State v Melka [2016] PGNC 374; N6611 (29 November 2016)

N6611

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NOS. 676, 677, 678, 679, 680, 681, 682, & 683 OF 2014

THE STATE

V

ESAU MELKA, ANTHONU MELKA, PAMEL PAVON, ELIAS KAINA,
DAVAI SATEK, LUKE DELLY, STEVEN DELLY & MICHA WAIPI

Kokopo: Lenalia, J

2016 : 2^nd June, 4^th -15^th July,

: 2^nd -5^th & 19^th August,

: 6^th , 9^th&21^st Sept & 29^th November.

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

CRIMINAL LAW – Wilful murder – Evidence on trial – Prosecution evidence
alleges all accused participated in the killing – Defence evidence denies presence on the various scenes where the assaults were committed.

EVIDENCE – Identification –Sufficiency of identification evidence – Process of identification done in a number of locations – Identification by persons of nearby neighboring communities – Dangers inherent in identifying lose relatives – Weighing of identification evidence.

PRACTICE & PROCEDURE – Alibi Defence – Not accepted – No effect on
ultimate onus of proof but may assist the prosecution case – On alibi evidence, care is required in weighing evidence by assessment of all evidence for the prosecution and defence.

Cases cited:
Alois Erebe & Taros Togete v The State (2011) SC1135
Allan Oa Koroka v The State and MarianoWani Simon v The State [1988-89] PNGLR 131
Gari Bonu Garitau & Rossana Bonu (1977) SC528
John Jaminan v The State (No.2) [1983] 318
Jimmy Ono v The State (2002) SC698
John Beng v The State [1977] PNGLR 115
Paulus Pawa v The State[1981] PNGLR 498
R v Namiropa Kopinbodi [1969-1970] PNGLR 194 at 200
The State v Tom Morris [1981]PNGLR 493
The State v Marety Ame Gaidi (2002) N2256
The State v Okata Talagahin(No.1) (2004) N2581
The State v Eki Kondi (No.1) (2004) N2542
The State v John Bosco (2004) N2777
Valii Rocky Mauri v The State (2000) SC668

Counsel:
Mr. L. Rangan, for State
Ms. J. M. Ainui, for all Accused

November 29^th, 2016

1. LENALIA J: The eight co-accused are charged with one count of wilful murder contrary to s.299 of the Criminal Code. After they were formally arraigned, they all pleaded not guilty necessitating a long trial conducted intermittently from 2^nd June 2016, until today (29.11.2016). The offence was committed on 3^rd January 2015 at Rakada village, Rakada Ward on the Gazelle District E. N. B. Province.
   

Prosecution Evidence

2. The hearing of this trial commenced on 6^th September 2016. A total of eleven (11) witnesses were called by the prosecution. Witness No.6 Leonard Waninara was withdrawn because the State Prosecutor submitted that because, there was no statement of that witness in the file, he should be withdrawn. No objection was taken by the defence counsel and the witness was withdrawn.

3. The prosecution evidence alleges that, on the above date, it was a Saturday between 12 midday and 1pm, the eight accused were amongst a large group of people which went searching for the victim now deceased Nicholas Minamar at Rakada village. The motive for this search and the eventual killing of the deceased is not so clear from the prosecution evidence but it was believed that, the victim used to cause trouble and even cut people in their communities. The State alleges that, when the co-accused came to Rakada village, they started to ask about where the victim was. After they found him, he was beaten up and was led away to the junction referred to in the evidence as ‘Palnalom’ where he was taken by a vehicle to Tomariga Police Barracks and later to Nonga hospital where he died.

Witness No.1Ludwig Kaile.

4. The first witness, Ludwig Kaile. He comes from Rakada village, Vunakapa Ward in the Gazelle District. He narrated to the Court what happened on Saturday 3^rd January 2015. He was in his house with his uncle when they heard shouts and people swearing going up the main road. He ran up toward the main road and stood a little distance away and saw a group of people holding the victim on his hands and pulled or pushed him up the road. Asked in chief if he recognized any of the persons in the group that was leading the victim to the main road. He said, he identified Christopher Kalue, Peter Walagu, Junior Matatenge, Hubert Walagu, Elias, Steven Dely, Luke Dely, Micah Waipi and Davai Satek.

5. The distance from which he stood and saw the two pulling the victim’s hands was about four (4) meters. In the process of giving his evidence, the witness identified the eight accused right from the first accused to the last one. It is clear from this witness evidence in chief that, he did not see anyone assaulting the victim by the time the gang walked passed him. By then the victim had blood on the affected portions of his body and he only saw blood on the victim’s head, legs and hands. Asked if the wounds he saw looked like bush-knives wounds. He said, they look like knife wounds.

6. The witness confirmed in cross-examination that, there was a large group of people. Many of whom he did not identify and there was such noise that he could not hear what they were saying except for the words called out in the following terms,” we have captured your king, we have captured your king”. He also confirmed that Rakada/Ward shares the common boundary with Vunapaka/Ward and those villages where the co-accused come from are near his village.

Witness No.2 Ulia Takekel.

7. This witness also comes from Rakada village on the same Ward as that of the first witness. He said, this offence was committed on Saturday 3^rd January 2015. He recalls that while he was in his house, he heard a loud noise and calling along the vehicular road. He walked out from the house and stood outside.

8. As he stood on the front of his house he saw Esau Melka, Anthony Melka, Pamel Paon, Elias Kaina, Dawai Satek, confronted him and asked him about where Nicholas Minamar was. He told them that, he was not with him and he could be in his house. They left him there and walked up in haste towards Nicholas Minamar’s house.

9. When they reached the victim’s house, they broke into his house and took two water containers and stole other properties. They left for the main road and when they met Nicholas Minamar (victim), they chased him and caught him and they assaulted him. He saw, Dawai Satek and Savenat Delly (he is not in court) had in their possession sticks and other objects which they used to hit the victim with. He also saw Anthony Melka assault the victim. He confirmed that he did not see the gang broke into the victim’s house, but when they came up the road, he saw them assaulting the victim. This witness also identified all the accused in court.

10. In cross-examination, Ulia was asked if he is related to the victim. He said, he is the elder brother of the deceased. It was put to the witness that because the victim was his biological brother, he would want to protect him. The witness said, it was hard to hear what the gang members were saying but those he identified were on the scene as he had named them.

11. Asked if those he named came to ask for the victim on his premises. He said, he was sitting around his house around about 11.30 am on the above date and those he named came up to his yard and confronted him asking for the victim.

12. Further asked, if after asking him, he did not go with the mob to the victim’s house. He said, he followed them at their back but he did not go with them to his brother’s house. Asked if he knew that, his brother (victim) had involved in serious allegations laid against him by the community the latest of which was, the wounding of another person. He denied knowing anything.

Witness No.3 Albert Pui

13. Albert Pui comes from Rakada village on Rakada/Ward. He said, he is aware of the incident on which the victim was killed for which the eight co-accused have been charged. He estimated the distance from his house to the house of Ludwig Kaile (1^st witness) to be from this court room to the police station estimated to be 20-30 meters. He said, the first witness is his uncle. When he heard the great commotion, he ran to where Ludwig was standing and asked what was happening. Ludwig told him there was a big fight going on along the road.

14. This witness said, when they stood together with his uncle, he recognized the man who was being pulled up the road and named him as Nicholas Minamar. He said, by the time he saw the victim, he had already sustained injuries on his body and he saw blood. Asked in chief if he was with anyone in his house, he said, he was with his family since it was the week-end. Asked about the distance from his house to the victim’s house. He estimated the distance to be about 1 kilo-meter that is from Court premises to the Kokopo market.

