N5557
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 898 OF 2011
CR 903 OF 2011
CR 904 OF 2011

THE STATE

V

VINCENT ITAAR
&
SYLVESTER MINJIMARIN
&
PAUL MINJIMARIN – NO.1

Vanimo: Geita AJ
2012: 7, 8 December
2013: May 6, 10,

CRIMINAL LAW – Trial – Wilful Murder - Circumstantial evidence - Accuseds' right to remain silent – Not an admission of guilt – Failure to give evidence however may tell against him-Hostile witness oral & testamentary evidence disregarded 
CRIMINAL LAW - Wilful Murder – Section 299 (1) Criminal Code – Elements present - Circumstantial evidence – Not mere conjectures- Guilty verdict

The accused each and severally were arraigned on indictment charging them jointly with the murder of the deceased Nick Dap. The charge is laid pursuant to Section 299 of the Criminal Code, Chapter Number 262. 

Cases Cited 

PNG Cases: 
Paulus Pawa v The State [1981] PNGLR 493 
The State v Tom Morris [1981] PNGLR 498 
The State v Laura (No. 2) [1988-89] PNGLR 98
Paul Akis Soti v The State SCA 121/92
The State -v- Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48
Garitau Bonu and Rossana Bonu -v- The State SC. 528

Overseas Cases:

Peacock -v- The King (1911)13 CLR 619 
R. v Harris, 20 Cr App R 144, 
R v Golden 45 Cr App R 5

Counsel: 
Jim W Tamate, for the State 
Robert Bellie, Ms. Renatta Yayabu for the accused. 

JUDGMENT ON VERDICT

10 May, 2013 

1. GEITA AJ: On arraignment the three accused persons pleaded not guilty to a charge of murder alleged to have been committed on the 9th May 2011 at Vanimo. 

Brief Facts: 

2. It is alleged by the State that in the early morning hours on the 9th May 2011 the deceased and the three accused were walking around the airport road after drinking at the Kapiak Club. They demanded the deceased to buy them some more beer in which he refused saying that he had already bought beer for them which they had consumed in the car. Danny who was also with them stopped them from questioning the deceased saying that he had already bought them beer but was told to shut up and was stabbed. The state alleged that as they began to punch and assault the deceased, Sylvester Minjimarin took out a bayonet and stabbed him on the body who began to escape by running towards the beach. They all ran after him as Danny tried to stop them. Whilst on the beach, the accused Paul Minjimarin took the bayonet from his brother and stabbed the deceased on his chest and he cried out in pain. Mike got a piece of timber and hit the deceased on his head whilst the accused Vincent took a piece of log on the beach and hit the deceased on his back where he fell and died as a result of the injuries occasioned to his body. The state alleges that the three accused all acted together and invoked provisions under section 7 of the Criminal Code. The state further alleges that as a result of the stabbing and assault on the deceased they intended to kill the deceased. The three accused persons than returned to Kapiak Club.

3. The state alleges that prior to his death the deceased had called his wife to come and accompany him home however when he failed to return home she began searching for him , first at the club and surrounding areas accompanied by her two sons and daughter. Upon being told by a security guard that he had heard screaming coming from the beach area they finally found his dead body on the beach in a pool of blood. He was taken to the hospital and the matter reported to police which resulted in the arrest and charging of the three accused for the murder of the deceased. That the two other accused are liable by virtue of Section 7 of the Criminal Code. 

4. Section 299 Criminal Code Act creates the offence of wilful murder and it is in the following terms:

 S. 299 Wilful Murder
(1)	Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2)	A person who commits wilful murder shall be liable to be sentenced to death.”

Elements of the Offence:
5. The elements of the offence of wilful murder are:

1)	That the accused killed the deceased.
2)	That the killing was unlawful.
3)	That the accused had the intention to kill.

Undisputed Facts:
6. There is no dispute that the deceased Kenneth Wuriam died as a result of a fight along Salame settlement in Vanimo and that the killing was unlawful.

