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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR 837 & 842 OF 2013
THE STATE
-V-
ALOIS TOROPO &
TOMBAKE NARE
(NO.1)
Mendi: Toliken J.
2015: 03rd, 04th, 05th, 09th, 12th June
CRIMINAL LAW – Trial – Murder – A series of deaths in village attributed to sorcery – Victim earlier suspected of causing the death of accused person's relative through sorcery – Use of magic bamboo to ascertain cause of death and identify alleged sorcerers – Magic bamboo procession enters deceased's premises – Deceased attacked and slashed with bush knives – Suffers multiple injuries to arms and legs – Dies from injuries later in hospital – Criminal Code Ch. 262, s 300 (1) (a).
PRACTICE AND PROCEDURE – Evidence – Defence of Alibi – Whether accused persons were at the scene of the crime – Claim of alibi against common sense and logic – Alibi evidence concocted and false – Amounts to corroboration – Accused persons were at scene of crime and participated in injuring deceased.
PRACTICE AND PROCEDURE – Evidence – Multiple injuries –Whether grievous and intentional – Injuries clearly endangered victim's life or life-threatening and intentional resulting in death of deceased.
PRACTICE AND PROCEDURE – Evidence – Corroboration – Whether needed in trial for homicide – No rule of law or procedure requiring court to warn itself that it is unsafe to convict on uncorroborated evidence of one witness – Court can convict on evidence of one credible witness – Evidence of sole State witness credible – Verdict – Guilty.
Cases Cited:
John Jaminan v The State (No. 2) [1983] PNGLR 318
The State v Robert Wer [1989] PNGLR 444
Counsel:
S Luben, for the State
P Moses, for the accused persons
JUDGMENT ON VERDICT
12th June, 2015
1. TOLIKEN J: The accused persons Alois Toropo (Alois) and Tombake Nare (Tombake) are charged under Section 300 (1)(a) of the Criminal Code Ch. 262 (the Code) with the murder of one Kaiyabe Yoroka, on the 11th of April 2012 at Kumiane village, Pangia, Southern Highlands Province. To remind oneself, Section 300 (1) (a) provides:
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
(b) ...
(c) ...
(d) ...
(e) ...
Penalty: Subject to Section 19, imprisonment for life.
(2) ...
(3) ...
(4) ...
THE ELEMENTS
2. For the State to sustain a charge of murder it must prove the following elements beyond reasonable doubt:
THE STATE'S ALLEGATIONS
THE DEFENCE
ISSUES
11. The primary issues for me to determine are:
THE EVIDENCE
13. The State called only one witness, Pora Yoroka. And it tendered the following documents by consent:
14. Alois and Tombake both testified and called the following witnesses –
FACTS NOT DISPUTED
15. Some time before the incident in question about eight people from Kumiane had died and this evoked suspicion among the villagers. The most recent of these, in the month of March 2013, was that of Elvis Toropo, the elder brother of Alois and cousin of Tombake.
16. The villagers suspected sorcery to be cause of those deaths. So some time before the 11th of April 2012 their leaders decided to seek the assistance of, and, did send for men from Erave – men I would describe as diviners (for want of a better description of these practitioners of the occult) to come over and ascertain the cause of those deaths and identify sorcerers through the use of a divining or magic bamboo.
17. The deceased had been suspected for the death of Elvis Toropo. This was apparent from answers given by Pora during cross examination which remained uncontested or not challenged by the defence witnesses when they gave evidence.
18. It was the first time for a Bamboo procession to be conducted in Kumiane and the villagers, including Alois and Tombake, were naturally curious. They admitted in cross examination that they also wanted to know the cause of Elvis Toropo's death. Village leaders from neighbouring villages were invited to witness the event. These included the Chairman of Pangia Village Court Luke Norombo and his Peace Officer Martin Yoroka of Ugili village, Robert Paya of Talivigo and Simon of Molo.
