State v Huarikava [2016] PGNC 313; N6511 (20 October 2016)

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Wewak: Geita J
2015: 15&16 April, 8, 11, 12, 20 May, 14 August, 25 September
2016: 7 September, 20 October

CRIMINAL LAW –Trial – Wilful Murder –Accused murdered the deceased using a meter long bush knife killing him instantly –The deceased was seated amongst his family members at a mourning ceremony - Direct eye witness account of identification – Section 299 (1) Criminal Code.
CRIMINAL LAW –Evidence – Direct and circumstantial - Defence Alibi not substantiated –Co-accused found guilty by operation of section 7 Criminal Code – All elements successfully made out - Section 299 (1) Criminal Code – Guilty verdict returned.

Cases Cited:

John Beng v The State [1977] PNGLR 115
John Jaminan vs The State [No. 02] (198) PNGLR 3180
The State v Eki Kondi (No.1) [2004] N2542
The State v Tony Emmanuel & Ors [2012] N5124
Tom Morris v The State [1981] PNGLR 493

Law Reform Commission Occasional Paper No. 1 of July 1976; THE PUNISHMENT FOR WILFUL MURDER
Counsel:

Paul Tusais, for the State
Johnson Malambaul, for the Accused

The accused each and severally were arraigned on indictment for the wilful murder of the deceased Edward Heretuvo Horomo. The charge is laid pursuant to Section 299 (1) of the Criminal Code, Chapter Number 262.

1. GEITA J: On arraignment the two accused pleaded not guilty to the charge of murder alleged to have been committed on 2^nd August 2012 at Surumba village, East Sepik Province. The State alleges that the accused acted together and invoked provisions under section 7 of the Criminal Code.

2. The State evidence consisted of both documentary and physical evidence including oral testimonies from six witnesses. Summaries of their evidence are listed in the order they were received.

No.	Exhibit	Exhibit No.
1	Post Mortem Report conducted by Dr Jimmy Kambo	"A"
2	Record of Interview dated 23/11/2012 between accused Jonah Huarikava and detective Senior Constable Kinyau. [English Translation]	"B (1)"
3	Record of Interview dated 23/11/2012 between accused Jonah Huarikava and detective Senior Constable Kinyau. [Pidgin original]	"B (2)"
4	Record of Interview dated 26/11/2011 between accused Roger Niaka and detective Senior Constable Kinyau. [English translation]	"C (1)"
5	Record of Interview dated 26/11/2011 between accused Roger Niaka and detective Senior Constable Kinyau. [Pidgin original]	"C (2)"
6	Sketch map of crime scene visit taken on 20/4/2015	“D”
7	Empty shotgun cartridge, red in colour	"E"

3. Serah Jase knows both accused well as her nephews and they all come from the same village. She testified of seeing Roger collecting the gun from Ruby Jase his mother in-law’s house on Thursday and left for the next village. She said Roger came and slept with them on Tuesday. She said at the time her husband and six children were present in the house with her brother’s wife and four children. The witness said Roger and his family were also accompanied by Jonathan Huarikava.

4. In cross examination the witness estimated the distance of her house to that of her in- law’s house to be between 10 meters to 15 meters. When questioned how she knew it was a gun she said Roger got it and put it in a bag and carried it away. The witnessed agreed that Roger and his family came on Tuesday and also carried with them some clothes. When suggested to her that Roger was only carrying a bag of clothes and not a gun, the witness maintained that she saw a gun concealed in the clothes bag and carried away. The witness said she was sitting on the veranda when she saw Roger put gun in bag but said she could not tell if it was a pop gun or a real gun. The witness admitted that Roger and his wife had come to their house to attend to certain customary obligation of Kesia’s first menstruation period. She agreed that Jonathan Huarikava came on Thursday to fetch Roger to go and assist Roger’s father collect firewood for the cocoa fermentry.

5. In re-examination the witness said it’s hard for her to describe what Roger put in the bag but said it looked like a piece of iron with no wood attached to the iron. She described the iron as long and round.

6. This witness is aged about 14 years and very young looking but appears to be mature in his outlook and understood the consequences of giving evidence. He attends grade 5 at Surumo primary school. Special measures were observed by allowing her mother to be nearby during evidence. He lives with his parents and other family members at their Amiagupa village at Surumo. His grandmother Ruby Jase also lives with them. The witness identified the two accused and called them by name and said they both were his uncles. He testified of being in his house on Thursday 2^nd August 2012 with the rest of his family members when Roger and Jonah Huarikava arrived. He said Jonah asked him to accompany them to go and collect firewood at Surumba. After collecting firewood they returned to David Surumbian’s fermentry.

