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State v Andaya (No.1) [2016] PGNC 27; N6207 (18 February 2016)

N6207

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR. No.490 of 2015
CR. No 491 of 2015


STATE


V


LUKE ANDAYA & NATHAN ANDAYA (No. 1)
Accused


Tari: Ipang J
2015: 12,13,14,15 October
2016: 08th & 18th February


CRIMINAL LAW – Criminal Code Act, Chapter 262 – Section 299 (1) Willful Murder – two (2) accused persons alleged to shoot death the deceased using firearms – Deceased died.


CRIMINAL LAW – PRACTICE & PROCEDURE – Defense raised defense of general denial in that the two (2) accused persons were not the ones responsible for the death of the deceased.


Cases cited:


State.v. Acquila (2004) N2672


Counsel:


J. Done, for the State
S. Inisi, for the Accused


Decision on Verdict

18 February, 2016


  1. IPANG, J: This is the decision on verdict for both accused who pleaded not guilty to one (1) count of willful murder pursuant to section 299 (1) of the Criminal Code Act Chapter 262. Both were charged that on the 8th day of March, 2014 at Nigame, Komo in Hela Province, they willfully murdered one Bushman Yendeng.

Brief Facts


  1. The brief facts as alleged by the State are as follow; on Saturday the 8th of March, 2014 between 8.00am and 9.00am both accused Luke Lujape Andaya and Nathan Potape Andaya were at Nongole, Komo Hela Province. Both accused person's Ware Mapulu Clan was at tribal war with Ware Halia Clan. They were using fireman and approached the deceased Bushman Yendeng and two (2) others who were guarding their house and standing in front of it.
  2. As the accused persons approached the deceased and others standing, Paulus Mark who was standing with the deceased and others said, " we are not your enemy, don't fight, come in to our area and destroy our properties.'' The accused Luke Lujape Andaya replied, "you are Stanis Talu's line from Wabag kill them." At the same time he (Luke Andaya) fired first shot from a factory made gun which shot (hit) Bushman Yendeng under his chin. The second shot was fired by accused Nathan Potape Andaya which hit the deceased on his chest. Then, the accused Luke Andaya fired the third (3rd) shot that hit the deceased on the head.
  3. The State alleged that the accused persons had intended to kill the deceased person and had shot and killed him with the guns. The deceased died as a result of the injuries he sustained. The accused persons are indicted with the offence of willful murder pursuant to section 299 (1) of the Criminal Code Act. The State has also invoked sections 7 and 8 of the Criminal Code Act.

The Offence of Willful Murder


  1. The section 299 (1) of the Criminal Code Act states:

' 299. Willful 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 willful murder."
  1. The State has the obligation to prove beyond reasonable doubt that both accused persons without lawful excuse or justification, had intended to cause the death of deceased Bushman Yendeng and therefore had caused his death.