Disputed Facts:
7. The facts in dispute are:

a)	The accused killed the deceased.
b)	The accused had the intention to kill.

Evidence 

8. The following materials were tended into court by consent viz.

•	EXHIBIT "A” (a) & (b) – Record of Interview for Vincent Dap (Pidgin & English).
•	EXHIBIT "B” (a) & (b) - Record of Interview for Sylvester Minjimarin (Pidgin & English) 
•	EXHIBIT "C”(a) & (b) - Record of Interview for Paul Minjimarin (Pidgin & English) 
•	EXHIBIT "D” - Sketch map of scene 
•	EXHIBIT "E”- Photographs of deceased body.
•	EXHIBIT “F” – Post Mortem Report

State Witness 1- Danny Mani. 

8. The witness said he left his house 6.30pm on Saturday for Kapiak club with Vincent and arrived there at 10 pm. They met the barman, Irene and Sylvester who bought a 12 pack beer which they drank. About 1.30 am Irene asked to be taken home so they accompanied her home to wara kong kong and returned to the club. He said at wara kong kong and works junction they came across the deceased’s wife who enquired about her husband.

He said they returned to Kapiak club and rescued a lady Carol on the way where they met Daniel and his wife. Carol bought some beer and gave it to them. That same night Vincent got cross with Carol and tried to assault her so we drove her to Lynette’s house.

The witness said Vincent got cross with them and said he was leaving for his house. However he later returned and told them that a murder had taken place at the beach and so Lynette’s husband Paul drove down to the beach and saw the deceased body. His wife was there crying.

9. During examination in chief the witness said he was at Kapiak Club when the deceased was murdered and said the Vincent he was referring too was the guy from Jayapura, Santana. He said Nick, the deceased, was not at the club that night and that he only drank one bottle of beer from the 12 pack beer carton. He said he knew Vincent Itaar who was his brother and now in court and points to him in court. 

The witness said he knew all three accused’s persons very well as they grew up together in the same settlement. 

Witness Declared Hostile.

10. At this point the State notified the court that it be granted leave to ask the witness a series of questions in preparation to an application that the witness be declared hostile. Such leave was granted and preparatory questioning followed as follows.

1. You remember making a statement to police and signing it?
a. I was threatened that if I do not sign it I would be taken to CS and I did not make that statement as I have a different statement.

Q.2 Remember swearing on Oath?
A. Yes.

Q.3 Why didn’t you tell me your statement this morning?
A. I read same statement during interview before case.

When the prosecutor read relevant paragraphs contradicting his first statement the witness said he denied making them and was not forced into changing his storey in court today.
When questioned if he had spoken to anyone before coming into court the witness denied that but could remember making a statement to Police. He said he was forced and threatened by Sunset Merona police officers and CID Officer Francis Augustine into making that statement. The witness denied making the prior inconsistent statement and said he had a different version. He said he was not lying and that he was not involved in the killing of the deceased.

To this end the State moved for the witness to be declared hostile due his prior inconsistent statement. Defence Counsel raised no objections hence the witness was so declared and examined. 

Cross Examinations.

11. Q. 1 On Monday morning Police brought you to the station?
A. Police came to my house at around 6.30am, took me to the road and hit me and told me to stand on the road for 15 minutes. Francis Augustine and Sunset Merona were the policemen who hit me. He said he was hit and beaten on the head with a gun butt as he walked from his house Dasi to the Police station. At wara kong kong they put me on the road for car to kill me and took me again to Kapiak club for further beating.

The witness said he was taken to the police station the next day and subjected to further beating. He said CID Officer Paul Kabilo demanded him to tell the truth but was told that he was innocent and had no knowledge of the murder. He said Francis Augustine threatened him with a 1 metre bush knife. Paul Kabilo told him that if he did not tell the truth he would be taken to the deceased’s relative to be assaulted. He said although he agreed to be taken to the deceased’s relatives he was not taken there.