7. As he sat near a coconut tree, Jonah walked over to William Periwagen and spoke to him however he didn’t hear what they were talking about. Not long Jonah arrived and they both crossed a river and came to Mouruo where he returned to his house. The witness said that night whilst in his house he heard a gunshot and heard later from the people that Edward who lives at Mouruo had died.

8. In examination in chief he said Uncle Roger came and stayed with them on Tuesday and on Thursday they went collecting firewood and roasted cocoa at Omlakesi. He said he was not carrying anything except Jonah who was carrying a knife and an axe. He said his grandmother was also there on Thursday.

9. In cross examination he said that Roger came early on Tuesday to support his family. On Thursday Jonathan came and they all went to collect firewood and said he was not sure if Roger had continued on to Mauruo village.

10. The witness is 30 years old and comes from the same village as the accused whom he said were his uncle’s children. He identified them with little difficulty. He testified that on Thursday 2^nd August 2012 around 3pm and 4pm Jonathan Huarikava and Kenneth Jase approached him at his house to retrieve the bullet given to him earlier by Roger Niaka’s father Leo who had sent for it. He said he handed over the bullet to Jonathan and described it as a red coloured bullet for killing pigs. He said Jonathan than returned to Mauruo village. The witness said between 5pm and 6pm that day he returned to Mauruo village with his family members to prepare funeral arrangements for Roland Horomo who was still at the hospital. The witness said around 7pm and 8pm in the evening they heard a gunshot. Torch lights were shone as they were chased out and Edward killed in the confusion. The witness said when they returned to try and save Edward he was already dead.

He said the next day 3 August his uncle Cletus Karol found the spent bullet shell where the gun had been fired from and showed it to them. He said he recognised the bullet as the one given to Jonathan earlier in the afternoon.

11. In examination in chief he said he recognised the bullet that was given to him by Leo Niaka. The red empty shell was marked for identification: MFI S.1. He said Cletus found the empty shell at the spot where the shot was fired and handed it over to Police. The State’s attempt to tender into evidence the spent bullet case was objected to by Defence Counsel. Defence reasons for objections was that the witness was not the proper person. However the Court overruled and accepted the empty bullet case and marked Exhibit “D”.

12. In cross examination the witness admitted that the bullet came into his possession for purposes of hunting pigs to feed supporters for a candidate in the last National Elections. He admitted that since it was not used for its intended purpose Jonathan Huarikava went to him to retrieve his father’s bullet. The witness maintained that the empty bullet shell shown to him in Court was the same one he gave to Jonathan. He also remained adamant that a live bullet shown to him in Court was not the one given to him by Tamata. He remained adamant that they were seated around a fire place in front of the canvas shelter when he heard the gun went off.

Ans. It was found on Friday morning at the back of the shelter where they stood and fired.

When questioned that his oral evidence differed from the statement he gave to police about Clement and Daniel retrieving the spent cartridge the next day the witness said they were gathered around in the morning when “the thing” were shown to them. Referring to the empty bullet case. The witness admitted to talking to the Investigation Officer before coming into Court however denied that he was coached into telling his story to Court.

13. In re-examination the witness maintained that the live bullet produced in Court by Defence was different to the one given to him by Tamata. He said the one given to him by Tamata did not have a plastic cover. He said he was the only one in their village to own a registered Winchester firearm.

14. The witness is the uncle of deceased Edward Horomo. He said the accused were known to him personally as they grew up in the village. He testified that on 28^thJuly 2012 his elder brother’s son Nolan died. Nolan’s mother accused Leo Niaka for causing her son’s death through sorcery. He said Leo’s only son Roger arrived at his place accompanied by Jonathan Huarikava and argued with Nolan’s mother. Jonah carried a meter long bush knife whilst Roger carried a gun wrapped in a piece of cloth and placed it on the old rusted trucks near his place. He said on 1^st August 2012 a mediation was conducted in the village with findings that Leo Niaka had caused the death of Nolan through sorcery. On Thursday 2^nd August 2012 funeral arrangements were made for Nolan. The witness testified that between 5pm and 6pm as they sat down to discuss funeral arrangements Kenneth, Jonathan and Roger walked towards his area. He said between 7pm and 8pm that night Roger came to the haus krai again and was greeted by the witness in tok ples: Afternoon Roger to which he did not respond. He said as he sat with the deceased Edward Horomo he became uneasy with Roger’s presence due to an earlier mediation the previous day. He said Roger went and stood near the canvas house and appeared to be spying on them. In his own words “spied the place”. The witness said Roger than went to the small prayer house and returned and stood near Casper Kusuimbia or Biaks. Roger than disappeared from that area and about 5- 10 minutes later some men rushed into his yard with torch lights. He said his sister and others began calling out “enemy attack, enemy attack”. Not very long he heard gunshot and so he moved away from Edward and as he was about 3 meters away he turned around and saw Jonathan Huarikava cut Edward Horomo on his neck and forehead and so he called out.“Who else is cut in there?” He walked over to where Edward was and tried to save him but it was too late, Edward had died. At the time there was great fear and confusion so everyone scattered the area in all directions.

