State v Mark [2013] PGNC 224; N5374 (26 September 2013)

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CRIMINAL LAW – trial – wilful murder – Criminal Code, Section 299(1) – Counselling or Procuring to commit the offence – whether offence committed in prosecution of a common purpose – Criminal Code, Sections 7.
CRIMINAL LAW – Need for development of PNG jurisprudence – "Question for Question Answer situations"-
CRIMINAL LAW – Sole state witness-Corroboration lacking-Finding of Not Guilty-Accused acquitted

Cases Cited
None
Counsel:
Mr. Augustine Bray, for the State
Mr. Paul Moses, for the accused

26 September, 2013
1. GEITA AJ: The accused was charged with one count of wilful murder under Section 299 Criminal Code. It was not alleged that he actually killed the deceased but that he counselled or procured others who did and is therefore deemed to have taken part in committing the offence and is guilty under Section 7(1)(d) the Criminal Code. The State relies on Sections 7 of the Criminal Code to argue that the accused should be deemed to have committed the offence of wilful murder.

2. There is no dispute that Saina Balos was speared to death by Moses Natres, that he was convicted and sentenced to life imprisonment for wilful murder on 24 April 2008 by Justice Cannings. A certificate of his conviction for wilful murder has been presented to the court. It follows that the offence of wilful murder has been made out for the purposes of the present trial.

3. Upon arraignment on the charge of wilful murder of Saina Balos the accused pleaded not guilty and trial ensued. The State invoked the provisions under Section 7 Criminal Code and argued that the accused be charged and convicted. The section reads:

"When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:—

(d) any person who counsels or procures any other person to commit the offence. (emphasis added)

4. Section 7(1) (principal offenders) of the Criminal Code is the first provision on which the State relies to argue that the accused should be convicted.

5. The State relies on Sections 7(1) (d), its case being that the accused by his action in uttering certain words to his relatives and clansmen viz: to kill either one of two men, Saina Balos and Larsen Karapus and that he would take care on their K2500 compensation, enabling Moses Nasres to murder the deceased, and that he counselled and procured Moses Nasres to murder the deceased

State evidence
6. Only one witness was called followed by documentary evidence tendered into court by consent. They include:

Exhibit 1.	Report of death to Coroner
Exhibit 2	Order for Post Mortem
Exhibit 3	Warrant to Bury
Exhibit 4	Medical Certificate of death-Saina Balos
Exhibit 5	Report on Post Mortem Examination-SB
Exhibit 6	Iron rod used as a spear in this killing
Exhibit 7 (a) (b)	Record of Interview Pidgin & English

Epa Balos
7. The State's only witness was the deceased's sister Epa Balos who testified of being at the scene of the crime and hearing the accused utter those words upon learning that a fluorescent light from one his trade stores was broken by some drunks. She said that on the evening of 14 June 2006, after the TV State of Origin rugby game had ended she came out and watched as betting winnings were distributed. The witness said she saw two drunks fighting (Johnny and Moses ) and they were soon joined by supporters from Laiagam who fought onto the main road heading towards the accused's 2nd trade store, some 20 -30 meters away from his 1st store. She said she saw the accused come running to the 2nd store and saw one of his fluorescent light tubes broken. When told by bystanders that Saina and Karapus had broken the light tube he shouted at the top of his voice saying that he would pay K2500 as compensation for the death of either men. The witness said she stood at a distance of about 10-20 meters away when she heard the accused utter those words. She said lots of people from Wabag and Sepik were there and heard those utterances. Some of them include Annette Kimbu and Benjamin Joseph. The witness said it wasn't a big fight so they weren't ready for any possible attacks. As she was walking towards her house accompanied by Saina and Jimmy Wanpis, Moses Nasres appeared from behind a flower garden and speared the deceased Saina with an iron rod on the head killing him instantly.