He said he was taken to the police station for questioning over a period of six days and every time he was threatened if he did not tell the truth. He said at one time police used his wife as bait to lure him to come to the station and he pleaded with them to have his wife released.
Cross examination continue.

Q. 2.That statement shown to you, when did you make that statement?
A. I gave that statement to Police on Thursday.

Q.3. The statement you gave to police, in your own words or by Police?
A. Police twisted my statement.

Q.4 Who took your statement?
A. Paul Kabilo and Augustine Laho.

Q.5. Did they read the statement back to you?
A. I told them to follow the first statement I made but they did not follow that statement.

Q.6. Did they the statement to you before you signed it?
A. CID read statement, my wife was present and after reading it to me, he asked me to sign?

Q.7 You signed because your wife was taken to the police station?
A. I took my wife to the Police station.

Q.8. During questioning where were the accused persons?
A. They were at CIS.

Q.9 Which statement is true, statement given to court or?
A. Story I now gave to court is true

Q.10. Where you told to come to court?
A. Nogat.

Q.11. Did someone told you to come to court to give evidence?
A. Yes CID Paul Kabilo told me to come to court and give evidence. That was on Tuesday at my house. 

Q. 12. Did he tell you anything else?
A. No.

Q.13 Any threats to come to court?
A. Yes he told me to come to court or I would be locked at CIS.

Q.14. Statement tendered into court, you anything to say?
A. No.

Q.15 Did he ask you what to tell court?
A. He told me follow version of statement in Court i.e. first statement.

Q.16 There are two statement given to court, one by police and one now given in court, Your statement in box is true?
A. Statement from witness box is true statement.

Q.17. Since Tuesday story, Have you been threatened?
A. Nogat.

Q.18 Accused persons known to you so you changed your story to support them?
A. No because I want to follow the second statement.

Q.19. Why were Police visiting you all these time?
A. Because of this death.

Q.20. Allegation put against you?
A. Took me into court to tell story about death.

Re Examination by State.

12. Q1. You agree Police reminded you to tell the truth?
A. Yes.

Q.2 You agree that there were no policemen at the crime scene?
A. No

Q.3 So statement given to Police is from you to Police?
A. It was by force and I told Police to follow the story I made.

Q.4 That story on statement, True?
A. Not that one

Q.5 I tell you that you are covering up, distance yourself from the statement.
A. True statement is the second one

Q.6. Allegation of force and threats from Francis Augustine are all made up?
A. Nogat

Q.7 Threats by Kabilo issue to you are all made up to cover up for your friends?
A. He was trying to threaten me.

Q.8 You are a witness and not a suspect why the threats?
A. I am innocent and I did not know.

Q.9 Paul Kabilo did not threaten to burn down your house?
A. That is true he said that.

Q.10. Threats by Laho PSC were made up?
A. Threats were made.

Q.11.What did he tell you?
A. To tell the truth or otherwise he will take me to CS.

Q. 12 Because you were a witness for the state?
A. My 1st statement is not true and my second statement is true.

Q.13 I am telling you that you are lying to court, that you were there and saw death?
A. Nogat I have no idea.

Q.14. Because you were there, you gave detailed accounts of the event?
A. Police forced me to give statement.

Q.15 Finally no one forced you to give statement you came as a witness?
A. My 1st statement is not true, but 2nd statement is the truth. 

Q.16 Paul Kabilo did tell you to come to court and tell court your statement?
A. Yes. 

State witness No. 2 Mrs Rita Dap

13. The witness is the wife of the deceased. She recalls receiving a call from her late husband between the hours of 1 am and 3am on 9th May 2011 advising that he was facing problems at Vissers and Kapiak and requested to be picked up. When the witness arrived at Kapiak club accompanied by her daughter Hilda and two sons Derrick and Valentine the deceased was nowhere to be found. They went and enquired at Vissers and were told by a couple (Daniel from the Highlands and wife) that the deceased was there early in the afternoon but had left.