The witness said the next morning on Friday 3rd August they returned to the scene and his son Daniel Karol found the spent cartridge, still with fresh gun powder. William Pariwagen was also there in the morning and recognized the empty shell to come from the same bullet given to Jonathan Huarikava earlier in the day. On 6^th August the spent shell was handed over to the Police Investigation Officer Rose.

15. In examination in chief the witness said that Rolan Niaka’s house was several block away from his house at Mouruo and he also has another house at Aroro. He said that night the moon was shining brightly and the area was also lit with 4 portable solar lights and so he was able to see clearly Jonathan Huarikava cut Edward but was unable to say whether the gun used was homemade or factory made. He said he knew Jonah very well from his looks and features and body frame and saw him cut Edward as he stood close by and saw what happened. He said the next day Roger Niaka, Roland Huarikava and their families members fled to Maringere. The witness said he could easily tell the object that was placed on the old truck as a gun as it was shaped like a gun and he described it as long and not small.

16. In cross examination the witness said accusations were levelled at Leo Niaka being the cause of Nolan’s death on Saturday20/8/2012. He said he was standing about 2 to 3 meters away when he saw Edward Horomo attacked. When suggested to him that what he saw was a piece of pipe and not a gun, he said what he saw wrapped in a piece of cloth shaped like a gun. The witness confirmed that the mediation was held at the spot where Edward Horomo was murdered. It was led by Adrian Waregi and some youths and leaders from the community. He said the records of mediation were kept and given to Police.

Ans. Seated in canvas house and my kitchen and from there I observed Roger’s movements.

Ans. Roger came towards us and walked past rusted truck, came in front and sat with Biaks Casper, Joseph Husengi and Lawrence Hamanambi but left a short time later. When suggested to him that there were no solar light but only torch lights the witness said there were 4 solar lights positioned in front of his kitchen, one at the end of the haus wind, one at the prayer house and one where they were seated. He said when Roger first came he only carried a bush knife and he came alone but left.

When suggested to the witness that the moon did not shine fully until around 9pm to 10pm the witness maintained that it was full moon between 7pm and 8pm. When suggested to him that the 3 attackers wore face masks the witness said I did not talk about face masks in my statement.

Ans. We all ran away. I ran up and stopped at a distance of about 3 meters and stopped and I did not panic.

Q.47. This is what happened that time: Roger Niaka went to the pit toilet near your prayer house and James’s house true?

When put to him in re-examination that Roger was in the toilet the witness said there is no toilet between his prayer house and his brother’s house. The only pit toilet was near his house, indicating a distance of about 30 meters away.

SITE VISIT BY COURT PARTY TO MAURUO VILLAGE south coast 10am depart Wewak return to Wewak 3pm. Same day.20/4/2015.

17. Jarosaki’s evidence is derived from Defence Exhibit “1”. The witness is Nolan’s father and comes from Surumba village and also knows the two accused well. He clearly identified them in Court. He said on 29^th July 2012 Nolan died and so the youths in the village were gathered together to solicit contributions towards Nolan’s death and to clean up the community. Adrian Wareki was not there that day. He said during a mediation on 1^st August 2012 to discuss about the death of Nolan Horomo he heard Adrian Wereki said words to this effect: “My sister is in tears. I don’t want my wife to be in tears. If my wife is in tears we will kill men and only coconut trees will remain in the village.”
On 2^nd August 2012 as he was preparing to go to Nolan’s haus krai he heard a gunshot at Cletus’s area and later heard through garamut beatings that Edward had died. Adrian made that talk within the hearing of all youths and community leaders who were present Jonathan and Roger were also present giving moral support. Nolan’s death was said to be caused by Roger’s father Leo Niaka who was a sorcerer.

18. In cross examination the witness said Adrian Weregi was referring to the death of his in- law Elijah Wangi who had died earlier. His death was also sorcery related. When questioned if his story about Roger and Jonathan giving moral support to Adrian was contained in his statement given to Police earlier the witness said no. At this juncture Defence successfully tendered into Court the witness’s statement given to Police now market Defence Exhibit “1”.

19. Roland’s evidence is contained in Defence exhibit “2”. His evidence finds corroboration in Cletus Karol’s evidence in the main: Roger Niaka entering his premises and appeared to be spying on the mourners. He disappeared and returned to the scene a short while later accompanied by two other men and fired his pop gun (homemade gun) into the air. At the front of the haus krai tent the witness saw Jonah Huarikava armed with a meter long bush knife.

