N4049

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 577 OF 2008

THE STATE

V

MAX SANDE PYASALA

Mount Hagen: Makail, J
2010: 8th, 9th & 15th June

PRACTICE & PROCEDURE - No case submission - Wilful murder - Killing arising from tribal fight - Common purpose - Identification of perpetrator - Evidence of - Insufficiency of - Contradictions - Inconsistencies - Vagueness - Criminal Code - Sections 8 & 299.

Cases cited:

The State -v- Paul Kundi Rape [1976] PNGLR 96
The State -v- Roka Pep (No 2) [1983] PNGLR 287

Counsel:

Mr G Konda, for the State
Mr M Mumure, for the Accused

RULING ON NO CASE SUBMISSION

15th June, 2010

1. MAKAIL, J: On 8th June 2010, the State presented an indictment charging the accused with one count of wilful murder of one Tumu Bui at Kyakaipel village, in Lumusa on the morning of 21st January 2007 contrary to section 299 of the Criminal Code. He was charged for taking part with a group of men in carrying out a common purpose when they attacked another tribe in a tribal fight and killed the deceased under section 8 of the Criminal Code. He denied the charge and the State called four witnesses to testify against him. They were:

1.	Epale Lome;

2.	David Kaewa;

3.	Mrs Mono David; and

4.	Senior Sergeant Mas Tanda.

2. In addition, the State tendered the following documentary evidence to prove the charge against him:

1.	Record of interview of the accused in the Pidgin and English versions dated 01st February 2007 - exhibit "P1".

2.	Statement of Elijah Pinga undated - exhibit "P2".

3.	Statement of Kapukyona Nanjoawa undated - exhibit "P3

4.	Statement of Raimya Wia undated - exhibit "P4".

5.	Statement of Kare Wia undated - exhibit "P5".

6.	Statement of Senior Constable Ulman Kalwe dated 01st April 2008 - exhibit "P6".

7.	Medical Report of Tumu Bui by Dr Mutan dated 10th September 2007 - exhibit "P7".

8.	Medical Report of Elyambu Pinga by Dr Mutan dated 17th August 2007 - exhibit "P8".

3. At the close of the State’s case on 09th June 2010, his counsel made a no case submission. I heard submissions of parties for and against the application and reserved my ruling to today. This is my ruling.

4. On a charge of wilful murder, the State must prove that:

1.	The accused assaulted or injured the deceased as set out in section 299(1) of the Criminal Code;

2.	The death of the deceased in section 299(1) of the Criminal Code; and

3.	There is intention to cause death of the deceased in section 299(1) of the Criminal Code.

5. Further, as the State alleged that he was part of a group of men involved in a tribal fight resulting in the killing of the deceased, it must also prove that he took part in the tribal fight leading to the death of the deceased under section 8 of the Criminal Code.

6. It is that State’s case that the accused was part of a tribal group called the Kales who attacked another nearby tribe called the Yamyas at Kyakaipel village and killed the deceased following a failed demand for compensation on 21st January 2007. The demand for compensation arose from a dispute in Lae where a man from Yamya tribe by the name of Kisilyuwa Kamboa, an employee of a businessman from Kale tribe by the name of Enga Lawrence Elyambu as a driver ran over a pedestrian in Lae. The relatives of the pedestrian demanded compensation and Enga Lawrence Elyambu paid compensation. After settling the compensation, he demanded Kisilyuwa Kamboa to repay the compensation. Kisilyuwa Kamboa did not and Enga Lawrence Elyambu went to Yamya people in their village and demanded them to pay compensation. Still, Kisilyuwa Kamboa and his people did not. Enga Lawrence Elyambu instructed his tribesmen and they attacked the Yamya tribe. In the attack, they killed Kisilyuwa Kamboa and the deceased.

7. The evidence in relation to Kisilyuwa Kamboa running over a pedestrian in Lae with Enga Lawrence Elyambu’s motor vehicle resulting in Enga Lawrence Elyambu paying compensation to the victim came from Epale Lome and David Kaewa. However, I reject their evidence in relation to these factual matters because they are hearsay. They are hearsay because these two witnesses were not the persons who witnessed the accident and payment of compensation to the victim of the accident in Lae. Epale Lome and David Kaewa also gave evidence that the cause of the attack on the Yamya tribe resulting in the killing of Kisilyuwa Kamboa and the deceased was the failure by Kisilyuwa Kamboa and his people to pay compensation to Enga Lawrene Elyambu. They said Enga Lawrence Elyambu instructed his Kale tribesmen to attack them. Again, their evidence in relation to the cause of the alleged attack and killing of the deceased is also hearsay because they were told by third parties. 

