State v Tovarubu [2013] PGNC 275; N5242 (22 March 2013)

N5242

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 459 OF 2012

THE STATE

V

SEBULON TOVARUBU

Kokopo: Lenalia, J
2013: 4th, 13th, 14th, 15th & 22nd March.

CRIMINAL LAW – Charge – Murder – Plea of not guilty – Trial – Evidence – Charge – Elements of murder – Criminal Code s.300 (1)(a).

CRIMINAL LAW – Evidence on trial – Onus of proof on the State – Whether the accused was present on the scene of the killing. Evidence shows there was a crowd of people following the tubuans to the Sacred Place (Taraiu) of the Tolai Tubuan Society.

CRIMINAL LAW – Defence evidence – Alibi – Evidence of accused not present on the scene of killing – Possible reasons for killing the victim – Accused expert in the Tubuan Society in the Tolai Community.

CRIMINAL LAW – What is counseling, procuring, instigating, abetting or aiding in terms of s.7 of the Criminal Code – Verdict of Not Guilty.

Cases cited.

R-v-Fum Boto (No.2) [1967-1968] PNGLR 448
R-v-Sapulo Masuve (1973) N732
Wat-v-Peter Kari (No.2) [1975] PNGLR 339
John Beng-v-The State [1977] PNGLR 115
The State-v-John Badi Woli & Pengas Rakam [1978] PNGLR 51
The State-v-Tom Morris [1981] PNGLR 493
Paulus Pawa-v-The State [1981] PNGLR 498
The State-v- Delga Puri and Tapri Maip [1982] PNGLR 493
The State-v-Jacob Dugura Roy (2007) N3137
Cosmos Kutau & Christopher Kutau-v-The State (2007) SC927
Devlyn David-v-The State (2006) SC881

Counsel

Mr. L. Rangan, for State
Mr. T . Potoura, for Accused

22nd March 2013

1. LENALIA, J: The accused, Sebulon Tovarubu of Takubar village, Toma/Vunadidir Local Level Government, Gazelle District is charged with one count of murder contrary to Section 300(1)(a) of the Criminal Code. The State alleges that on 28th July 2011 at Vunakaur village, Toma, Rabaul East New Britain Province, the accused counseled or procured others or abetted followers of the Tubuan Society to kill the victim, John Tilili Eliuda. The State says, this the accused acted in concert in terms of s.7(1)(d) of the Criminal Code. The victim died instantly.

2. After the charge was read and the brief facts stated to him, the accused entered a plea of not guilty. Before the trial commenced, the following documents were tendered by consent including some that were tendered during the trial.

➢ Statement of Arresting officer Senior Constable Joe Bimaru Ex. "1"
➢ Statement of Police/Woman Constable Myrah Rerevate Ex. "2"
➢ Post mortem report by the doctor Ex. "3".
➢ Doctor's affidavit Ex. "4".
➢ Record of interview Pidgin version and English translation Ex. "5" and "5(a).

Prosecution Evidence.

3. On this trial, the prosecution called two (2) witnesses. The first witness Esau Young said he is a teacher at Vunakaur Elementary School run by the United Church at Vunakaur, Toma East New Britain Province. He was ready to go to class when he said a tubuan came to his school accompanied by many people. In that crowd a person by the name of To Vutnamur called out to him and asked him if he could go with them to the "Taraiu" to attend a proposed mediation. The Taraiu is a sacred place for the Tolai Tubuan Society. (Herein after referred to as 'sacred place').

4. Esau said, he first refused to go because he had not sought the school board and the United Church Executives approval for him to be away that day. When he refused, another tubuan was sent to round him but as he walked out from the school premises and they walked toward the sacred place where the mediation was proposed to be held. As they were walking up, they met up with another tubuan. The tubuans and members of the crowd started to assault him.

5. This witness said as they were coming down, he was not further assaulted but he was only sworn at him. He said, as soon as they almost reached the junction to the sacred place, he saw the victim standing together with other people. As soon as they came close to the victim (John Tilili Eliuda) the accused said something in the Tolai dialect "goni tikai ta diat go" in English "this is one of them". Then that following those comments, the two tubuans started to assault the victim by using their hands to push the victim down and when he fell to the ground, they kicked him over and over all over his body. Members of the crowd assisted in the assault and the victim laid motionless on the road.