15. Asked about the direction where the people were leading or pulling the victim to. He said, they were pulling him toward the main road. Asked about what time of the day was it. He responded that it was about between 12 and 1pm and described the day as it was a fine day. He said, he only identified four people who were walking together with the victim. He named them as To Dawai who comes from Vunapaka, Satek, Savenat and Tonga. Micah is married to Totovel, but he comes from Rapukpuk village in Ratavul area. He saw them at close range estimated to be 3 meters.

16. Asked about the crowd of people that day, he said there was a large group of people calling out and shouting saying that, they got green-light from the police to arrest the victim because he had offended in their community and he heard Savenat said, they had captured the king.

17. In cross-examination, the witness confirmed what he said in chief that, he did not see the two persons who were hauling the victim toward the road leading toward the church grounds. He also confirmed that he was not on the scene where the victim was injured further down before they came up past his house. He confirmed he signed his statement which the police got from him after the matter was reported to police. His statement was produced to him and it was put to him why he did not mention the names of those he mentioned in examination in chief. He said, he gave the names to police and he did not know why police did not write them down. The statement was not tendered as a prior inconsistent statement.

Witness No.4 Michael Kurai.

18. This witness comes from Vunapaka village. He said, he recalled an incident on 3^rd January 2015 when the victim was killed. He recalls that by 12 midday on the above date, he was in his village when he heard noises and wanted to see what happened. As he came near to where there was noises, one of those standing together said, he wanted to see his king. Was asked who uttered such words, he said it was Elias. He later called the other name as Kaina.

19. The witness confirmed in cross-examination that, he saw those who attacked the victim. It was put to the witness if the accused Elias Kaina was not on the scene. He responded that, Elias was one of those who attacked the victim. He confirmed that Vunatak is a neighboring village to Rakada village and Vunatak shares common boundary with Vunapaka.

Witness No.5 Albert Ulia.

20. Albert Ulia comes from Vunatak village. He gave an account of what he saw on the morning of 3.1.2015. He was in his house when he heard noises from the road and being curious about why people were shouting, he and his mother walked up to the road. When he arrived, he saw the victim already lying on the grass. The crowd kept shouting and swearing. While the mob was walking up, he saw some of the offenders and named them as Matatenge, To Pita, these two were holding onto the victim’s hands and trying to lead him up the road. He said, he saw Anthony assaulting the victim. He also saw Steven, Savenat and there were a great number of people.

21. Asked as to where he saw people assaulting the victim, he said, he saw them assaulting the victim at Vunatak village. The witness described his relationship with a number of the co-accused. He said, he witnessed accused Anthony Melka assaulted the victim with a stick.

22. The witness confirmed in cross-examination that there were a lot of people and those who stood on the road side were only observing what the suspects were doing to the victim. It was put to this witness that because there were many people, he could identify those whom he mentioned their names in his evidence in chief. He said, he recognized those he name them as they are neighbors and he recognized them well as they took part on assaulting the victim. Asked if he did not recognize Anthony because, he is from Totovel. He said, he saw him on the scene. He confirmed too that, he knew that the victim had problems in their communities.

Witness No.6 Leonard Waninara

23. Leonard Waninara commenced his evidence, but the State Prosecutor applied to have this witness withdrawn because, he did not have a statement on the file. No objection was taken. The witness was withdrawn.

Witness No.7 Alois Keret.

24. Alois comes from Rakada village. He recalled that on the date of the killing, it was a Saturday and he was with his family in their house cocking. He was surprised when people came shouting and asked him about his brother in-law, (the victim of this case). He told them that he did not know where he was. He knew that the people came down from Vunapaka village. While still talking, he heard accused Pamel Paon saying they had come to remove the victim. After asking him they walked passed his house in haste toward the victim’s house. In fear, he did not want to follow them.

25. Due to so much commotion, he thought he would go through a short cut to the main road. When he heard shouts from the victim’s house, he knew that, they had caught up with his in-law. So he ran toward the road and saw the people assaulting the victim. After assaulting him, they held on his hands and pulled him up toward the main road. He did not follow them as he was so afraid.

26. Asked in chief what did he mean when he heard Pamel Paon saying, they had come to “remove Nicholas Minamar”. Alois said, that is a saying in their language, which would mean they wanted to finish him off or finish his life. He further clarified that, it also meant the gang wanted to put an end to the victim’s life. Asked if he recognized anyone from Vunatak or Rakada villages. He said, he could not recognize all and those he named were the only ones he recognized. He said, he saw Micah assaulted the victim while he was lying on the ground. Asked if he knew those persons he referred to as Pamel, Steven and Micah. He said, Pamel is his cousin brother and Steven is related to him. With Micah, he said, he has seen him before and he knows him well.

27. Alois was asked in cross-examination about his relationship with the victim. He answered that, he is his in-law because he (victim) was married to this witness biological sister. Questions were put to the witness as to why he did not give the names of accused Steven, Micah and Pamel. The witness said, he told police the names of those he recognized. The witness statement was tendered and marked as MFI “1”.

Witness No.8 Thomas Topetep

28. This witness comes from Rakada village. He said his house is near the road and when he heard shouts and swearing, he came out and stood on the road side and watched the crowd that was going up the road and when the crowd of people saw him, they looked up to him and called out and told him that, “we have got your king.” This witness identified and called the names of all co-accused starting from the first one from his left to the last one on his right.

29. Asked in chief if he had any grudges with any of the accused persons, the witness said, he had no trouble with anyone of them. He said, they all come from nearby villages and he knows them all well and described the time and said, it was day time and was really bright as they were walking together with that big group of people.

30. Asked in cross-examination about the statement he made to the police investigation officer. He responded that he made a statement. He was asked if he signed it he answered he did. Asked as to why he only mentioned six of the accused persons and not the other two.

31. He said, he thought he mentioned the names of all the eight co-accused to the police. Asked why police did not write the other two names down, he said, he did not know. His statement was not tendered.

Witness No.9 Joe Martin.

32. Joe Martin is a Senior Police Constable in the PNG Constabulary. He has been with the Police Force for 20 years and is based at Kerevat Police Station C.I.D office. He has served with that division for 15 years. He was the officer who conducted the record of interview with the eight accused and took their statements. In his evidence, the witness testified that, the record of interviews with the eight accused were conducted fairly after the warning given to each of them one by one at various times and dates.

33. He named the three corroborators who were present with him during whatever time he conducted the interviews with the eight accused. They are Senior Constable William Kalava, Sgt. Aiyofa Faregere and Constable Joe Bomakar. There was allegation by the defence that, the interrogator fabricated the record of interviews with the eight accused.

34. The witness denied this and said, he does not have any interest in the case or even conflict of interests in this case. He said, he himself comes from Kiunga District in Western Province. He said, Constable Joe Bamakar is mix-parentage mother a Tolai woman and father is a Sepik man.

35. Sergeant Faregere is from Finchaffen and Senior Constable William Kalava is from Tolai. His statement was tendered. (See Ex. “9”). The eight record of interviews were tendered in order of the names on the indictment as follows:
Exhibits “10” & “10A” Pidgin & English translation,
Exhibits “11” & “11A” .. ..
Exhibits “12” & “12A” .. ..
Exhibits “13: & “13A” .. ..
Exhibits “14” & “14A”
Exhibits “15” & “15A” .. ..
Exhibits “16” & “16A” .. ..
Exhibits “17” & “17A” .. ..
36. In cross-examination, this witness was asked about how many groups of people were arrested by police in the initial stages after the killing. The witness explained in his evidence that, he did not know about another group of people as alleged by the defence and the eight accused had voluntarily came up to Kerevat Police Station by themselves with their village elders to report the killing and surrendered the accused to police. Asked about how many corroborators did he engage to conduct the record of interviews with the eight accused? He confirmed that, there were three corroborators because, there were eight different accused persons to be interviewed.

37. He was further asked if, the eight accused were only asked to tell their stories to this witness about what they saw and not about what they were alleged to have done to the victim. In response, the witness said, when he interviewed each of the accused, they told him what they did to the victim but that there were a lot of people involved in the killing of the victim.

38. It was put to the witness if it was true that when he asked the eight accused questions in the record of interview, they each denied killing the deceased, but instead, he typed the opposite of what the eight accused told him. The witness said, he had no reasons to fabricate the story of what these eight accused did. He was asked where Senior Constable William Kalava comes from. He said, he is a Tolai but he is a police officer and the witness does not think, he can tell lies to the court and does not have any conflict of interest on the current trial.

Witness No.10 William Kalava.

39. This witness is Senior Constable William and he is attached to the Criminal Investigation Division at Kerevat Police Station. He has been with the C.I.D office for over 2 ½ years. He was the corroborator in three of the eight accused. He named them as Elias Kaina, Luke Delly and Dawai Satek. He is of mixed parentage, his mother from Morobe Province and father from Vunamarita village near Putanagororoi village North Coast of this Province.

40. The witness was asked if he was present throughout the period the record of interviews were conducted. He said, he was a corroborator and it was his duty to be present while each of those three accused were interviewed. In case of accused Elias Kaina, the witness said, he was present with the interviewing officer and the accused himself at the C.I.D office at Kerevat. He said, in the case of accused Dawai Satek, he was present throughout the time he was interrogated so as with accused Luke Dely. This witness confirmed in cross-examination that, he was present at the time each of the three accused Elias Kaina, Dawai Satek and Luke Delly were interviewed and he did not go anywhere while each of the three co-accused were interviewed.

Witness No.11 Sergeant Aiyofa Faregere.

41. The final State witness was Sergeant Aiyofa Faregere. He is also attached to Kerevat C.I.D office and he established in his evidence that he was a corroborator to Constable Joe Martin who conducted the record of interview with four of the eight co-accused on allegations of killing on the instant trial. Exhibits “10”, “11” & “12” were produced to the witness by consent. He identified his signatures on the three statements taken where accused Esau Melka, Anthony Melka and Pamel Paon.

42. Asked in chief if accused Esau Melka told the interviewing officer about not being present on the scene of the killing. The witness answered that, the accused Esau told the story which was recorded in the record of interview. That each of the three accused also gave names of other people who were present on the scene of the killing. He identified his signature on the records of interview.

43. This witness was asked if what Senior Constable Joe Martin typed down on the record of interview was only a tale or story told to the interviewing officer by accused Esau Melka. The witness denied this and said, what the interviewing officer did was he asked questions to each of the accused on separate times as he interviewed them one at a time and not in a group. He asked questions and recoded each question down and whatever answer was given, they were typed down on the record of interview.

44. This was the end of the prosecution case. After the prosecution case was closed, the eight accused were given warning under s.572 of the Criminal Code. They each elected to give sworn evidence.

Defence Evidence.

Witness No.1-Accused Esau Melka.

45. According to the indictment, the 1^st& 2^ndaccused come from Totovel village while the 3^rd to the 8^th accused all come from Vunapaka village. The defence case commenced on 4^thOctober 2016. The defence evidence is total denial. Esau Melka’s evidence was brief. His evidence is that, in the morning of the date the victim was killed, he woke up in the morning and took his wife and they went to work in the garden. The garden is situated at Vunapaka village. At about 1pm, the two of them heard shouts and noises on the road. They hurried up to where the noises were coming from and when they got there, they saw a big crowd of people standing around.

46. They stood for about three minutes and he saw a person sitting down on the grass and they returned to their garden. Asked in chief if he identified the person who sat on the grass. He said ‘yes’ and named him as Nicholas Minamar (victim). Asked about the distance he stood and saw the victim. He said, it was about 2 or 3 meters on the side of the road.

47. Asked about questions 10 to 31 in the record of interview if it was true he admitted he was involved in the initial stages of assaulting the victim. The accused said, when he was interviewed, he did not admit to assaulting the victim but merely referred to the persons who assaulted Nicholas. He denied all contents of the record of interview.

48. He was also asked about, question 13 and its answer where the witness named his co-accused as taking part in assaulting the victim. He said, that was no true and only told the interviewing officer that there were many people. He gave the reason why the public were involved in the killing of the deceased Nicholas Minamar. He was asked in relation to the reasons for taking the victim up to Vunapaka. The witness said, he never said anything to the interviewing officer.

49. Asked if he read the record of interview or was it read to him. He answered he did not read it. The witness was asked why was it that, the policeman who conducted the record of interview with him fabricated the story about him being one of the persons involved in the killing of the victim. He said, he did not know why. He was asked if the record of interview was either read to him or if he read it. He said, it was not read to him and that was why he did not sign it.

50. To give an highlight of the eight co-accused conversations during the record of interview. I will quote some of those relevant questions and answers given by each co accused to the interviewing officer at Kerevat C. I. D office. In case of the first accused, the record of interview was conducted with him on 29^th January 2015. He was asked in chief and cross-examination about a number of questions in the record of interview and he gave the following answers:

Q11. Whom did you go with to look for this man Nicholas Minamar?
Ans. There were a lot of us.
Q12. You mentioned there were a lot of you, can you mention the names
of the others?
Ans. Those are the ones.
Q13. You mentioned they are the ones and who are they?
Ans. Myself, Anthony, Pamel, Elias, Steven, Luke, Junior Tonga, Micah
Waipi and Dawai Satek.
Q15. Why did you people went looking for Nicholas Minamar?
Ans. We went looking for him because he chopped a man during
Christmas.
Q24. When you people located him, what did you people do to him?
Ans. When we approached him, he grabbed his bush knife, spear and a
iron rod and chased us with it.
Q25. When he chased you people, what did you do?
Ans. He speared us with his iron rod and one of the boys from our group
picked up the iron rod and speared him and he fell onto the ground.

51. This witness was vigorously cross-examined. He was asked about the exact location where he saw the victim sitting down. The witness responded that, he saw the victim at the junction at Palnalom church ground. This is the junction to the entrance into the Catholic and United Church ground in the same locality. Asked if his seven co-accused were on the scene that day. He said, he could not identify them as there were many people at the place where the victim was sitting.

52. Asked about the evidence of prosecution witness Ulia Takekel who said, the first and second accused are related to him and he knows them well. He did not answer this question well but he said, he and Anthony were not on the scene. Further asked if it was true, this witness, Anthony Melka, Elias Kaina and Pamel Paon came to his house and asked him where the victim was. Ulia Takekel told them that, he did not know where the victim was and they proceeded to the victim’s premises. The witness denied this.

53. It was put to this witness if it was true that, after, him and his co-accused caught the victim they took him to a small field where they assaulted Nicholas with objects like sticks and stones and physically assaulted him. The witness said, he did not know this as he was not on the scene. Asked as to why, the prosecution witness Ulia Takekel could have made up the story against him and his co-accused. He said, he did not know why. Asked about certain questions in the record of interview where he admitted to assaulting Nicholas Minamar. The witness said, he did not admit anything to police when he was being interviewed.

54. He was further asked about if he knows Ulia Takekel and whether he is related to him and his brother Anthony Melka. The witness said yes, but he was not on the scene. Asked about question 10 in the record of interview where the witness was asked if he was one of those who assaulted the victim and in answer, he admitted that he only assaulted him but not with any intention to kill him. The witness said, he never told police about anything. In the record of interview, this accused informed the policemen conducting the record of interview with him that, when they came to where the victim was, he saw Nicholas sitting near the house. The witness answered that that was not true.

Witness No.2-Accused Anthony Melka.

55. The second accused Anthony Melka elected to give sworn evidence. His evidence is that, on Saturday 3^rd January 2015, he, his wife and their children attended the church service at Toboina S.D.A Church. He stayed there until 12 noon when he left the church campus and returned home. While in their home, he heard people shouting on the road and he wanted to see what was happening. When he got to the place where there were noises, he saw a vehicle driven away from where there was a crowd of people. He said, he saw the victim Nicholas Minamar sitting on the back of that vehicle. He said, he did not stay long and he went back to church ground.

56. Asked in chief about the condition of Nicholas. He said, he could not see any injuries on the victim’s body as he was a distance away from the open-back vehicle that was being driven away from the scene where the crowd of people were standing and talking. He was asked if it was true that he was one of those seven co-accused who assaulted the victim who died later. He responded in the negative and said, he was never arrested by the police and like the first accused, he said, he went to the Kerevat Police station to clear his name after about one week and he and the co-accused were then arrested.

57. Asked about question 17 in the record of interview where he was asked if he cut the victim with a bush-knife. The answer he provided in the record of interview was that, he did not cut Nicholas but he and the others went looking for him and when they found him, he only injured him. The witness said, he was not on the scene that time. His answer in the record of interview to question 17 was he gave the names of those who were involved in assaulting the victim. In court, the witness answered that, he never gave any names to police when he was asked questions. In answer to question 19, this witness is supposed to have told the investigating team that, the victim was shot with an iron rod and he assisted the victim by lifting him up and assisted him to go up to the road at Palnalom. In court he denied this.

58. Asked about his answer to question 21 where he answered in the record of interview that, though he cut the victim, he did not mean to kill him. The witness said, he never said that. Asked about question 21 where he was asked if he was present on the scene where the victim was assaulted. He answered he was not on the scene. Asked why the policemen could make up false allegations against him. He said, he did not know why. The following questions were asked in the record of interview and this is how this accused answered them”

“Q17. The names of the boys that are already there, would you be able to
identify them?
Ans. Myself, Esau, Pamel, Dawai, Elias, Tonga Junior, Like, Steven
and Micah.
Q19. After you had speared him with the iron rod and he fell down on
to the ground, you people assaulted him badly and pulled him up
to the main road, what will you say about this?
Ans. Yes.
Q21.You people search with sticks, stones and cut him with bush
knives, what will you say about this?
Ans. We did not stone him or cut him, but we only broke his leg and
hand, that’s all.

59. In cross-examination, the witness was asked a series of questions. He was asked about why the police investigating officer made up these serious allegations against him and his co-accused. He answered that he did not know why but that the story he gave to the interviewing officer was not what he told S/Constable Joe Martin. Asked if Joe Martin is married to the village where this accused comes from. The witness said, no he is not as that policeman is not a Tolai.

60. Asked if he went to church together with any member of his family or anyone. He said, he went together with his wife. Asked about Ulia Takekel’s evidence that he saw this accused and named two others who came to the house of that State witness and asked him where the victim was and then walked past Ulia’s house in search for the victim.

61. It was put to this witness that when they got to the house of the victim, they found that he was not there, then he and his co-accused stole the victim’s personal belongings. The witness said, it is not true as he was not on the scene. Asked if this witness knows Ulia Takekel personally. He said, he does not know him as he is from Totovel village.

Witness No. 3 Accused Pamel Paon.

62. This accused comes from Vunapaka village. In his sworn evidence, this witness denied being on the various scenes where the victim was assaulted. His evidence is similar to other co-accused where he said, during the time the victim was assaulted, he was at his home with his family. When he and his wife heard shouts on the road, they ran to the road to see what was happening. When, they got to where noises were coming from, they stood for a while and he saw a vehicle getting ready to leave with the victim. Next morning he heard news that, the victim Nicholas Minamar had passed on.

63. Asked in chief if he took part on assaulting the victim. He said, he did not but said, there were many people there and all he saw was the people who were around there lifted the victim onto an open back vehicle and the vehicle took off to Tomariga Police Station. He said, by then the victim had been seriously injured. He did not know why he was assaulted. Asked about what he told police during the record of interview. He said what he told police was about what happened in the village and also told about them about the instructions given by police to the community at home. Asked about question 12 on the record of interview where he told police that he knows who Nicholas Minamar was. He said, he did not tell police this. Further put to him if he assaulted the victim as he told police in answer to question 24 in the record of interview.

64. In answer he said, he did not tell police this. Further asked about his answer to question 25 where he was asked if he and his seven co-accused assaulted the victim. He denied he never told police about him or his co-accused assaulting Nicholas. To be specific, the court quotes questions 12, 24 and 25 and their answers in the record of interview in the English translation Ex. “C31”:

Q12. Do you know a man by the name of Nicholas MINAMAR?
Ans. I know him.
Q24. If you say you people did not cut him, then what did you people do
to him and as the result he sustained severe injuries?
Ans. When we located him, he speared us with his spear and bush knife.
Q25. Police received report that Anthony Melka was the one that

speared Nicholas Minamar with the iron rod, and he fell onto the

ground and when he was lying on the ground, you people assaulted

him all over his body, and later pulled him up to the main road,

what will you say?

Ans. No, the iron rod was his, but there were a lot of us and I could not

tell who actually speared him with the iron rod.

65. This witness was vigorously cross-examined. Something interesting about this witness evidence is that, when he was asked if he knows Alois Keret who comes from neighboring Rakada village and if he is related to him. In answer he said, he does not know him nor is he related to him. He denied holding a bush-knife on one hand and the other hand and when he, Steven Delly and others reached Alois’s house, this witness said something to the effect that, they had come to end Nicholas Minamar’s life. The witness denied this and said, this is not true.

66. Asked if he is related to prosecution witness Ulia Takekel as a brother. He denied this and said, Ulia is from Vunapaka village. Asked, if it was true that when he and the other co-accused could not find the victim in his house, they broke into his house and stole the victim’s personal belongings. He denied being on the scene as well as on or in the premises of the victim. Asked, if it was true that witness Thomas Topetep recognized him walking together with his co-accused. He denied walking with those holding on to the victim.

Witness No.4 Accused Elias Kaina.

67. This witness comes from Vunapaka village. He gave evidence that on the date and time of the incident of this case, he was together with accused Luke Delly cutting grass in their cocoa patch. They went to the block in the morning. As they were cutting grass, they heard people calling out and shouted along the road. They made their way up to the scene to see and find out what was happening. When they got where the noises were coming from, the people already dispersed. When they returned home, he heard people telling stories that, the reason they had captured the victim was because, police had given them instruction to catch the victim and take him to Tomariga Police Barracks.

68. He said, the place where the noise was coming from was Palnalom at Vunapaka. He revealed in chief that he is not related to the victim. Asked in chief why was it that, he was charged together with the other seven accused. He said, he went up to Kerevat to clear his name from police records when he was arrested and charged together with others. Asked about what he told police in the record of interview. He said, he denied involvement on assaulting the victim and that was why he refused to sign the record of interview.

69. It was put to this witness in chief if it was true that, he admitted in question 10 and its answer where he said he was together with his co-accused on the day they assaulted Nicholas. He denied this and said, what police recorded in the interview was false as he never admitted to committing the crime. Asked about question 11 where this accused answered that, on that day, he and his co-accused went looking for the victim. He responded by saying this was not true.
Asked about his answer to question 18 on the record of interview where he admitted that he broke the legs of the victim and then they took him to Tomariga police station then on to Nonga General Hospital where he died.