8 On cross-examination she agreed that everyone there was drinking beer at the TV State of Origin place but she did not see the accused there. She however said the accused was selling beer at his rented store. Moses and Johnny bought beer at his store. She said there was a scuffle between Moses and Johnny and that her husband Larsen wasn't at the scene of fighting. She said she does not know who broke the fluorescent light and did not see any community leaders try to stop fight as it was dark with insufficient lighting. Cross examination continue:

Q.39 I suggest to you that you sent Joseph to Paul Marks house to spy and come and tell you correct?

Q. 43 I suggest to you that Paul Bepi Mark never uttered those words: he would pay K2500 compensation for the killing of your husband and Saina Balos?

Q. 44 I suggest you did not hear that utterance, you relied on utterance information from Benjamin, what do you say?

Q. 57 The fight was between Johnny Kepas,Moses Natres, Larsen Karapus,Saina Balos and others joined in correct?

A. He was not involved but when he saw his light bulb broken, he gave those orders and his workers followed.

Defence Evidence – Paul Bepi Mark
9. The accused and two other witnesses gave oral statements from the dock. The accused Paul Bepi Mark testified that on the night of 14 June 2006 between the hours of 8pm-12 midnight he was at home with his family members: His parents, 1st wife, three children, his two sisters and his sister in law Kathy Kayok. After dinner they all watched TV State of Origin rugby match on their family TV set until it ended. Around 11.30pm they heard noise of drunks on the main highway with bottles being broken and bush knifes being dragged on the bitumen. He said due to the nature of his work as a salesman and his back problem he went to bed early that night. The next day he heard that a death had occurred and denied any involvement in the death.

10. On examination in chief the accused said he was at his home carrying out stock take for the day and heard noise of shouting and dragging of bush knives on the road about 40 metres away from his house. He denied owning two canteens and denied uttering those words as told to court by state witness Epa Balos. He said Epa Balos is from Wabag and not related to her and owes no grudges against him as well.

11. On cross examination the accused denied owning two trade stores and owning a bus. He said since the trouble his former wife took away everything he had including the bus, canteen etc. He said his wife joined them at home after shutting down the store at 10pm as is required by town rules. He denied that he was regarded as big men in his community and also denied knowing a Moses Nasres. He said Moses was not his relative and he lives separately with his father. The witness denied owning two stores and denied selling beer during the night. He further denied running to the trade store as told to court by State witness Epa Balos. Asked if he was familiar with the store that Epa Balos was talking about the witness that store was owned and run by a Peter Kipi and not him. When it was suggested to the witness that he gave orders for his wantoks to kill Saina Balos and Lasen Karapus after learning that his fluorescent light bulb had been broken the witness denied uttering those words saying he was at home all the time.

12. On re-examination the witness said he was not a community leader in Section 21. The community leaders were Isoro Kalai, Yala Karapus and Ben Burunki, all from Goroka and Wabag respectively.

Ben Burki
13. Defence second witness Ben Burki, Village Court Chairman for the area, stated that on the night of 14 June 2006 he and his 11 year old son went to watch TV State of Origin rugby match at Wabag city, Section 21 Kimbe. He estimated a crowd of around 250 -300. Maroons won that night and so Saina Balos being the leadman was distributing the winning bets. He said he saw Saina Balos and Larsen Karapus drinking on one side with John Kepas and Moses Nasres doing likewise on the other side. In the course of distributing the winnings one of the two men swore at Saina Balos: "kai kai kan"causing Larsen Karapus to enquire who the swear words were directed at. The witness said he was standing about 2 to 3 meters away when he saw Larsen Karapus come and hit Moses Nasres. He said Saina Balos was Larsen's in-law.

14. The witness said he intervened and stopped the fight. By then missiles were thrown and the crowd got involved and took sides. He moved further up the road and stood near some bamboo in fear of his 11 year old son who was with him at the time. He saw Saina and Larsen's crowd chase two men up the side road towards Larsen and another Arowe's camp. He said whatever happened after that he cannot tell as he wasn't there.

15. On examination in chief he said he did not see Larsen's wife Epa Balos at the TV State of Origin venue nor did he see the accused Paul Bepi Mark that night. He admitted there was a store close by but could not tell who was inside as he had no reason to go to that store to find out.

