State v Umbun [2017] PGNC 168; N6766 (8 May 2017)

N6766

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CR NOs. 663, 664, & 655 OF 2013

BETWEEN
THE STATE

AND
MAXILLUS UMBUN, EX-AVIOUR UMBUN

AND
MORRIS LAWRENCE

Kimbe: Miviri AJ
2017 :24^th 25^th April 8^th May

CRIMINAL LAW - Trial- Murder Section 300 (1) (a) CCA – Section 7 & 8 Principal offenders-Identification-self-defence-no case submission-ruling case to answer-corroboration accomplice evidence.

Cases cited:

Beng v The State [1977] PNGLR 115 (2 May 1977)

Bulen, The State v [1990] PGNC 87; [1990] PNGLR 43 (16 January 1990)

John Jaminan v The State [1983] PNGLR 318

The State v Amoko Amoko [1981] PNGLR 373.

The State v. Paul Kundi Rape [1976] P.N.G.L.R. 96

Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37), The State v [1983] PNGLR 514; [1983] PNGLR 287 (14 September 1983)

Counsel:
A. Bray, for the State
B. Popeu, for the Defendants

DECISION

8^th May, 2017

1. MIVIRI AJ: Maxillus Umbun and Ex-Aviour Umbun both of Toukim village and Morris Lawrence of Nale village all in Wosara, East Sepik Province are jointly charged that they on the 28^th day of February 2012 at Mamota Section 3 murdered Jonas Koroi.
   

Brief Facts on arraignment

2. On the 28^th February 2012 at 6.00 am the three of you Maxillus Umbun, Ex-Aviour Umbun and Morris Lawrence were at Mamota block 986 where you entered and woke up Jonas Koroi demanding that he pay K30 to you for chicken that he had obtained from you on credit previously. You three were in the company of Casper and Elizer who are both not in court now. You Maxillus Umbun and Ex-Aviour Umbun waited whilst Morris and Casper and Elizer woke up Jonas Koroi. A fight started and Ex-Aviour Umbun joined in the fight and cut Jonas Koroi on the head. Jonas Koroi armed himself with a bush knife and chased his attackers. He caught up with Ex-Aviour Umbun and as he cut him, Morris Lawrence picked up a rock and threw it at Jonas Koroi hitting him on the left side of the head. He fell to the ground. He was assisted and rushed to the Kimbe General hospital but died. The defendant intended to cause grievous bodily harm at the time that he threw the stone. Morris intended to cause grievous bodily harm pursuant to Section 300 (1) (a) and also invokes Section 7 and 8 against each of the defendants.
   
3. Under s300, the offence of Murder is in the following terms:
   
   • (1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:–
     
     • (a) if the offender intended to do grievous bodily harm to the person killed or to some other person;
     • (b) if death was caused by means of an act–
       
       • (i) done in the prosecution of an unlawful purpose; and
       • (ii) of such a nature as to be likely to endanger human life;

(c) if the offender intended to do grievous bodily harm to some person for the purpose of facilitating–

(i) the commission of a crime other than a crime specified by a law (including this Code) to be a crime for which a person may only be arrested by virtue of a warrant; or

(ii) the flight of an offender who has committed or attempted to commit an offence referred to in Subparagraph (i);

(d) if death was caused by administering any stupefying or overpowering thing for a purpose specified in Paragraph (c);

(e) if death was caused by wilfully stopping the breath of a person for a purpose specified in Paragraph (c).

Penalty: Subject to Section 19, imprisonment for life.

(2) In a case to which Subsection (1)(a) applies, it is immaterial that the offender did not intend to hurt the particular person who was killed.

(3) In a case to which Subsection (1)(b) applies, it is immaterial that the offender did not intend to hurt any person.

(4) In a case to which Subsection (1)(c), (d) or (e) applies, it is immaterial that the offender–

(a) did not intend to cause death; or

(b) did not know that death was likely to result.

State case: Evidence by consent

(a) Exhibit S1 was the report of death to the Coroner dated 29^th February 2012 the subject death of Jonah Koroi time 4 to 5 pm and date of death is Tuesday 28th February 2012 at Kimbe General Hospital. The suspicious circumstances resulted in head injury sustained during a fight in his block at Mamota Oil Palm. Deceased was hit on the head with a stone by a male suspect.