The witness said they returned via a bush track for Warakongkong and met three boys who were standing in the dark. In their hands she saw grass knives and a knife. She asked them if they had seen the deceased or heard noise of fighting in the area which they denied hearing any such thing.

The witness said she recognised them and said the man in front was the brother of Lynette although she did not know his name he recognised his face. The witness than pointed to accused Sylvester’s direction in court. NB: Accused was seated in the middle of two other accused persons in court). She indicated that they were standing about 2 metres apart and she could clearly see the accused face clearly as he stood facing the lights coming from Vissers.
She said although she had not seen him before and does not know his name she could recognise his face as being Lynette’s brother. She says that she knows Lynette well. The witness said she rarely frequents Kapiak club and Vissers and never saw them before.
The witness said they returned via Wara Kongkong and sensed that something may have happened to her husband and began searching for him in the drain near Vissers arriving at Timothy Akui’s market and continued searching. On their way they saw a 5th element vehicle owned by the mayor drove past. They eventually arrived at Kapiak club and saw Daniel and his wife talking to some people whom she could not recognise so they walked on and as they were approaching Paraka Lawyers Law Office they saw a couple fighting. From there they continued walking, past the BSP Bank and stopped at Papindo Shop and his two sons asked the security guards for some cigarettes.
Upon the security guards enquiry as to what they were doing that hour of the night they said they were looking for the deceased. The security guard gave a description of the man they had seen earlier walking on the beach and to the SVS Kaibar to which they confirmed to be the deceased. They described him to be a short man wearing a white shirt, black trousers and was carrying a money bag at the time. The witness said the guards then told them about hearing a loud screaming noise coming for the end of the airport. The guards gave them two torches and two grass knives and they went searching for the deceased and eventually found him lying dead facing upwards on the beach with both his legs crossed. She said she started crying and sent her two sons to notify the police whilst she and her daughter remain with the body with the two security guards. 

According to the witness she communicated with the spirit of her dead husband to reveal to her his murderers. The witness said a short while later a youth appeared to her on the beach, removed the torch from the security guard and began accusing her of killing the deceased. She said the young boy was not known to her. The witness said he was holding a bayonet in his hand whilst the knife carry bag was strung across his chest. The witness said she did not know the boys name but pointed to accused Vincent Itaar, seated in court and indicated that that was the youth she saw that night at the beach.

14. During examination in chief the witness said the youth told them that he would go a tell Aunty Lynette to call for an ambulance. She said Lynette’s house was close by and that she had never seen the youth in Vanimo before. She said her two sons returned with Police Officer Leo Kabilo, a Doctor and took her husband to the hospital in an ambulance at around d 6 am to 7am.
The witness said her husband had bruises and stab wounds from shoulder and back with knife. He had cuts on his arm in several places with stab wounds on his thigh. The witness pointed t the accused Vincent Itaar in court wearing a white shirt saying that was the youth she saw that night.

The witness said she does not know the first witness who came to court and gave evidence yesterday but before that she saw him standing and talking with a woman with a rasta hair. And was not sure if the women was related to the accused or not.

Cross Examinations.

15. Q.14. You saw some youths at that time?
A. Yes three youths.

Q.15 You talking about these three youths?
A. I only know one youth and don’t know the other two. I only know one who is Lynette’s brother. (Witness points to Sylvester in Court).

Q. 17 Did you ask them about your husband?
A. Yes they said they didn’t see my husband.

Q.18 Which road did you follow returning to your house?
A. Followed short cut to my house, did not take main road.

Q.19. The time you met the youths, were you walking to Vissers or returning home?
A. Returning home I saw them.

Q.25 At Kapiak you saw Daniel and wife, did you see any of these three persons?
A. No.

Q. 34. I put to you that Sylvester was walking with Vincent and Danny, what do you say?
A. I did not see the other two boys but saw Sylvester.

Q, 35 You told court about seeing three persons, one identified as Sylvester?
A. Yes I said I saw three but I could recognise one.