State's Case


  1. Prior to calling its witnesses, state through Counsel J. Done tendered the following document with consent from Defense Counsel.
  2. State called two (2) witnesses namely; Paulus Mark and Andrew Man. Both gave sworn oral evidence. Paulus Mark said he comes from Wabag, Enga Province. He came and did business at Nogoli, Hela Province. He is involved in Trade store and wholesale business. He said the land on which his businesses are located belonged to Stanis Talu. He told this court that with permission from Stanis Talu, he is conducting his business. This was possible because one of his brothers is married to Stanis Talu's daughter.
  3. Mark continued saying he has been in Nogoli for 7 years and he knew very well both accused persons. He said both accused and him stayed together, share food stuffs and go around together. He said he can recall 8th March, 2014 between 8.00am and 9.00am. He told the court that time, there was a fight amongst the Ware – Mapuli clan. They fought over royalty payments. A house got burnt and smoke came out. He said three (3) of them Besot, Deceased Andrew Man and himself were standing watching the smoke. The fighting came closer to his store.
  4. He said they were standing close to each other. Then, he saw both accused persons Luke Andaya and Etoko Pape (Nathan Andaya) came out from the drain and on to the kaukau garden. Then Paulus Mark said he called and said "I am for you guys... I am from Enga... I have no enemies... don't fight in my area." Paulus said, after he spoke out, then Luke Andaya replied, "He (Paulus Mark) is lying. He belongs to Stanis Talu's line so kill him. '' Then as Luke was armed with a Factory Made Gun... shot the deceased Bushman Yendeng on his neck. The second shot was fired by Etoko Pape (Nathan Andaya) who shot deceased on his chest. Paulus said Nathan Andaya used Home-made gun and shot the deceased on his chest. He (Paulus Mark) said the 3rd shot was fired by Luke which shot the deceased on his head.
  5. Paulus Mark pointed to the accused and identified him as Luke sitting on the right side and Etoko Pape as Nathan Andaya sitting on the left side.
  6. Paulus told the court that the tribal fight was between Ware-Mapuli clan themselves and not Ware – Halia clan. He said Halia clan was the clan which settled those (Wabags) on their land. He told the court he was 15 metres apart from two (2) accused persons when he told them not to come to his area. He said there was his cook house, banana trees, kaukau garden, coffee tree (s) in between. He said both accused stood at kaukau garden about 15 metres and shot the deceased. He said he saw this with his own eyes.
  7. In the morning on the date of incident, he said his Trade Store was opened and customers came to his store. He estimated the distance where the fighting was and to his store as from Tari Buai Market to the Witness Box at Tari Court House. He said he has no interest in the fight as he is from Enga and not from Tari.

Evidence of Andrew Man


  1. This state witness told this Court that he is from Wapenamanda in Enga Province. However, he said he is currently residing in Nogoli, Komo, Hela Province. He has lived in Nogoli for seven (7) years. He told the court that he knew both accused persons before the court. He said the first accused is Luke Lujape Andaya and the second accused is Pape Eteko. He said he talked with them, tell stories and eat together with them.
  2. Andrew said he can recall the 8th of March, 2014 at around 8am to 9am, there was fight outside. There was fight by Ware – Mapuli clan, houses were burnt. He told the court, he was in his area and thought they will not attack him. He said he was working and when he saw smoke coming from a building near his area, he came out and watched. Then, he said he's Boss Paulus Mark shouted..." don't come and fight in my area ... I'm innocent... He (Andrew) said Luke said, "these are Stanis Talu's line... kill them.'' He said Luke had a Factory Made Gun and killed his brother Bushman Yendeng.
  3. He said Luke was with his brother Etoko Pape when they killed Bushman Yendeng. Luke and his brother was 10 – 15 metres from the deceased when they shot him (deceased) dead. He estimated 10 – 15 metres is like from the Witness Box to the Court House Gate.
  4. When asked which part of deceased body was shot, he gave the following answers; the first (1st) shot, fired by Luke hit the deceased on deceased's neck. The second (2nd) shot fired by Luke's brother Etoko Pape (Nathan Andaya) hit the deceased's chest. The third (3rd) shot fired by Luke hit deceased's head. He described the bullet went through the deceased fore head and went out to the other side. Then other through the deceased's neck and out the other side. The shot to the deceased's chest spread out the chest.
  5. He said he feared for his life and ran away and took cover. After 30 minutes he came back and collected the deceased's body. He said prior to the deceased's death, there were no other gun shots then thereafter the only gun shots were from the both accused persons. He also said he and his other Wabags did not join any clans to fight.