(b) Exhibit S2 was the Report on Post-Mortem examination whereby it was certified by Doctor Ketalu that at the Kimbe General Hospital on the 14th March 2012 at 13.30 hours examination was made of a male Melanesian body identified by relatives of Jonas Koroi of Tamagone that he had died 15 days before the post mortem. The cause of death was raised intracranial pressure 2^nd intracranial bleeding. And the summary of significant, abnormal findings at examination, “(L) Temporal scalp haematoma-100 mls of blood. Depressed (L) temporal skull fracture-10cm long.

(c) Exhibit S3 Medical certificate of Death showed the family name as Koroi and given name as Jonas aged 28 years old of Mamota Section 3 a subsistence farmer was seen by the Doctor on the 28th February 2012 and was first viewed after death on 14th March 2012 in the surgical ward. The decease or condition directly leading to death (a) Raised intracranial Pressure (b) Intracranial bleeding certified by Doctor Annette Ketalu MBBS UPNG Medical Officer 14th March 2012.

(d) Exhibit S3A affidavit of Doctor Annette Ketalu dated the 14th March 12 sworn 7th May 2013 attached compilation Post Mortem report and medical certificate of death.

(e) Exhibit S4A Record of interview of Maxillus Umbun dated the 28th May 2013 in pidgin in it he says that he is 18 years old born 1995 from Tuokim Maprick East Sepik Province, and that he recalls that on the day there was a very big fight. He says the fight was started by two men and they are now gone. He names them as Casper and Elizah. That the fight was between the Sepik’s and the Balis. That he is in the cells because of that trouble. He was suspected of it and that his name was called for nothing. He knows the deceased Jonas Koroi as his uncle brother of his mother. He denies knowledge as to who may have killed Jonas Koroi. But says that two chickens were taken on credit and the two men namely Casper and Elizah went to ask for the payment. He says that at the time that Casper and Elizah went and argued he was down at the house. He denies that five men fought the deceased and one of them cut the deceased on his face. He denies that he never followed Casper and Elizah into the premises of the people from Bali and then wait for them. He denies that Morris followed Casper and Elizah into the area of the Bali People. He says that Casper and Elizah were the ones who looked after chicken and brought them to Mamota to sell and Jonas got two on credit that it was the both of them who were after the money not he and the others. And it was they who were responsible and did start the fight in the area of the Bali. He admits that Jonas did chase Ex-Aviour with the bush knife and cut him with it on his stomach and he fell into the flowers alongside. That Jonas had cut him initially and was in the process of cutting him again when he was hit on the head with a stone that came from their side. Asked as to who was nearest to Jonas when he cut Ex- Aviour he said it was Morris who was standing in front of him. Asked if Morris did anything to save the life of Ex-Aviour when he was being cut by Jonas. He answered that he did not do anything as he did not have any weapon. Answers that they were surprised when Jonas cut Ex Aviour and did not have any weapon so did not do anything. Casper and Elizah were cross with Jonas and Ex-Aviour ran with a bush knife and cut him so Jonas went back to the house got this bush knife and chased Ex-Aviour and cut him. At the same time Morris shot Jonas with the stone. Says this is not true that Ex-Aviour came up, met Morris and we sat down in the house. Asked how would Jonas without any reason chase and cut Ex-Aviour? He answered by saying that Casper and Elizah had started the fight that spilled onto the road and they ran out to see what was happening and he and his father ran to stop them and Ex-Aviour and Morris were standing on the road and were watching from there. He denies that he went and waited outside with his brother Ex-Aviour.

(f) Exhibit S5A Record of interview pidgin version of Ex-Aviour Umbun.