8. Further, I find that David Kaewa contradicted himself when he agreed in cross-examination by defence counsel that the cause of the attack and killing of the deceased was a fight between Kale tribesmen and Yamya tribesmen at a social club a few days earlier. He also agreed to a suggestion by defence counsel that one of their own tribesmen by the name of Sina Kamboa was the person who started the conflict, in that he went to the social club house and broke a wall after his demand for compensation following an assault on him by the Yamya tribesmen was not met. 

9. These two different versions in relation to the cause of the alleged attack leading to the killing of the deceased meant that, the State has not established to my satisfaction the motive behind the killing of the deceased. If it was the failure by Kisilyuwa Kamboa to pay compensation to Enga Lawrence Elyambu, there is no evidence to support such a finding because the evidence from Epale Lome and David Kaewa is hearsay. If it was the failure to pay compensation to Sina Kamboa following the assault on him by the Kale tribesmen, then the reason is inconsistent or contradicts the State’s case that the cause of the attack on the Yamya tribe leading to the killing of the deceased was the failure by Kisilyuwa Kamboa and his tribesmen to pay compensation to Enga Lawrence Elyambu. In the circumstances, I am not satisfied that the State has proven the motive behind the killing of the deceased, for there to be a case of deliberate act of killing against the accused.

10. As to who killed the deceased, the evidence of that came from Epale Lome, David Kaewa and Mrs Mono David. They said, they saw the accused at their village on the morning of that day. Although he was not the person who pulled the trigger of the shotgun that killed the deceased, he was one of the Kale tribesmen who attacked their village that day. They said there were two Kale tribesmen who killed the deceased and they were Leme Poma and Manda Pyasawa. Leme Poma shot the deceased on his chest with a shotgun while Manda Pyasawa also shot him on his back with a shotgun. But when their evidence is examined very carefully, the identification of the accused is sketchy and doubtful.

11. Epale Lome said that he was not standing far from the deceased when the deceased was shot. It was about 6 metres and saw Leme Poma shoot the deceased on his chest. The deceased after being wounded told him to flee to avoid being attacked by the Kale tribesmen. One of the Kale tribesmen was the accused who came out of his hiding place and celebrated with Leme Poma and Manda Pyasawa following the killing. They fired shots into the air and wielded their weapons. However, he did not mention the deceased jumping over a fence when he was shot. In cross-examination by defence counsel, he said that he fell on the ground when the shotgun was fired and that was when he had a clear view of the shooting of the deceased.

12. He did not mention seeing David Kaewa at the scene although he said David Kaewa went to his house after the meeting at the singsing place. If he was there and saw the deceased being shot, how comes he did not see David Kaewa when David Kaewa said that he saw him? David Kaewa said that he was with him and the deceased before the attack, yet he made no mention of David Kaewa at the time of the attack. Further, David Kaewa said that the deceased was shot when he was coming out of his house and maintained in cross-examination by defence counsel that the deceased did not jump over the fence when he was shot. 13. On the other hand, he agreed in cross-examination by defence counsel that when the shot was fired, the deceased was on the other side of the fence. In my view, these aspects of Epale Lome’s evidence contradict David Kaewa’s evidence. 

14. At the same time, it is vague because he did not say which direction was the accused standing following his emergence from the hiding place with the others. That is, he did not say if the accused was standing on the other side of the fence, in front or behind him when he saw him. The same can be said of David Kaewa. This is an important observation I make because it must be remembered that this was a tribal fight and if there were many Kale tribesmen involved as is suggested by the State, there must be precision in the location of the accused. A mere suggestion that he was seen at the scene, in my view, is insufficient. For these reasons, I find the evidence of Epale Lome and David Kaewa unsatisfactory and unreliable in so far as identification of the accused is concerned.

