State v Aba [2016] PGNC 327; N6544 (19 July 2016)

N6544

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NOS.631 & 632 OF 2014

THE STATE

V

MAZURA ABA & GRAHAM TAVA DECKSON

Kibil & Kokopo: Lenalia, J

2016: 6^th, 8^th, 9^th, 14^th, 16^th, 17^th& 22^nd ,23^rd June & 19^th July

CRIMINAL LAW – Wilful murder– Pleas of not guilty – Trial – Evidence –Criminal Code s.299of the Criminal Code.

CRIMINAL LAW –Charge of wilful murder – Evidence on trial – Burden of proof – State’s evidence on direct participation of the involvement of the two accused killing the victim.

CRIMINAL LAW – Defence direct evidence on seeing another person killed the deceased with a screw driver – Witnesses called to confirm that the killing was executed by another person and not the two accused.

CRIMINAL LAW – Weighing of all evidence for the prosecution and defence – Defence evidence is credible – Witness from outside Watara and Waira villages – Issue of lying and truthful witnesses.

CRIMINAL LAW – Issues – Whose evidence should be believed where, a party’s witnesses may be biased in evidence because the witness is close blood relative of a victim? – This is left to the discretion of the Court to determine.

Cases cited.

Allan Oa Koroka v The State and Mariano Wani Simon v The State [1988-89] PNGLR 131
Paulus Pawa v The State [1981] PNGLR 498
R v Lupalupa Sisarowe [1967-1968] PNGLR 455
R v Namiropa Kopinbodi [1969-1970] PNGLR 194 at 200
The State v John Kasaipwalova [1977] PNGLR 257.
The State v Tom Morris [1981] PNGLR 493

Counsel:

Mr. L. Rangan, for State
Ms. J. M. Ainui, for the Accused

19^th July, 2016

1. LENALIA J: The two accused are charged with one count of wilful murder contrary to s. 299 of the Criminal Code. The offence occurred at Watara village on the mainland of Duke of York islands. The deceased, Samuel George was killed on 9^th December 2015. After the two accused were arraigned, they each and severally entered pleas of not guilty. The trial was conducted at Kibil Patrol Post, on the Duke of York Islands. The prosecution commenced the trial by calling six witnesses. In addition the State tendered a number of documents with the consent of the defence counsel.

2. The summary of the State’ evidence is that, on 9^th December 2015 the Watara Primary School hosted the school graduation and the people from Watara, Waira, Nabual and nearby villages attended. After attending the graduation, the people started to return to their villages. It is alleged that, before and during the graduation there was a lot of disturbances because, many people were really drunk. As they were returning between 5pm and 6pm, a fight broke out between people from Waira and Watara villages.

3. During that fight along the main road, missiles and objects like stones and pieces of wood were thrown around at each other. Even dangerous weapons were used such as the piece of spear used which is alleged to have been used by the first accused to spear the deceased. A chain saw chain was also used which the prosecution alleged that, the second accused pulled it between him and the victim. It is the State’s allegation that, during that fight, the two accused stabbed the victim (Samuel George).

PROSECUTION EVIDENCE

4. Before calling witnesses, the following documentary evidence were tendered by consent of the defence counsel:

Ex. “1” statement by investigating officer, John Kamau,
Ex. “1A” first page of crime scene,
Ex. “1B” more photos,
Ex. “1C” last set of photos on crime scene,
Ex. “1D” photo of weapon used,
Ex. “1E” copy of identification card,
Ex. “1F” – “1F(a)” certificate of death & doctor’s affidavit,
Ex. “G” & “G1” a further document,
Ex. “H” & “H1” record of interview with accused Mazura Aba-Pidgin & English,
Ex. “I” & “I1” record of interview with Deckson Graham and
Ex. “J” statement by Senior Sgt. Aiyofa Faregare, the corroborator.

5. The prosecution called six witnesses. All prosecution witnesses gave an account of what happened on the date, the deceased was brutally killed. The first witness called by the prosecution was August Samuel. He is the son of the deceased Samuel George and one of the granduants of the graduation held at Watara Primary School on the island on 9^th December 2015. His evidence so as the evidence of other witnesses is that after the graduation, he and his parents and other relatives went back to Nabual village to partake in a feast that was hosted by his parents and the relatives to celebrate August graduation. As to what Grade he graduated from is not clear from his evidence.

6. After celebrating in the feast, August wanted to return to the school to watch dramas and dances performed at the school grounds. Whilst in the school grounds he saw his father carrying a dish or bowl of food to give to this witness’s aunt, Linda Kepas. When this witness heard great commotion from where the fight broke out and drunkards were running everywhere, he saw missiles being thrown all around. He saw his father (deceased) running away with other family members to Kepas’s house.

7. He ran down to the place where the fight was and said, he stood on the cement foundation and saw what was happening. While standing there, he saw the second accused threw a chain at his father and they were pulling it. He named some people from Watara village who were there at the time the fight was on. He said, as he was looking on, he saw the first accused came from the victim’s back and grabbed his neck using his (accused) right hand held on to a short spear with his left hand and speared the victim on the left side of his chest. The victim struggled and fell down and fell to the ground.