Q. 36 At the scene you saw husbands injuries?
A. Cuts at four different places on both arms and cut on left leg. I forgot to tell court that stab on chest exiting on back, slight cut around belly button and bruises on back of head.

Q. 39. I put to you that you did not see Vincent Itaar stab your husband>
A. No.

Q.40 I put to you that you did not see Paul Minjimarin stab deceased husband with baynot?
A. No I did not see.

Q41. I put to you that you did not see Sylvester and Paul hitting your husband, what do you say?
A. No I did not see.

Re-examinations
16. Q.1. You told court that your husband used brother’s phone?
A. Yes

Q.2 Do you know when your husband lost his phone?
A. He told me that his phone was lost at 1.26 am.

State Witness 3 Dr. Cherubim Kapanambu

17. The witness confirmed viewing the body in the early hours of Monday 9th May 2011 on site at the beach opposite Vanimo airport. He confirmed conducting a post mortem on the deceased in his report dated 14 may 2011. His findings are as follows:

•	Deceased covered in blood all over his body
•	3 cm wide wound to left chest at 2nd intercostals space, mid axillary line
•	Left lung punctured with 500ml of blood in chest cavity
•	Heart punctured as well 
•	3 cm wound posteriorly below the left spine of scapula deep into the chest cavity puncturing the lung on the right with 100ml of blood in the chest cavity
•	Had 3.3cm wide wound in abdomen directed downwards from the umbilicus deep into the abdominal cavity. Spleen not ruptured
•	Few scratches on the palm on both hands
•	Deep laceration on left thigh

The Doctor confirmed the wounds and bruises found on the deceased’s body and made findings that the 3cm wound inflicted on him resulting in his death was caused by a sharp object with a blade width of 3.cm. He said the wound was the result of a 3cm knife wound, possibly from a baynot but definitely not from a bush knife. The deceased died as a result of multiple knife stab wounds which caused loss and collection of blood in the body.

The doctors post mortem report marked Exhibit “F” was then tendered into court as evidence followed by cross examinations.

Cross Examinations.

18. Upon aggressive examination with suggestions that the deceased may have died of other causes for instance head injuries, the witness said he was certain post mortem was conducted on the deceased with findings now before court. 

Q.17. From evidence you examined heart what did you find out?
A. Knife wound into heart, no kidney injuries.

Q.18. If no injuries to kidney, how can that hypovolamic cause death?
A. Hypovolamic is a state in which there is sudden shut down of body system resulting from acute blood loss.

Q.20. There is evidence before court that deceased was hit on the head and skull damage?
A. Hypovolamic results from huge acute blood loss therefore take some time for death to occur.

Q. 22 In post mortems do you have witnesses?
A. Yes in this case a policeman was around.

Q.23 I put to you that you did not do post moterm.
A. That is not true I did post moterm and signed the report.

During re examinations the witness said if there were indeed injuries to the deceased’s head he would have noticed them but there went any. The witness confirmed that he conducted the post mortem and signed it.

State Witness No. 4 Francis Augustine.

19. He is a CID Officer and has worked in Vanimo for over 19 years. He recalled taking part in the investigation and arrest of four suspects relating to the death of Nick Dob on 11 May 2011. He denied assaulting Dany with a knife and a butt of a gun during investigations in Paul Kabilo’s office nor threaten to lock him up at CS cells. The witness said he went to Danny’s house one day after the murder accompanied by Inspector Laho and Paul Kabilo and brought him to the police station and interrogated him. After the interview Paul Kabilo mentioned to him that Danny would become a state witness. As state’s key witness he was given special treatment including police protection from the deceased’s relatives at the time.

Witness Augustine’s part in the investigations was the drawing up of the sketch plan which he verified in court now marked Exhibit “D”. The map identifies the area where the victim was found. 