6. According to this witness, the proceeded past the place where the victim was lying and went into the sacred place for the 'varkurai'. As they reached the sacred place, the elders of the tubuan society started the mediation. They had not reached any settlement as yet when someone came with the message that John Tilili Eliuda had passed away. Immediately after this announcement, the elders called off the mediation and the crowds were dispersed.

7. This witness was vigorously cross-examined. The witness was asked if it was true that, at that time there was a lot of commotion and people were shouting and calling out. He confirmed there were many people and they were shouting as they were walking toward the sacred place. He confirmed that there were many people both from Tamanairik and Vunakaur villages and nearby village as well.

8. He was asked if he knows a person by the name of Nason Baramana and if he saw him around the scene and the sacred place. The witness said, he did not see him that day. He was asked as to who assaulted the victim. The witness said, he did not see those who assaulted him. He said, he only saw two men supporting the victim who were trying to lead him to the sacred place. It was put to the witness whether whatever words uttered by the accused if he was the one who ever uttered them, could not have caused such a commotion and the eventual killing of the victim.

9. The witness said, the words uttered by the accused caused the tubuans and the tubuan supporters to assault the victim. Asked if he saw the assault on the victim. The witness said, the victim was assaulted in front of him. He said, he could not really see who assaulted John as there were many people coupled with that, the fact that, many of them were from Tamanairik No.1 Ward which he does not know them and he could not identify them.

10. The second witness on this case was Jonathan Passingan Eliuda. He is the blood brother of the victim. His evidence relates to how the Councillor from Vunakaur village, Enos Tamtu sent Councillor Ioanes To Vanavana to the family house of the victim where the father of the victim was that morning.

11. He said, when Councillor To Vanavana arrived at their house, he sat near his father and the deceased and this witness and their other brothers sat near them talking. Councillor To Vanavana told the father of the victim that, he wanted him and his children to accompany him to the sacred place to join with other members of the Tolai Tubuan Society to conduct a 'varkurai' in English mediation. After hearing this news, his brother now deceased, walked down to the main road first. Then this witness followed him. According to his evidence Jonathan said, the deceased walked well ahead of him. It is clear from this witness evidence that, as they were walking toward the sacred places, they were not sure of which one they were to conduct the mediation.

12. It is also clear from his evidence that, the deceased was out of his sight and he did not see who attacked him and as to how he was attacked, he does not know as he did not see those who assaulted his brother. He heard noises and shouts all along the road as there were many people.

13. Asked in examination in chief if anyone accompanied the deceased. He answered by saying, Councillor To Vanavana went with him. Asked if any other persons were with the victim. The witness said, only two of them were walking together when the tubuans came and met them. He was asked, what To Vanavana actually told their father to do. The witness answered that, he asked their father and the deceased to go to the Taraiu. He was asked if he heard Councillor To Vanavana told his father about who sent him to come to their house.

14. He was further asked if he heard what issues were to be mediated. The witness said, he did not hear anything about what they were invited to talk about. He revealed in chief that, he walked ahead of his father. He said, two tubuans chased his brother and who was responsible for assaulting the deceased he cannot tell as he was out of sight when his brother was attacked.

15. In cross-examination, the witness was asked to confirm if he did not see who assaulted his brother. He said he did not see those who attacked the deceased and he only heard noises and shouts on the road. He confirmed too that, he did not hear who gave orders to the tubuans to assault the deceased. He further confirmed that, there were many people on the road and he could not identify them all.

16. He was asked when did he hear the accused say, "take him to the taraiu, he is pretending". He said, as they were about reaching the sacred place. He heard the accused say that phrase. He was asked if he told that part of his oral evidence to the police when he gave his statement to police investigating team. The witness said, he did not tell police that the victim was pretending. He was further asked if he heard nothing else when he came to where his brother was lying on the ground. He said, he heard the accused said "where is that person now". He also said, further to that the accused said, "the person is pretending". The witness was further asked, why not tell the police this part of his evidence. The witness said, he might have told police. Passingan statement was tendered as an inconsistent statement and marked Exhibit "A" (for the defence).

Defence case.

17. The accused gave evidence and called two other witnesses. The accused evidence is in relation to what he did on the morning of the date he is supposed to have committed the offence of murder. He filed a notice of alibi in which the accused said he was not on the scene of the killing. His evidence shows that when he woke up in the morning of 28th day of July 2011, he went to the councillor's house. He estimated the time he left his house to be 7 am.