Defense Case


  1. The defense called Luke Andaya, Nathan Anadaya and John Kapi. All three (3) witnesses gave sworn evidence. Luke Andaya is from Nogoli, Komo, Hela Province. He is married with two (2) wives and has two (2) children. He told this Court that on the 8th of March, 2014 he was at Tari. However, he said prior to 8th March, 2014 there was a tribal fight at Nogoli from 28th February, 2014 to 5th March, 2014. On the 28th February, he said he was at his Guest House or Lodge when a person by the name of Jnr Peter Emboyea was shot dead. They thought he was Nathan Andaya and he (Jnr Peter) was mistakenly killed.
  2. On the 28th February, 2014 at around 11.30pm Jnr Peter Emboyea wanted to go for disco dance at Belopa. He went there and Willie Waiyepe & three (3) others thought he was Nathan Andaya and they shot him dead with a gun. Jnr Peter died near his house. Luke said the deceased body was there and his relatives came from Komo. His relatives threw stones and burnt trade store belonging to Willie Waiyepe. They took the deceased body to Komo for burial.
  3. This witness said after Stanis Talu reached that the deceased who was shot dead was not Nathan Andaya; they (Stanis Talu's relatives) went back to Chief Stanis Talu's Guest House. From there, he said they threw stones and fired gun shots at his (Luke Andaya) Guest House. He said the gun fire lasted for three (3) days. He told the court that the fight arose from the dispute over chairmanship for ILG for PDL 1 so he said Stanis Talu's people came to kill him.
  4. He was worried about his properties like Guest House, 3 small house, one (1) semi – trailer, a Land Cruiser and a Coaster Bus. He sat in his house and told the leaders to bring police. On the 4th March, 2014 Tari police went to Hides. They wanted us to sign peace agreement. The peace agreement were to be between Luke Andaya and Joseph Hapire and chief Stanis Talu and Paranda Haype. All of them were told to go to Tari Police station and sign peace agreement. Before he left for Tari police station, he advised his tribesmen not to cause any trouble. However, he said, that day Chief Talu and Willie Wayepe mobilized their group and burnt down Luke Andaya's properties.
  5. At Tari Police Station Station, they were to sign peace agreement through Statutory Declaration but Chief Talu left for Nogoli without informing them so the Tari Police took him (Luke Andaya) and dropped him at Nogoli. At Nogoli, he saw houses burnt and told his tribesmen that chief Talu may have different motives. He said he doesn't want to fight and that if anything happens he will take it to the law to deal with. He left his tribesmen to occupy his houses downstairs and he slept upstairs. All his guests in his lodge feared for their lives and left.
  6. In the morning of 5th May, 2014, at 6:00am, he sat upstairs on his verandah and as he looked, he saw chief Talu and Wayepe; tribesmen armed and approached his house. He told his tribesmen to keep quiet as he does not want any trouble. Then he heard gun shots and loud noises on the wall of his house. He had six (6) boys with him and he told them to lie down quietly. The gun shots lasted for six (6) hours. His tribesmen relocated to the nearby Oil Search camp. Police called for him so he followed a corridor to the Oil Search camp. The army and police were guarding the Oil Search camp. His tribesmen were there. Police locked him in one of their vehicles. One hour later he and his tribesmen were taken to Tari Police Station and was left there. In the next morning 6th March, 2014 he was told that one of the man from the other side died. That same day one of his boys was washed away by Tagali River.
  7. On the 18th March, 2014 the Provincial Police Commander (PPC) Hela, Deputy Governor Hela, Chairman – Special Purposes Authority, accused elder brother and himself held a meeting in PPC's office for funds to solve the tribal fight. The meeting agreed that Komo LLG and Special Purposes Authority will fund the peace process. They have done that and the accused said he has the Mediation Report. The Mediation Report was not produced in Court. On the 4th November, 2014 a big meeting was held at Hela Provincial Administration Building. The first boy (deceased) shot dead was from Poroma so the people from Poroma blocked the road. So the meeting held on the 4th November, 2014 was to discuss payment of compensation for the deceased boy Jnr Peter Embopia. Accused said he was accused of killing Bushman Yandeng, a deceased from Wabag, he said Willie Wayepe killed Jnr Embopia.
  8. Accused said, Willie Wayepe mobilized his tribesmen and attacked him because his (accused) big brother Peter Potape contested in the Chairmanship of their clan. The deceased from Wabag died on the 5th March, 2014. He was shot by one of accused tribesmen. Accused said, he and his brother did not kill the deceased Bushman Yandeng. It was just a false allegation that he and his brother killed the deceased. The accused said on the 5th March, 2014 when the deceased was shot dead, he was at Piripu Village, Tari. He was with Helo Ami, Guru Julai and Agnes, his wife. The accused thus raised the defence of alibi. This has prompted the State Prosecutor Mr. Joe Waine to ask, "Did you give instruction to your lawyer?" Accused answered "Yes" Q. Was it written down on paper? No" The accused produced his Noted Book not Diary in which he wrote on the 5th March, 2014 he was in Tari. Accused Note Book MF1 No.1.
  9. The purported defense of alibi was not put before the State or the State's witnesses thus contrary to Brown v. Dunn (1893) GR the 67 the (HL) Rule. In Brown v. Dunn (supra) that if you want to rely on a particular version of facts, you must put that to the witness in cross examination so they are given the opportunity to explain their version of facts. The defense counsel did not do this. I do not want to discuss this because if the accused or his defense counsel wanted the Court to believe or accept as the truth, this was never put to State's witnesses during cross examination. See also State v. Minjipa [1977] PNGLR 293, State v. Simon Ganga [1994] PNGLR 323.
  10. There were two (2) conflicting dates given in relation to the fight and date of the deceased's death. The State and the State witnesses gave 8th March, 2014 as the date, the fight started and the deceased Bushman Yandeng died. The defense witnesses Lunke Andaya and Nathan Andaya said the deceased died on the 5th of March, 2014. The Death Certificate and Post Mortem Report for Bushman Yandeng dated 10.01.2015 by Dr. Anthony Kuglame confirmed 8th March, 2014 as the date the deceased died. Refer to Death Certificate & Post Mortem Report for the Deceased Bushman Yandeng. – Exhibit 'E'.