70. In answer, the witness said, he does not know why police fabricated the stories against him. For records purposes, I quote question 11 and 18 and their answers in the following terms:

Q11. What sort of crime did you commit?
Ans. We went searching for Nicholas MINAMAR.
Q18. When you people pulled him up to the main road, what did you
people do with him?
Ans. We broke his leg and hand following authorization from the
police.

71. In cross-examination, the witness was asked if it was true that, he told police that he was not on the scene. He responded in the positive. Asked as to why the interviewing officer did not type his negative answers in the record of interview? He said, he did not know why. He was asked if he knows prosecution witness Thomas Topetep. He said, he does not know him. Asked, if it was true that, he was seen by other witnesses walking together with the victim. He denied this.

72. State witness Michael Kurai gave evidence saying this accused is his uncle and they both come from Vunapaka village. In court, the witness denied this. It was further put to him if coming from the same village, he would certainly know that State witness well. The witness also denied this. He was further asked if it is true that, Michael is his uncle and he would not make up false allegations against him, (accused). The witness denied knowing Michael and disassociated himself from such relationship and said, he is no related to him and he does not know him. Asked if it was true that, the prosecution witnesses heard him and his co-accused called out saying, “we have captured your king.” The witness said, it is not true and the whole story by police was fabricated.

Witness No.5 Accused DawaiSatek.

73. The next witness was accused David Satek. He also comes from Vunapaka village. His evidence is that on the date of this offence, he drove his brother’s PMV vehicle carrying passengers and his family and they were returning from town. As they arrived on the entrance to Palnalom church grounds, he saw the victim sitting down on grass. He inquired with the crowd what had happened. They told him that the victim had been badly beaten up. He then spoke to the people standing around where the victim was sitting expressing his concern why they took the law into their hands rather than taking the victim to police.

74. He said, the reason he went to the police station at Kerevat was for him to clear his name because he had heard his name mentioned by the people that he was involved on the assault of the victim. He was asked in cross-examination as to the reasons for his arrest. He said, as soon as he and the other co-accused got to the police station at Kerevat, he was arrested and locked up until he came to court to give his evidence. He said, while in the police station, he was arrested and the police conducted a record of interview with him.

75. Like his previous co-accused, he denied admissions make in questions 11, 13, 18, 19, 21 – 24. Asked as to why Policeman Joe Martin could fabricate the serious allegations and stories recorded in the record of interview against him. The witness said, he did not know why.I quote those questions and their answers:

Q11. You mentioned he came out with a spear, bush knife and an iron
rod, what did you people do to him when you people saw him?
Ans. He chased us.
Q13. What did you people do after you people ran back?
Ans. This man speared us with his iron rod, so we had to run
back.
Q18. Is it true that you people had cut him with bush knives and
assaulted him you people pulled him up to the main road, what
will you say about this?
Ans. Yes.
Q19. What did you people do to him on the main road?
Ans. We did what the police authorized us to do.
Q21. After you had broken his leg and hand, what did you people do to
him?
Ans. We put him on to a vehicle.
Q22. Where did you people take him after putting him onto a vehicle?
Ans. We took him to Tomariga police station.

Q23. Where did you people take him after taking him to Tomariga

police station?

Ans. We took him to Nonga hospital together with the police.

76. In cross-examination, this witness denied he did not answer the above question as recorded by the policeman who conducted the record of interview.

Witness No.6 Accused Luke Delly.

77. Luke Delly comes from Vunapaka village. He told the Court in his evidence why is he in court and said, what the police charged him for is not true. He denied knowing where the deceased came from. He said, he was not in the group that assaulted the victim. Asked in chief if he heard the State witnesses mentioned his name as one of the group that assaulted the victim. He said, he heard their evidence but he was not with the group which attacked the victim.

78. This witness was asked in chief about a number of answers he gave to the interviewing officer and the corroborator during conduct of the record of interview. The following questions and answers were recorded:

Q13. Would you be able to identify the names of those people that you

went with?

Ans. Elias, Steven, Junior TONGA, Pamel, Anthony, Esau, Dawai and

myself.

Q14. Why did you search for this man Nicholas Minamar?

Ans. We had authorization from the police.

Q15. You had authorization from the police, but what was the real

reason why you people had to go searching for Nicholas

Minamar?

Ans. He cut people in the village that was why we went searching for

him to apprehend him and bring him to the police.

Q16. So you and those others that you gave just mentioned assaulted

Nicholas Minamar badly and as a result he had severe injuries and

you people killed him, what will you say about this?

Q18. After you people had broken the bones of Nicholas’s leg and

hand, what did you people do to him?

Ans. We brought him to Tomariga police station.

Q19. Where did you bring him after taking him to Tomariga police

station?

Ans. He was still alive when we brought him to Nonga hospital.

79. In cross-examination, the witness was asked about why he went to Kerevat police station. He responded that, he went there voluntarily to clear his name but somehow, Police Constable Joe Martin arrested him and locked him up in the cells. Asked if the questions asked him in the record of interview and the answers he gave were typed down in writing. He answered that, they were all recorded. Asked if the same process in the record of interview was done with the other co-accused.

80. He answered that, he did not know what happened in the case of the other offenders. Asked about his answers in the record of interview where he answered the police interviewing officer admitting he was with the group of men who went searching for the victim that Saturday morning 1^st January 2015 where he is supposed to have told the policeman in the record of interview that, they went searching for the victim. He responded that he never told anything like that to the policeman who interviewed him and he did not know why police fabricated stories against him.

Witness No.7 Accused Steven Delly.

81. Like the last witness, Steven Delly comes from Vunapaka village. He testified that on the date of this crime, he was with his brother-in-law building his house in the village. While there, they heard shouts and people calling out on the main road. He left together with his in-law and ran up to where the noises were coming from. As they reach that place where the crowd gathered, they the vehicle had left with the victim to Tomariga Police Station.

82. He stood a distance away from where the crowd gathered. He heard people around there saying they had acted following instruction by the police to apprehend the victim. He also heard people called his name out as one of those who attacked the victim. After a while, he and his in-law left.

83. This witness was asked in chief to confirm what he told police in the record of interview. The following questions were referred to and their answers recorded in the record of interview:

Q11. Why did you people go searching for Nicholas Minamar?
Ans. We got authorization from the police so we went searching for him.
Q12. You people had the authorization from the police to search for
Nicholas Minamar for what?
Ans. We went and got authorization from the police to go searching for
Nicholas Minamar because, he cut a man in the village.
Q13. Can you identify the names of those you were with?
Ans. Myself, Anthony, Pamel, Elias, Steven, Luke, Junior Tonga, Micah
Waipi and Dawai Satek.
Q14. When you people approached Nicholas and saw him, what did you
people do to him?
Ans. He chased us with his iron rod, and one of us from out group got the
same iron rod and speared him and he fell onto the ground.
Q15. When one of you had speared him with an iron rod and he fell onto
the ground, what did you people do to him?
Ans. We pulled him up to the road.
Q16. Is it true that one of you had speared him with the iron rod and
when he fell onto the ground, you people went and assaulted him,
and also cut him with bush knives, what will you say to that?
Ans. We did not cut him with bush knives, we just pulled him up to the
main road.
Q17. What did you people do to him after, after you people brought him
up to the main road?
Ans. We broke his leg and hand.
Q18. We got a vehicle brought him to Tomariga police station.

84. It was put to this witness if he did not tell the interviewing officer about what was recorded but why would Senior Constable Joe Martin make up false allegation against him. He responded that he does not know why.

85. In cross-examination, the witness was asked about what he told police during the record of interview at Kerevat. He responded that, he told the policemen that he was not on the scene and he was not involved in assaulting the victim. It was put to him if it was true that, he and the seven co-accused broke the victim’s leg as recorded in answer to question 7 of the record of interview. He answered, that is not true. Further put to him if it was true that, the interviewing officer got stories from other witnesses and they mentioned his name as one of the seven accused. He said, that was not the case and what evidence given in court is the correct version of what he told police at Kerevat C.I.D.

86. He further denied hunting the victim down for what he had done in their community. It was put to him if it was true that the State witness Ludwig Kaile saw him and recognized him walking up escorting the victim after he had been injured. The witness denied taking part on assaulting the victim and said, he was not on the scene of the assaults as narrated by the State witnesses and that at that time, he was busy with his in-law building his main house and he did not know what happened and when he arrived he only saw the crowd.

Witness No.8 Accused Micah Waipi.

87. The last accused chose to give evidence. He comes from Rapukpuk village and he is married to a woman from Totovel village, Vunapaka/Rakada Ward. This witness denied all the evidence by the prosecution witnesses that he was identified walking up together with the other seven co-accused with a big crowd surrounding them giving their support for capturing the victim. He said, he was at his house and when he heard shouts he came down to Palnalom to see what was the commotion about. When he got to the crowd, the victim had been taken away. As to where he was taken to, the witness said, he did not know where they took him to.

88. A number of questions were put to the witness in chief about answers he gave in the record of interview and the answers he gave during the record of interview. It was put to him if what he told police in answer to question 15, 18 and 19 was true. He said, it was not true. The following questions were put to the accused during the record of interview and he gave answersin the following terms:

Q15. When one of you had speared him with the iron rod and he fell onto
the ground, what did you people do to him?
Ans. We pulled him up to the road.
Q18. What did you people do after you broke his leg and hand?
Ans. We got a vehicle and brought him to Tomariga police station.
Q19. Where did you people bring him after going to Tomariga?
Ans. After from Tomariga, we brought him down to Nonga hospital with
the policeman, and at that time he was still alive, he was not dead.

89. Being an elderly person, this witness was asked a lot of questions in cross-examination. Asked what was he doing on the Saturday 3^rd January 2015 and where was he. He answered that he was at home while his wife went to Rabaul market to sell garden foods and betel nuts. Asked if he left his house prior to 11 am and he was the one who was together with his co-accused seen escorting the victim up to Palnalom junction. He said he was not there and he only got there after the victim had gone.

90. It was put to this witness if it was true that some people from Vunapaka like Ludwig Kaile and Thomas Topetep, Ulia Takekel and other witnesses had identified him going along with the seven co-offenders. He answered in the negative. He was asked, why would the interviewing officer from another Province fabricate the stories against him which was recorded on paper in black and white. He answered he does not know why. Asked about where the police arrested him. He answered that when he went to the police station at Kerevat, to clear his name, he was arrested.

Witness No.9 Rot Kesia.

91. The defence called seven alibi witnesses. Mrs. Rot Kesia is married to the first accused Esau Melka. They have six children. She recalls that on the date the victim was assaulted, she was with her husband at Totovel. They took off from Totovel to Vunapaka village.

92. It was a Saturday and the two of them wanted to go to their garden near Vunapaka village. Whey arrived at the garden and started working. While they were working in the garden, they heard people calling out on the road. They came down to where the noises were coming from and when they arrived; they saw a big crowd of people. She saw a man sitting down on the road side. They stood around for a while then the two of them returned back to their garden.

93. Questions on cross-examination were centered on the timing and destinations of the accused Esau and his wife. She was asked about the time the witness and her husband left Totovel and as to when they arrived at Vunapaka. She answered that, they left about 8am and arrive at their garden at about 10am. Asked, if her husband had left her alone in the garden to go somewhere. She said, they were together until they heard shouts and they left to find out what was happening.

Witness No.10Christine Digi.

94. This witness is the wife of the second accused Anthony Melka and they have four children. Christine gave very brief evidence. In her evidence, she told the court that, on that day it was a Saturday when her husband and herself left their village to attend the Church service at Toboina S.D.S Church. After the service finished, the church members came out and they had lunch.

95. As they were eating, they heard people shouting and calling out so they hurried up the road to see what was happening. As they reached the crowds, she saw the vehicle leaving with the victim. They stood and spoke to people around there for a short time then they left and went back to the church.

96. She was asked in cross-examination if it was true that, the accused Anthony Melka was alone when he went to church that morning. She said, that was not the case as she was together with her husband. Asked, if their children accompanied them to church. She responded that they were together with their children.

97. She was asked about who was the preacher that day. She replied that she cannot now recall the pastor who took the service but later she said, it was Senior Elder Ephraim took the service. She recalls seeing State witness Alois Keret on the church.

Witness No.11Lydia Pamel.

98. Lydia Pamel comes from Vunapaka village and she is married to accused Pamel Paon. They have five children. She also gave brief evidence of what happened on 3^rd January 2015. On that day, she was together with her family that is her husband and their children at home. When they heard shouts and calls from the road, they came down to the road and there was a big crowd of people and by the time, the trouble was already over. That is the victim was already taken away by a vehicle.

99. The witness said in answer to questions asked in cross-examination that to go from where her family lives, they have to follow the main road leading from Palnalom towards Toboina. Asked if prior to hearing the people calling out, were the children together with her and her husband? She responded that they were together. She was asked if their children also took off together with them to where the noises were coming from. She said, no, they were left with their grandmother that is her mother. She was asked if on their arrival where people gathered, she ever saw the victim. She replied that as they were arriving, she saw the vehicle taking off with the victim sitting at the back.

Witness No.12Melika Satek

100. This witness is the wife of accused Dawai Satek. She comes from Vunapaka village. She gave account of what and where she was on 3^rd January 2015. She went to town together with her husband in the morning with others and when they returned, she saw a man sitting on the ground on the road side at Palnalom church grounds. Her husband then inquired with those who stood around the victim as to what had happened. The group responded that, what they did to the victim was what the police instructed them to do to the victim. Her husband expressed concern as to why the gang took the law into their own hands rather than taking the victim to police to deal with him. After this they took off with passengers from Toboina and Raluana villages.

101. The witness was asked a series of questions in cross-examination. Asked as to when she and her husband went to town and what time they returned. She said, they left with passengers at about 8am and returned about 1pm.

102. Asked to confirm whose vehicle did her husband drove that day, she said, it the PMV vehicle belonging to accused Dawai Satek’s brother. Asked, if she identified the man who was sitting on the road side. She said she did not identify him. Asked as to where was the man sitting. She replied and said, right on the entrance to Palnalom. It was put to this witness that, the reality was her husband was not with her that day as he was with the gang that captured the victim. She responded that her husband was with her until they returned from town.

Witness No.13Nakikus Maramut.

103. This witness comes from Toboina village. He is a PMV driver in his village. His evidence is that, on the date of this offence, he did not see what happened or who assaulted the victim. When he heard shouts at Palnalom, he wanted to find out what was happening. When he got to where the shouts were coming from, he saw that there was a big crowd of people with a man lying on the ground. He said, by then he did not see the accused persons.

104. In cross-examination, the witness was asked if he saw the persons who assaulted the victim. He responded that, by the time he arrived at the scene where the man was lying down, no assault was taking place as the victim had already been injured. Was asked if he recognized the victim lying on the ground. He said, he only recognized him by his hair but he was told by onlookers that, the victim was Nicholas Minamar. He was asked if he saw accused Dawai Satek drove passed Palnalom church grounds. He said, that he saw him drive but it was at 8am that morning. He was asked if he knows anyone from Vunapaka Ward. He responded that he knows many people from there.

Witness No.14Albert Torot.

105. This witness evidence was brief. Albert resides at Kikitabu village. His mother is from Vunapaka village. On the morning of the date in issue, he wanted to go to his mother’s village. So he walked up to Vunapaka and when he arrived, he stayed for a while then he heard people shouting on the road junction. When he got to where noises were, he saw a big crowd and saw a man lying down on the ground. He said, he did not know who assaulted the victim. He confirmed in cross-examination that there were many people where the victim was lying down.

Witness No.15Bruce Darius.

106. The last witness called by the defence was Bruce Darius. He comes from Morobe Province. He is married to a woman from Pilapila village but they reside at Toboina village. He said, he was walking up the road he saw people following the Rakada road leading to Vunapaka village pulling on to Nicholas Minamar. When he walked passed them he asked them why they were holding onto the victim. They told him that they acted upon advice from the police at Tomariga to apprehend the victim.

107. When they reach Palnalom, the man laid down on the grass. He said, he wanted to drink water and so he walked on to his house. Asked in chief if he recognized any of those persons who were holding on to the victim? He answered that those were young men of Grades 7 and 8 kids. He confirmed that, there were so many youths he could not recognized any of them.

108. In cross-examination, the witness was asked to confirm if the victim was normal. He said, he was normal but when he reached Palnalom church grounds, he laid down on the ground. He confirmed that, there were so many people and those who were leading the victim up were youths. Asked, if he saw anyone in the group holding bush knives and other objects. He confirmed that people were holding bush knives and other objects.

109. Ms. Ainui closed the defence case and she applied for adjournment to prepare for addresses on verdict. No objection was taken by Mr. Rangan. The case was adjourned to 13^th October for addresses on verdict.

Defence Address on Verdict.

110. Counsel representing the eight co-accused referred to the evidence of each prosecution witness and submitted that the evidence adduced by the prosecution nowhere links her clients with the crime as most of the State’s witnesses are related to the victim and there is reason for them making up stories against the eight accused. Counsel submitted that it is clear from all evidence both by the prosecution and defence that, the crime that was committed was a group fight and no specific persons should be blamed.

111. In the second part of her submission, she referred to the evidence by policemen who conducted to record of interview. She submitted that, the investigating officer and interviewing officer fabricated evidence against the eight accused. She said witness Senior Constable Joe Martin did not go to the scene to investigate and where did he get the story from to implicate her clients. She raised concern about policemen, who conducted the record of interview with the eight co-accused saying, what was recorded was fabricated.

112. Counsel referred to the alibi evidence by her clients saying and the alibi evidence by witnesses called in support of such evidence. She urged the court to consider such evidence and rule accordingly. Counsel submitted that because of these issues, this creates doubts in the mind of any reasonable thinking people and the court should return verdicts of not guilty.

Prosecution Address on Verdict

113. Mr. Rangan’s address in reply to the defence counsel submission on alibi evidence is that this was the case where the defence did not comply with the rule of practice in criminal procedure because the eight accused did not file any alibi notices whereby setting up an ambush for the prosecution.

114. On the issue of identification, counsel submitted that this was not the case of identification of strangers. Counsel urged the court to accept the prosecution evidence that, at the time the co-accused went to look for the victim, they walked up to two of the State’s witnesses premises and asked them as to where the victim was. It was at that stage that the co-accused were identified and then walking up Rakanda toward Vunapaka ward, the prosecution witnesses properly identified them.

115. He referred to those witnesses who stood along the road and saw the eight accused walking up together with the victim after he had been captured. Counsel asked the court to distinguish this case from that of The State v Benedict Tetik & 5 Others (7.10.2016) Cr.Nos. 917, 935-939 of 2014, the decision of this Court where the Court found the six co-accused not guilty for wilful murder saying due to poor identification and less weight was given to the two or three key witnesses. Counsel asked the court to return verdict of guilty to either wilful murder or murder.

Application of the Law.

116. There are three main issues involve on the evidence both by the prosecution and defence. They include identification, alibi evidence, and fabrication of evidence. On the first issue, in cases where identification evidence is being considered like on the current trial, I am mindful of all inherent dangers and the need for caution before convicting on correctness of identification: John Beng v The State [1977] PNGLR 115, see also Biwa Geta v The State [1988-1989] PNGLR 153, Jimmy Ono v The State (2002) SC 698, The State v Marety Ame Gaidi (2002) N2256.

117. The defence objection to the prosecution evidence of identification is based on the argument that, because of the big crowd that came around mid-day of that day where they caught up with the victim and assaulted him at various locations prior to taking him up to Palnalom church grounds, it could not be possible for the prosecution eye witnesses to identify the eight accused. It is for this reason that this Court warns itself that there are dangers inherent in eye witnesses’ identification evidence as stated in the above cases and so many case on the law of identification.

118. I consider the fact that a convincing witness or a number of them like in the circumstances of the instant trial may have been mistaken in identifying the eight accused. Because of such warnings, the court must closely examine the circumstances under which the identification was made: Biwa Geta v The State(supra).
119. The warning further states that, identification by recognition may be reliable however, the Court needs to be cautious because there can be mistakes in trying to identify close relatives and even friends: The State v Marety Ame Gaidi (supra). The quality of the evidence may be poor if there is a fleeting glance or a longer observation made in poor conditions. If the quality of identification evidence is poor an acquittal should be entered.

120. The prosecution evidence establishes a case of recognizance rather than that if identification of strangers. As the court finds, identification by the prosecution witnesses was not made in a fleeting glance or in poor conditions such as standing at a long distance or in cases where lighting was poor if the crime alleged was committed at night. The crime alleged here was committed during middle of the day and it was a bright day and there was no rain and it was not cloudy. As the court finds there was no obstruction between the co-accused and the prosecution witnesses. I accept the identification evidence on this trial and say, all the eight accused were properly identified and correctly identified.

121. The second issue raised by the defence is the one of alibi evidence by the eight accused and their witnesses. The defence counsel argued in submission that, there is a possibility that, the prosecution evidence could be speculations only as the accused persons were not on the scene and the court should accept the defendants’ alibi evidence. Defence of alibi can be arise if there is some evidence (not speculations) in support of such evidence and places all matters raised in the trial, and if such evidence creates doubts in the mind of a tribunalsitting as a Judge of fact and law, an accused should be acquitted: John Jaminan v The State [1983] PNGLR 318.

122. In the case of The State v Benedict Tatik & 6 Others (supra) this court quoted the following passage about the issue of alibi from the recent Supreme Court case of Alois Erebe & Taros Togote v The State (2011) SC1135. I quote part of that passage where that Court there said:

· If an alibi is raised the burden of proof does not shift from the prosecution. The onus is never on the accused to prove an alibi or prove innocence. However, in practical terms, the accused must lead some evidence of an alibi and it must be sufficiently convincing to create a reasonable doubt in the mind of the judge.

· How strong or convincing the alibi evidence must be, depends on the strength of the evidence of the prosecution witnesses. If their evidence is very strong, the alibi evidence needs to be reasonably strong to raise a reasonable doubt in the mind of the judge as to the guilt of the accused.

· An alibi is properly regarded as a defence but before it can be said to fairly arise there must be some evidence in support of it, and not mere speculation.

· If an alibi is rejected it does not necessarily follow that the court should enter a conviction. The court must still be satisfied that the prosecution has proven its case beyond reasonable doubt”.