8. In cross-examination, August was asked how could he manage to bravely stood near his father when stones, sticks and objects were being thrown and noises was coming from everywhere? The witness said, he saw the two accused clearly as he stood a few meters away from those who were struggling in the fight. He was asked if he identified the two accused, he said, there were so many people around on the scene but he saw, the two accused did what they did to his father. He was asked if he was also throwing objects at the people from Waira. He answered; he threw coconuts and other objects as well. He was asked in relation to whether he was frightened when objects were thrown everywhere. He said, he hid and at times he came out to throw objects at those from Waira.

9. The 2^ndwitness, Jimmy Kepas is from Watara village. He gave an account of an incident that earlier occurred on the morning of the date the killing took place. A boy not a student assaulted his nephew Kelly Wilson Junior and caused him some injuries. After that they attended to graduation ceremony. This witness observation during the graduation was the situation was very tense.

10. In the process of the graduation ceremony, the witness said, there were many drunkards shouting and making noises. As they were moving away from the school grounds, they met many drunkards and he came to where the fight was going on. He said in chief that, there was great commotion and the Waira boys were running down to them calling out and asking if the men from Watara wanted to fight with them. As they were calling out, stones and stick were thrown everywhere. He then saw the two accused left the main road and entered the premises where the fight was going on. He said, he stood a meter or so away from the victim trying to calm and send the Waira boys away from the premises.

11. The witness said, while trying to separate the drunkards, he saw accused Graham Tova Deckson pulled out a chain and swung it at Samuel George (deceased). While they were pulling the chain, the deceased and himself were separating the drunkards and though he saw the accused Mazura around the scene, he did not see him stab the deceased.

12. In cross-examination, the witness was asked if he is related to the victim. He replied in positive and said, the victim was his cousin brother. Asked as to what is the nature of their relationship, he said, the victim was born from the father and he from the mother so they were first cousins. Asked if that was the reason why he came to court to place blame on the two accused. He answered in the negative. He confirmed in cross-examination that, he saw the two accused on the scene but he did not see Mazura stab the victim.

13. Part of paragraph 4 from this witness statement dated 10^th December 2015 line 6 was read to the witness where he said, he sent Mazura away and saw him left the scene but said, this accused came behind him and stab the deceased. The witness said, he told the court the truth that he did not see Mazura speared the victim, but he was on the scene. He was asked if he saw, Johnson on the scene. He denied seeing him on the scene until some 4o minutes later after the deceased had been stabbed.

14. The 3^rd witness was Ella Wilson. She is also known by another name Jelly. She also attended the graduation and as the people were getting ready to leave, a great commotion arose. This was due to an incident that occurred in the morning where one of the boys had assaulted a student and injured him seriously. She said, while sending the drunkards away, she heard accused Mazura said, he wanted to fight with the boy who assaulted their fellow student. She informed the Waira boys to go away because, those affected by the morning incident were drunk and they were not in their houses as there were drunkards everywhere.

15. She said, in the course of such commotion, stones and sticks were thrown everywhere and people were taking cover behind the tress and stones were thrown at the windows of their house. She said, she took cover behind a tree and as she turned around she saw the accused Graham and the victim pulling a chain. She looked here and there and when she looked back, she saw the accused Mazura stabbed the victim on the left side of his chest. The deceased struggled, he went dizzy and collapsed. She said, she ran down and got a stick and hit Mazura Aba causing his wallet containing money and an ID card with the iron that was used to stab the victim. She said, after the deceased had fallen down to the ground, she referred to the person she named as “Tova” told Wilson that he (Wilson) would be the next.

16. Asked in chief the person she referred to as “Tova” has got other names. She answered that it is the middle name of the accused Graham Deckson. Asked as to who is Wilson, the witness said, Wilson is her husband. She identified the two accused and said, they both come from nearby Waira village. She also revealed that, the victim of this case was her brother.

17. In cross-examination, Ella revealed that, her husband and the deceased are cousin brothers and they are closely related. She admitted that there was great commotion and in fear for their safety, people and children were taking cover behind trees and many people were running away and they came to where the fight was going on. Asked as to what was the cause of the commotion. She said, because of the incident in the morning. She contradicted her evidence in chief that, she did not see, accused Graham Tova Deckson pulling the chain with the victim as she was taking cover behind a tree and she saw the accused Mazura stabbed the deceased.

18. In re-examination, the witness was asked if she saw, accused Mazura struggled with the deceased. She replied that she saw them struggling together with accused Graham Tova. Asked who struggled with accused Mazura when he dropped his ID card and the money. She said, she did not see them struggled but she hit accused Mazura Aba with a stick on his head and that is why he dropped his ID and money and the spear.

19. The 4^th witness was Wilson Jelly. He is the husband of witness Ella (third witness). His evidence in chief is that, his son was the one who was injured in the incident early in the morning on 9^th December 2015. After his son was injured, he left for Kokopo town at about 6am and returned to Watara village about 10am. Asked if he attended the graduation ceremony, he said, he did not attend because of the incident in that morning and he was sitting at the cement foundation near where the killing took place telling stories with Joshua Misivet, Nathan and Nason. The person by the name of Kabiu came by shouting and at the same time, there was great commotion with people running and shouting and throwing objects at each other.