18. While in the councillor's house he was informed by Enos Tamtu (the Councillor) that there was to be a "warkurai" or mediation. He was not told why there was to be a mediation. From Enos Tamtu's house, the two of them left for the "taraiu". The two of them sat for a while and between 8 and 9 am, they walked up together to the sacred place where they waited for the planned mediation. They were in the taraiu until about 3 pm when they left.

19. Asked in examination in chief as to when did he learn of the news that John Tilili Eliuda had died. He said, it was when Nason Baraman came into the sacred place and told all the elders of the Tubuan Society that the victim was already dead. He was asked about the relationship of Esau Young to the victim. He said, he is like an uncle to the victim. He was asked if he was the one who said "Where is this man, take him to the taraiu". He answered, that he was not on the scene as he was in the sacred place already before the commotion and the fight that took place on the road.

20. In cross-examination, the witness was asked if before going to the Councillor's house, he was at the elementary school. He said, he did not go to school that morning as he went to Councillor Enos Tamtu's house. Asked if he knew before he went to Enos's house that there was going to be a varkurai at the sacred place. He said, the Councilor just told him that there was going to be a settlement talk between Tamanairik and Vunakaur tubuan elders.

21. He revealed in cross-examination too that, when he arrived at Enos house, he found the councilor from Tamanairik village talking with Councillor Enos Tamtu. He said, when he got to the house of Councillor, Enos Tamtu, he observed that, Councillor John To Vanavana was present and they were talking together with Concillor Enos.

22. He was asked as to why, Esau Young would make up the story against him when the allegation about killing someone like this is very serious. The accused said he did not know where the victim was assaulted and as to who assaulted him, he does not know. It was put to him if it was true, witness Jonathan saw him standing together with three other persons on the road. The witness said, it is not true as he was together with Councillor Enos all throughout the time there as a commotion until the meeting was dismissed because of the killing of the victim.

23. Councillor Enos Tamtu was called as the second witness. He confirmed the evidence by the accused that, from between 7 and 8 am the accused was with him in his house and after he had talked to the Councillor from Tamanairik, John To Vanavana, he and the accused and other walked down to the sacred place for the proposed mediation.

24. He gave an account of how he got as message via his mobile from the councilor from Tamanairik village telling him that, the tubuan supporters and a number of tubuans from his village were coming to their village to conduct a mediation about breaches of practices of the Taraiu as the elders of the Tolai Tubuan Society from around the area were concern about such breaches.

25. According to this witness, the response he gave was that, if the tubuans came, he wanted to meet them at the sacred place near Mt. Wasin and not the other one. When his committee members came, he told them to go to the sacred place and they all went there. As he was still talking to his committee member, he heard people shouting and as he looked to the main road, he saw the people and tubuans coming. He told the tubuan supporters that they should not go to the nearest sacred place, but the next one near Mt. Wasin.

26. He confirmed that as the mediation started, the accused was with him sitting near him. He said. All those who were with them in the taraiu well knew that the accused was with them at the mediation at the taraiu as the accused is one of the elders of the Tubuan Society.

27. This witness spoke and discussed solutions to the people in that mediation and as soon as he finished, he sat down. An old man by the name of Usiel called him and told him that there was trouble on the road as the man assaulted by the tubuans was lying down on the road unconscious. He said at the time he was informed about the commotion, the accused was with him.

28. Asked in chief if he knew that the accused was the one who gave the order to the tubuans and tubuan supporters to assault the deceased. He said, at the time the deceased was attacked, the accused was with him. He was asked as to when the accused left him for his house. He said it would between 9 and 12 noon.

29. This witness was vigorously cross-examined. He was asked about why there was that mediation. The witness said, it was because, some people from Vunakaur village were alleged to have breached customary practices of the Tubuan Society by telling secrets of the Taraiu to members of the Born Again United Church. He was asked if the deceased was one of those who revealed the secrets and that was the reason why he was killed. The witness said, not necessarily and not until resolution was reached. And as well, the killing should not have been done publicly.

30. The witness also confirmed that, at that time there were many people. He was asked why did Councillor To Vanavana come to his house. He said, being the Councillor of Ward I of Vunakaur village and being a member of the Tubuan Society in his community, anyone coming to do business in his Ward, they come through him and then from him to the people affected. The witness was asked again if it was true that the accused was not with him at the time the deceased was assaulted. The witness said, the accused was with him until they left the sacred place. He confirmed that, by the time they left the taraiu, it may have been about lunch hour. The reason they left early was because, he dismissed the mediation because the deceased died so he had to attend to try mediating the parties.