Cross Examinations

20. The witness denied visiting Danny’s house, accompanied by special police operation members who were in Vanimo at the time and denied threats of assault and killings by members of the special police operations members. When asked why Danny gave his statement to the state when he was a suspect the witness said after the interviewing by senior constable Kabilo they went and arrested the other suspects at the camp.

State Witness No. 5 Paul Kabilo

21. This witness was the principal investigation officer. He was woken up by the deceased’s son at home around 4 am in the morning as there were no duty police officers at the station at the time. He was taken to the crime scene where he saw the deceased’s wife and other children crying over their father. He secured the crime scene and brought in a medical doctor who viewed the body and confirmed it dead. The body was then moved to the hospital. 

Paul Kabilo said during investigations First Constable brought in Danny Mane who was interviewed and he gave the names of 5 other youths who were present at the scene of the murder. The three names given to Kabilo were in the following order, Vincent Itaar, Paul and his brother Sylvester and he gave detailed accounts of what each one of them did during the murder of the victim. He said as Danny Mane freely gave his statement it was typed down and later given to him to read and sign on the same day. 

During examination in chief when shown Danny Mane’s first statement he recognized the signature to be that of Mane. The witness said the statements were those of Danny Mane and he made them at his own free will without threats or any intimidation. He said Danny Mane was the key state witness and was given special treatment and police protection from disgruntled relatives. The witness said from Danny Mane’s information the accused’s persons were charged and prosecuted. When asked why Danny Mane changed his story the witness said he saw him talking with the accused relatives on Saturday at the back of the court house and may have decided to cooperate with them. (NB: Trial continued from Friday into Saturday on this circuit).

Cross Examinations.

22. Q 31. On the first day when Danny Mane was brought to you he came as a suspect?
A. Yes

Q 32. Why would he become a state witness rather than a suspect?
A. He requested to become a state witness.

Q 33. I put to you that Danny Mane’s statement was put together by you and not from him?
A. That’s not true

Q 34. Danny Mane changed his story to have the three accused charged and for him to be let off?
A. Not true

Q 35. You did not detain Danny Mane when he was arrested?
A. Yes because he was a witness.

Re Examination

23. The witness admitted to date confusion on the record of interviews and said they were typing errors. He said what was typed and signed by Danny Mane during the interview were not made up by him but came from Danny mane.

Defence case 
24. In the Defence case all three accused exercised their rights to remain silent. No other witnesses were called in the Defence case. The accuseds' rights are well protected under Section 37(4) (a) of the Constitution which provides: 

"(4) A person charged with an offence 

(a) shall be presumed innocent until proven guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would be, peculiarly within his knowledge ..."

This is a fundamental right and all three accused have elected to remain silent. 

State case –Hostile witness
25. State evidence appears two pronged. It is based largely on circumstantial evidence including elements of direct evidence from a hostile witness. I first deal with the issue of evidence from the hostile witness.

In the case of Paul Akis Soti v The State SCA 121/92 the Supreme Court said this: 

"The effect of the witness being declared hostile is generally to render witness unreliable. If he has given a prior statement which is "inconsistent with his oral testimony" both statements are rendered negligible, and neither constitutes evidence which can be relied upon. We adopt these propositions from the following English cases as being appropriate and applicable to the circumstances of criminal law in the country." (R. v Harris, 20 Cr App R 144, R v Golden 45 Cr App R 5)

The Supreme Court went on to say: "By declaring a witness hostile, it simply was not possible to render his affidavit deposition credible evidence, in substitution for direct oral evidence."

I adopt this proportion as applicable in this case and steer away from considering Danny Mani’s confessional statement and his oral statement into evidence for the state. This declaration now means that the State evidence is wholly circumstantial. 