16. On cross examination the witness said they were watching TV in front of Elly Korak's store. He saw Saina Balos and Larsen drinking but did not see Epa Balos. After the game fight broke out as a result of the "tok nogut" which was not directed at anyone in particular. When it was put to him that Saina and Larsen did not start fight and weren't involved the witness answered with a question: why did the fight start then? When questioned why he did not come forward to tell police about the fight the witness said he was not approached to give is side of the story. The witness denied discussing the matter with the accused before giving evidence in court.

Cathy Kaiyo
17. The accused sister in law from his first marriage (now separated) Cathy Kaiyo, was the final defence witness. On the day in question she was invited to spend the night with her family at Section 21 Kimbe when catching return buses to his family home became difficult. After sharing dinner with the accused family: mother and father, two sisters, three children and his wife they watched TV State of Origin match at home. She said the accused sat and watched the game with them until it ended and retired to bed due to his back ache. Around 10-11pm she heard noise of bottles being broken and swearing. They were told to remain indoors by the accused. Due to so much noise she could not go to sleep but eventually dosed off to sleep after 1 am in the morning. The next day she heard that Saina Balos was dead as there was big talk in the community.

18. On cross examination she said her sister joined them before the rugby game started. She had gone to the store earlier that evening. She denied any knowledge of the accused selling smokes together with his other trade store wares. Asked if she heard crying that night the witness said she only heard noise. When questioned if he knew of Moses Nasres who frequented the accused house the witness said he must have been but does not know him. The witness remained adamant that the accused was not in the store nor was he at the TV state of origin area that night, saying he was with them at home all the time.

State case
19. The State presented only one witness who said she was standing within 10-20 meters away in the vicinity of the incidents when she heard the accused utter those words: K2500 and payment of compensation. Mr Bray submitted that the evidence of two defence witnesses including that of the accused be disregarded citing inconsistence's contained therein. Firstly Cathy was a former in law of the accused and was in court to rescue the accused from any criminal wrong. As for witness Ben Burki Mr Bray said the witness was trying to distance the accused from the crime scene. Mr Bray submitted that the State version of events be believed and that the accused be found guilty under section 7 of the Criminal Code.

Defence submissions.
20. It was submitted by the defence that although witness Epa Balos told court that she was 10-20 meters away no independent witnesses were called to corroborate her story. Furthermore she said that there were many people, both Engans and Sepiks who heard those utterances, again no independent witness were called to corroborate her story, thus her credibility questioning her credibity.

21. Mr. Moses submitted that there is no evidence before the court to show that the accused rounded up his tribesman and gave orders for them to kill Saina and Larsen. Epa Balos was not able to confidently identify the person or persons who informed the accused about Saina and Larsen damaging his fluorescent tube. According to the state witness the accused was not involved in the fight but was incensed when he learnt that his fluorescent tube worth K2.00 had been broken.

22. State witness Epa Balos gave evidence of a small commotion saying it was not a big fight and tried to distance her husband Larsen Karapus from any wrongdoing including his involvement in the fight and drinking at the time. Defence submitted that Moses Nasres fought with Saina Balos and acted alone without any counselling and coercing by the accused. The court should find that the accused was not present at the time of the incident that led to the death of the deceased and uphold the defence case that the person solely responsible for the murder of the deceased was Moses Nasres and he acted alone.

Court assessment
23. At the outset Epa Balos's evidence was not corroborated and ought to be rejected outright. I find most aspects of her evidence either half truths or lies. Although she said she was nearby she neither saw the accused nor the men who told him, the accused about his broken fluorescent light bulb. According to her that triggered or caused a chain of events which led to the killing of her brother Saina Balos. Her evidence obviously did not find corroboration in defence witness testimonies. She was quick to point fingers at the accused but was slow to admit that her brother, the deceased and her husband Larsen Karapus were the central figures in this whole episode. I draw inference from independent witness Ben Burki's evidence that he was within a few metres and saw everything that unfolded. He said Saina Balos and his in law Larsen Karapus were drunk and fought with Johnny Kepa and Moses Nasres during the commotion which erupted into a big fight involving supporters from both sides. Under those circumstances I am more inclined to believe his version of events. The accused version of events and the witness Cathy Kayo's version of events in my view remains intact and undisturbed.

24. Her evidence was not corroborated despite her claim that plenty of people from Wabag and Sepik including named persons(Annette Kimbu and Benjamin Joseph) who heard those words uttered by the accused at the top of his voice. None of those persons were called to testify. Although that information was known to the State it decided against calling those persons, perhaps in the exercise of its prosecutorial powers. She also said during cross examination that Moses and Johnny were there and bought beer from the store that the accused was operating that night. Again none of these two persons were called to corroborate her evidence nor were any explanation given for not calling them to give evidence. It follows that the States uncorroborated evidence should be disregarded.
Eyewitness evidence not credible
25. I agree that that there is a serious doubt about the credibility of some aspects of the evidence of the State witness, Epa Balos. The story she told about seeing the accused inside his second trade store selling beer sounds probable but not independently corroborated. She did not see the person who told the accused about the broken fluorescent tube. She completely distanced her husband from any involvement in the fight nor drinking that night which triggered the chain of events that led to the death of Saina Balos.

Corroboration
26. No independent witness was called to corroborate her evidence despite her claim that many people from Enga and Sepik heard those utterance including other persons named in evidence.

Possible audience
27. On the question of whether there were possible audiences or followers present who may have heard those words and acted upon it, the State presented no credible evidence to show that the accused uttered those words to a group of people/audience who received those instructions. I agree that State evidence is vague and that it failed to establish a strong connection on the part of the accused and those who heard his orders and further acted upon it. Most of those people were not identified.

Motive
28. I agree with Defence submissions that Moses Nasres had motive to kill Saina Balos because of an earlier fight involving him Johnny and Larsen. That was the fight Epa Balos described as a small fight or only a commotion. Moses pursued the deceased, ambushed him near the flowers and attacked him. Defence advanced that he acted alone without counselling from the accused. This explanation in my view appears plausible. As for witness Epa Balos she was out to get revenge for the death of her brother and was out to gain from his demise, hence her push to shift blame to the accused.

29. Cathy gave her evidence in a forthright manner and has nothing to gain from this case. Her relationship with the accused ended when her cousin left him two years ago hence her alibi evidence should be believed. Her evidence in my view is therefore credible.

Mr Moses submitted that State evidence remains unsafe and uncorroborated and should not be believed by court.

Court observations
30. Of great interest to me during my short time as a judge on the bench I have observed the emergence of what I might refer to as a Melanesian or Papua New Guinean way or response to questions being asked during cross examinations. To foreigners or outsiders these types of responses may seem foreign and meaningless to them. I am here referring to what I term as "question within a question" situation. In this case I drawn inference from witness Paul Burki's answer in response to a question asked by State Lawyer: "These two men, referring to Saina Balos and Larsen Karapus did not start the fight and weren't involved? The witness answered back: "Why did fight start then?

31. These types of answers as I said earlier on may seem confusing and or meaningless to outsiders however to a Melanesian or Papua New Guinean Judge or Magistrate such answers appears perfectly well. The court is being asked to infer that the event or fight was caused by those persons and none other. I am sure other Justices have come across these types of situations during the course of their court work. It is my firm belief that these situations must be explored and properly documented as Papua New Guineans become more litigious and come into courts on a regular basis. The gradual development of a Papua New Guinean jurisprudence would be the preferred approach in my view.

Final determination of Section 7(1) Code
32. The court has found that the accused was not directly involved in inciting these acts of violence as alleged in the indictment. He played no part in killing, and murder, of Saina Balos as such he cannot be subjected to the provisions of S.7 of the Criminal Code. He therefore cannot be convicted on the offence of murder and is also not criminally liable.

VERDICT
33. Paul Bepi Mark, having been indicted on a charge of wilful murder under Section 299(1) of the Criminal Code, is not found guilty of murder under Section 7 (1) of the Criminal Code.

Verdict accordingly.
________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused

National Court of Papua New Guinea

State v Mark [2013] PGNC 224; N5374 (26 September 2013)