20. She was called at the request of Defence Lawyer. Her role was to confirm that she was the Arresting Officer in this case and also collected physical evidence including the empty cartridge case which was handed over to her by the deceased’s uncle Cletus Karol on 6^th August 2012 at the CID office in Wewak. The shell was labelled and stored away as evidence in this case, now marked Exhibit “E”.

21. Defence evidence consisted to two documents, one exhibit and four oral testimonies:-

1. Lawrence Joroski Statement dated 25/9/ 2012.	Defence Exhibit “1”
2. Ronald Horomo Statement dated 8/8/2012	Defence Exhibit “2”
3. Live Shotgun bullet	Defence Exhibit “3”

22. Accused Jonah Huarikava gave testimony in the following. On 2^nd August 2012 between 6am and 7am he was with his father Leo Niaka at their Mouruo hamlet. He was sent to fetch Roger at Amiangupa village and returned shortly with Roger and Kenneth Jase. From there they all went to collect firewood for David’s cocoa fermentry. The witness said around 3pm that afternoon his father despatched him and Kenneth to go and fetch the cartridge (bullet) from William Periwagen at Parakware hamlet. They returned shortly with the bullet and handed it over to his father and they all returned home around 5 pm that evening. Kenneth Jase returned was returned to his parents. Along the way he assisted Wendy carry her bag of betel nut and mustard. Roger was already at home sitting with his father.

23. The witness said around 6.30pm and 7pm Roger left home to join the mourners for late Nolan Horomo. A short while later around 8pm as he was having dinner of sago he heard gunshots coming for where the people were gathered. Not very long they heard screaming and shouting “man i dai, man i dai’. He got scared and ran away with his mother Magdeline Niaka, his two sisters Wendy and Mary Lou Niaka and arrived at Roger’s in-law’s village and saw Roger and his family. They escaped all the way to Roger’s hamlet at Aroro and arrived there at around 9.30pm and 10pm that night. They continued on and came to Soru village when his elder sister called and told them that he and Roger had been accused by the community for the death of Edward Heretuvo. He remained there at Soru in fear until apprehended by the Police.

24. In examination in chief he denied Cletus Karol’s evidence that he and Roger were carrying weapons on the night of 2^nd August 2012. He said on 28^th July 2012 upon the death of Nolan his father was suspected of making sorcery and summoned to attend a mediation via garamut beatings. His father attended the mediation and they returned home. The witness was shown a live cartridge (shotgun bullet) and affirmed that it was the one retrieved from William Periwagen, describing it the one with a white top capping. (Defence Exhibit “3” – Red shotgun Bullet).

When asked why he did not give this evidence to Police during his record of interview he said he was advised by his Lawyers, then Paul Paraka Lawyers not to do so but only to give to the Court. This piece of evidence is now before Court amidst objections and marked defence exhibit “3” (Section 96 Statement from the District Court).

25. In cross examination Jonah agreed that his adopted father was a good man and he would do anything to protect him. He said his father was not a sorcerer as alleged by the community and remained confused. When asked what the bullet was going to be used for he said he did not know the reasons as he was only asked to go and fetch it from William Periwagen. He admitted that their house was about 10 to 15 minutes walk from Edward Horomo’s house. He estimated a distance of 15 kilometres from Leo Niaka’s house at Mauruo hamlet to Soru hamlet.

26. The witness admitted that they fled their home that evening without ever knowing who died until they reached Suro hamlet when they learnt that a man had been killed. He said they fled in fear as the gun shot experience was the first in their area.

Q & A. 31. You ran with your mother and two sisters over a distance of 15 kilometres?

When suggested to the witness that the Digicel phone conversation about the death of a man being made up as the digicel signals at Surumba were bad and that they had known about the death of Edward and took flight immediately, the witness said that’s not true. (Court Demeanour noted. He answered with his voice raised and appeared to be agitated at the suggestion) The witness was shown the live bullet and said his father Leo Niaka gave it to the Lawyer. (Defence Exhibit “3”)

Q. 42. This bullet looks the same as the other one and it could be bought from the store, what do you say?

Q.55. Mrs Jase came to Court and told Court that she saw Roger got his gun, placed it into a bag, did you hear what she said?

The witness admitted that they did not have any grudges against Sera Jase and them likewise. He said his father did not flee with them but went his separate way. He said Roger was at the haus krai and crime scene and fled from there to Amianguba but never told him about what had happened. When pressured to answer the question the witness said Roger had told him that he was in the toilet when the gun went off and people running and so he ran with them.

When questioned why he did not remain behind at Amianguba to prove his innocence he said they fled because his father and seven other men in the village were suspected as sorcerers the previous day so they fled in fear of retaliation.