19. The Erave men arrived in Kumiane on the 09th of April 2012. They commenced their "investigation" or should I say "trial by divination" on the morning of the 10th of April around 7.00a.m. Villagers were advised to remain in their premises when the bamboo procession went around the village led by the men from Erave. Two of the men from Erave held the bamboo on opposite ends and moved to where they were supposedly directed by the bamboo. Behind the bamboo and the Erave men, came the village leaders, followed by the young village men. The rest of the villagers including women brought up the rear. The procession ended at 3 o'clock in the afternoon when no sorcerers were identified. Alois and Tombake had followed the bamboo procession that day.
20. Having failed to identify any sorcerers the previous day the bamboo trial continued the next day, the 11th of April and maintained the same order of procession as in the previous day.
21. On the morning of that day State witness Pora Yoroka (Pora), the brother of the deceased, a policeman based at the Pangia Police Station had walked to the village from Pangia Station after hearing that the bamboo trial would be conducted again that day. It took him about 30 minutes to get to Kumiane.
22. He arrived at his late brother's residence at 8.30a.m. He was sitting with the deceased and other relatives, namely his wife Diana Pora, the deceased's wife Kindeme Kaiyabe, their sister Korame Yoroka, daughter-in-law Joycelyn Noel, Jimsen Kayabe, Mali Wane and Stephen Wari in the deceased's premises, when the bamboo procession first came up the road and went past them towards the direction of Pangia Station. After a while the procession returned and stopped outside the deceased's fence and the leaders asked if the bamboo could come in. Smiling at them he waved them into the premises. As soon as the crowd filed in the deceased was attacked with bush knives. After attacking the deceased the crowd set a kunai hut on fire and then burned down the deceased's permanent house to ashes.
23. Pora was then taken down to the main village where he was held captive for two days. The PSC of Pangia attempted to have Pora released on the same afternoon he was taken into captivity and the next day but did not succeed. On the third day the PPC and policemen from Pangia, Ialibu and Kaupena successfully negotiated for Pora's release.
24. The deceased for his part was rushed to the Mendi General Hospital. After his condition was stabilized he was transferred to Kundiawa General Hospital.
25. A Medical Report by Dr. Jan Jaworski dated the 18th of June 2012 revealed that the deceased sustained multiple deep knife wounds to:
26. Attempts were made by doctors to save the deceased including the debriding of his left forearm and further corrective surgery to his right knee. The deceased died in the operating theatre at 1730 hrs on the 12th of June 2012 from "a myriad of factors including multiple compound fractures to bilateral forearm and right knee and Embolism from knee injury."
27. Before I continue, I pause to point out that Alois and Tombake had been committed for other offences apart the current one. These include one count of attempted murder, one count for arson, one count for wilful and unlawful killing of animals and one count of stealing. They have yet to be tried for those additional charges because the State opted to try them for the charge of murder first.
28. Mindful of their rights to a fair trial I must place it on record that, save for those facts that are not disputed, I will not make any findings of fact on any disputed facts on matters pertaining to those remaining charges. I will therefore not make any findings of fact on the following:
29. Any findings on disputed facts will therefore be restricted to those facts that pertain to the charge at hand and this basically means that I will restrict my findings to what happened at premises of the deceased and the alibi evidence adduced by the defence.
30. Let me now turn to the facts in dispute.
FACTS IN DISPUTE
31. The only witness for the State Pora testified that the crowd entered the premises, leaving the Erave men and the bamboo outside, after he waved them in. Alois led the way followed by Tombake, Jim Akume, Maya Lapa and Mark Nare and the rest of the huge crowd of people who had been with the bamboo procession.
32. As they rushed in Alois approached Pora and Kayabe and those with them shouting "That's the one! Get him, get him!" Seeing this, the deceased stood up to meet Alois. Alois confronted him and chopped him on the leg. In cross examination he said Alois chopped the deceased on the back of his right leg. After Alois cut the deceased Tombake followed suit also cutting the deceased on the leg as did Yari Yapi, Mark Nare, Ananas Yapi and Rex Yapi.
33. By that time Pora was trapped. Rex Yapi turned to him and cut him on the head and Alois also cut him on his right hand. The crowd then grabbed him but before they carried him off to the main village he looked over and saw the deceased laying on the ground with his wife and the other women laying over him to protect him.
34. As he was being carried away Alois tried to cut Pora on the head and told him that they will hang him up in the main village and then kill him. They took him to the singsing area in the main village where they erected two wooden posts and then tied up his two hands. He told his captors that he was ready to die. As they were tying his hands two men, Robert Paya of Talivigo village and Simon of Molo arrived and told them not to kill him offering instead to take him away with them but former Councillor Yapi refused to let Pora go so the two men left. Pora then told his captors to make it fast if they wanted to kill him. He was held captive in Jim Epei's house before his release to the Police two days later.
35. In cross examination Pora said that he was about 5 meters away from the deceased when he was attacked. He was able to clearly recognise Alois and Tombake whom he referred to as his sons as well as the others who also cut the deceased. He described Alois as clean shaven and was wearing a pair of blue and white stripe Dunlop shoes, long black trousers which he had folded up and a green T shirt. Alois painted the left side of his face with charcoal. And only his Kuniara clansmen painted their faces with charcoal. When re-examined about Tombake's appearance Pora said that he had painted his forehead with charcoal.
36. Pora denied when it was put to him that Alois and Tombake had gone up to Pangia Station that morning and therefore were not present when the deceased was attacked. When it was put to him that the Chairman of Pangia Village Court Luke Norombo (Norombo) and his Peace Officer Martin Yoroka had met Alois and Tombake on the road to Pangia Station that morning as they were heading into Kumiane, Pora said that this was not true because if that were so, they i.e. Alois and Tombake would have met him first. He agreed that Norombo and Martin Yoroka were both from Ugili village about 12km from Kumiane, a walking distance of 1 ½ - 2 hours.
37. Pora also said in cross examination that Alois and Tombake and their clansmen had earlier suspected the deceased of causing Elvis Toropo's by sorcery. He denied that neither he nor his clan was involved in inviting the Erave men to Kumiane to conduct their bamboo ritual saying that it was Kuniare who had invited them. And while he admitted that he was not a specific target that morning the deceased was his brother, hence, he was attacked too. He said he later received medical treatment for his wounds but was unable to produce his Clinic Book which was with his wife outside the court room because he was advised that the trial was only for the count of murder and not the other counts including attempted murder which the accused were committed for trial.
38. Pora denied that the deceased attacked Yari Yapi first resulting in the latter retaliating. He did not know that Yari Yapi was injured at all.
39. The evidence of Alois and Tombake is similar. They were both in the bamboo procession on the 10th of April which did not yield any results and thus put off to the next day. On the morning of the 11th Alois, who runs a small canteen in the village, realised he had run out of stock so he asked Tombake and his wife to accompany him and his wife to Pangia Station to buy stock. They left Kumiane around 7.00a.m. or thereabouts and walked up to Pangia Station. On the way they met a lot of people going down to Kumiane to witness the bamboo procession.
40. When they came to Polu River after about an hour's walk, they met Village Court Chairman Norombo and Peace Office Martin Yoroka. Norombo asked them if the bamboo procession had started and Alois told them that it had not yet started when they left the village and he told them to hurry. Then they continued on to Pangia Station where Alois bought his stock from Henry Yakura's Store. He bought 2 bales of 20 x 1kg rice, 2 carton of noodles and half a carton of 250ml cooking oil. They then went up to the market where bought kaukau for their pigs and then headed back for Kumiane.
41. When they got to Pondi village they could see thick smoke over Kumiane and they knew that there was trouble so they walked faster. After walking some distance an Ambulance passed them with women crying inside. They pushed on and at Luna River a 10 Seater Land Cruiser sped up and stopped next to them. In it was Patrick Jim with Yari Yapi who was injured. Patrick told them that he was taking Yari Yapi to Ialibu Hospital and also told what happened back in Kumiane.
42. When they arrived back at Kumiane sometime around 11.00a.m., they saw the deceased house which was close to the road on fire. Alois said they got frightened and went straight to his house and left his shopping there. Alois and Tombake then walked over to the village square where a large group of people had congregated. Pora was surrounded by a group of leaders who were heatedly discussing how they could prevent the situation from escalating. Among the leaders were Councillor Simon from Molo, Robert Paya from Talivigo village, former councillor of Kumiane Yapi Epei and others.
43. In examination in chief Alois and Tombake admitted that Pora was held in the village for two days for his own protection and not because they wanted to kill him. They denied that there was a structure put up in the village to hang him. They said he was not held against his will and that he in fact told the police when they came for him on the first and second day that he was safe among his people. The people did not intend to kill or cause him harm because he was their leader and they respected him.
44. Both Alois and Tombake denied that they were at the scene of the crime and that they cut the deceased as claimed by Pora. They said that because they were the brother and cousin of Elvis respectively, Pora thought that they were with the group and participated in attacking the deceased. They also maintained that the 5 clans of Kumiane, including Pora's, decided to invite the Erave Team to Kumiane to investigate the deaths in the village.
45. In cross examination Alois maintained the the Erave Bamboo Team was invited by the five clans of Kumiane. He admitted when it was put to him that the main purpose why the Erave team was invited was to investigate the deaths in the village because of suspicion that sorcery was the cause. He was not personally involved in the decision to bring the Erave men in, though, but only heard about it. He agreed that the police went into the village to take Pora that day and again on the day after but the villagers refused to release him. He denied that the villagers were aggressive maintaining that the villagers held Pora for his own safety. When asked if the police could have better protected Pora he said that Pora was a well-liked and respected leader and the leaders protected him.
46. Tombake on the hand said that when the Police came in to get him that day, Pora told them that he was safe so the police left. When the PPC came in on the 13th of April with a large contingent of policemen Pora again told the PPC that the community was a good one and that he was safe among his people but since the PPC came for him he was willing to go with police.
47. Alois and Tombake both denied seeing any injury on Pora while he was held in the village.
48. Luke Norombo, the Village Court Chairman of Pangia Village Court received an invitation from the Kumiane leaders to witness the Bamboo procession at Kumiane which was to start on the 10th of April. He was at Kumiane on the first day of the procession on the 10th of April. This was the third time for him to witness such an event. Because the bamboo procession did not yield the expected results on the 10th it was postponed to the next day so he returned to his Ugili village.
49. On the 11th he and his Peace Office Martin Yoroka left Ugili around 5.00a.m. or day break for the 2 hour long walk back to Kumiane. They arrived at Pangia Station at around 7.30a.m and continued down towards Kumiane. At around 8.00a.m., they met Alois and Tombake and their wives at Polu River. He enquired if the bamboo procession had started and was told that they were getting ready so he must hurry so they walked off faster. They arrived at Kumiane just as the procession was coming up, led by the Erave team and followed by a large crowd.
50. They stood watching from the road from a distance of 15 – 20 meters as the procession came to deceased's premises. He could see the deceased and Pora in the premises. The bamboo team asked for permission to enter the premises and Pora waved them in. The Erave men entered with the bamboo followed by the crowd. The deceased then suddenly attacked Yari Yapi with a bush knife. He struck him once and as he was about to cut him a second time Yari Yapi retaliated by cutting him. The deceased fell down and the crowd moved in and burned down his house and cut down bananas around the house.
51. Norombo said he has no ties with Alos and Tombake and only came to testify about what he saw. He claimed to maternally related to Pora and the deceased in that their mother is from his Yuarane clan. He therefore holds no grudges against Pora.
52. When it was put to him in cross examination that it is only a 30 minute walk from Pangia Station to Kumiane he said it can take between 30 minutes to an hour if one walks fast. It will be an hour if one walks slowly. He said further that they arrived at Kumiane at 9.35a.m. and the procession came around to the deceased's premises about 10.00a.m. It took them 1 ½ hours to get there because they talked to some people on the way. It was put to him that he was lying because he had just told the Court that he had to walk fast in order to witness the procession. Norombo said he was telling the truth about the time and what he had witnessed. He maintained that he did not see Alois and Tombake in the procession or that the deceased premises at all that morning. He maintained that he and Martin Yoroka stood 15 – 20 away from the deceased's fence. He said there was no one between and the fence because the crowd followed the Bamboo Team as soon as it went into the deceased's premises. He also denied when it was put to him that he could not have seen what happened from where he stood because of the crowd.
53. On re-examination Norombo estimated the crowd to be around 400 – 500. They were about 30 -35 meter away when they first saw the deceased and Pora in the premises. When asked how far he was from the gate he said he was standing besides the fence and was looking up hill. Nothing obstructed his view. He said they met a lot of people on the road to Kumiane after they left Alois and Tombake at Polu River but only stopped to talk to one Philip and his wife for about 20 – 30 minutes.
54. Nare Epei is the father of Tombake. He is a Village Magistrate of Kawue No.1. On the date in question, a Wednesday, he was with the bamboo procession. He and other village leaders like Ande Kinie, Michael ombo, Michael Aka, Ea Alenge, Noropa Nou, Ola Keai and Awia Keai were immediately behind Erave Bamboo Team.
55. When the procession arrived at the deceased's premises the bamboo team asked the deceased and Pora if they could go in. They smiled and motioned them to go in. The bamboo team then took the bamboo in and the followed by the leaders and the crowd. As soon as they went in the deceased who was armed with a bush knife rushed up and slashed Yari Yapi who did not retaliate at first. But when he cut Yari Yapi the second time, Yari retaliated and cut him on his hand forcing him to drop his knife. Yari then proceeded cut him on both his knees.
56. Not wanting any harm to befall Pora, Nare went over and covered him, protecting him from ill-tempered village youths who he described as drug addicts. Other leaders joined him and they covered Pora. He had to protect Pora because Pora was his brother and also a village leader. The crowd then set fire to a kunai hut.
57. And as Nare and other leaders were taking Pora down the road to the main village the crowd set the deceased's house on fire. Nare said he was about 2 meters away from Yari Yapi when the deceased attacked him. He did not see anyone else attack the deceased except Yari Yapi. He denied testifying to protect his son Tombake saying that he only testified to what he saw happen.
58. Nare Epei agreed in cross examination that he and other village leaders invited the Erave Bamboo Team because there were a lot of unexplained deaths in the village and they wanted the Erave Bamboo Team to come and investigate. He also agreed that this bamboo procession was held in relation to sorcery matters. He, however, maintained that he did not see Alois and Tombake with the procession or at the scene of the crime. He denied that the Bamboo Team stayed outside while the crowd went into the premises. He maintained that no one else attacked the deceased apart from Yari Yapi and denied everything Pora said happened to him. He maintained that Pora was taken to the main village and held there for his own protection and even said that when the Pangia Police came for him that day Pora told that he wanted the PPC to come and get him.
The Law on Alibi Evidence
59. The defence of alibi is a claim by an accused person that he could not have committed the alleged crime because he was elsewhere at the time the crime was allegedly committed.
60. The Criminal Practice Rules, O 4 r 4, require an accused person to file a notice of alibi within 14 days before the trial. The rationale behind this is to allow the prosecution to locate witnesses to negate the defence. If notice of alibi evidence is not given within the prescribed period the accused must seek leave of the court.
61. The power to grant leave is discretionary and must be exercised judicially. Where notice is not given this does not automatically disqualify an accused from being granted leave. The Court may exercise its discretion to grant leave if this does not adversely affect the accused's constitutional rights to give evidence and call witnesses and to a fair hearing. (Section 37(3)(4)(f) of the Constitution) Conversely, exercise of discretion may be refused if any prejudice to the accused outweighs prejudice to the public interest in ensuring that the guilty are brought to justice. (The State v Robert Wer [1989] PNGLR 444, per Brunton AJ) In The State v Wer, leave was granted on the condition that a notice out time was filed. An adjournment was thus granted to allow the police to investigate the alibi.
62. But where the accused raises a belated claim of alibi coupled with a failure to put it to State witnesses in cross examination, then, the court is entitled to hold the alibi as unreliable and a recent invention, hence, reduced in weight. This is what happened in John Jaminan v The State (No. 2) [1983] PNGLR 318 (Pratt, Bredmeyer, Amet J (as he then was)) where the Appellant was charged with multiple counts of rape. He pleaded consent but then at the trial he introduced his alibi defence without giving notice to the prosecution let alone put his claim that he was somewhere else at the relevant time to the complainant during cross examination. The court held, among other things, that an alibi given in evidence and found to be false, may, depending on the circumstances, amount to corroboration. And (per Bredmeyer J) the failure to put the defence of alibi in cross-examination of the State witnesses and a delayed or belated alibi will reduce the weight to be given to the alibi as a defence.
63. That aside, where a defence of alibi is properly raised, the accused bears an evidentiary burden to make out his alibi but the State must negate it on the normal criminal standard – beyond reasonable doubt.
64. Now in this case, the Notice of Alibi was quite clearly filed outside of the prescribed period. It was filed on 28th of May 2015,
a mere five days before the trial in this matter started on 03rd of June 2015. The State did not object nor did the defence seek
leave to file their notice out of time. The Court was not appraised of this breach of the Rules but I am led to believe that the State did not take any objection because, judging from the prosecution's Pre-Trial Review Statement
filed on 27/02/15, they seem to have been aware all along that the accused persons will be raising the defence of alibi. The situation
here is not similar to that in Wer. There is, in my opinion, no prejudice against the accused person's constitutional rights under Section 37 (3) (4)(f) of the Constitution nor can it be said that the public's interest for the guilty to be brought to justice has been prejudiced unduly. And while the notice
may have been belated the defence extensively cross examined State witness on the accused persons claim that they were not present
at the place and time the deceased was attacked. To that end the facts are not entirely similar to Jaminan and hence these cases are easily distinguishable.
65. So were Alois and Tombake at the scene of the crime on the morning of the 11th of April 2012?
Deliberations on Alibi Evidence
66. The State relied entirely on the evidence of Pora. Mr. Moses of counsel for the Alois and Tombake submitted that his evidence cannot be believed because it was uncorroborated. His evidence is also suspect because he had a clear motive – to get back on the accused persons for the death of his biological brother. Counsel urged the Court to instead believe the alibi evidence of Alois and Tombake which was amply corroborated by Luke Norombo and Nape Epei. Luke Norombo was an independent witness and a well respected community leader and had no grudges against the Pora nor did he have any person re67
67. Ms. Luben for the State submitted on the other hand that Pora's evidence was unshaken. Alois and Tombake are not strangers to him. He regards them as his sons and clearly recognized them because he was but only about 5 meters from them when they and others attacked the deceased and it was broad daylight.
68. Counsel submitted that the alibi evidence of the accused persons cannot be believed because they are against logic and common sense. Luke Norombo's evidence she said was shaken in cross examination particularly in regard to time. Nape Epei being the father of Tombake and Alois' uncle had a reason to lie – to protect the accused. They also had a motive – retaliation against the deceased for the death of Elvis Toropo whom they suspected was killed by the deceased through sorcery. So whose evidence should I then accept?
69. It must be noted that while it is desirable and prudent for evidence in homicide trials to be corroborated, there is no rule of law or practice requiring corroboration. An accused person can be convicted on the evidence of a single credible witness. And a finder of fact does not need to warn himself or herself that it is unsafe to convict on the uncorroborated evidence of one witness as was the case in respect of sexual offences until recently. On the flip side the fact that several witnesses repeated the same story in Court does not make it true if it is found false and may indeed amount to corroboration as the Supreme Court held in Jaminan.
70. In this case, the outcome would, in my opinion, rest largely on credit and on whose version of the evidence is more probable in the circumstances. A witness' demeanour is often said to be a major means to assess credibility. This, however, does not assist me much in this case as I have observed that the witnesses' demeanour all seemed very good. The exception being Luke Norombo who at seemed a bit shaky and unsure when cross examined about time. But as psychologists would now tell us, demeanour is not a very reliable test for credit for an array of reasons. For instance, a person who comes to court for the first time and is subjected to examination and cross examination may not be fully composed. He may be nervous and shaky but that does not mean that he is a bad lesser still a false witness. Conversely, a confident witness may in fact be an untruthful witness.
71. State witness Pora was very positive that Alois and Tombake came with the bamboo procession to the deceased premises that morning. While the Erave Bamboo men waited outside the fence with the bamboo, Alois led the crowd into the premises and headed straight to where the deceased was and chopped him on the back of his right leg. He was also positive that Tombake followed suit chopping the deceased on the leg as did Yari Yapi, Mark Nare, Ananas Yapi and Rex Yapi.
72. Pora noticed that Alois had painted the left side of his face with light charcoal while Tombake had charcoal on his forehead. Pora observed that Alois was clean shaven, was wearing a pair of blue and white stripe Dunlop shoes, long black trousers which he folded up and a green T shirt.
73. Pora was standing a mere 5 meters from Alois when he saw him attack the deceased. He further was able to identify Alois and Tombake as he was being taken down to the main village and at the village square where they would have been virtually very close to each other. Alois and Tombake were not strangers to Pora. They are from the same village and are like sons to him.
74. In its totality, Pora's identification and recognition of the accused persons and his placing them at the crime scene and immediately after the attack on the deceased is very probable. But what about the accused's alibi that they were not present in the village when the deceased was attacked?
75. There are certain aspects of their alibi evidence that are remarkable. First, the Erave Team came to Kumiane with their magic or divining bamboo at the behest of the leaders from Kumiane after a serious of "unexplained deaths" as Nare Epei puts it, in the village - the latest being the death of Elvis Toropo, Alois' elder brother in March 2012. There is uncontroverted evidence that the deceased was suspected for Elvis' death. The purpose of the bamboo ritual or procession was to ascertain whether those deaths were caused by sorcery, and if so, to identify the sorcerers.
76. Second, this was the first time for the villagers of Kumiane to witness such an event and obviously everyone, including Alois and Tombake, was curious. The fact that the first procession held on Tuesday 10th of April, which both Alois and Tombake had participated in did not yield any result, and, the fact that it was postponed to the next day Wednesday the 11th of April, would certainly have heightened the villager's anticipation, Alois and Tombake included.
77. Third, for the first time Alois decided on the morning of the 11th of April to ask Tombake and his wife to accompany him and his wife to Pangia Station to buy stock for his canteen.
78. These raise a few probing questions. For two people who were very much interested in finding out who was responsible for their brother's and cousin's death, why decide to take a shopping trip to Pangia Station amidst all the excitement and anticipation that obviously gripped the whole village but more so those whose relatives had recently died? Why was it that for the first time Alois decided to ask Tombake and his wife to accompany him and his wife to Pangia Station? Why Tombake and of all possible times, why that morning?
79. Simply put what Alois and Tombake would like the Court to believe flies in the face of common sense and logic. How could they leave the village when the proceedings that were to continue that morning very much affected them? A close relative of theirs had died of suspected sorcery and they would have very much wanted to be there when the person responsible was identified by the bamboo.
80. Given the situation, it is not improbable that Alois and Tombake never went to Pangia Station on the morning of the 11th April
2012. If indeed they left Kumiane at 7.00a.m. as they said, they definitely would have met Pora on his way down to Kumiane from Pangia
Station. But Pora did not meet them and that was simply because they did not go to Pangia Station.
81. I am not convinced about the evidence of their alibi witness Luke Norombo. For someone who was also interested in the outcome
of the bamboo procession I see no logic in his evidence that he took his time to get to Kumiane when he previously said that he and
Martin Yoroka walked faster after they were allegedly told by Alois at Polu River to hurry as the procession might be starting anytime.
And for the same reason I am not satisfied that he ever met the accused persons and their wives at Polu River that morning because
they never were there.
82. The whole of the alibi evidence by the accused persons and their alibi witnesses Luke Norombo and Nare Epei is concocted and calculated to remove the accused from the scene of the crime. Unfortunately all that they said they did that morning in so far as going to Pangia Station is illogical and against common sense. So if Pora's evidence was not corroborated the false alibi now corroborates it. (Jaminan v The State (No. 2) (supra.)
FURTHER FINDINGS OF FACT
83. I am therefore bound to find that the following facts:
84. And now to the second issue.
2: WHETHER ALOIS AND TOMBAKE ATTACKED AND CAUSED GRIEVOUS BODILY HARM TO THE DECEASED.
85. On this issue I again must accept the evidence of Pora that as soon as the crowd entered the deceased's premise Alois went straight to the deceased and slashed him at the back of his left leg. He was followed by Tombake who also cut the deceased on his right leg. Others like Yari Yapi, Mark Nare, Ananas Yapi and Rex Yapi also attacked the deceased.
86. The medical report reveals that the deceased sustained deep wounds to left thigh muscles and the right knee joint involving both upper parts of the lateral tibial chondyle bone and fibula head, the right extensor forearm involving the radius and left extensor forearm and deep flexor muscles involving both Radius bone and Ulna. The leg wounds seem consistent with the wounds Pora said were inflicted on the deceased by Alois and Tombake respectively.
87. As we have seen the deceased received two other wounds only to his left and right hand. Pora did not say who slashed the deceased on his hands except to say that Yari Yapi, Mark Nare, Ananas Yapi and Rex Yapi also attacked the deceased. It is very probable that Yari Yapi indeed slashed the deceased on his right hand forcing him to drop his knife as defence witnesses Nape Epei said. The deceased right hand was almost completely severed according to the report and this seems consistent with the Nape Epei's evidence.
88. On these matters I find at least some credence in that aspect of Nare Epei's evidence. But it is also probable that the deceased would have defended himself and may have cut Yari Yapi too.
89. However, I do not accept Nare Epei's and Luke Norombo's evidence that Yari Yapi was the only person to attack the deceased. I accept that Norombo was at the scene of the crime because there is no evidence to suggest that he was not there. His evidence though that he could clearly see the deceased attack Yari Yapi first and Yari retaliating seems improbable. From his vintage point some 15 -20 meters from the deceased's premises and looking up to where the deceased and his assailants were, with a crowd of 400 – 500 people rushing in, I could not see how he could say that his view was not obstructed. If he was looking up as he said, then there would have been a slope or ascend to the deceased's house and certainly with that number of people rushing in he would not have seen everything that he said he did.
90. Because the deceased's assailants may have then set upon Pora it is possible that Pora could not have noticed what part of the deceased body the others including Yari Yapi cut. But on the same token, it is probable that not all of them or anyone else in the crowd for that matter (except Yari Yapi of course) inflicted injuries on the deceased. And this is supported the fact that only four deep wounds were noted in the medical report of Dr. Jarwoski.
91. Now, were the wounds inflicted on the deceased by the accused grievous?
92. Grievous bodily is defined by Section 1 of Code to mean "... bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health." By contrast if the accused only intended to cause minor injury or mere "bodily harm" which is defined as "any bodily injury that interferes with health or comfort" then only a charge of manslaughter may be sustained.
93. There is no question at all in my mind that the wounds were indeed grievous. They were of such a nature as to endanger or likely to endanger the life of the deceased. In short they were life threatening and the deceased succumbed to these injuries despite the best efforts of doctors to save his life.
94. I find therefore that Alois and Tombake attacked the deceased and inflicted serious wounds or grievous bodily harm on him, as did Yari Yapi. The accused are charged as principal offenders but by reason of the State's invocation of Section 7 of the Code they are equally liable for those injuries that Yari Yapi inflicted on the deceased too. But was the infliction of these injuries intentional? This brings me to the last and final issue.
ISSUE 3. WHETHER THE INFLICTION OF HARM OR INJURY WAS INTENTIONAL.
95. The answer to this issue is short. Alois and Tombake and the others did not go into the deceased's premises with innocent intentions. They were in a procession held to investigate the deaths of several villagers including their brother and cousin Elvis Toropo whom they had earlier suspected of being killed by the deceased through sorcery. The fact that the Bamboo Team led the procession to the deceased's premises would have been seen by them and others as confirmation of their suspicions. There is no evidence from the State or the defence that the Bamboo Team entered any other premises in the village that morning.
96. Furthermore, Alois and Tombake and others named, rushed into premises and immediately attacked the deceased with bush knives. They inflicted four deep bush knives wounds to the legs and arms of the deceased. The nature of these wounds shows the ferocity with which they were executed. There is therefore no doubt in my mind that Alois and Tombake (and Yari Yapi) intended to or purposely inflicted grievous bodily harm on the deceased.
VERDICT
97. In conclusion I therefore find the accused persons Alois Toropo and Tombake Nare guilty of murder of Kayabe Yoroka and accordingly convict them.
98. I order that they be immediately remanded in custody awaiting sentence.
Orders accordingly.
_________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused persons
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