Circumstantial evidence
26. I next deal with the issue in this manner. I caution myself on the need to be careful in convicting persons on such evidence. The law on circumstantial evidence is that, where a case against an accused person rests substantially upon circumstantial evidence, the question for the Court is whether the guilt of the accused is the only rational inference that in all the circumstances would enable it to draw. The case of The State -v- Tom Morris [1981] PNGLR 493 and Paulus Pawa -v- The State [1981] PNGLR 498 are primary sources of reference. These principles have been applied in many subsequent cases both by the National and Supreme Courts. ( The State -v- Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48 and Garitau Bonu and Rossana Bonu -v- The State SC. 528.)

Issue

27. The central issue in this trial is whether or not the three accused were responsible for the injuries which caused the death of the victim. Put another way, the central issue is the question of identification. This Court is now left with the evidence from State witnesses to make a finding of guilt or innocence of the accused persons.

Right to remain silent

28. In light of the accused’s exercise of their fundamental right to remain silent, the Supreme Court in Paulus Pawa v The State [1981] PNGLR 498 had these to say and I quote from the head notes thus:

"Where an accused person fails to give evidence or to call witnesses to support his case the Court may draw inferences which properly flow from the evidence and reach its conclusion without being deterred by the incomplete state of the evidence or by speculation as to what the accused might have said had he testified. 

Where an accused person fails to give evidence or call witnesses to support his case, any inferences to be drawn and the weight to be attached thereto must be determined by common sense having in mind that: 

(1) The failure of an accused is not an admission of guilt and no inference of guilt may be drawn there from; 

(2) Failure to testify may, however, tell against an accused person in that it may strengthen the State case by leaving it uncontradicted or unexplained on vital matters; 

(3) Failure to testify only becomes a relevant consideration when the State has established a prima facie case; 

(4) The weight to be attached to failure to testify depends on the circumstances of the case. Significant circumstances include: 

(a) whether the truth is not easily ascertainable by the State but probably well known to the accused;

(b) whether the evidence implicating the accused is direct or circumstantial;

(c) whether the accused is legally represented;

(d) whether the accused has before the trial given an explanation which the State has adduced in evidence."

Is there any evidence before the Court to show that somebody else may have been responsible for the death of the deceased?
29. Out of the three accused persons Sylvester and his brother Paul Minjimarin remained silent in their record of interview save for Vincent Itaar who also elected to remain silent but answered some questions selectively. Most of those questions answered point towards other persons who may be linked to the murder, referring to some drunkards at Peter Yemen's house, some women and some men said to have harassed Florensa and Dulcie. The three accused according to Vincent also met Aunty Rita with her two children who asked if they had seen her husband the deceased.

Although the accused through their lawyer advanced that the deceased died of other causes including a head and body wounds that proposition was not supported by any evidence either direct or inferential. There is however evidence to show that the deceased died of multiple stab wounds and those wounds were caused by a 3cm sharp object.

In addition there is no evidence to show that some drunkards were at Peter Yemen's house. The evidence shows that Vincent was seen at the murder scene by the deceased's wife who intern accused her of killing the man on the beach. The evidence also shows the deceased's wife did not know the young boy at the time however pointed out to him in court as the one who was holding a bayonet in his hand whilst the knife carry bag was strung across his chest. The evidence shows that accused Vincent Itaar, seated in court was the youth seen at the murder scene on the beach that fatal night.

Therefore accused Vincent Itaar's contention that some other persons, including the deceased's wife may have been responsible for the death of Nick Dap is flawed and not supported by credible evidence. 

Is there any evidence before the Court to show that the accused may have been responsible for the death of the deceased?
30. Sylvester and his brother Paul Minjimarin remained silent in the record of interview save for Vincent Itaar who also elected to remain silent but answered some questions selectively.

The evidence shows that Vincent Itaar was seen at the murder scene holding what appeared to be the murder weapon, a bayonet. The evidence also shows that the three accused were seen at the murder scene with grass knives and a knife in their hands. When asked if they had seen the deceased or heard noise of fighting in the area they denied hearing any such thing. The evidence also showed that one of the men seen that night was the brother of Lynette, although his name was not known his face was recognisable. Accused Sylvester was pointed out in court as one of the men seen that night. 