31. The defence last witness was Nason Baramana. He also comes from Vunakaur village, Toma, Gazelle District. In his evidence, Nason told the Court that, between 7 am and 8 am, he was with his family in his house when they heard people shouting at the elementary school grounds. Since he is a security personnel in that school, he wanted to attend to the commotion. He hastily walked away from his house and when he reached the school, he saw a lot of people with the tubuans. He noted that Esau Young was being assaulted by the tubuan supporters and the tubuans. The reason why they came to the school was because, they wanted to take Esau to the taraiu to attend the mediation.

32. The crowd left the school grounds and walked up to the victim's house. This witness and many others waited on the road. The crowd reach John Tilili Eliuda's house and they got him out by force to accompany them to the sacred place. They then followed the road down to the Councillor's house. He confirmed in his evidence, that when they got to the residence of the Coucillor, he was not in his house. They left and walked down the road leading to a sweet potato garden. He noted that both Esau Young and John Tilili were ahead with those supporters of the tubuans.

33. It was at this stage that the victim was assaulted and he fell down to the ground. The crowd left the victim lying on the road while this witness and the crowd proceeded further up toward the taraiu. As they arrived at the taraiu, the mediation started. Sometime latter news came that John Tilili Eliuda was dead. When the leaders of the Tubuan Society heard that the victim had passed away, they ended the mediation to attend to the cause of death.

34. This witness also revealed in examination in chief that, the tubuans assaulted Esau Young then they also assaulted John Tilili. He was asked if he heard anyone giving orders to assault the victim. He said, no because there were many people and the tubuans took liberty to assault the victim and as soon as the victim fell down to the ground, he was kicked all over is body.

35. He asked if he heard anyone giving the order to assault John Tilili. He said, no. He was asked if he saw anyone pointing to the victim. He said he did not hear nor did he see anyone saying anything or pointing to the victim or even to harm him.

36. He confirmed in chief that by the time the victim was being assaulted, the State's first witness had been first assaulted and he was not walking properly because, this witness was walking next to Esau as other people were supporting Esau. He also said, after Esau was assaulted, he cried and asked why was he crying, the witness said, it could be due to bodily aches.

37. In cross-examination, this witness was vigorously questioned as to the truth of what he had told the Court. In his answer, Nason said, the reason why the tubuans from Tamanairik village came to Vunakaur village was to settle something between the Tubuan Society and the boys from Vunakaur. He was aksed who is John Vutnamur. He said, he is a Councilor from Tamanairik Ward. Asked as to what was that mediation about, the witness said, it was about revelation of practices of were those two boys. He was asked it it was true that the accused sent a message to those tubuans from Tamanairik village. The witness answered, "No".

38. He was asked when they left the elementary school to the main road, there were many people. The witness said, there were a lot of people, not only tubuan supporters but ordinary onlookers. He also confirm that when they were at the school premises, there was only one tubuan but when they got down to the road, they met another one with many more people. Asked as to where Esau Young was assaulted and whether he was assaulted at the school. Nason said, he was assaulted further down the road near the creek. Further asked if that is still the school premises, he answered in the positive.

39. He was asked if he was in the group because, he is a member of the Tubuan Society. He said, he is not a member of the Society. He was asked as to how Esau Young was assaulted. He said, he was kicked and they stepped in him while lying down. He said, only one tubuan assaulted Esau at that time. Asked if anyone assisted Esau, he said, no. He confirmed that when Esau was assaulted, he was at a distance of two to three metres away from Esau and those who assaulted him.

40. He was asked if he went with the tubuans to John Tilili Eliuda's house. He said, he did not go but they only stood on the road and saw the tubuans and their supporters went to the victim's house. He was asked where exactly he stood to see the tubuans going to the victim's house. He said, he stood between the Coucillor's house and the victim's premises.

41. He was asked if the victim was assaulted at his premises. He said, yes but they took him out forcefully and on the way the continued to assault him. Asked how many tubuans assaulted the victim, he said two. There were many other questions asked which I think it is not necessary to record on this judgment as such are in the transcript. This was the end of the defence case.

Defence Submission on Verdict.

42. On 18th this month, counsels addressed the Court on the verdict. In case of the defence, Mr. Potoura submitted that his client is charged with one of the serious homicide cases which carry the maximum penalty of life imprisonment. Counsel submitted, that under s.7 and s.300(1)(a) of the Criminal Code, the prosecution bares the onus to prove all elements of the charge "beyond reasonable doubt". He argued in submission that, if his client uttered words to counsel or procure any persons to commit the offence, the State has a duty to prove that the accused uttered words to that effect.