20. The witness said, he and the men who were sitting together with him struggled with Kabiu because he was so drunk and they told him to go home. He said, many of those people went away but only three persons did not go. Asked in chief as who were those three, and he said, Mazura Aba, Graham Tova and Tony.

21. He said, as he was telling the Waira people to leave, he turned and saw the two accused struggling with Samuel George with a chain. Then the accused Mazura stabbed the victim with a spear. After that, the two accused ran passed and he saw, the accused Mazura dropped his ID card, the wallet containing K30.00 and the spear. He collected the items dropped which have been tendered.

22. This witness confirmed in cross-examination that, he did not attend the graduation ceremony. He was asked if he and the three friends that were sitting together with him were drinking some alcoholic drinks. He said, it was true because when he came to Kokopo, he bought 2 small negritta bottles. Asked if he was so drunk by the time the killing took place. He said, he was not drunk at all. Asked if he saw and heard Kivung and Exon getting cross with accused Mazura. He said, Mazura left and two persons came on the scene. Asked if the deceased saw accused Mazura and Exon started fighting. The witness said, no that was not true. Asked if during the cause of struggling, he saw a person took the two accused away to Nanas Libai’s house? He said, the accused Mazura ran passed him but he did not see Johnson.

23. The 5^thwitness Dois Joshua is an Assistant Elementary School Teacher at Watara S. D. A. Elementary School. He said after the graduation, he came to the area where the killing took place. He confirmed other prosecution witnesses’ evidence that, on the scene he was with the victim, Nason Joshua, Wilson and Jimmy Kepas. As they were sitting down the Waira men came and started to argue with drunkards from Watara village. He said, the person who was leading the Waira boys was the accused Mazura Aba.

24. Asked in chief, what was he doing with the other persons he had named, he said, they were trying to calm the two rival groups from fighting. He said, while the argument was going on, he heard accused Mazura Aba told the Waira boys to fight with those people standing on the yard where the witness, other people and the victim were standing. Joshua and the others called on the Waira boys to leave because, they did not have problem with them. He said, with his eyes he saw accused Mazura Aba grabbed the victim by his (accused) right hand and drew out a piece of spear and stabbed the victim on the left side of the chest. He said, he stood about between 10 to 20 meters away from the place where the deceased was stabbed.

25. In cross-examination, the witness said, he is related to the victim and he is a cousin brother of the deceased. He was asked if the person Dickson was on the scene at the time the victim was stabbed. He said Dickson arrived on the scene after the deceased had been stabbed. He was asked about Dickson’s other name. He said, his father’s name is Gabriel, but his other name is Todiks.

26. Asked about what he said in his statement dated 10^th December 2015. On the last sentence of paragraph 3, the witness told the police that, he held Dickson Gabriel on the cement foundation and he saw what happened. Asked as to which version is true, the story he told police or the later version in court. He said, what he told the court is true. The statement was tendered as an inconsistent statement by consent. (See Ex. “D”). In re-examination the witness said, he did not see Dickson stab the deceased.

27. The 6^thand last witness Gabriel Dickson said in chief that, he is related to Samuel George (deceased) as Gabriel’s mother is the daughter of the deceased’s sister. His evidence is that, he did not see the killing because he was drinking with other boys at Wilson Jelly’s house. In chief, he named those whom he was drinking with as Exon Dina, Towes Joshua, Gibson Joshua, Abiu Balut, Kivung Johnny and others. Asked if the two accused killed the victim. He said, he had nothing to say about the killing.

28. In cross-examination, the witness was asked if had been drinking with others the whole of that day. He confirmed that, he had been drinking that day and those who had been drinking with him did not attend the graduation. He confirmed in re-examination that, he was so drunk that day and further asked as to why would the two accused make up false allegations against him. He said, he did not know why. The court asked him if he was so drunk, who told him that Mazura killed the deceased? He said, his mother Ella told him the story about the killing.

DEFENCE EVIDENCE.

29. The defence called seven (7) witnesses. The first accused Mazura Aba gave evidence denying the allegations made against him saying he did not kill the deceased as alleged by the State. He said, before giving his evidence, he was to tell the court the truth of what actually occurred. His evidence is that he attended the graduation on 9^th December 2015. After the graduation, he was returning to his village at Waira with many other people. As they were going along the main road, they could hear a lot of noises and there were shouts from drunkards everywhere.

30. He said, on the scene where the fight erupted, two persons charged at him. He named them as Jelly Tokivung and Exit Dina. Those two persons insulted him by swearing and asked, why were the boys from Waira staring at them? Because of the insulting words, the accused said, he crossed over from the main road to the yard and the victim started to punch him. They then started punching at each other and they struggled until Johnson came to them and separated them.

30. The witness said, when Johnson separated them, that is the witness and the accused Tova, the two of them immediately left. He said he was not aware of what happened after that and he heard later that, the Samuel George had been stabbed.