(g) Exhibit S5B Record of interview English version of Ex-Aviour Umbun

(h) He was 16 years old born in 1997, from Toukim village, Maprik and resided at Section 5 Mamota. He is educated to Grade Five in Mamota Primary School. Ex-Aviour Umbun said he was detained in the cells because, “We fought, I was preparing to go to school and I walked out and stood outside and that man approached me and chopped me without any reason. Who confronted you and chopped you while you were standing? Jonas Koroi. Other than stating that Jonas Koroi was now deceased he stated that he did not know who had killed him. And that he did not know what was the cause of the conflict between his people and the Bali people. When asked that your people went and demanded for chicken debt by the Bali People and the conflict began, he admitted but said he knew nothing about their problem. But admitted that the persons were Casper and Elizah from his side who went and argued with the Bali people. And that time he was inside their residence. And admitted that Jonas Koroi went and attacked him there but stated that he did not know why Jonas Koroi went and attacked him there. Because he said he came outside and was about to go to school but he approached and chopped me without any reason. Asked as to why Jonas would attack him for nothing that he must have done something to him that’s why he attacked you. He answered that he was standing and he arrived and chopped me. I don’t know his grievances that caused him to attack me. He went further and stated that Casper and Elizah were chased by him and they ran past him so he attacked him. He denied that five men attacked Jonas and slashed his face. He denied that he slashed Jonas face that’s why Jonas chased him and chopped him. He admitted that Jonas chased him and chopped his stomach just outside the road next to the flowers. He admitted that he was next to the flowers confronted by Jonas who cut him. And at that time closer to him was Morris who did nothing but just watched and Steven the father also did nothing.

(i) Exhibit S6A Record of Interview Pidgin Version of Morris Lawrence

(j) Exhibit S6B Record of interview English version of Morris Lawrence “I am a State witness of this death that occurred. There were only two persons Casper and Elizah that fought. They ran away and Jonas ran up and cut Ex-viour Umbun and he fell into the flower and he wanted to cut him a second time and Jonathan Popotsi got a very big stone and tried to shoot Ex-Aviour and Jonas blocked Ex Aviour and the stone broke his head and then he called out Eh Eh. Maxillus was asleep and Ex-Aviour changed and wanted to go to school and when he heard the fighting he came out onto the road outside. He denies that he accompanied Casper and Elizah into the premises of the Bali People.

(k) Exhibit S7 is Sahara Tokania policewomen corroborating officer in the Record of Interview of Ex-Aviour. She basically said that he cooperated in the record of interview but denied his involvement in the cutting of the deceased.

(l) Exhibit S8 was Martin Vitolo Policeman Kimbe Police Station was the informant in the case and conducted the record of interview with the defendant Morris Lawrence and also the defendant Ex-Aviour Umbun. Morris Lawrence denied that he threw the stone that hit and killed Jonas Koroi. He stated that it was Jonathan Watete who was responsible intending to shoot Ex-Aviour and accidently hitting Jonas Koroi killing him.

(m) Exhibit S9 statement of Lucas Mone corroborating Police officer in the record of interview with Maxillus Umbun confirms that the defendant admitted his presence but never took part in the offence.

(n) Exhibit S10 Sketch of Scene by Paulus Nale

(o) Exhibit S11 Sketch of Scene by Jonathan Vatete.

Defence Exhibit

(p) Exhibit D1 prior Inconsistent statement of Kasmera Kuri dated the 19th January 2013

Undisputed Facts

4. On the 28th February 2012 between 5.00 am and 6.00 am at Mamota Section 3 Casper and Elizah went into Section 3 Block 986 to collect K30 from the credit sale of chicken to Jonas Koroi. He was asleep and they woke him up. And he refused to pay the debt and so Casper went and pulled the wheel barrow of Francisca Popotsi out to the road. Francisca Popotsi followed and tried to get the wheel barrow back but was assaulted by Casper. Jonas Koroi ran and went and assisted Francisca and assaulted Casper, as he did Elizah came and assisted Casper and fought Jonas. Ex-Aviour Umbun ran up and cut Jonas Koroi with a grass knife on the face. Jonas Koroi ran back into the house took a bush knife and chased Ex-Aviour with a bush knife and cut him once as he was going to cut him the second time he was hit with a stone on his left side of his head and fell to the ground. He fell and was rushed to Silanga and then taken from there to the Kimbe General Hospital where he was admitted and died 28th February 2012 from internal bleeding from a depressed left side temporal. He was hit with a large stone with the intent to cause grievous bodily harm and death resulted into a murder case contrary to Section 300 of the Criminal Code.
   

Disputed Facts

5. Morris Lawrence denied that he never followed Casper and Elizah into Section 3 Block 986. He denied that Maxillus and Ex-Aviour Umbun also did not go into Section 3 Block 986 with Casper and Elizah and himself. That they were all at Steven Umbun’s house and came to the fight after. And as they did Jonas who was chasing after Casper and Elizah also chased Ex-Aviour who was going to school and cut him. And when he was about to throw the next blow with the knife, Jonathan Vatete with intent on hitting Ex-Aviour threw a stone hitting Jonas Koroi who fell and was taken to the health centre at Silanga then to Kimbe General Hospital where he died.
   

Issue:

6. Who threw the stone at Jonas Koroi that hit him in the left side of his Temporal depressing it from which he died at the Kimbe General Hospital?
   

State case: Oral witness

7. Francisca Popotsi was the first state witness who gave sworn evidence in pidgin. She was from Bali, West New Britain, married with five children and was at the Section 3 Block 986 Mamota at 6.00 am. She was with her cousin sister Kasmera Kura and both were preparing breakfast for the children who were going to school that day 28^th February 2012.
   
8. She knows Jonas Koroi her brother as he lived with her at Mamota Block 986. And that on the day that he died he was with her at the block it was 28^th February 2012. She said Morris Elizah and Casper came in and asked for Jonas. They came in by the road short cut came to where Jonas Koroi was. She told them that Jonas Koroi was sleeping. They went into the Kitchen and woke him up and the three of them asked him for the money for the chicken and Jonas Koroi replied that he did not have the money but would go to Town return and pay. They took him outside and Ex-Avior ran up with the grass Knife and cut him on the head. Jonas ran back to the Kitchen got a bush knife and cut Ex-Aviour. Morris got a large stone diameter shown by two hands in a round shape together shot Jonas in the head on the left side and he fell. Bus came and we put him on to Silanga from there Ambulance took him to Kimbe General Hospital and he died at 4.00pm.
   
9. Morris is the third person in black shirt in the dock. And there were three of them who came to the block and fought. Ex Aviour ran with grass knife and cut him. Ex-Aviour followed them and he cut him on the road. Ex-Aviour was on the road as they were fighting. He ran with grass knife and cut him on the head. They were 4 meters apart when seen by Francisca Popotsi.
   
10. Jonas ran back to the Kitchen, got a bush knife ran and cut Ex Aviour with the bush knife. Morris was there and shot him with the stone. This is at the boundary of Steven Umbun’s block. He is the father of Maxillus Umbun and Ex-Aviour Umbun. I Know Maxillus Umbun. He is in white shirt now in court, Ex-Aviour Umbun and Morris Lawrence. Ex-Aviour is in court sitting in the middle of the three.
    
11. Morris never came in to stop the fight. The argument started when Jonas refused to give the K30, he said he would come to town go back and give the K30. Casper and Elizah went and got Jonas wheel barrow, Morris did that and I pulled it off him. Casper and Elizah were chased by Jonas Koroi when Morris shot and Jonas fell and word spread and they all ran away. I took him to the hospital.
    
12. Morris Lawrence picked up the stone and shot Jonas Koroi on the left side of the temple. Morris was where the dock is and Jonas was behind prosecuting counsel. I was there and I saw him shoot Jonas Koroi. It was about 2 meters apart like the water jug in front of the Prosecutor to me here in the dock. I was about where the water Jug is before the lawyer and Jonas cut Ex-Aviour. When the stone was thrown I did see it and told the police. And also took the stone and gave it to Police.
    
13. She denied that the stone was thrown by Jonathan Vatete and hit Jonas Koroi causing internal bleeding into the skull as a result of the depressed left temporal area. She maintained in cross examination that the stone was direct from Morris and connected to Jonas Koroi on the left side of his head and he died as a result of internal bleeding. She agrees that her son Jonathan Vatete was locked up by Police and then released. She denies ever scolding her son to see where he was throwing the stone.
    
14. The second witness for the state was Kasmera Kura sworn in pidgin. She was from Tamagone in Bali married with five children. She lived at Savaive. She had land there as her husband was from there. On the 28th February 2012 she was at the house with Jonas Koroi now deceased. This was at Francisca Potosi’s Mamota Section 3 Block 986. In the morning myself and Francisca Popotsi we came to the kitchen we were preparing food for our children who were going to school.
    
15. Morris, Casper, and Elizah came from the main road into the kitchen and asked for Jonas. He was asleep and they woke him up and came out. They asked for the, “dinau money”, K30 for the chicken. Jonas said sorry that he would go to town return and pay back. They said no now give it to us. They fought with him onto the road. Maxillus and Ex-Aviour ran up, Ex-Aviour got a bush knife and chased Jonas who ran to the house, got a knife returned and chased and cut Ex-Aviour. Morris picked up a stone shaped out with both palms in a ball, shot Jonas and he fell. I and Francisca Popotsi took him to the hospital.
    