43. Counsel submitted that, the issue before this Court now is, did the accused utter the words as put by the first State witness. In the first State witness (Esau Young) evidence, he said, the accused said the following words in Tolai language, "Go ni, tikai ta diat". In English, This is one of them or he is one of them.

44. Counsel referred to the evidence of Councillor Enos Tamtu saying his evidence supports that of the accused that at the time the victim was assaulted he was not on the scene of the assault. He said, this is why their client filed a Notice of Alibi. Counsel submitted further that, why would the accused say words like that when he was not on the scene?

45. Counsel asked the Court to consider the fact that, even if his client was on the scene, the words relied on by the prosecution cannot be interpreted to mean the accused instigated or aided, abetted, counseled or procured those who were responsible for the killing of the deceased. Counsel posed a question as to why the two tubuans or those who were responsible for assaulting the victim could not be investigated and charged. Counsel also outlined the defence evidence and said, Councillor Enos could not come to Court and tell lies to the Court as he is a man of standing in the community.

Prosecution Submission on Verdict.

46. Mr. Rangan of counsel for the State replied by submitting that, there are two elements to be satisfied under s.300(1)(a) of the Criminal Code. They include:

• There was intention to do grievous bodily harm, and
• To a person or other persons.
  

47. Counsel argued that, it is clear that the accused was never involved in the physical assault of the victim but he "counseled", "procured" or instigated the tubuans and the Tubuan Supporters to do grievous bodily harm to the victim. He argued that, if the accused is not found guilty under s.300(1)(a), he can be found guilty of manslaughter.

48. He submitted that there are two issues. First, whether the accused uttered the words and secondly, whether the words uttered encouraged or instigated those who were responsible for assaulting the victim. Counsel argued that there may be some lies in the evidence of the accused because, he is one of the experts of the Tolai Tubuan Society and he could do everything to protect the secrecy of the Sacred Place and the Tubuan Society.

49. Counsel submitted that, the Court can infer from the defence evidence that the reason for denying the charge is since the victim revealed secrets of theTubuan Society, the accused would be responsible because he is a tubuan expert in Tubuan Society. Counsel referred to Jonathan's evidence saying if he heard the accused saying "where is that person, he is pretending" then it must be that the accused actually instigated and encouraged the tubuans to attack John Tilili. Counsel asked the Court not to believe the defence evidence and find the accused guilty.

Application of Law.

50. The accused is charged with one count of murder where the State say that by virtue of s.7 of the Criminal Code, the accused committed murder pursuant to s.300(1)(a) of the Code. The later provision states:

"300. Murder.

(1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:—

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person; or....."

51. Section 7 of the Criminal Code talks about parties to offences and defines those persons who actually carry out the act or those who make any omission that constitute the offence. Principal offenders can also include those who may fail or omit do any act that will assist to stop a crime being committed. It includes those who assist or "aid" and those who "counsel" or "procure" others to commit an offence. The above Section states:

"7. Principal offenders.

(1) 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:—

(a) every person who actually does the act or makes the omission that constitutes the offence; and

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and

(c) every person who aids another person in committing the offence; and

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

(2) In Subsection (1)(d), the person may be charged with—

(a) committing the offence; or

(b) counselling or procuring its commission.

(3) A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

(4) Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, it would have constituted an offence on his part, is—

(a) guilty of an offence of the same kind; and

(b) liable to the same punishment,

as if he had done the act or made the omission, and may be charged with himself doing the act or making the omission."

52. This case raises two legal issues. First, there is the issue of participation of the offence pursuant to s.7(d) which says that anyone "who counsels or procures any person to commit the offence" is guilty of the offence he is charged with. Secondly, there is the issue of whether the accused was on the scene of the killing or not. I discuss the first issue first.

53. Motive to commit any offence alone does not establish responsibility either as a principal or an accessory: R-v-Fum Boto (No.2) [1967-1968] PNGLR 448. The case of R-v-Sapulo Masuve (1973) N732 establishes that, for an accused to be found guilty of counseling or procuring, it must be shown that he actively or "constructively" present on the scene. As was in the case of The State-v-John Badi Woli & Pengas Rakam [1978] PNGLR 51, both accused were present on the scene and the death resulted from the attack where both in the presence of each other with intend to harm were found to be aiding and abetting each other in the attack.