31. In cross-examination, the accused was asked, if he saw Graham Tova when he was close to the deceased when the chain was being pulled. The witness said, he was struggling with the deceased when Johnson and Tova came up to them. Asked as to why Graham came into the scene. Asked if the person by the name Johnson was not on the scene as the prosecution witnesses told the court that this person was not on the scene. He said, Johnson was the one who rescued him and separated him and the victim. It was put to the accused that, it was true that he was the one who stabbed the deceased and speared him with a sharp piece of spear. The witness said that the allegation made against him is not true and he cannot tell the court lie as he took an oath to tell the court the truth.

32. He was asked if anyone else from Waira assisted him to fight against those from Watara who fought with the deceased and others. The witness said, he was walking with many people and he could not tell who assisted him because as soon as, they were still along the main road, missiles of stones, pieces of wood and other objects were thrown around and it was hard to recognize those on the scene.

33. It was put to the accused, that, the metal spear that was dropped from him which this witness used to stab the victim Samuel, together with the money and ID card were his properties. He replied that, when he was first grabbed by Samuel George (deceased), his bag was hit or shot by someone causing his I/D card and the money to fall off his bag. Further asked if the spear was together with the money and the I/D card. The witness said, he did not have any spear with him as he only had his money and the I/D card.

34. Asked as to who told him that, Dickson Gabriel stabbed his uncle (the victim). He said, he heard the eye witnesses who were on the scene. He referred to them as Robin, Tevatnabar, Douglass Taupa, Paul and his wife and Daniel Kiuga. He was asked if anyone from those persons he mentioned are from Watara. He replied that, yes there were people like, Douglass from Pirtop, Daniel from Waira, Paul from Butlivuan and others.

35. He was asked for any reasons why Dickson could have killed his own uncle Samuel George. He replied that, the killing of the deceased occurred after him and the Waira boys who were on the scene left. He explained that as soon as Graham and him were removed by Johnson, they moved away from the scene where the fight took place.

36. He also revealed that, when they Waira boys were going or returning after the graduation, the accused Graham Tova Deckson was walking with him and others. Asked about question 32 and its answer in the record of interview where the accused was asked if he dropped the spear, the identification card and other items which were then in the police possession. He answered in the record of interview that, he dropped it when the victim assaulted him.

37. The 2^nd accused Graham Tova Deckson was called as the second witness. His evidence is similar to that of the first accused. He said in chief that, he was present at the graduation ceremony at Watara Primary School until late in the afternoon when people from other village began to return home. He was walking ahead of the accused Mazura. As they were walking along the road, two boys whom he named as Exon Dina and Kivung Johnny swore at the accused Mazura and the same entered into the yard where there were many people were standing.

38. By the time this witness walked close to the yard, he saw the victim Samuel grabbed the first accused and started to punch him. When he saw this, he ran into the yard and tried to intervene but Kivung punched him on his face. As soon as he was punched, he moved close to the victim and he punched at him and they exchanged punches. He said, at that stage, a person by the name of Johnson intervened and pulled him and the first accused away from Samuel George. The two of them were taken away to Nanas Libai’s house.

39. It was put to this witness in chief that the prosecution witnesses told the court that, he stood on the scene and pulled a chain with the victim and accused Mazura stabbed the victim. The witness said, that story is not true as he was not on the scene when the victim was stabbed.

40. The witness confirmed in cross-examination that, he saw the first accused bag fell onto the ground because, the deceased pulled it out from Mazura’s possession. He was asked if he heard the swearing words used toward Mazura where the two persons swore by saying “kaikai kan”, (eat vagina). He said he heard them swear at the first accused and that was why he ran in into the yard. Asked as to where Exon and Kivung were standing. He replied that, they left the cement foundation to where Samuel George and Mazura were pulling on to each other. Asked, if the victim confronted the first accused. In reply, the witness said, the victim grabbed Mazura and pulled him into the scene then they started to fight.

41. Asked about the chain which the victim and this witness were pulling as to whose chain was it and where or how did the chain come into the hand of the victim and this witness.

42. He said, when he was struggling and started to punch the victim, the chain was in the victim’s hand and they started to pull the chain. He said as to where or how that chain came from he did not know. He was asked if the chain was pulled out from his own pocket. He answered that, at that time he had nothing in his possession.

43. The witness was asked about question 34 in the record of interview where, this accused was asked the following question:

“Q34.Samuel George is more built than you twos and he did not release you when you were pulling the chain which you hit him with. Can you say in which part exactly during the fight did Samuel George release you?

Ans. I assaulted him with the chain only and freed Mazura and we went away. Samuel and I never pulled the chain.

44. He was further asked as to how the chain into the victim’s possession. The witness said, he saw the chain thrown from the victim’s back to his hand at the time the victim was struggling with Mazura and the reason this witness threw punches at the victim was because, he wanted to release accused Mazura. He admitted he struggled with the victim over the chain as he wanted to remove the chain.