123. In criminal practice, where the prosecution evidence is strong, the alibi evidence need to be reasonably strong to raise a reasonable doubt in the mind of a tribunal of fact and law as to the guilt of an accused: John Jaminan v The State [1983] PNGLR 318, The State v Eki Kondi (N0.1) (2004) N2542, The State v John Bosco (2004) N2777. I agree with the Supreme Court in Alois Erebe & Taros Togote v The State (supra) in the final paragraph of the passage quoted that where an alibi defence is rejectedit does not follow that, “the court should enter a conviction. The court must still be satisfied that the prosecution has proven its case beyond reasonable doubt.”

124. The final issue is the allegations by the eight accused that, the interviewing officer fabricated answers in their records of interviews. Counsels did not cite any case law authorities on the issue of fabrication. On this trial, I find that there are no reasons given by the eight accused why the police officer who conducted the record of interview could have concocted or fabricate answers given in their respective record of interviews.

125. All the eight accused were asked in cross-examination as to how and why could the interviewing officer fabricated the answers given in the record of interviews. They each and severally answered, they did not know why. There is no evidence to substantiate the evidence by the defence that the interviewing officer or his corroborators fabricated, or concocted what was recorded against them in their records of interviews.

126. The court finds that in fairness to the accuse persons, the records of interviews were recorded and the corroborators were present throughout the durations of the period they were interviewed. The interviews were conducted voluntarily. This court may only convict the accused persons after very close scrutiny and test of all evidence for the prosecution and defence: The State v Karuka Mari & Mido Maiga (13.8.1997) N1609, R v Namiropa Koinbondi [1969-1970] PNGLR 194.

127. The evidence on this trial establishes that, the eight accused and all State witnesses come from neighboring villages. The Court party went to the scene starting from Rakada village through to Vunatak and Vunapaka villages. The prosecution witnesses and the co-accused come from the same villages.

128. Despite this reality, when the accused persons were asked in chief and cross-examination if they knew the State witnesses, they denied knowing them. The Court party visited the scene and we noticed that, Rakada/Ward shares the common boundaries with Vunapaka/Ward. All villages like Rakada, Vunapaka, Vunatak are neighbors. The issue for the court is whose evidence is credible and whose id not credible. In criminal practice, the standard of ‘proof’ is “proof beyond reasonable doubt”. This requires that the court must be satisfied beyond reasonable doubt about the guilt of an accused person before he or she is convicted: Paulus Pawa v The State[1981] PNGLR 498.

129. The court finds that there was encouragement by their presence on the part of the co-accused which encouraged the eight accused that da. The case of The State-v-Raphael Kuanande [1994] PNGLR 512 establishes that, the intention to kill someone is a matter which must be born in the mind of an accused either prior to executing the act or at the time he or she acted. That case and many other cases say that there is distinction between a ‘will act’ and ‘an unwilled act’: R-v-Waiyape (1974) N 796, see the recent case of The State-v-Junior Gurar and 4 Others (20.5.2010) Cr.No.359 of 2009.

130. In determining the evidence of the instant case with the principles stated in the above cases, I find that the intention to kill in the instant case was “willed”. There is evidence from the prosecution witnesses that, when these accused approached the prosecution witnesses, accused Pamel Paon mentioned something to the effect that, they had come to take the victim (Nicholas Minamar) away. That was interpreted to mean that this mob had come to take the life of the victim away.

131. The court finds from the State’s evidence that, the circumstances of this case was a concerted killing by the eight accused in terms of Sections 7 and 8 of the Criminal Code. I find there is clear proof of identity of each accused persons by the prosecution witness. I further find that each of the defendants involved in the combined attack of late Nicholas Minamar: The State-v-Anguan Kakas [1994] PNGLR 20. The court notes the post mortem examination report dated 16^th January 2015. On external findings on the head, the doctor found there were:

➢ punctured wound on the right frontal area measuring 5x2x9cm skull fragments,
➢ punctured wound on left chest, 1x1x4cm,
➢ upper limbs fracture of right humerus,
➢ lower limbs; compound fracture on both left tibia and fibular plus various lacerations.
➢ Internal findings – compound skull fracture, skull fragments on right and left hemisphere,
➢ three lacerations noted on the left side of the lung, 6x1cm, 5x1cm, & 3x2cm.

132. The cause of death was due to blood loss due to lung haemorrhage & penetrating brain injuries. (See. Ex. “1A” and its annexures).

133. Where two or more persons assault a person with intention to harm him in the presence of each other, they are said to be aiding and abetting each in the attack. In is immaterial to find out whose blow caused the death. The State-v-John Badi Woli and Pengas Rakam [1978] PNGLR 51.

134. By being present on the scene the conclusion is “irresistible” when the deceased was murdered when the co-accused were in a group and a number of them uttered words “we have come to remove your king” like what accused Pamel Paon said, “they had come to remove Nicholas Minamar”, according to the case of Porewa Wani v The State [1979] PNGLR 593, the eight accused were encouraging each other to kill the victim. It was revealed in the evidence of Alois Keret State witness No.7 that in the Kuanua, it means, they had come to finish the victim’s life.

135. In the instant case, it had been established beyond reasonable doubt that the eight accused were present on the scene of where the victim was first assaulted after he was located near his house. The co-accused on this trial were seen on various places leading the victim up to Palnalom. Witnesses saw the accused persons assaulting or hitting the victim with sticks and an iron rod was used to spear him. This was a brutal attack. The State invokes section 7 and 8 of the Criminal Code. Section 7 (1) – (4) states:

“7. Principal offenders.

(1) When an offence is committed, each of the following

persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:—

(a) every person who actually does the act or makes the omission that constitutes the offence; and

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and

(c) every person who aids another person in committing the offence; and

(d) any person who counsels or procures any other person to commit the offence.

(2) In Subsection (1)(d), the person may be charged with—

(a) committing the offence; or

(b) counselling or procuring its commission.

(3) A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

(4) Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, it would have constituted an offence on his part, is—

(a) guilty of an offence of the same kind; and

(b) liable to the same punishment,

as if he had done the act or made the omission, and may be charged with himself doing the act or making the omission.”

136. The next provision is s.8, it says:

“.8. Offences committed in prosecution of common purpose.

Where—

(a) two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another; and

(b) in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of the purpose,

each of them shall be deemed to have committed the offence.”

137. I find from all evidence that there was intention to kill the victim. This is inferred from continuous beatings of the victim with and sticks and knives wounds were found by the doctor and other weapons were used against the victim. The court finds that, even the prosecution witnesses did not do anything to assist the poor victim.

138. This is a criminal trial, the question I raise is, what inference should the court draw from all evidence adduced on this trial? Is there any reasonable hypothesis other than the guilt of the co-accused accused on the current trial? In other words, are there any ideas or explanations as to why the eight accused should not be found responsible for the alleged wilful murder?

139. The principle in practice is that for an inference to be reasonable, it must rest upon something more than an idea that is not based on any definite knowledge: Allan Oa Koroka & Mariano Wani Simon v The State [1988-89] PNGLR 131, Paulus Pawa v The State [1981]PNGLR 498.

140. I do remind myself of the above warnings and say, for the prosecution to prove their case, it requires a very high standard of proof which is “proof beyond reasonable doubt”. The court has discussed certain aspects of the prosecution evidence and that of the defence.

141. It is clear from the prosecution evidence that the eight accused were parties to this crime because, they each acted, aided or counsel each other to commit the offence in term of s.7 (1) (a) (b) (c) and (d) of the Criminal Code: The State-v-John Badi Woli and Pengas Rakam or Porewa Wani v The State(supra).The court finds all accused acted in concert with each other on the assault of the victim thereby causing injuries to his body and he later died. The court finds that there is ample evidence upon which the eight accused ought to be found guilty.

142. The court returns verdicts of guilty to each and severally for the crime of wilful murder pursuant to s.299 of the Criminal Code.

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