54. If someone encourages another to commit an offence, he is only liable for the actual offence which he or she "consciously" encouraged: Sebulon Wat-v-Peter Kari (No.2) [1975] PNGLR 339. The term "counsel" is defined in the 'Oxford Advanced Learner's Dictionary' as "advice, especially given by older people or experts; a piece of advice". The word "procure" is also defined in the book as "to obtain something with difficulty". And in the 'Oxford Reference Dictionary of Law' defines the word "procurement" which is a noun as "persuading or inviting" someone to commit an offence.

55. I now quote from the 'Criminal Law and Practice of Papua New Guinea' at page 142 the third last paragraph. It says:

"On a charge of being a counselor, it is not enough to show that the defendant knew that some illegal venture was intended. However, it is not necessary that knowledge of intention to commit the particular crime, which was in fact committed, should be shown. The prosecution must know that the defendant knew an offence of the kind that was committed was intended, and with that knowledge, the defendant did something to help the offender commit it: Imiyo Wamela-v-The State [1982] PNGLR 269".

56. The issue is what advice or counsel did the accused give to the tubuans and their supporters to do harm to the victim. Or to put it the other way as put by the counsel representing the State, if the accused "encouraged" or "instigated" the tubuans and their supporters, what did the accused actually do? Again I refer to the same dictionary for the definition of "encourage". It says "to give somebody support, courage or hope". I like the words of the second meaning, it says "to persuade somebody to do something by making it easier for them and making them believe it is a good thing to do". On the word "instigate', it is define as "to make something start or happen, usually something official". Its second meaning is "to cause something bad to happen".

57. Did the accused acts fall into the above definitions? I will answer this question after I have discussed the other aspect of the evidence.

58. The second aspect of evidence both for the prosecution and the defence is the issue of identification. From the evidence by the prosecution and that of the defence, the issue of identification and recognition and secondly, question of whose evidence should the court accept and believe. On identification and recognition I am of the view that, on the side of the prosecution, the two witnesses Esau and Jonathan are related to the victim. They may have hidden motives for saying they recognized the accused. On the side of the defence, the Councillor Enos may have not been honest in his evidence. The case of John Beng-v-The State [1977] PNGLR 115 establishes that there is danger in accepting identification evidence and I am mindful of all inherent dangers on reliance on identification evidence because the possibility that, a mistaken witness could be a convincing one and any witnesses could be convincing.(See also Cosmos Kutau & Christopher Kutau-v-The State (2007) SC927).

59. Similarly, on the issue of identification, the question of whose evidence is credible? On this trial the court must decide whether the accused should be acquitted unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than the accused guilt. Secondly, to enable the court to be satisfied beyond reasonable doubt of the guilt of the defendant, it is necessary not only that his guilt be a rational inference but that, it should be the only rational inference that the circumstances would enable it to draw: The State-v-Tom Morris [1981] PNGLR 493, see also The State-v-Michael Gende (1997) N1678, The State-v-John Wanjil (1997) N1516.
60. In the Supreme Court case of Devlyn David-v-The State (2006) SC881 the Court there restated the principles in Paulus Pawa-v-The State [1981] PNGLR 498. The Court said, the question to be asked is:

"do the proven facts lead reasonably to only one conclusion – that the accused did all the things constituting the elements of the offence? If yes, the accused is guilty. If no, the accused is entitled to an acquittal."

61. On this trial, the Court cannot return a guilty verdict unless it is satisfied about the guilt of the accused. And any inferences drawn must be based on "something more than mere conjuncture". Looking at the evidence by the State on the issue of participation of offences as a principal offender in terms of s.7(1)(d) of the Criminal Code, if the accused was on the scene, it required the accused to at least do something to say in collaboration with the Tubuans and their supporters in order to be found guilty of the charge. If the accused was on the scene, there is no evidence that the accused spoke to anyone by counseling or procurement or to even encourage those on the scene who assault the deceased. On my findings, the accused was not on the scene. He was not the person who incited other persons and the tubuans to attack the victim.

62. Having considered and discussed those two issues, I am of the view that the guilt of the accused is not a reasonable inference for me to draw because I am not satisfied about the guilt. The Court returns a verdict of not guilty. The case is dismissed and the Court orders that the accused bail money shall be refunded to him.
____________________________________________________________
The Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Accused.