15. In my view, Mrs Mono David is a crucial witness for the State in so far as identification of the accused is concern. Did she identify the accused? She said on that day, she packed her family’s personal belongings and took them to her village not far from the Kyakaipel village called Paraka to flee from the attack by the Kale tribesmen. This was after she learnt that the Kale tribesmen had killed Kisilyuwa Kamboa. She made two trips earlier and was about to make a third one when the deceased was shot. She saw Leme Poma shot the deceased on his chest and Manda Pyasawa shot the deceased at the back of his shoulder with shotguns. Following the shooting, other Kale tribesmen came out of hiding and celebrated. But she did not say she saw the accused amongst them. In my view, her evidence does not identify the accused as one of the Kale tribesmen involved in the attack and killing of the deceased. It is, therefore, of no assistance.

16. Senior Sergeant Mas Tanda’s evidence attempted to establish the correctness of the arrest and charging of the accused for the wilful murder of the deceased on the basis that, he acted on accurate information received from an informant and arrested the accused at Enga Lawrence Elyambu’s house in Lae. He charged the accused for wilful murder of the deceased but did not charge Leme Poma and Manda Pyasawa. He gave no reason for not arresting and charging these two persons except a general statement that investigations were still continuing. As it had transpired during the evidence of the State witnesses, Leme Poma and Manda Pyasawa were identified as the persons who shot the deceased but had not been arrested and charged. On the other hand, there are serious discrepancies in the identification of the accused and yet he went ahead, arrested and charged the accused. I find his evidence of no assistance to the State’s case in so far as identification of the accused is concerned. In the circumstances, I give no consideration to his evidence.

17. Senior Sergeant Mas Tanda’s difficulty in verifying the correctness of the identity of the accused is compounded by the fact that, the accused has made no admission of criminal responsibility in the record of interview (exhibit "P1"). So, apart from Senior Sergeant Mas Tanda’s difficulty in verifying the correctness of the identity of the accused, the record of interview is also of no assistance to the State’s case. The other State witnesses whose statements were tendered, namely, Elijah Pinga, Kapukyona Nanjoawa, Raimya Wia and Kare Wia are also of no assistance. They do not identify the accused at all except to name other persons. I find their evidence irrelevant in relation to the identification of the accused and reject them: see exhibits "P2"-P5". But I accept that there is evidence based on the medical report of Dr Mutan dated 10th September 2007 (exhibit "P7") that the deceased died on 21st January 2007 from gunshot wounds. Dr Mutan described the wounds as follows:

"…………….. He had obvious through and through gun shot wounds in the chest with old cloted blood. He was generally pale (lack of blood) and death (sic).

Specific examination of the wounds reveals two through and through bullet wounds on the right chest wall anteriorly and posteriorly. There were two posterior wounds just below the right scapula and few centimeters lateral to the vertebral column. The third wound was in the vertebral column. In the front chest, there were two exit wounds at the sternum. The vertebra was fractured at the 4th thoracic vertebral level and sternum also ruggedly fractured (comunitted) with the supporting costal cartilages to 03rd to 6th ribs. There were no other external wounds and or damages (sic)."

18. He concluded thus:

"……… the wounds described in the above diseased (sic) is a result of high velocity injury by an assault gun at close range as alleged in the history. The bullets without any doubt have penetrated the lungs therefore caused the death of the diseased (sic). Injuries to major vessels including the heart is highly likely in this case."

19. While the report was produced some 8-9 months after the alleged killing of the deceased, suggestive of a fabrication of evidence by the State, I am not convinced that that may be the case. It is common knowledge and understandable that there are instances where medical reports do not get processed on time and in this case, the alleged killing occurred in Lumusa, a location not near to Mt Hagen General Hospital. The nearest hospital was Tinsley District Hospital and I believe that was the cause of delay in obtaining the medical report. Hence, in my view, the description of the wounds and cause of the death is consistent with the evidence of the State witnesses that the accused was shot with shot guns. I am therefore satisfied that the State has proven that the deceased died from gunshot wounds.

20. In the end, I concluded that while there is evidence confirming the death of the deceased, the evidence in relation to whether the accused was the person who intended to cause the death of the deceased during a tribal fight is unsatisfactory. In my view, on the evidence as it stands, the Court could not lawfully convict the accused on the charge of wilful murder: see The State -v- Paul Kundi Rape [1976] PNGLR 96 and The State -v- Roka Pep (No 2) [1983] PNGLR 287. I find the accused has no case to answer. I dismiss the charge and discharge him accordingly.

Ruling accordingly.
______________________________
Acting Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused