State v Yau [2015] PGNC 288; N6274 (3 December 2015)

N6274

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1203 of 2009
CR 1302 of 2014
CR 0630 of 2014

THE STATE

V

EDWIN YAU, HEMMIS YAU, & JOB KAMORI

Wewak: Geita J
2015: 10, 11, 12 August, 7, 21 September, 3 December

CRIMINAL LAW – Trial - No case submission at close of all evidence for Accused Edwin Yau and Job Kamori – No case submission upheld – Accused Edwin Yau and Job Kamori acquitted – No application by Accused Hemmis Yau.

CRIMINAL LAW – Trial – Wilful Murder - Accuseds’ right to remain silent – Not an admission of guilt – Failure to give evidence however may tell against him-
CRIMINAL LAW - Wilful Murder – Section 299 (1) Criminal Code – Elements present – Section 7 Criminal Code.

CRIMINAL LAW – Verdict - Wilful Murder – Section 299 (1) Criminal Code – Elements present – Section 7 Criminal Code – Guilty Verdict against Accused Hemmis Yau.

CASES CITED:

PNG Cases:

Paulus Pawa v The State [1981] PNGLR 498
The State v Emmanuel Bais & Felix Fimberi (11/06/03) N2416
The State v Paul Kundi Rape [1976] PNGLR 96
The State v Peter Malihombu (29/04/03) N2365
The State v So’ón Torah (2004) N 2675

Overseas Cases:

Anthony David Frost v George Talbot Hale 48 Cr App R 284, p 291
Samuel Peacock v R [1911-12] 13 CLR p 640-641, p 640-641

Counsel:

Paul Tusais, for the State
Johnson Malambaul, for the first and third defendants
Darroll Sakumai, for the second defendant

Legislation:
Criminal Code:

JUDGMENT ON VERDICT

3^rd December, 2015

1. GEITA J: The three accused persons were indicted for the wilful murder of George Wosimbu pursuant to Section 299 (1) of the Criminal Code, Chapter Number 262. They all pleaded not guilty to the charge and trial ensued. The provisions under Section 7 of the Criminal Code were also invoked in that they actively supported the attack and were not mere spectators.

Prosecution Evidence

2. The three accused record of interviews and a post mortem medical report was tendered into court by consent. The State also called 3 witnesses including the arresting officer and the police corroborator.
Brief summary of evidence for The State

State Witness 1 – Joe Sambagia

3. The witness is from a neighbouring village in the Boiken area and is related to all the accused persons and refers to them in custom as his sons with Hemmis as his brother. He gave testimony of a meeting prior to 11 April 2009 called by the deceased in preparation for mediation between three families the next day, including the beating of sago. He was the appointed mediator. As they got to the sago making area they noticed uprooted young coconut trees and damaged sago making equipment. The deceased collected the damaged equipment and took them to Edward’s house the same day as they were still making sago.

4. He said whilst in the bush making sago they heard garamut beats signalling trouble so they hurried back to the deceased’s house. As they were resting a group of men led by Jonathan Yau approached them. The witness identified the other men to be Hemmis Yau, Tony Emmanuel and his two sons Terrence Kajera and Ruben Kajera, Raymond Yau, Edward Yau now in court, Job Kamori, Elvis Waiko, Joel Poki, Wilson Kaien, Thomas Panau and some other men from Angoram area who came along. As they came closer Jonathan drove his bush knife into the ground and proceeds to fight the deceased with Hemmis Yau shouting obscenities: “kaikai kan”, who told you to come down, “your land ah, you hero ah?” towards the deceased. Hemmis, armed with a black palm struck the deceased three times on his shoulder and head causing blood to splatter.

5. The witness said Hemmis turned on him and attacked him with the black palm on his left arm and he blocked it. As he grabbed the black palm the group of men attacked him and he fell to the ground. He said as he was on the ground, he saw the deceased ran to the back of Graham’s house with Jonathan closing in and cut him on his left arm as others destroyed their property. He escaped to Kumalumbo village and sought refuge from Dona. Soon after he saw the deceased joined them at Kumalumbo, still bleeding from his wounds so Dona covered him up with a blanket.

6. The witness said Job and his father Mathew Kamori, Timothy Walegre and Thomas Panau came to Kumalumbo and returned. They returned later with a much bigger group of men: Elvis Waiko, Joel Poki, Edward Yau, Tony Emmanuel Kajeri and his two sons Terrence and Ruben, Thomas Panau, Wilson Kaian, and Hemmis Yau. They all came and fought George Wosimbu and said ‘Birua, yu hero ah?’ He said Jonathan cut/chopped his right leg and he fell to the ground. Hemmis hit his head twice with the black palm and Tony spat on him. The witness said Dona called out to the men to have mercy on him however they continued on attacking him and killed him. He said that was his first experience of witnessing a murder and so he left the place.

7. The witness said more than 12 family members from his clan went to make sago, including the deceased and his family. He said during the first wave of attacks around 4 -5 pm in the afternoon Job Kamori was present and he saw him clearly destroying and stealing things. Edwin Yau also was there armed with a knife, he is now a big boy. During the second attack at Kumalumbo village Job Kamori came with a group of men, armed with a gun. He did not stop the men from attacking the deceased.

8. In cross examination the witness said he was at Kumalumbo village that day as there was planned land mediation between Tony Emmanuel’s family and Tony Walegre’s family. The deceased was the appointed Mediator. He said they suspected that Edwards’s people damage their sago making equipment. When questioned about Job and Edwin the witness said he saw them as they were from the same village. When suggested to him that as the dispute involved a particular family he was able to easily name all family members in court, the way he did, the witness said he saw them all at the crime scene.

9. Upon defence suggestion that Edwin Yau, a grade seven student in 2009 was with his uncle John Maino at Umboigen village and could not possibly be at the crime scene, the witness maintained that he saw him in the morning and not the afternoon. Cross examination continue:

Q. 24 Job Kamori was at his home in 2009 from Easter holidays, Friday April 10 but the incident happened on Saturday 11 2009, he was not at the crime scene?

Ans. No but I saw him and Timothy Walegre at the scene.

Q. 26 You say you saw Timothy Walegre?

Ans. He wasn’t studying at UNITECH, I can’t answer that,

Q. 27 Everything happened so fast, you are mistaken.

Ans. No

10. Cross examination by Defence Counsel Sakumai for Hemmis Yau
Continue.

The witness admitted that there was an ongoing land dispute between his line and Tony Emmanuel’s line over the sago making area. However they continued to work on the land as they were not given a stop order.

Q. 5 You proceeded to Lau Camp?

Ans. Yes

Q. 6 At Tony Emmanuel’s area at Lau Camp was you, George Wosimbu and Greg?

Ans. No some men came late.

Q. 7 Tony Emmanuel and Jonathan led the group, true?

Ans. Yes.

Q. 8 George Wosimbu was sitting down near coconut tree when they arrived?

Ans. No he was standing.

Q. 9 George Wosimbu wore a pair of sun glasses?

Ans. Yes.

Q. 10. Jonathan argued with George Wosimbu and they fought?

Ans. No, George Wosimbu did not fight.

Q. 11 Jonathan punched George Wosimbu and he fell down and George Wosimbu

went to his house...to get a chair?

Ans. No.

Q. 12 George Wosimbu returned with a chair and at that same time the accused Hemmis Yau went under Steven’s house to get limbum?

Ans. No.

Q. 13 George Wosimbu lifted the chair to strike Jonathan, missed and so Jonathan hit George Wosimbu with the limbum. Hemmis Yau saw that and hit George on the shoulder with the limbun?

Ans. No.

Q. 14 After George Wosimbu fell to the ground; he went to the back of his house and was followed by Jonathan?

Ans. No.

Q. 15. After that you did not see him?

Ans. Jonathan cut him, I was on the ground, got scared and ran away.

Q. 16. You ran to Kumalumbo to hide?

Ans. Yes. One of my father’s line lives there.

Q. 16. Before you left for Lau camp, did you seek help from anyone?

Ans. Only Dona and her family.

Q. 17. Did you ask Dona to go and seek help?

Ans. No only help with bedsheet.

Q. 18 What time did you arrive at Kumalumbo?

Ans. In the afternoon, can’t give exact time.

Q. 19. At what time did Tony Emmanuel arrive at Kumalumbo?

Ans. Around 5.30 pm.

Q. 22. You were hit in the first fight?

Ans. Crowd hit me and I fell. I did not see who punched me as they came from the back.

Q.24 I say to you that Hemmis hit the deceased on his shoulder to stop him from hitting Jonathan.

Ans. No.

11. During re examination the witness said they were outnumbered with men and weapons. He denied seeing George Wosimbu fighting back. He maintained that Edwin Yau was seen at Lau Camp and Kumalumbo by him, saying that he was at Boys Town for some time and ran away. Job Kamori was also seen at the two places he said.

State Witness 2 – Lenis Jakarik

12. The witness testified of returning from the bush after collecting bush ropes on 10 April 2009 with John Kombu and Lucas Susua. On their way home they saw Edward at the sago making place around 4 pm that day. The next day they all went to make sago and saw the damaged sago making equipment. He said George Wosimbu collected the damaged equipment and took them to Yau family house as they continued making sago. Upon their return home between 3 – 4pm they heard the garamut beat. Not very long he saw a group of men approaching them: Edward Yau, Tony Kajera, Jonathan Yau, Hemmis Yau, Terrence Kajera, Reuben Kajera, Elvis Waiko, Damien Koian, Raymond Yau and seven other men. He said Jonathan came first armed with a bush knife, drove it into the ground and ask for anyone to challenge him. Hemmis Yau armed with a traditional fighting stick struck George Maningu Wosimbu on his head. (described stick as pointed at both ends like a spear). Tony Kajera was armed with a piece of iron, jack handle. Jonathan cut the deceased with a bush knife on his left hand.

13. The witness said as all that was happening Elvis, armed with a bush knife chased him into the bush. He did not see what happened next as he hid in the bush. When he returned from the bush he saw George Wosimbu holding his wounded left arm. As he tried to assist Wosimbu; Hemmis Yau chased him into the bush again with a bush knife. He said he did not see the deceased walk from Lau camp to Kumalumbo. The witness said he followed the blood trial all the way to Kumalumbo where he met Wosimbu and Joe Samba and went look for assistance. He returned with assistance in the form of a vehicle but was chased away again by Tony Kajera, Edward Yau and some men. He said by the time he arrived back with help George Wosimbu had died. He said as they were taking the body of George Wosimbu down to the hospital on Sunday he heard the same garamut beating. He saw Jonathan, Edward, Raymond, Hemmis, Tony Emmanuel Kajera, Elvis Waiko, Reuben Kajera, Terrence Kajera come up to the house and chased him. He said Reuben swung a bush knife at him and he ran away and now returned to court to testify.

14. Cross examination- Malambaul for Edwin Yau and Job Kamori

Q1. Who went with you to the sago place?

Ans. Me and my family, George Wosimbu and family, Joe Samba and family. We all returned home to Lau camp after beating sago.

15. Cross examination – Sakumai for Hemmis Yau

Q.1 Where were you when Tony Emmanuel and his men came?

Ans. I was at my house with George Wosimbu and family when Tony came.

Q. 3 When Tony Emmanuel and group arrived, Jonathan argued and started

fighting.

Ans Yes

Q. 4 Jonathan hit George Wosimbu and he fell down and went to get chair?

Ans. No

Q. 5 When the deceased returned with chair and tried to hit Jonathan, Hemmis Yau pulled palm and hit he deceased on shoulder, true?

Ans. No

Q6. As the fight continued the deceased ran to the back of the house, true?

Ans. No.

Q. 7 It was at the back of the house when Jonathan cut the deceased on his hand, true?

Ans. Yes.

Q. 8 Graham Wosimbu with you all the time, true?

Ans. Yes

Q. 9 Where was he at the time?

Ans Yes.

Q.10 Did you see Graham fight Jonathan?

Ans. No

Q.11 Did you see Graham fight Hemmis Yau?

Ans. No.

Q. 12 When you escaped the first time, did you try to call for help/to assist George

Wosimbu?

Ans. No I did not send for help as there was no one around.

Q. 13. When you arrived at Kumalumbo, you saw the deceased and Joe Sambagia.?

Ans. Yes. That was around 4-5pm

State Witness 3 – Graham Wosimbu

16. The witness testified of his family members visit to the sago making place on Saturday 11 April 2009 to make sago only to find that their equipment destroyed. So his father, the deceased collecedt the remains of the sago making equipment and brought them to Edward Yau’s house and left a message with Edward’s wife for the matter to be resolved. He said they returned home after making sago around 3 pm and heard the beating of the garamut. Not very long afterwards a group of men arrived at their place, Lau camp: Hemmis Yau, Jonathan Yau, Elvis Waiko, Tony Emmanuel, Raymond Yau, Joel Poki, Terrence Emmanuel, Ruben Emmanuel, Thomas Panau, Timothy Walegre, Robin Koian, Damien Koian. He said the men confronted them as he was standing with his father. Hemmis and Jonathan approached his father and demanded to know who sent for them to come for the meeting.

17. The witness said Jonathan raised the knife in his hand and swung it at his father but he challenged him to a fair fight. Hemmis swung the traditional fighting stick in his hand and Jonathan swung the knife which landed on his head and also cut his father on his left arm. He said as he tried to attend to his father he was told by his father to go get his mother and siblings and hide in the bushes. At the same time he saw Tony Emmanuel trying to hit his father with an iron bar so he reached for an iron bar used for husking coconuts and threw it at Tony to distract him.
The witness said when he hit Tony Emmanuel, Jonathan Yau pulled out a pistol and threaten to shoot him so he told his cousin John Kombu to run away.

18. He said they ran away to the main village to seek help with Tom Welegre chasing after them with a shot gun. They reached the main road at West Coast and took a PMV ride into Wewak town. They returned to the village with the assistance of police and some uncles only to find that his father had died. The witness said at Lau camp he was with his father and family, uncle Joe Sambagia, cousins Lenis Jakarik and John Kombo with his sister and brother. Hemmis carried the stick and brought it with him. He said he knew most of the men that came to their place as they were all from Kumalumbo village and were all related to him. Hemmis Yau is now in court. Tony Emmanuel and others came to fight us and not to resolve the dispute.

19. In cross examination the witness maintained that Joe was also there and he heard the garamut beating whilst at Lau camp. When suggested to him that Jonathan Yau was the main perpetrator and not Hemmis Yau the witness disagreed and said Hemmis Yau came to Lau and ran up. He maintained that the stick was not any ordinary dry bark but a traditional fighting stick. The witness said when told by his father to go away he went and hid in the cocoa patches. As he returned to the scene to assist his father he distracted Tony Emmanuel from attacking his father. He admitted that he never went to Kumalumbo but instead went into Wewak town to seek help.

No case submission for Edwin Yau and Job Kamori

20. At the end of State’s case Mr Malambaul for Edwin Yau and Job Kamori moved a no case application on behalf of his clients based on limb two of the principles in Paul Kundi Rape. He conceded that although there were some evidence they were lacking in weight and credibility and submitted for an acquittal for his clients. Mr. Sakumai for the accused Hemmis Yau did not move a no case submission however relied on the outcome of the first no case application. Mr Tusais for the State submitted in reply that all three persons were clearly identified to be at the crime scene and there was sufficient evidence before the court to allow the case to proceed and not to stop the case prematurely. He said defence alibi remained wanting.

21. After receiving oral submissions from counsels I delivered an extempore ruling upholding the no case submissions. I was satisfied that there was insufficient evidence linking the two accused to this indictment. Only one of two State witnesses was said to have seen the three accused at the crime scene. Two other witnesses never made mention of seeing the two at the crime scene in the body of their evidence. Any reference to their sightings was obtained though re examination and in I my view remained unconvincing and unsafe to rely upon. The witness considered most important with deep vested interest was the deceased son. Graham’s evidence remained crucial however he failed to link the two accused to his father’s death. The two accused were acquitted. This judgment therefore is restricted to accused Hemmis Yau.

Issue - Aiding in self-defence

22. The only issue before me is whether you aided in self-defence when you assaulted the victim with a weapon?

The Relevant Law

23. You have been indicted for wilful murder under section 299(1) of the Criminal Code and under section 7 of the Code: that you actively supported the attack on the deceased and were not a mere spectator. 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

24. 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.

Disputed facts

25. The State’s case is that Hemmis Yau and Jonathan were the main perpetrators involved in the fight which resulted in the death of the deceased at Lau camp and Kumalumbo village respectively. Hemmis Yau confronted the deceased and his family at Lau Camp, shouted obscenities: ‘kaikai kan’ and struck the deceased three times on his shoulder and head causing blood to spatter. As the deceased ran to the back of George’s house Jonathan followed him and cut him on his left arm whilst the other men destroyed Lau property. This evidence corroborated by witness Lenis Jakarik. Jonathan swung a bush knife at the deceased but was prevented by his son Graham Maningu. The bush knife however landed on the deceased’s left hand. Jonathan landed the traditional fighting stick on his head. Graham Maningu never mentioned anything about the accused striking the deceased. At Kumalumbo Jonathan cut the deceased’s right leg and he fell to the ground. Hemmis hit his head twice with the black palm as Tony spat on him.

26. The accused raised a defence of aiding in self-defence which is provided under section 271 of Criminal Code. It is in the following terms:

“Where it is lawful for a person to use force of any degree for the purpose of defending himself against an assault, it is lawful for any other person acting in good faith in his aid to use force of a like degree for the purpose of defending him.”

27. The accused said he struck the deceased on his right shoulder with a piece of dried palm branch to stop him from hitting Jonathan Yau with a chair. The palm branch was fetched from under Steven Jakarik’s kitchen.

Findings of fact

28. A common thread running through all the evidence from both sides in these types of cases is that in most situations some half-truths and untenable evidence will surface. In many instances evidence is tailored to suit a party’s case depending on whose side one takes. This now is a cause of which side the Court finds credible. In order to do that I find some comfort and assistance in the case of The State v So’ón Torah (2004) N 2675. His Honour Justice Kandakasi had this to say at page 5 and I quote:

“Finding of credibility is in turn dependent on matters of logic and common sense as well as the demeanour of the witnesses and consistencies in their evidence: See The State v Emmanuel Bais & Felix Fimberi (11/06/03) N2416 and The State v Peter Malihombu (29/04/03) N2365. Accordingly, I carefully observed the demeanour of each of the witnesses called. I must say I could clearly tell that each of the witness were protective and supportive of the version of the party that called them. I sensed therefore that, their respective testimonies were not entirely the truth. There were some truths and some tailored evidence on both sides. ”

29. I will adopt and apply the above principles in this case.

30. In order to narrow down and crystallise the evidence as they unfolded I have grouped the events into two heads: 1. Fight at Lau camp and 2. Fight at Kumalumbo hamlet.

Fight at Lau camp

31. All three State witnesses said Jonathan Yau and Hemmis Yau were the aggressors and led the pack to the camp. They all saw Jonathan armed with a bush knife and Hemmis armed with traditional fighting stick (limbum). Only Graham Maningu (Wosimbu) said he saw Jonathan Yau also armed with a pistol which was used to threaten him. Witness Sambagia said Jonathan and the deceased fought but gave no details of the fight. He denied seeing the deceased attempting to strike Jonathan with a chair. He denied seeing Hemmis Yau hit the deceased on his shoulder to stop him from striking Jonathan. As he was lying on the ground he saw Jonathan follow the accused to the back of George’s house and cut him on his left arm as others destroyed their property. Hemmis struck the deceased three times on his shoulder and head causing blood to splatter.

32. Witness Jakarik said he saw Hemmis Yau strike the deceased on his head with a traditional fighting stick. Jonathan cut the deceased’s left hand with a bush knife he was carrying. Elvis chased him with a bush knife and he fled to the bushes and hid. As he returned he saw the deceased holding his wounded left arm. He said as he tried to assist him but Hemmis Yau chased him again with a bush knife and he fled into the bush.

33. Witness Graham Wosimbu said Jonathan raised the knife in his hand and swung it at his father and was challenged to a fair fight. He swung the traditional fighting stick in his hand which landed on his head. He said Jonathan cut his father on his left arm. He said when Tony Emmanuel was trying to hit his father with an iron bar he threw a coconut husking iron to distract him. When Tony Emmanuel was hit Jonathan Yau pulled a pistol on so he ran away with his cousin John Kombu.

Fighting at Kumalumbo hamlet

34. Witness Sambagia fled to Kumalumbo and was joined shortly by the deceased, when the attackers arrived and shouted ‘birua’’. He saw Jonathan cut/chopped the deceased’s right leg causing him to fall to the ground. Hammis Yau hit the deceased twice on his head as he lay on the ground. Tony spat on him.

Witness Jakarik said he followed blood trail all the way to Kumalumbo and met up with the deceased and Graham. When he returned with a vehicle to assist the deceased he was again chased away by their attackers. By the time help arrived George Wosimbu had died. He said as they were getting ready to transport the body of the deceased to the hospital on Sunday he got threatened with a bush knife and so he fled to Wewak and never returned to the village.

Witness Graham Wosimbu gave no account of events at Kumalumbo as he fled to Wewak to seek assistance.

Accused elected to give unsworn statement

Fight at Lau camp

35. Hemmis Yau said five men including him went to Lau camp unarmed and saw the deceased seating on a chair in front of his house. Tony Emmanuel and Jonathan led the group. He said the deceased questioned Jonathan about the sago patch and punched him three times. He said as they were struggling the deceased took a chair and hit Jonathan Yau.

Hemmis said upon seeing that, he reached for a black palm under Steven Jakarik’s house, limbum and hit the deceased on his right hand side to prevent him from hitting Jonathan. As the deceased dropped the chair they both began to fight.

He said he fought with the deceased’s son Graham. Graham threw a piece of iron which missed him and hit Tony Emmanuel so Tony went and hit Graham. He said he then chased Graham and returned to his house.

Fight at Kumalumbo hamlet

36. Hemmis Yau gave no account of the fight at Kumalumbo hamlet.

Application of facts to matters of logic and common sense

37. All State witnesses saw Raymond and Edward Yau family members together with other supports numbering more than 12 converge on Lau camp in an aggressive manner. They were led by Hemmis Yau and Jonathan Yau who were armed with a bush knife and limbum or traditional fighting spear.

38. The accused said only five men arrived at Lau camp all unarmed. By his count the five men would include him, Tony Emmanuel and his two sons and Jonathan. I ask then what has become of the rest of the Raymond Yau family. According to Hemmis, Raymond Yau gave instruction for the garamut to be sounded, signalling trouble or fighting. Why would he remain behind and not go and give support to his other family members? Tony Emmanuel and his two sons responded to the garamut signal. It follows that other immediate male family members would have been alerted and joined the crowd to approach their enemies. After all their rivals had just dumped the damaged sago making implements at their doorstep angrily and demanded for a meeting. In any Papua New Guinea village setting such behaviour or conduct from a rival clan or family can only mean trouble and even lead to fighting and bloodshed. Since Hemmis Yau was present and received the brunt of the Wosimbu tirade, he took it upon himself to be the pack leader and the main instigator. In his own words:” Tony Emmanuel is big and so told me to go to Lau to resolve matter.”

39. Now applying the principle of common sense and logic Hemmis Yau’s version of only five men descending upon Lau camp unarmed a fallacy. He had sounded the garamut signalling trouble and he was on a warpath so to speak, so why go unarmed in a casual manner into enemy territory? It follows therefore that his version of events cannot be believed. They fly in the face of common sense and logic. I am more inclined to believe the version of events given by State witnesses.

40. All State witnesses saw him leading the pack assisted by Jonathan Yau. He however said the pack was led by Tony Emmanuel and Jonathan. He has conveniently distanced himself as the lead perpetrator. He was the one who bore the brunt of Wosimbu tirade and was directed by his elder brother Tony Emmanuel to settle the matter at Lau camp. It follows therefore that he had more reason to be incensed and therefore lead the pack to Lau camp with Jonathan and not the way he described. Again I am not convinced with his version of events in this regard. I find the State witness version more credible and convincing.

41. As to the accused defence of aiding in self defence all State witness evidence were at variance. This is not uncommon as they all saw events differently from different viewpoints; hence minor inconsistence will present themselves. For instance Sambagia and Jakarik gave no account of the deceased hitting Jonathan with a chair. They both gave same accounts of Hemmis Yau hitting the deceased on his head and shoulder with the black palm or traditional fighting spear. Graham Wosimbu said as both Jonathan and Hemmis Yau confronted his father, Jonathan struck his father on his left arm with a bush knife he was carrying. In his attempts to stop Tony Emmanuel hitting his father Jonathan Yau threatens to shoot him with a pistol he was carry and so he fled into the bushes.

42. The accused’s version is that he struck the deceased to prevent him from hitting Jonathan with a chair. The scenario here is that we have the accused with a chair in hand as opposed to the man he was about to hit armed with a bush knife and a pistol, for the moment concealed. Again common sense and logic dictates that that Jonathan had the upper hand as he was well armed and protected as opposed to the deceased with only chair in hand. It follows therefore that his defence is found wanting and does not hold water in my view and cannot be believed.

43. His assertion of reaching for the dead limbum under Jakariks house likewise does not hold water. One would have to have super reflexes to reach for the limbum at a nearby house and return in time to defend Jonathan. I find this piece of evidence unconvincing and a falsehood. The States version of the limbum being carried along to the crime scene more believable and the manner it was also used credible and believable. The accused defence therefore cannot stand on its own two feet and must be disregarded.

44. Furthermore I find that the accused has not successfully raised aiding in self defence here. He is entitled to establish that defence on the balance of probability hence shift the onus to the State to negativing that defence. There is no evidence before this court to support his assertion or support his belief that Jonathan Yau was in a life threatening situation warranting his intervention. If anything the said Jonathan was in a superior defending position armed with a bush knife and a pistol at the material time. He was not threatened. The accused’s attack on the deceased was not warranted and therefore unlawful. The use of a bush knife and or a piece of black palm locally referred to as limbum as opposed to a chair cannot be termed as force of a like degree for the purpose of defending him.

45. I am entitled to hold the view that although Graham Wosimbu gave no account of his father being struck with a limbum by Hemmis Yau, two other State witness saw that incident. Their version remained intact and has not been disturbed. I hold them to be witnesses of truth as opposed to the accused. In any event Graham’s account is corroborated by the accused: both of them fought. Although their reasons for the fight are varied I am more inclined to give weight to Graham Wosimbu’s version.

46. On the question of witness demeanour and consistency of evidence I detected some minor inconsistencies in State evidence however I did not consider them fatal in totality. As I said earlier, in these types of cases, especially from village witnesses minor inconsistence cannot be totally ruled out. The fact that they all touched on the substance of the matter from their respective viewpoints, however differing but in almost all circumstances arrived at the common end result. In my view that is what counts.

The effect of making an unsworn statement from the dock

47. Now moving on to the question of what weight to give to the accused’s unsworn statement, again I remain to be guided by the relevant propositions. Unsworn statements in general are not regarded as evidence per se as they remain untested in cross-examination hence do not carry the same weight as evidence given under oath. Nonetheless such statement must be scrutinized for its reasonableness and worth.

48. First is that I must direct myself correctly with regard to the accused’s unsworn statements. In the case of Anthony David Frost v George Talbot Hale 48 Cr App R 284, the court said at page 291 and I quote:

“......It is quite clear today that it has become the practice and the proper practice for a judge not necessarily to read out to the jury the statement made by the prisoner from the dock, but to remind them of it, to tell them that, it is not sworn evidence which can be cross-examined to, but that nevertheless they can attach to it such weight as they think fit, and should take into consideration in deciding whether the prosecution have made out their case so that they feel sure that the prisoner is guilty.” (Emphasis mine). Similarly in the case of Samuel Peacock v R [1911-12] 13 CLR p 640-641 Griffith CJ said:

“The proper direction to be given, it seems to me, is this, that the Jury should take the prisoner’s statement as prima facie a possible version of the facts and consider it with the sworn evidence, giving it such weight as it appears to be entitled to in comparison with the facts clearly established in evidence.”

49. As can be seen from my dissection of all the evidence before me, sworn and unsworn I have considered all the statements before me in the context of the evidence as a whole, more so in light of the relevant principles mentioned above. For the moment the State case in whole remains unchallenged by other evidence.

50. The defence counsel has gone into great lengths in referring and quoting the case of Paulus Pawa v The State [1981] PNGLR 498. There a marked differences in the two cases. In the Pawa case (supra) the accused elected to remain silent, no statement made. In the current case the accused did not remain silent but elected to give unsworn statement from the dock. Those decisions remain within the right of accused persons and are permissible under existing law on practice and procedure. I have already adequately canvassed the evidence under those circumstances. Put differently the case of Pawa is distinguished and cannot be relied upon by the accused.

Principal Offender

51. I am satisfied that Hemmis Yau was the instigator of the crime of murder and heavily involved at Lau camp and at Kumalumbo hamlet. He was the aggressor and went into great lengths and prevented all forms of assistance to be given to the accused by his relatives and sympathizers. At Lau camp he chased Jakarik into the bush as he attempted to help the deceased who was holding onto his wounded left arm. As if that wasn’t enough he followed the deceased who was now wounded, to Kumalumbo and as he lay on the ground from Jonathan’s attacks with a bush knife, Hemmis Yau struck his head with the same black palm.

52. This undoubtedly in my mind is a clear manifestation of his excessive participation and intention in this whole unfortunate saga. Have canvassed all the evidence before me I have no difficulty in forming the view that the accused also 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 him criminally liable for the murder committed.

53. 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.

54. 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 accused was seen on those two locations and 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 accused must as a matter of law be lawfully convicted.

Verdict
55. Accordingly, I return a verdict of guilty and have you convicted.

Verdict: Guilty

Public Prosecutor : Lawyer for the State
Public Solicitor/MS Wagambie Lawyers : Lawyer for the Defendents