45. It was put to this witness, the four State witnesses were very close to him and his co-accused and the victim. He answered that, the prosecution witnesses were telling lies and said, when he and the first accused were removed from the scene of the fight, he saw witness Ella Wilson standing under the bread fruit tree collecting stones. Was further put to him if he and accused Mazura made up false stories because, Johnson was not on the scene. The witness said, he was the one who separated them from the victim. Asked if he saw Dickson Gabriel on the scene. He said, he did not see him because there were many people on the scene. He was questioned as to how he knew that Dickson Gabriel killed his own uncle. He said, after leaving the scene, he was told the news that, the deceased died because Dickson Gabriel stabbed him.

46. The 3^rddefence witness, Johnson Aaron comes from Watara village and he is the Chairman of the Watara United Church. This elder’s evidence was brief. He said, he was in his house with his family when he heard shouts and noises along the road where there was a fight. He walked down to where noises were coming from and he saw and as he came closer to where the fight was, he noticed that accused Mazura Aba and Samuel George were fighting.

47. He wanted to assist by separating those fighting but he feared because stones were being thrown around. As he stood there a Bible text in Ephesians 6:10 struck his mind and he fearlessly walked into the yard to where the fight was going on. He then walked direct to the victim and accused Mazura and started to pull accused Mazura away from Samuel George. As he was doing that, according to this witness evidence, he also noticed that, the second accused Deckson Tova Graham was there too, pulling on the victim. He pulled both accused away to the main road and led them away to Nanas Libai’s fementry. Then after leaving the two accused at the fementry, as he was making his way back to the scene, he heard that, Samuel George (deceased) had been stabbed by Dickson Gabriel.

48. In chief, he was asked about the Bible text he cited as what message it has. The witness answered that the wording of that verse is clear that, if he wanted to assist the two men in the fight, he could do it by the power of the Almighty God. He was asked how was Samuel George when he removed the two accused. He answered that, the victim was still standing there. Asked, if he saw Ella somewhere near the scene. The witness said, to be honest, the State witness Ella was not at all near the scene. It was put to him what would he say about all prosecution witnesses said, they did not see him (this witness) on the scene. His answer was, that was because all the State witnesses told lies to the court as they were nowhere near, the two accused and the victim.

49. He also revealed that, the accused Mazura is a distant relative but Graham Tova is not related to him. He was asked if he heard accused Tova saying to Jelly Wilson, “you will be the next”. The witness said, he did not hear this and that he was so close to the two accused, otherwise, he could have heard it.

50. This witness was vigorously cross-examined. He was asked what position he holds in his church. He said, he is the Chairman of the United Church. He was asked about the consequences he faces when he held the Bible and promised to tell the truth, he will be held liable. He said, he is an Elder of the United Church and he knows the consequences of telling the truth and lies as he knows he can be held liable if he told lies to the Court.

51. Asked if he attended the graduation, he said, the incident did not take place at the school ground. Asked, if he followed the public road. He answered no because he came out from his house and walked directly to where the fight was going on. At this stage, Mr. Rangan asked the court to take note of this witness evasiveness when answering questions in cross-examination.

52. Asked as to what the witness saw when he came into the scene. The witness said, as soon as he came into the yard, he saw the two accused and the victim grabbing each other and punches were exchanged between the three. He was asked if he saw the prosecution witness August Samuel on the scene. The witness said, he never saw him there. The witness estimated the distance from the scene to Nanas Libai’s fementry to be 100 meters. The court party went to the crime scene and the estimation of distance given by this witness may be right or could be a little longer than 100 meters.

53. The 4^thdefence witness was Robin Sailas. He is from Waira village. This witness also attended the graduation at Watara Primary School on the date of the killing. In his evidence the witness said, after closure of the graduation he and others started to walk along the road to return home. As he was walking down he met Samuel George (deceased) and this witness walked up to the deceased and stood near him. As he was standing with the deceased a person by the name of Kivung started shouting angrily at students.

54. As Kivung was shouting, the accused Mazura Aba jumped into the yard and started to struggle and exchanged punches with Kivung. When the victim saw the two struggling and pushing each other, he ran toward them. The witness also followed the victim and he said, he stood two metres away from Mazura and the victim. According to this witness he then saw the victim and Mazura exchanging punches at each other. Then Kepas joined and punched the accused Mazura three times. He said, he was surprised when he saw the victim grabbed accused Mazura and as he struggled, the accused Mazura’s shirt and bag were torn. The witness said, he saw a flat piece of iron sheet fell when Samuel George was struggling with accused Mazura.

55. He further said, in the course of the struggle between accused Mazura and Samuel George, he saw a person whom he named as Johnson came into the scene and pulled and pushed the two accused out from the yard into the main road. In the course of the great commotion, the witness said, he stood three metres away from the victim and he saw the murderer came into the scene.

56. The witness said, with his own two eyes, he saw the murderer leaned against the left side of the victim’s chest and stabbed him with a screw driver. He named the murderer as Dickson Gabriel. That after seeing this, he saw the victim held on to his left chest. After seeing this, he walked away and as he was walking away, he met Ella and told her to go home and settle down and not to resort to other problems. He walked up further and met Joshua Misevet. They stood for a while and talked then he left and started to tell the news that, Dickson Gabriel had stabbed Samuel George and he was dead.

57. Further questions were put to this witness where he was asked if he saw August Samuel and Jelly on the scene. He gave a negative answer saying he never saw the two on the scene. Asked if he saw, accused Graham Deckson pulling the chain with the victim. He said no and further asked if he saw Johnson come into the yard to rescue the two accused. He said, yes and he was asked if he saw Deckson Graham stabbed the deceased. He said, he saw him killing the victim.

58. In cross-examination, the witnesses was asked if he was on the main road when accused Mazura Aba walked into the yard and if he walked into the yard, why enter the yard where the killing took place. The witness answered that that it was because, Kivung shouted at accused Mazura and he (Mazura) entered the yard. Asked, if Exon was with Kivung when the later was shouting and calling out. He said, Kivung was alone. Asked if he was not on the scene, the witness said, he was on the scene with the deceased. Asked about the distance from Johnson’s house to the school. The witness estimated the distance to some 15 metres.

59. He was asked to confirm if the victim and accused Mazura were actually punching at each other. He answered that, the two were punching at each other when he came into the scene. He said, he did not see the chain when he was asked about the chain. Asked if accused Tova was also there and the two accused fought with the victim. The witness said, they were both there but did not know at what stage the second accused came into the scene.

60. Further asked if he was telling the court lies because all prosecution witnesses saw the accused Mazura stabbed the deceased. He said, he was right on the scene and he actually saw who stabbed the victim and the allegations that, accused Aba stabbed the victim is total lies. Asked if the Chairman of the United Church told lies to court. The witness answered no. He was further asked if he saw the piece of iron dropped by accused Mazura together with his I/D card. He said, in the course of grabbing accused Mazura, his bag fell down and his shirt was torn.

61. It was put to the witness that the prosecution witness Ella stood near the two accused and she saw accused Mazura Aba stabbed Samuel George. The witness said, what that witness told the court is total lies as witness Ella was on the road collecting stones but confirmed that he saw accused Mazura struggled with Samuel George. Asked about where Dickson Gabriel came from. The witness answered that he came from a flat iron house. Asked, if it could be true that, before leaving the scene, accused Mazura stabbed the victim. The witness said, that is not true. He was further asked if Dickson was never on the scene as witness Dois said in evidence. The witness said Dois was never there on the scene.

62. The 5^th witness Katai Jimmy is also from Waira village. In chief, the witness gave an account of what occurred after the graduation at Watara Primary School. He was with others watching creative dancing and said as he was watching, he heard noises and shouts from the direction where there was a fight. He walked down quickly and came across two prosecution witnesses Ella and Wilson who were urging the boys from Waira to walk straight to their village as they did not have any problem and the trouble was belong to the Watara people. As he reached the scene where the fight was going on, he saw Johnson Aaron removing the two accused from where the victim was standing. He said, the two accused were a distance away already when he saw the murderer came. He referred to the murderer as Dickson Gabriel. He said, he saw Dickson Gabriel stabbed the victim on the left side of his chest.

63. When this witness was still looking on, a person by the name of Manu shot this witness with a sling shot. He got so frightened then walked away from the scene. As he was walking away, he came across Ella picking stone and throwing them at people and the place where she stood was a distance away from the place where Dickson stabbed the victim.

64. The witness was asked a long series of questions in cross-examination. Asked, if he told Ella and Joshua Misivet that Dickson Gabriel had stabbed Samuel. He said, he only told Ella to see the victim and with Joshua, he raised a complaint against the person who shot him with a sling/shot. He was asked about the allegations he made against Dickson Gabriel saying he told court lies that Dickson stabbed Samuel George. The witness said, he saw the Dickson Gabriel stabbed Samuel George. He confirmed that, he was on the scene and heard Jimmy Kepas talking and removing drunkards from the area. Asked when he was shot at, he walked back to the main road. He said, he was still standing with Samuel George when he was shot. After being shot, he walked over to the main road where he came across those he named in his evidence.

65. He further revealed that, he got scared when he saw, the accused Mazura and the victim punching each other and as he stood on, he saw Dickson come direct to the victim and stabbed him. He confirmed what he said in chief that, the accused Mazura was and is not the murderer on this case. Asked as to why he did not report the matter to the police. He said, the village elders and village police officers were aware of the death but the murderer was not charged. Was asked if he fabricated the allegations against Dickson to help the two accused out of trouble. The witness answered that, he came to court to tell the truth of what he saw, Dickson Gabriel did to his uncle.

66. The 6^th witness was Daniel Nason Biuda. He is from Watara village. This witness attended the graduation that day with his wife and their two children. Between 3pm and 4pm they started to return to their house. As they came around to the place where the fight was going on, they stopped and as he looked on, he saw Ella and her husband telling the Waira boys to go away because, the argument and trouble was belonging to the people from Watara. The witness said, Ella and her husband were standing on the right hand side of the road.

67. Daniel walked into the yard where the fight was on. As he stood near the victim, he saw Dickson Gabriel ran up toward the victim from his back and stabbed him on the right side of his chest. After he was tabbed, the victim slapped or punched his head or face and held on to his chest and walked backward and collapsed near the cement foundation. He turned around and saw Douglas and told him they should leave.

68. When this witness crossed over to the main road, he saw Ella standing on the main road and told her she should stop throwing stones. Asked in chief if he saw the people fighting in the yard. He answered that, due to flowers obstruction his observation, he did see who but when he entered into the yard, he then saw, the victim stabbed by Dickson. Asked about the prosecution witnesses’ evidence that they saw the accused Mazura Aba stabbed Samuel George with and iron rod. Daniel said that is a lie because he saw the person who stabbed the deceased.

69. In cross-examination, he was asked why would the victim slap his face when he was hurt on his chest. He said, he did not know why. He was asked if he heard noises before he came to the scene. He confirmed that there was so much noise. He was asked about the estimated time as to when the killing took place was between 5pm and 6pm. He replied no and maintained that it could have been between 3pm and 4pm. He was asked about the people who attended the graduation were from a number of villages and not Waira and Watara villages only. The witness answered that there were people from Waira, Pirtop, Butliwan, and even from Nakukur villages. He confirmed the stone throwing was between the Watara and Waira people.

70. Further asked if he saw Johnson on the scene. He said, Johnson was the one who was urging the Waira people to leave. Asked to confirm if Douglas is from Pirtop village. He answered in the positive. Asked as to how Dickson came into the scene. Daniel said, he saw Dickson run from the back of the house direct to where the victim was standing and stabbed the deceased.

71. The 7^th witness called was Douglas Taupa. This was the last defence witness and he comes from Pirtop village and married to a woman from Urukuk village also on the Duke of York islands. He said, he recalled the incident that occurred after the graduation ceremony at Watara Primary School. As he left the school premises, he came to Lui’s house and as he stood on the road, he saw Johnson rescuing Mazura Aba and Graham Tova. Then after, the two had been pushed or pulled away and out from the yard, he saw the killer coming into yard to where the victim was standing. The killer then stabbed the victim on the left side of his chest.

72. After seeing the stabbing, he turned around and told his in-law that the younger brother of this in-law had stabbed the deceased and urged his in-law to go and attend to the victim instantly. Asked in chief who was the killer he saw and the witness replied that he is Dickson Gabriel. He also confirmed that, Dickson and Richard are real brothers.

73. In cross-examination, this witness was asked if what he told the court is not true as he was told by other defence witnesses to fabricate the story shifting the blame away from the two accused to Dickson Gabriel. The witness said what he told the court is the truth of what he observed after seeing the victim being stabbed, he ran away. Asked if he was close to witness Daniel. He answered that he stood near him at his back. Asked if he saw Jimmy Katai on the scene. He said, he was caught up in many things such as there were sticks and stones thrown around everywhere and he could not see ToKatai.

74. He also confirmed that, around the scene and around the main road, there were many people. Asked as to where the two accused were and Johnson when the victim was stabbed. He said, they were already away from there and he did not see them there when the stabbing of the victim took place. Repeated questions in cross-examination were asked to this witness if he was truthful in giving evidence in relations to seeing Dickson Gabriel stabbed the deceased. The witness repeated himself by saying that, he saw the killer killed the deceased and he cannot tell the court lies and the killer was Dickson Gabriel.

75. The defence case was closed and the cases were adjourned further for submission and addresses on the verdict to be received in Kokopo. The case was adjourned to 26^th June.

COUNSELS’ SUBMISSIONS ON VERDICT

76. Ms. Ainui appearing for the two accused submitted that, the two accused are charged with wilful murder and the State had the burden of proving their case beyond reasonable doubt. Counsel rightly submitted that, the issue for the court to decide is whose evidence is credible and whose is not. She briefly referred to the defence witnesses’ evidence and that of the prosecution witnesses. On the prosecution evidence, counsel submitted that, there may be appearance of bias because a number of the witnesses are related to the deceased. Counsel submitted that due to a lot of contradictions in the prosecution evidence, the court should return verdicts of not guilty and dismiss the case.

77. Mr. Rangan replied to the defence submission that, the State has proven their case beyond the criminal standard of proof and the court should convict the two offenders. Counsel referred to the prosecution witnesses who said they saw accused Mazura Aba stabbed the victim and just before he was stabbed, the accused Graham Deckson Tova was seen struggling with the victim with a chain saw chain. He referred to the statement of State witness Jimmy Kepas was never tendered as an inconsistent statement. This witness said in chief that he never saw who stabbed the deceased. Counsel argued that there is sufficient evidence upon which the Court can return verdicts of guilty against the two accused.

STANDARD OF “PROOF”

78. The law requires that, a person who is charged with a criminal offence is entitled to a fair hearing within a reasonable time. Such a person is innocent until proven guilty, s.37 (3)(4)& s.42of the Constitution provide that an accused is innocent until he or she is proven guilty. The standard of proof in criminal cases is one of “proof beyond reasonable doubt”. On the instant trial, the prosecution bears the burden of proving the guilt of the two accused persons beyond reasonable doubt. According to the cases of R v Namiropa Kopinbodi [1969-1970] PNGLR 194 and The State v John Kasaipwalova [1977] PNGLR 257 a Court of law “must feel an actual persuasion on the occurrence” or existing of facts and evidence in a trial. (See also The State v Tom Morris [1981] PNGLR 493).

79. The two accused were given the opportunity to give evidence, make unsworn statements or remain silent and if they wanted to call any witnesses it was their right to do so. The two accused exercised their rights and elected to give evidence and call their witnesses. A number of issues arise on this trial, both on the prosecution evidence and that of the defence.

80. First there is direct evidence by the prosecution and defence witnesses that they were on the scene of the killing. According to the prosecution evidence, two out of the six witnesses said, they did not see the person who stabbed the victim. I find there are a number of inconsistencies in the prosecution evidence. First witness Wilson Jelly gave evidence that, when he came onto the scene, he only saw three Waira boys. He named them as the two accused and Tony. Other witnesses said, there were a lot of people from Waira and other villages around on the scene and the main road where the crime was committed.

81. The court finds that there is also contradiction on the evidence of witness Ella Wilson. In chief this witness was asked if she did not see accused Graham Tova pulling the chain with the victim. In cross-examination she said, she saw them pulling the chain as she was taking cover behind a tree. Earlier in her evidence in chief, she said she stood behind a tree and saw what happened. Later, she said, she stood a few meters from where accused Mazura stabbed her brother.

82. In case of witness Wilson Jelly, he said, after the accused Mazura had stabbed the deceased, he saw him ran passed and while running off he dropped his wallet containing the I/D card and K30.00. This part of his evidence contradicts that of the third witness Ella Wilson where she said in chief that, after the accused Mazura had stabbed the deceased, she ran to Mazura and hit his head with a stick causing his wallet, I/D card and spear that was used to stab the victim. When the court party viewed the scene there are a number of trees but the closest on would be the rain three which would be about 6 to 7 metres away from the place where the deceased said to have collapsed.

83. The next issue is in Dois Joshua’s evidence, he said, he saw the two accused struggled with the victim and he saw accused Mazura stabbed the victim with a piece of spear. The defence counsel asked him about his statement dated 10^th December 2015. On the last sentence of paragraph 3, the witness told the police that, he held Dickson Gabriel on the cement foundation and he saw what happened. Asked as to which version is true, the story he told police or the later version in court. He said, what he told the court is true. His statement was tendered as inconsistent statement. (See Ex. “D”).

84. The prosecution version of the position where the deceased is supposed to have collapsed differs from where the defence witnesses said they saw the accused fell and died after being stabbed by Dickson Gabriel. According to the defence version, the place where the victim collapsed was near the cement foundation. That was the place where the State witness Dois Joshua saw Dickson Gabriel held on to the victim’s and he said he saw what occurred.

85. On the evidence of the last prosecution witness, Dickson Gabriel was sworn to give evidence. When giving his evidence, he was asked in cross-examination if it was true that he stabbed his uncle Samuel George. He just simply replied “I have nothing to say about the killing.” At least he was accused by the seven defence witnesses and one would expect that to release the burden from his shoulders, he could have said more than saying what he said in chief and cross-examination. The court observed this witness demeanour when giving his evidence. His appearance was not convincing to this court and I conclude he was not a truthful witness.

86. This is a criminal trial, the issue I now raise is what inference would the court draw from all evidence that have been called by both the prosecution and defence. It is established law that where there are a number of competing inferences, it is a question of fact for the judge to decide which and what inferences should be drawn. Which should be rejected and which are reasonable, which are mere conjectures and which party should the court favour and at the end of the trial where there are inferences inconsistent with the guilt of an accused or as on this case the two accused now in court, there is discretion to acquit: Paulus Pawa v The State [1981]PNGLR 498, Allan Oa Koroka v The State & MarianoWani Simon v The State [1988-89] PNGLR 131.

87. This court is reminded that on the instant trial, I must be satisfied beyond reasonable doubt of the guilt of the offenders and not only that the two accused guilt should be “a rational inference”, but that “it should be the only rational inference” this court ought to draw after analysing all evidence both for the prosecution and the defence: The State v Tom Morris [1981] PNGLR 493. Paulus Pawa v The State (supra) or Allan Oa Koroka v The State & MarianoWani Simon v The State (supra).

88. On this trial “a rational inference” ought to show or point to this Court, the guilt of the two accused. This case is a wilful murder trial. I remind myself that, the only inference the court ought to have should point this court to the two accused’s guilt. I have discussed certain inconsistencies exhibited in the prosecution evidence. Due to the inconsistencies in the prosecution case, this Court is not convinced beyond reasonable doubt the guilt of the two accused. The court returns verdicts of not guilty. Their case is dismissed and they are discharged and their bail moneys shall be refunded to them.
_________________________________________________________________
The Public Prosecutor : Lawyer for the State.
The Public Solicitor : Lawyer for the Accused.