Q. 87 I put to you that’s why your father sent you to Amianguba village to get Roger and his gun, correct?

A. That’s not true. He sent me to go get Roger to help collect firewood and roast cocoa.

Q. 88. Later that day he sent you to William Periwagen’s house to get bullet, correct?

A. That’s not true I said in my statement I was at home eating when the incident happened.

Q.90. You told District Court in Section 96 Statement- You and Roger ran away, you and Roger killed men and ran away?

Q. 91. You did not tell your story to Police because Paraka Lawyers prevented you, true?

Q. 92. I suggest to you that you wanted to think about your story and therefore gave story to Magistrate correct?

A. I wanted to give statement to Police but Police refused to get our story, so we got advice from Paraka Lawyers.

27. Defence Witness Leo Niaka testified as follows: - Between 7am and 8am on 2^nd August 2012 he was at Mauro village chopping firewood to roast cocoa. Jonah and Kenneth were with him. He sent Jonah to go and fetch Roger. When Roger arrived at Mauro he despatched him again to Aroro village to get some money to contribute towards Nolan’s death. After Roger left they brought firewood to David’s fermentry to roast cocoa.

Around 2pm and 3pm he sent Jonah to Periwagen to collect the bullet. At 5pm they left for Mauruo village. Kenneth was accompanied to his parents’ house by Jonah around 6pm that evening.

28. In examination in chief the witness said he was at Mauruo village around 7pm with his family members including Jonah and two sisters. Since William Periwagen had a registered gun I gave the bullet to him.

When shown the live bullet: (Defence Exhibit “3”). The witness said he recognized the bullet as the one given to Willie Periwagen’s sister, saying it’s his bullet.

29. In cross examination the witness remained adamant that he was asked questions about the empty bullet by Police to which he said his bullet was new looking with a plastic covering on top.

Q. 22. Witnesses came and told court about mediation regarding sorcery, you know about it?

Q. 24. Jonah told court that in the village, they were accusing you of Nolan and you are not concerned?

A. Yes.
30. Accused Roger Niaka gave testimony as follows: - On 2^nd August 2012 he was at his in- law’s village at Amianguba when Johan arrived in the morning to get him to assist collect firewood to roast cocoa. They were joined by Kenneth and returned to Mauruo to his father. From there his father sent him to Aroro to get some money to assist in Nolan’s feast and return to his father around 6pm. Between 6pm and 6.30pm he went to the “haus krai” and sat next to Casper Biaks and Joseph Atasingi. He attended to natures call at a toilet near Cletus Karol’s prayer house and heard ladies shouting “man ya, man ya”. All the community ran and so he ran also. He ran to his in laws house at Imanguba hamlet and along the way met Cletus Karol’s wife. Not very long Jonah and his mother arrived with two of his sisters. From there they ran all the way to Aroro and onto Suro.

31. In examination in chief the accused said he went to the bush to relieve himself. He could only see Casper, Joseph and Lawrence at the gathering as the lighting was bad but could only see them when the flames were lit bright. The moon was bright but shadowed by trees and mangoes.

32. In cross examination the accused maintained that he used bush toilet and not a proper toilet when he heard screaming. He denied Sera Jase’s story about seeing him put a gun into his bag and said her story wasn’t true. Cross examination continue:-

Q. 20. Where you aware of talk in the village that your father Leo Niaka did sorcery on Nolan’s death?

A. He was confused and concerned when he was called by garamut to come to the community

Q. 32 When your Lawyer questioned Sera and Kenneth, that story, they did not come up with running away to Amianguba, what do you say?

A. Same night I fled to Amianguba. My mother, two sisters and Roger came and we went on to Suro.
Q. You are telling a new story, you and Roger ran away after killing Edward?
A. Not true because Jonah was not with me at gathering I ran away.

33. Defence witness Casper Biaks testified of sitting at the haus krai at Mauruo on the evening of 2^nd August 2012 between 7pm and 8pm when Roger came and sat next to him. Joseph Hausengi and Lawrence Hamanbi were also with them. As they sat there telling stories the ladies called out: “men with gun, knife and light”, so we got up and ran away. He said Roger left them and went to front of canvas house about 2 to 3 meters away when ladies called out. Roger told us that he needed to visit the toilet and left. I did not see men with light, gun and bush knife as I was scared. The public also ran out.

34. In cross examination the witness said the two accused were like sons to him and he does not want them to be sent to gaol. When questioned how he was certain of his 2 to 3 minutes estimation, he said that was his own judgment. He said there was no talk in the village about Leo Niaka making sorcery on Nolan. He said he was aware of a mediation in the village in which Leo Niaka was accused of sorcery.

Q. 25 Are you aware of one mediation after Nolan’s death and before Edwards’s death?

Q. 31. So others, Cletus and other men were concerned because those men were attacking true?

Submissions
35. Defence submissions, as I said earlier on, this case protracted because of irregular circuits and submissions not reaching court in time. However eventually those submissions were received by Court, (written submissions) and I have gone through the written submissions from Defence Lawyer on behalf of the accused persons and the State.

37. Defence relied on the case of The State v Eki Kondi (No.1) [2004] N2542, basically relying on some tests used in that case: for instance

38. And as I said Defence has gone through State Evidence and digested it and Defence has gone through State Evidence and digested it with the eventual Submissions which I will come too later. Basically submitting that in all the evidence now before this Court, Defence is submitting that the State has failed to prove its case beyond a reasonable doubt and asserted that although there is some direct evidence against the two accused persons certain questions needed to be considered and those questions include whether the direct evidence was credibly and trustworthy. Defence is saying that it does not think so.

39. Defence is also saying there was a mystery third man and the mystery third man has not been successfully made out by the State.

40. Defence is asserting that there is some hearsay evidence come through Leo Jerokasi and saying that there are some instances of inconsistency and cited some inconsistencies in the form of no evidence of mediation. Cletus Carol’s evidence contradicted involving Horomo’s evidence in certain aspects, instances of gun being fired, who fired it and so on.

41. The Defence is saying that in PNG Society with killings related to sorcery the test and the concern and again relied on this publication. The Law Reform Commission Occasional Paper No. 1 of July 1976; THE PUNISHMENT FOR WILFUL MURDER a case study basically saying that suspected sorceress appeared to be targets and in this case suggesting that there was some bad blood between accused persons and their families and there was an ongoing land dispute between the parties and so again trying to draw inference that any suggestions that the accused may be directly implicated; should be treated with caution because of that bad blood running through.

42. Defence also touched on the demeanour of Cletus Carol and said he seems to have taken the Court lightly; by constantly smiling in Court.

43. On the question of Belated Alibi the Defence is saying that although they concede in that No Notice was given to the State, in an earlier case of The State v Tony Emmanuel & Ors [2012] N5124, in that case my brother Judge; Justice Kirriwom said “the Accused is entitled to say what he wants despite the alibi notice been given late”.

And so saying that all in all the State has not proved their case beyond a reasonable doubt and a finding of Not Guilty against the two of you should be returned.

44. The Government again in their written submissions has gone through their witnesses and gone through Defence evidence in summary. The Government is advancing that on the question of Identification, all State Witnesses knew both accused and they were related as family members. And the Government Lawyer is saying that this is not a case of a fleeting glance. This is a case of families within families; they know each other, they have lived with each other and State Witnesses have come to Court and told the Court what they saw happen that night and they all lived together and they identified the two accused to be there present.

The Government suggested that perhaps the only consideration in identification was those identifications made under difficult circumstances and amounted to fleeting glance. The State is saying that the victim was attacked in an area where the moon was shining brightly, in an area where it was fairly well lit and their identities were pretty much visible and clear. The State is saying that although the attack took a split second action; the State Witnesses were confident of the identity of the two accused as the two attackers and Court should not be swayed by lack of identification. And again the State relied on the famous case of John Beng v The State [1977] PNGLR 115.

45. On questions of circumstantial evidence, the State relied on the case of Tom Morris v The State [1981] PNGLR 493 and they have quoted Miles J:-

“When the case against an accused person rests substantially upon circumstantial evidence, the jury cannot overturn” basically saying that if there is only circumstantial evidence than the Court should be very weary. The Government is saying that in this case there is not only circumstantial but there is direct credible witness evidence. In this matter they swore, they gave testimony that there was a bullet, bullet collected by the accused person. State witnesses saw something that look like resembling a gun and that bullet was collected on the eve or on the day that the gun was fired and basically saying that there are strong indicators that the two accused persons were driven by a certain motivation in that motivation was that in the course of that week; their father Leo Niaka was accused of sorcery and so they were incensed and they confronted certain people and in the evening they demonstrated their frustration through this crime. Furthermore the Government is saying that the accused and their immediate families fled within the hearing of that gunshot; 15 kilometres during the course of the night with the whole of their family; unbelievable. And there’s no evidence that none of the villagers escaped but only their families; why, why was that so; perhaps they knew something??. So Government is saying that their case is not only circumstantial but there’s direct evidence showing that they must be found guilty.

Intention to Kill
46. On the issue of whether the accused person had intention to kill which is relevant; the Government is saying that the medical report is testament to the death in that the death was instant, occasioned by the direct result of the massive knife wounds to the skull and posterior cervical region due to massive blood loss and loss of nervous function to the heart and respiratory system; that is contained in the doctor’s report. So the Government is saying that they had intended to harm and so their intentions are clearly manifested with the type of injuries occasioned on the deceased. And furthermore; State is saying that they have proven beyond reasonable doubt that the two accused wilfully murdered Edward Heretuvo Horomo in that:-

As the gunshot went off the entire Niaka family fled and went into exile without first being accused of anything to do with the death.

And so Government is say that under all those circumstances this Court can finally find that the accused must be found guilty. All right that is what the Defence and State have said and Court’s work now is to read through all that and to work out what is possible, what is near close to or near real as to what probably happened to make finding. And I first look at the issue.

Issues

47. The central issue in this trial is whether or not the accused were responsible for the death of Edward Horomo. Put another way, the central issue is the question of identification and to an extent defence of alibi. I first look at identification.

Accused Jonah, Roger and an unnamed person were alleged to have murdered Edward Horomo. For the moment the unnamed person is out of the picture due to lack of evidence. Roger presented himself at the crime scene at the material time minutes before the gun was fired. His presence was corroborated by both State and Defence witnesses. State witnesses had no difficulty in identifying Jonah as the man who chopped Edward Heretuvo Horomo with a meter long bush knife resulting in his death. I am satisfied that there was sufficient lighting around including the moon shining brightly at the time for Jonah to be identified the way he did. Any suggestions of a fleeting glace scenario is also ruled out. Jonah grew up in that community and was known by all including the State witness who saw him that night. Defence attempts to water down insufficient light including the moonlight overshadowed by some trees nearby flimsy. Upon crime scene visit it became obvious that the nearest trees and coconut trees were some 15 to 20 meters away from where the hau krai was erected. I am therefore satisfied that accused Jonah was properly identified as the one with a meter long bush knife and carried the attack. Defence attempts to portray that accused identification was difficult by the attackers wearing face masks is also ruled out due to lack of credible evidence.

The Criminal Practice Rules dictates that the notice of alibi must be given to the other party to prepare its response. In this case the Defence has dismally failed to give adequate notice resulting in breaches of rules and conceded to this fact. It is not clear if this failure can be attributed to Defence lawyer’s negligence or the accused failure to inform his lawyers at the first available opportunity. What is clear is that this Defence was raised after two years during trial. The accused elected to remain silent during his record of interview however raised this defence in his Section 96 District Court statement: ...”we were having sago and when we saw people fleeing. That time I heard a gunshot.” This statement was made almost 4 months after his record of interview. All he need to do was call evidence from his father or mother or two sisters who he said were having dinner with him when he heard the gunshot that evening to assist court in determining whether his defence of alibi was strong and sustainable? For the moment there is no other alibi evidence to sustain the accused’s defence. For these reasons alone the accused defence of alibi remains weak and unsustainable.

Human nature is such that one’s guilt or innocence under question is defended strenuously at the earliest available opportunity. In this case neither of the two accused including their father Leo Niaka raised the alarm of their innocence in their records of interview but elected to remain silent. It follows that any suspicions of their evidence being fabricated and concocted over a time span of two year on the day of trial plausible.

Defence attempts to plead the supremacy of Section 37 (3) & (4) of the Constitution and case law of John Jaminan vs The State [No. 02] (198) PNGLR 3180 to allow alibi evidence is noted. However I would like to think that they come into play or assist the situation where there is an absence or lack of existing practice rules in place.

Three massive deep knife wounds to the frontal and parietal bone including scalp deep knife wounds extending to the brain measuring 10cm long and 4cm deep in anybody’s language is testament enough for one’s intention to kill. The graphic description of the wounds inflicted on the victim by the Medical Doctor concluded that the death was instant due to blood loss and loss of nervous function to the heart and the respiratory system. I am therefore satisfied that the accused Jonah Huarikava had the intention to kill Edward Heretuvo Horomo.

Two different shotgun bullets were introduced into Court. The spent one by Prosecution and a live bullet from Defence. It matters little whose bullet was fired and what type, old or new. What matters most and of interest to court is that a bullet was fired that night from a gun by some unknown persons to cause distraction when the attack was carried out.

Evidence before Court is that Leo Niaka, the accused father retrieved his bullet from Periwagen the only licensed firearm holder in the village on the night the gunshot was heard. And the bullet was retrieved by his son Roger Niaka. Both father and son don’t own a gun or permit. State witness account of seeing accused Roger carry something resembling a gun or pop gun, wrapped with a cloth in my view more believable than Kenneth Jase’s version of seeing nothing of that sort. Kenneth is aged 14 years as opposed to adult state witnesses. Serah Jase’s account of seeing Roger put gun in the clothes’ bag he was carrying at the time more believable than her son’s version. Although she admitted that from the distance she was observing, 10 to 15 meters away that something was a gun but could not tell if it was a factory made gun or a pop-gun. State witness Cletus Karol also saw and described the thing that Roger carried into his compound, wrapped in a piece of cloth as a gun. No contradictory convincing evidence was forthcoming from the defence touching on the above issues.

Inferentially therefore it is open to this court to draw what it considers the only inference that the accused and their father had access to a bullet and also access to some form of firearm in which a bullet could be discharged.

Defence evidence is such that the whole of the Niaka family took flight that night and escaped to Suro village some 15 kilometres away from the crime scene without even knowing who was killed as a result of the gun shot. At the material time the shot was fired they had no knowledge that Edward had died. It would appear from their evidence that their only cue was the gunfire and the community fleeing? Strangely enough only the two accused escaped with other family members leaving their father Leo Niaka behind. There is no other evidence that other community members also took flight in fear and travelled well into the night to get away from the crime scene. It is hard to fathom that the whole Niaka family, mother, sisters, children trekked 15 kilometres well into the night to Suro village. Similarly it is also hard to fathom that the news of them (Roger and Jonathan) accused of the murder of Edward Horomo, reaching their sister in Lae within hours who relayed the message back to them in Wewak the same night via cell phone medium too good to be true? Be that as it may that account remains uncorroborated. I am not convinced that any or most of those things happened and can only suspect some falsehood and concocted evidence, hence not believable.

Again it is open to court to draw inference that perhaps the Leo Niaka family knew in advance of the planned attack on Horomo family that fatal evening and took flight as soon as they heard the gunshot.

Defence attempts to distance Jonah and Roger from the crime scene remains unconvincing. Casper Biak’s evidence of Roger’s visit to the haus krai and sitting next to him and three other men only corroborates state evidence that the accused was present that night in that locality. As to Jonah he said they fled when the ladies raised the alarm of enemy attack. He did not see the men with gun, knife and light. The two other men named were not called to corroborate his evidence. It follows in my view that he was selective with his story and only told court what he wanted this court to hear. He further admitted in cross examination that the two accused were like sons to him and he did not want to see them sent to gaol. Furthermore he escaped and did not find out who the attackers were when Cletus and others remained to find out. He went to the haus krai to give moral support but failed to remain and give support when another disaster struck the family in mourning. As part of his evidence Casper Biaks said Roger sat with them for a little while and walked to the front of the canvas house or “haus krai” when the ladies gave the alarm of men attacking. Roger Niaka in evidence said he was in a toilet near Cletus Karol’s prayer house when he heard the ladies gave the alarm. Either one of the two is giving a falsehood and evidence contradictory and damming. For these reasons I do not consider him to be a witness of truth.

48. Section 299 Criminal Code Act creates the offence of wilful murder and it is in the following terms: S. 299 Wilful Murder

49. Accused Roger Niaka was seen at the murder scene. Accused Jonah Huarikava was also seen at the murder scene and clearly identified to be the one who struck Edward Horomo with a meter long bush knife, resulting in his death. Both accused elected to remain silent throughout their record of interview instead of pleading their innocence at the first available opportunity. Accused Jonah’s alibi dismally weak and not sustainable in Court. Therefore accused Jonah Huarikava and Roger Niaka are found to be responsible for the death of Edward Heretuvo Horomo. Furthermore the killing of the deceased was unlawful.

Are there any evidence of all elements of the offence of wilful murder that would support the two (2) accused convictions?

50. I answer in the affirmative as there is more than ample direct and circumstantial evidence that the two accused took part in the murder of the deceased as set out in Section 299 (1) of the Criminal Code. Furthermore my findings above, points conclusively beyond reasonable doubt that the two accused were responsible for the death of Edward Heretuvo Horomo in the manner described in evidence. For the moment the person who discharged the gun remains unclear.

51. However Section 7 of the Criminal Code would make Roger Niaka criminally liable for the murder committed. This section 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 am satisfied that there is evidence that Roger Niaka who is Jonah Huarikava’s brother was also seen that night at the crime scene. I am also satisfied that the Leo Niaka family had at their disposal a live bullet, an object capable of propelling a bullet that fatal night. Such object was used to fire a bullet that night prior to the commission of the crime, which caused chaos and confusion. It is quite possible that Edward Horomo was targeted and upon being blinded by the torch light and confusion, attacked with the bush knife, resulting in his death. Inferentially therefore the court is entitled to draw conclusions that amidst the confusion caused by the gunshot accused Roger Niaka was also present at the material time the crime was committed and played a part of some sort. 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 two accused must as a matter of law be lawfully convicted.

Verdict
52. Accordingly, I return a verdict of guilty against the accused Jonah Huarikava and Roger Niaka and have them convicted accordingly.

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

National Court of Papua New Guinea

State v Huarikava [2016] PGNC 313; N6511 (20 October 2016)