16. At the time that Casper, Elizah and Morris came and asked for Jonas, persons who were awake were myself, Francisca, and the school children Christine and Norbert who were in the kitchen with us. Jonas was in a separate house in the kitchen which was about 10 meters apart. When Casper Elizah and Morris went to where Jonas was they came in by the main road, straight to where Jonas was sleeping and woke him up. Jonas came out from the Kitchen and started argument from there and fought with them.
    
17. Maxillus and Ex-Aviour ran towards them, Ex-Aviour held a knife and chased Jonas and cut him. Jonas retaliated and chased Ex-Aviour and cut him at Steven Umbun’s block. Morris got a stone as large as her two palms, held a centimetre apart in a circle indicating how large the stone was; shot him on the left side of his head. He fell and was taken to Silanga and then to Kimbe General Hospital where he died. That Morris had picked up the stone where he stood on the road which was a gravel road.
    
18. Morris was with the black shirt in the dock Maxillus was with the white shirt right side and Ex-Aviour was in brown shirt in the dock. I know them well as their small father was married to my last born sister and they are my in-laws. And I had no differences with them. It was 6.00am when they came.
    
19. They are all from Sepik. Elizah Tatik and Casper Panu have both gone back to Sepik.
    
20. Defence Counsel tendered her statement into evidence as Defence exhibit 1 highlighting that in the statement she stated that, it was Casper who took the wheel barrow from under the house as opposed to her evidence on oath where she stated that it was, Morris therefore it was inconsistent and so her statement was tendered and marked as above.
    
21. In the statement she was from Tamagone in Bali Island. She saw what happened on the 28^th February 2012 between 5.00am and 6.00am I woke up from bed and went down to the kitchen and sat down with my sister Francisca Popotsi and we cooked some taro and we put the pot on the fire and I washed the dishes. When I was washing the dishes I saw five boys from Wosara East Sepik they were, Morris, Ex-Aviour, Maxillus, Casper and Elizah who came into our premises. And three of them Casper, Elizah and Morris came into our Block and they went and woke up my brother Jonas and when he awoke, I saw and heard Elizah ask Jonas for the credit for the chicken that he had taken and owing. I was standing and heard, Jonas say, “I don’t have any money now but will go to town return and I will pay you back”
    
22. When I heard Jonas say this I saw Casper run up to Francisca’s House took out the wheel barrow and take it out to the road. When Casper did this I saw Francisca followed after Casper and tried to take the wheel barrow back. And I also followed her. I followed Francisca and was surprised when Casper turned around and hit Francisca and at the same time my brother Jonas ran up and helped Francisca and hit Casper. As he did Elizah came and helped Casper and assaulted Jonas. This two fought Jonas and I was watching and saw Maxillus with Ex -Aviour run up and helped Elizah with Casper and at that time I saw Ex -Aviour holding a grass knife and he cut Jonas face. When I saw Ex -Aviour cut the face of Jonas, Jonas ran back into his house and got a bush knife. He come back and chased Ex-Aviour out onto the road and cut him. I was watching and called out loudly immediately after Jonas cut Ex-Aviour, I saw Morris lift up a very big stone and he shot Jonas on the left side a little to the back of his head and Jonas fell to the ground and slept. When I saw Jonas lying on the ground I saw all these men run away. Together with Francisca we ran up and lifted Jonas and took him back into the house and washed him with water until a PMV Las Kona came and took Jonas to the hospital at Silanga and then to Kimbe Hospital. I do not know what happened but in the afternoon we were told that Jonas Koroi had died at the Kimbe General Hospital. This was the statement that was tendered as defence Exhibit D1.
    
23. In cross examination, she said she did not see Jonathan Vatete hit Jonas with a stone. That it was Morris who got a stone and shot Jonas.
    