Evidence of Nathan Andaya


  1. He can't recall March, 2014. He was told over the mobile phone by one (1) Jack Telape that I killed one (1) man. Then I was arrested by police and police told me, I killed an Engan man. He said there was a clan fight between his big brother and chief Talu over position of chairman within the clan, he said his elder brother left for Port Moresby. Chief Talu mobilized his relatives to go and kill the witness. Talu's relatives Wayape, Uligali and Arihabonye mistakenly shot Jnr Peter Embopya. In the morning chief Talu saw it was a wrong person. Deceased relatives came from Komo and burnt down a big house. Thereafter part of the deceased's relatives took the deceased's body to Komo. The other part of the deceased's relatives stayed back with chief Talu and prepared to attack Luke Andaya. At this stage, it seems irrational that chief Talus' relatives killed Jnr Peter Embopya.
  2. He was in his hausman when he heard the noises from Luke Andaya's area. This is contrary to what Luke Andaya said, the accused was with his other boys downstairs at his house. He said Luke told them not to make trouble. Chief Talu's people fired gun shots in to their area and stopped in the night and continued the next day. The gun fire continued on the 3rd day. Luke Andaya has properties so he told them to be quiet. On the 4th day, the army, police and leaders came and took chief Talu and Luke Andaya to Tari Police Station. What happened at Tari Police Station, he does not know. Later he said Luke Andaya advised that chief Talu did not sign peace agreement so be on guard around their premises.
  3. Next day at 6:00am, there was a gun shot from where Luke Andaya's residence was. Luke's premises and Nathan's premises are estimated to be 50 metres apart. The gun shots were fired from the other side of the road. So both sides exchanged gun shots from 6:00am to 12:00 midday. Thereafter, they went inside the Oil Search company premises. There were many PNGDF soldiers and police.
  4. He said Chief Stanis Talu is from Ware – Halia clan and Luke Andaya is from Ware – Mapulu clan. He said Ware – Halia clan intended to kill him. On the 5th March, 2014 Luke Andaya's premise was attacked. He said he was armed with a home-made gun. He denied he killed Bushman Yandeng. He said Luke Andaya's tribesmen had 30-40 guns but in his area he had 8 guns. He can't tell whether Luke Andaya had factory – made gun. But he admitted there was exchange of gun shots between the chief Talu's relatives and Luke Andaya's relatives.

Evidence of John Kapi


  1. He is from the Kulu village, Nogoli, Komo, Tari and is from Imbini clan. He doesn't know the deceased but he was at the Blue House when the deceased was brought in and his body was laid on the truck. It was Wednesday a time for market so he went to the Blue House. He said there was a tribal fight between chief Talu's relatives (Ware – Halia clan) and Peter Potape's clan. He did not see anything else. He was estimated to be 1 kilometre away from the fight. He can't recall the exact date but said it was on a Wednesday. He said he did not support the two (2) accused persons.
  2. The following are facts not disputed and facts in dispute.

Issue(s)


  1. The following are the issues from this Court to determine:
  2. Both the defense and the State have filed their respective submissions on verdict. The State has filed its submission on the 19th October, 2015 and the Defense has filed the submission on the 8th December 2015. Ms. B. Gore has tendered the State's submission. She was not the Prosecution's Counsel. It is Mr. Joel Done who was the prosecuting counsel. I have considered both submissions.

Analysis of Evidence


  1. The Defense submission only contained the evidence given by both accused persons Luke Andaya and Nathan Andaya. It does not contained evidence given by John Kapi. Defense in its submission since its defence is one of general denial put every other issues to rest by relying on the contradiction of evidence given by Andrew Man and Mark Paulus (the two (2) State witnesses). Mr. Samuel Inisi of counsel for the two (2) accused persons submitted that the evidence of two (2) State witnesses is unreliable and contradictory to the Medical evidence.
  2. The learned counsel submitted that the evidence on the type of injury sustained by the deceased must be fitting the description of injury described in the medical Report and Post Mortem Examination Report. As in the present case, Mr. Inisi submitted that the Medical Report and the Post Mortem Report do not correlate the evidence of Andrew Man and Mark Paulus. These two (2) State witnesses gave evidence that there were three (3) shots fired by the two (2) accused persons (Luke Andaya and Nathan Andaya). Both State witnesses described the three (3) shots fired in the following
  3. Dr. Anthony Kuglame, a Medical Officer at Emmanuel Lutheran Rural Hospital Mambisanda, Wapenamanda District, Enga Province dated, 10th March, 2014 stated that the date of death as 8th of March, 2014. The Medical Report stated:

"Injuries noted include a seemingly gunshot wound to the left parietal skull with multiple fractures of the skull. Another wound we noted at the back of the neck. Cervical spine intact. No other injuries noted.


  1. Mr. Inisi of Counsel for both accused persons submitted that the contradictory evidence given by the two State witnesses against the evidence of the Post – Mortem Examination Report are serious enough to cast doubt upon the entire evidence about the events which unfolded on the day in question. The contradictory evidence of the two eye witness also go against the evidence of the State witnesses about the identity of the two accused; including the type of weapons used in shooting the deceased. When the evidence of the type of injury sustained by the victim which caused his death as per the eye witness accounts go against the secondary evidence; which is the Post Mortem Report; the doubt of such contradictions goes to support the version of the accuseds.
  2. Inisi submitted that this mean; the accuseds identity including the act; of shooting from two different weapons namely homemade gun and a factory made rifle is not made out and such doubtful and inconsistent evidence goes against the credibility of the eye witnesses' accounts who said to have been at the crime scene. One of the cases in which the accuseds were acquitted due to the eye witness accounts contradicting to the Medical or Post Mortem Report is in the case of State v. Acquila [2004] N2672 by His Honour Kandakasi, J presiding at Goroka. The facts in this case are that the accused and his co-accused were at a club in Goroka. The State alleged that there was a fight at about 2am and the accuseds stabbed the deceased twice which resulted in bleeding and the deceased bled to death. Both accused were charged with Murder under Section 300 of the Code. A trial was conducted when the accuseds entered a plea of not guilty.
  3. When acquitting the accuseds of Murder contrary to Section 300 of the Criminal Code, this is what His Honour Kandakasi, J had to say:

There are also other inconsistencies when we examined the whole of the State's evidence as one. The most significant one is where the oral testimonies of the first and second witnesses speaks of stabbings whilst the medical report speaks of only one stab wound. That wound is to the right thigh and makes no mention of any injury or wound to the left hand. The oral testimony says the deceased sustained the first stabbing to his left hand. This evidence clearly states that the knife was seen entering the deceased hand or flesh. These inconsistencies give rise to a number of questions. Firstly, did the first two witnesses go together from the Sports Club to the Bowling Club at 2:00am on the date of the incident? Did the witnesses actually witness the fight between the deceased and you two men? If the answers to these are in the affirmative then, the next question is, how is possible for them to give different accounts not only in the critical question for trial but also the number of them getting to Bowling Club from Sport Club and others? Could they have been mistaken? If so, do they say that and what is their explanation for that?


Application of the law to the Facts


  1. The defense counsel submitted that the evidence provided by the State do not assist the State's case to prove its case beyond reasonable doubt. Counsel further submitted that the State failed to establish the elements of the offence of willful murder as well as to negate the suggestions that the death was caused by someone other than the both accused persons.
  2. The witness Paulus Mark stated that on the 8th March, 2014 between 8-9am he was at his store premises at Nogoli. He stood at the back of their store and watched smoke coming from a burning building. He further observed and saw Luke Andaya and Nathan Andaya creep up a drain and was standing on his kaukau garden 20 – 30 metres away. He clearly identified Luke Andaya who said, "Yupla ol Wabag lain blo Stanis Talu kilim ol." (you are Stanis Talu's people from Wabag, kill them). This State's witness told them (Luke Andaya & others) "Mipla nogat birua wantaem yupla na noken pait ikam long eria blong mipla na bagarapim properties blo mipla." (We are not your enemy, don't fight and come to our area and destroy our properties). The distance between Paulua Mark and the both accused persons standing on the kaukau garden was estimated between 20 -30 metres. This was confirmed during the visit to the Crime scene (Refer also to sketch Map Exhibit 'F')
  3. Both accused persons did not wear masks to hide their faces. State witnesses were at that place Nogoli, for seven (7) years and knew both accused persons by name and faces. To which both accused persons plainly deemed without providing any good reasons. On that morning of the 8th March, 2014 the State witnesses opened their store for normal business whilst there was tribal fight. Thus, it draw at least some rational reasons as they have nothing to do with the fight. Even if their elder brother is married to Stanis Talu's daughter. They are not member of Talu's Ware – Halia clan. There is not an iota of evidence that neither State witness nor the deceased were involved in the tribal fight. There is no issue raised or taken regarding the Sketch Plan or Map tendered and marked as Exhibit 'F'. The distance estimated between where the two (2) State witnesses and the deceased stood to where both accuseds stood was estimated and agreed by both counsels. This distance was confirmed during the visit to the crime scene.
  4. Because the Medical Report did not describe the particular type of injuries the State witnesses said the deceased sustained does not in my view puts all the State's evidence in to disarray or disrepute. It is only the evidence that Nathan Andaya fired a shot that spread out on deceased stomach and chest has not been described in the Medical Report. That aspect of evidence is not captured in the Medical Report. The element of charge under s.299 of wilful murder to be proved are:
  5. Given the above, I am not satisfied beyond reasonable beyond that the accused Nathan Andaya did not cause the death of the deceased Bushman Yandeng by firing a shot at his stomach – chest causing the deceased's death. I discharge him of willful murder pursuant to section 299 of the Criminal Code Act. I return a verdict of not guilty for the Accused Nathan Andaya. On the contrary, I am satisfied beyond reasonable doubt that the accused Luke Andaya has caused the death of Bushman Yandeng by firing a gun shot which shot the deceased Bushman Yandeng on the neck which penetrated through the neck and also through the deceased's head. I return the verdict of guilty for the accused Luke Andaya for the offence of willful murder pursuant to Section 299 of the Criminal Code Act.

Verdict


48. The verdict of the Court is as follows:


(I) Accused Luke Andaya is found guilty as charged for the offence of Willful Murder under s.299 Criminal Code Act

(II) Accused Nathan Andaya is found not guilty of Wilful Murder

_____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused

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