It follows that there is inferential circumstantial evidence linking the three accused to the murder of the deceased and none other.

 Are there evidence of all elements of the offence of wilful murder that would support the three (3) accused convictions? 

31. I answer in the affirmative as there is more than ample circumstantial evidence that the three accused took part in the murder of the victim as set out in Section 299 (1) of the Criminal Code. Similarly Section 7 of the Criminal Code that would make them criminally liable for the murder committed. Having considered all the evidence in the circumstances of this case I am satisfied that the most likely rational inference to be drawn here is that during that fatal night/morning the four persons who were seen out and about within the vicinity of the murder scene were the three accused persons and Danny Mani. I draw inference from the eyewitness testimony of the victim's wife that the three were seen at the murder scene, holding what appeared to be grass knife and a bayonet. This evidence has not been rebutted and remains intact.

Furthermore I draw inferential evidence from the medical doctor who conducted the post moterm examination of the victim with findings that the deceased's death was caused by a sharp object with a blade width of 3.cm. He said the wound was the result of a 3cm knife wound, possibly from a bayonet but definitely not from a bush knife. The deceased died as a result of multiple knife stab wounds.

The doctors' findings and observations on the wound especially the 3cm wound is supported by deceased's wife testimony that she saw accused Vincent with a bayonet and the others carrying grass knives that fatal night. Again this evidence remains intact.

32. In addition the evidence shows that the deceased Nick Dap died of stab wounds in the early morning hours 9 May 2011. Nick Dap died as a result of multiple wounds to his body - left lower ribs, left upper thigh and left mid thigh. The wounds were inflicted with a 3 cm sharp instrument, a bayonet. The three accused persons were out and about in the early hours of the morning at the relevant time (between 2.00 am and 3.00 am on the 9 May 2011and were the only persons seen within the murder scene soon after the body was found by his wife. The suspect murder weapon, the bayonet was seen in the possession of accused Vincent who was present at the murder scene. There is evidence that he fronted up at the murder scene soon after the deceased wife and children had found their dead father lying on the beach and accused them of killing him. A possible inference drawn from these accusations was to shift blame to those persons who arrived first at the murder scene. Unfortunately for him those persons whom he had hoped to shift blame happen to be the deceased's family and none other. That was not the case. Apart from common sense and logic there is evidence to show that the wife and children were looking for their father who had earlier phoned home to say that he was in distress and need help. 

Similarly my findings above, points conclusively beyond reasonable doubt that the three accused were responsible for the death of Nick Dap in the manner described in evidence. 

33. Applying those principles alluded to above to the facts of this case, the questions that arise are: Are the circumstances such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused? and - Is the guilt of the accused the only rational inference that the overall circumstances can enable the Court to draw? and - Does the guilt of the accused make sense and follow logically from all the facts and circumstances? I answer all the questions posed in the affirmative.

34. The sum total of all the evidence not negatived by defence including their right to remain silent has strengthen the State case by leaving it uncontradicted and unexplained on all vital matters. Therefore on the evidence before me I find that the case against the three accused persons does not wholly rest upon circumstantial evidence and the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused: Peacock -v- The King (1911), 13 CLR. 619 at p. 634. I am satisfied that all inferential evidence in my findings are not mere conjectures hence a guilty finding in my view is the only inference, all facts in evidence considered.

35. Section 7 Criminal Code provides that it is possible for those who are not the main perpetrators to be also guilty however there must be some evidence of the wrong committed by that person (s) within the meaning of the provision. Only a single act or omission or a series of them is sufficient in Sections 7 or 8. I find here that there is evidence that the three persons seen that night including you did some of those things. To this end I make finding based on all evidence before me that all of the elements of the offence of wilful murder are present and so the three of you must as a matter of law be lawfully convicted. 

Verdict 
36. Accordingly, I return a verdict of guilty against the three of you and have you convicted accordingly. 

Verdict: Guilty Each and Severally.
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Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused