take Buka to the hospital.

47. She also gave evidence of the custom of the Enga people that if a person died in front of another person's store or house that person is responsible for that person's death and must give compensation. In this case she said since Buka was from her tribe, her tribe gave demand for compensation to 5 tribes. She said Ishmael's tribe was given a higher demand while the other 4 tribes got lesser demands. She said 3 tribes have already given about K30,000 but was not sure of the exact amount.

That was her evidence.

Common factors in the Evidence

48. There are some common factors in the evidence from the State case and the Defence case. I list the common factors from my observation and assessment of the evidence. They are:

- The accused persons went to Ishmael's house at least 2 times during the course of the night.

- Kemuel was the driver of a blue 10 seater vehicle on that day and night.

- Kopol, Saina, Raywill and Steve were Kemuel's constant companions in the vehicle in the course of the night on 8 and 9 March 2008.

- There was an argument which prompted Kemuel to throw his white can of beer at Yakoskali.

- Yakoskali then punched Kemuel on his mouth and Kemuel was bleeding from his mouth.

- Kemuel was asked to leave and was leaving when someone broke the rear vision mirror of his 10 seater vehicle.

- Kemuel returned in his vehicle later.

- Kemuel destroyed Ishmael's house when he went with Johnson.

- Buka was assaulted that night which led to his death.

- Ishmael was not in his house when Kemuel destroyed his house.

- It is the common custom of the Enga people that if a person is killed in a person's yard, that person is responsible for his death.

Those are the general common factors which appear to be not in dispute.

The factors in dispute are:

- What time Kemuel came into the premises of Ishmael

- How many times Kemuel came to Ishmael's premises

- Who fatally assaulted Buka; the deceased.

49. Ultimately in these types of cases the Court must consider the evidence and weigh up all the evidence and decide which evidence is truthful and which is not. It therefore needs a careful assessment of all the evidence.

Time

50. Time is critical factor in this case and therefore the court needs to critically look at the time factor to establish the sequence of events that led to Buka's death.

What time did Kemuel go to Ishmael's house?

Joy Ishmael

51. About 8pm Kemuel, Raywill, Kopol and Saina came to her house.

52. About 12 midnight Kemuel and others were told to leave after the fight started.

53. Kemuel came back wearing a white 6 pocket trousers and said "you people are lucky my uncle is around otherwise I will shoot you people" she put the time at 3.00am but Kemuel left again.

54. She told stories with Buka and Nomi between 3am and 4am

55. She said Kemuel returned in his 10 seater vehicle again to her house, this time with a bush knife and a white land cruiser open back vehicle. I take it then that this incident according to Joy took place about 4am if she was telling stories between 3am and 4 am with Buka.

Ishmael Pamben:

56. The statement of Ishmael was tendered by consent into evidence when it was agreed to be tendered. Counsel in other words did not dispute the contents of the statement. Everything in the statement was agreed to that is the effect of tendering evidence by consent.

- 8pm Kemuel drove to his house.

- About 10 minutes later argument arose with Yakoskali and Kemuel was hit on his mouth.

- Kemuel drove off – no time here.

- 11.30 pm Kemuel drove back to his house. Ishmael and Epen Alo diffuse fight.

- 12 midnight Kemuel drove off.

- 3.30am Ishmael drove to Waigani to drop off a relative.

- After 30 minutes he got a phone call from his wife.

- Ishmael went back 30 minutes later.

Epen Alo:

57. He is a pastor. His statement too was tendered into evidence by consent.

- About 1.14am he received a phone call from Emma Ishmael. He then drove to Gerehu to Ishmael's house.

- About 3.30am he left Ishmael's house for Manu Autoport.

Record of Interview

Kopol

- 6pm went to Ishmael's house but left to go to 24 hour market to buy coke and meat (R of I Q.18 and Q.22)

- Went to Kopol's house at about 8pm to 8.30pm (Q. 25)

- Raywill came and found him between 9pm and 10pm (Q.21).

- After Kemuel hit on mouth and rear vision mirror of vehicle broken went out of Ishmael's premises.

- Drove around the street and went back to Ishmael's house (Q.37) Ishmael with wife standing outside.

58. Kemuel said he should not have been beaten and asked why he was beaten. Ishmael and wife told him the boys were drunk and caused the problem and that next day they will sort him out and told them to go home (Q.40).

59. Kopol said they left Ishmael's house and Buka and Raywill got off at Raywill's house Q.41). Kopol, Saina and Steven were then dropped off at their house.

Laurie Kemuel:
Record of Interview

- Between 3 – 4 pm went to Ishmael's house (Q.25)

- Between 6 to 7 at Ishmael's house (Q.15)

- Went to Ishmael's house with Johnson (Q.33 and Q.34).

Raywill Parapen:

- On 9 March 2008 between 3am and 4am sleeping in house (Q.14)

- On 8 March at 8pm at own house Q.16)

- On 8 March about 8 or 9pm went to Ishmael's house. Still there when fight started (Q.23 and Q.26).

- Went back to Ishmael's house (Q.33) Met with Ishmael and his wife and Pastor. Ishmael told them he would settle the matter next morning and sent them home. Buka and him got off the vehicle and Raywill walked home (Q.34).

- Went to sleep (Q.35).

There are indeed variations in the time factor from the Defence witnesses.

60. As I went through all the evidence both oral and the tendered evidence from both the prosecution and the defence, I note there are also variations in the stories especially variations as to what happened at various times. For instance Laurie Kemuel when asked in his R of I about a white land cruiser he said it was driven by his cousin brother Johnson Isau and went with him to Ishmael's house.

61. But he said he had dropped Kopol, Raywill and Saina earlier. But in all their oral evidence Kopol, Kemuel and Raywill said they met Johnson at the Tuckershop after checking the rear vision mirror which had been broken and were clearing the glass from the vehicle and from there they all went to Ishmael's house. Kopol and Raywill were according to all the oral evidence on oath, still there when they went back to Ishmael's house. This is just one example of variations in their stories.

62. Yet in my opinion the meeting up with Johnson Isau was the turning point to this entire saga. It was the single most important factor.

63. This was a case of Laurie Kemuel being invited to Ishmael's premises and beers exchanged and an argument started between Ishmael's boys and Buka. Laurie Kemuel sided with Buka. Laurie Kemuel was punched by Yakoskali and was bleeding from the mouth. Buka too was assaulted in that argument and fight.

64. Laurie Kemuel was told to leave and he left. To add insult to injury the rear vision mirror to his vehicle was smashed. Laurie Kemuel and his boys came back a few times because Laurie was not happy with what had happened to him and his vehicle.

65. On one of his return trips to Ishmael's house Epen Alo the Pastor was present and he and Ishmael told Laurie that Ismael's boys would straighten him the next morning and told him to go. Laurie left. The introduction of Johnson Isau ignited this matter.

66. According to Joy Ishmael many men came in the open back land cruiser. They were armed with bush knives, axes and other weapons. Johnson's presence at Ishmael's house was brought about after Laurie told him what had happened to him. Johnson then told Laurie "lets go to Ishmael's house to sort out the matter." On this occasion with new reinforcements they went back to Ishmael's house. By this time Ishmael and Epen Alo the Pastor had left Ishmael's house thinking that the matter between Laurie Kemuel and Ishmael would be settled next morning.

67. But the common custom of the Enga people is that if a person is assaulted and that person goes and tells his tribesmen, his tribesmen will arm themselves and retaliate.

68. According to Joy Ishmael she saw Laurie Kemuel, Kopol, Raywill and Saina come and assault Buka. She said they came to retaliate.

69. All 3 accused have denied this claim by Joy. Monica Balakau's evidence as to timing is consistent with the timing by Joy Ishmael, Ishmael Pamben and Epen Alo. All 3 accused say their involvement at Ishmael's premises ended about 12 or 12.30 am. Monica first woke up from her sleep at about 11.00pm to 12.00 midnight.

70. She said she heard a big noise and people were fighting. She went and stood on the verandah and saw Kemuel. She said she heard someone asking why did you break the vehicle glass. It was at about the time that someone threw a bottle at Kemuel's vehicle and broke the rear vision mirror. It was the evidence of Joy and her husband Ishmael that the fight between Yakoskali, Kemuel and Buka was between 11pm and 12.00 midnight. Monica's evidence is consistent with the evidence of Joy and Ishmael on that aspect.

71. Monica was woken from her sleep between 2.00 am and 3.00am. Joy in her evidence said about 3.00am Kemuel came back and told the boys that they were lucky his uncle was around otherwise he would shoot them. Again in that respect Monica's evidence is consistent with Joy's evidence.

72. Monica's evidence is that between 4.00 am and 5.00am she heard people saying Negro had been killed. Joy's evidence is that Kemuel, Raywill and Kopol came back this time in the company of a white land cruiser open back. Joy put the time at about 4.00am. This is the time Buka was killed. This is the time Ishmael's house was destroyed as well.

73. Ishmael's evidence and Epen Alo's evidence in so far as timing is concerned is consistent with the evidence of Joy Ishmael and Monica Balakau.

74. From the evidence of Joy, Ishmael, Epen Alo and Monica Balakau the first fight between Yakoskali, Laurie Kemuel and Buka occurred between 11.00pm and 12.00midnight. I will make allowance for maybe 10.00pm and 12.00 midnight.

75. Epen Alo's statement is that he came to Ishmael's house after receiving a call from Emma Ishmael. He got the call at 1.15am. He lives in Boroko and drove to Gerehu to Ishmael's house. Allowing for travelling time and preparing to drive time it may have taken him half an hour to get to Gerehu Stage 4. It would mean he arrived at Ishmael's house at about 1.45 am. He was there until about 3.30 am when he left to go to Manu Autoport.

76. Ishmael Pamben's evidence and Epen Alos evidence were tendered by consent without the defence requesting them to be cross examined. The effect of doing this is that their evidence is in evidence unchallenged and is accepted by the defence.

77. There are inconsistencies in the accused's oral evidence with their evidence in their respective Records of Interview. In their oral evidence the accused all said they dropped Buka at the junctions near the gambling place. In the Record of Interview Raywill said he and Buka were dropped off at his house which is only 3 houses from Ishmael Pamben's house.

78. Joy Ishmael's evidence is corroborated by the accused's that she saw Kemuel, Raywill, Kopol and Saina come in and destroy Ishmael's house.

79. For some reason the State failed to call any other eye witness who may have assisted the Court. For instance the boys who said they were the wrong people.

80. There has been a lot of evidence about the custom of Enga that when a person is killed in the premises or yard of another person, the owner of the premises will be held responsible for that person's death.

81. There is also another Engan custom that when a person is assaulted and that person then reports it to his tribe's men they will retaliate. I will take those Enga customs into account in deliberating on this matter.

HOW BUKA MET HIS DEATH

82. In this case, Laurie Kemuel was assaulted. He received a cut on his lips or mouth. Johnson Isau asked him what happened to him and he told him what happened. Johnson suggested they return to Ishmael's house to sort the matter out. Ishmael's house was destroyed on this occasion when he himself was not present but his wife Joy was present and witnessed everything that went on. It was also on this occasion that Buka was fatally wounded. Johnson was the reinforcement needed to spark a retaliation. It was from this attack that Buka was wounded. This is consistent with the customs of retaliation.

83. In the ultimate end result I find Joy Ishmael's story more truthful in that regard as to how Buka met his death. The accused's stories are fraught with inconsistencies as to how many times they went back to Ishmael's house but more importantly they all down played the role Johnson and his white landcruiser played in the murder and the destruction. Even if I did not believe that Joy saw what happened to Buka, and how Buka met his death, it would be open on the evidence that all the accused were present at the scene of the crime when Buka was murdered and that their presence was not an accident or a coincidence. They came together in a group to attack Ishmael and his boys as is the custom, but Ishmael and his boys were not there.

84. This is evidenced by the way Kemuel went in and asked where the Lait and Kapi boys were. This is important because it was the Lait and the Kapi boys who fought with Kemuel and Buka earlier. They are the ones who inflicted Kemuel his bleeding lips and so when Kemuel, Johnson and the rest of their tribesmen arrived they went on a raid of Ishmael's house. When it was reported that Ishmael and his boys were not there, Buka and Ishmael's house then became the next best target.

Buka was there and fell victim to the attack.

85. The court heard from the three accused that Buka had been dropped off at the junction near the gambling place. This is not consistent with Raywill's version in his Record of Interview where he said he and Buka were dropped off at his house. When Buka was dropped and where he was dropped is not and should not be a big issue because at the time the invaders came Buka was telling stories with Joy and Nomi at the tuckershop. This was between 3.00 and 4.00 am. I find that Buka was with Joy and Nomi at the time he was killed.

86. Even if these 3 accused did not directly assault Buka they will be partakers of the murder by operation of s.7 and s.8 of the Criminal Code. But right now it is not necessary to invoke s.7 and s.8 of the Criminal Code as I find that the 3 accused were directly involved in the murder of Buka. The issue as to who killed Buka has been answered.

87. I accept Joy's evidence that she saw these 3 accused assault Buka. I do not believe the evidence of the 3 accused that they had or played no part in Buka's death. They all have reasons to hide the truth.

88. I accordingly find each and everyone of them guilty of murder as charged.

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Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Accused