24. The third state witness was Jonathan Gilis who was sworn. I am from Yangoru, East Sepik Province and am married with 3 children. I was staying at Section 4 Block 968 and in February 2012 I was staying there. I wasn’t employed. I know Jonas Koroi, he is a friend from Bali. In 2012 he was at my block Section 3 Mamota. He is now deceased. He was hit on the head on 28th February 2012 and died. On that day 28th February 2012 I wanted to come to town on bus Kukavi we came to the section they were, we saw people on the road. I told the driver there must be a fight. The driver stopped the bus. I ran to where they were fighting. I saw Jonas run to the road and wanted to fight with them. He ran to the place they were fighting out of the house. Fight was on the road. Ex-Aviour got a knife and wanted to cut him. Jonas came back to the house and got a knife and went again. Morris got a stone and shot him. He told me to get the knife and cut Morris. He shot me with a stone. I said I am here to save you bus is here. We brought him all the way to Silanga and Kimbe Hospital. I recognized Morris and Ex-Aviour. I would not know the exact number but I only saw Morris hold a stone and shot him. Initially when I came to the fight it was Morris and Ex-Aviour who got a knife and wanted to cut Jonas who went and got a knife. He was stoned by Morris on the left side of his head temple. The time was around 7.30 am to 8. 00am. I was 8 to 10 meters when I saw Jonas shoot with the stone.
    
25. Asked if Jonas was shot by Jonathan Vatete? He answered, “I wouldn’t know I have not seen it”.
    
26. Paulus Nale sworn for the state a single man from Bali resident at Rudolf Dagu’s Section 3 Block 987 neighbour to Vatete. I know Jonas Koroi he is from Bali. He is related to me and is my father; he is my father’s brother. He is now deceased. It was 6.00am in the morning I heard big noise on the road when I was sleeping at Rudolf’s block. I woke up and ran to the road and saw Morris shot Jonas with stone the size was like my palms both together in a ball. I was like 2 meters to 3 meters, I was close to Morris. Morris to Jonas was 2 meters and from Morris to me was 2-3 meters. I know Morris as we live together at the same section and yes he is in court and points to the accused in the dock. Witness adopts state evidence exhibit S10 he came out of Rudolf’s block onto the road and saw Morris who was on the road shot Jonas who was on Steven’s Block with the stone. Scene is at the boundary of both Rudolf and Steven’s block.
    
27. Jonathan Vatete sworn from Bali married with three children living at Mamota Section 3 Block 986 educated to grade five Mamota Community School. On the 28th February 2012 was at Section 3 Block 986. I know Jonas Koroi he used to reside at Section 3 Block 986. He is my uncle and is now deceased. He was hit on the head with a stone on the 28th February 2012. On that day I was sleeping heard screaming and came out of the house and went to the road. Morris shot Jonas and he fell down. I was behind Jonas, Morris shot him with a stone on the left side of his head and he fell. I was 2 meters away; Morris is where he is now Jonas is where Lawyer is 2 meters. Witness indicates on Exhibit S11 is where the deceased Jonas was, triangle is where Morris was and from where he shot Jonas the circle is where I was when I witnessed. The direction I came from Vatete’s block is line from Vatete’s house to the road where I stood and witnessed. I also saw Ex-Aviour Umbun. And I also saw Jonas chasing Ex-Aviour as I came down and caught up with him and cut him. Morris shot him with stone.
    
28. I did not shoot him by accident. I did not shoot Ex-Aviour and by mistake the stone got Jonas. I never did pick up a stone in front of Steven Umbun and was told by him that I might stone someone and also that my mother never scolded me when I stoned Jonas. I was not locked up by police they asked me I said Morris stoned Jonas and I was released. The man in white shirt is Maxillus, in the middle is Ex-Aviour and Morris is the third man.
    

No case to answer

29. At the close of the State’s case the defence has made a no case submission relying on The State v. Paul Kundi Rape [1976] PNGLR 96 and also Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37), The State v [1983] PNGLR 287; [1983] PNGLR 287 (14 September 1983). In particular the defence is contending and invoking the second leg of Roka Pep’s case (supra) that there is discretion in the judge to stop the case here against Maxillus Umbun and Ex-Aviour Umbun. Plainly put, yes there is some evidence but it is so lacking in weight and credibility it is so unsafe and unsatisfactory that to call upon the defendants to answer will not improve the case any further, the court has discretion to stop the case there and then. Cross examination of the witnesses and evidence of the state has so weakened that even without the defendants going into evidence it will not improve the case for the prosecution any further against the defendants. It is not for the defence to prove the prosecution case for them. Accordingly the court is versed with discretion here to stop the case as it were. It must be clear that there cannot be any weighing up as that is always at the end of the case not before. It goes without saying that a man can only be tried once for his crime not twice and therefore weighing evidence is only once not twice, one in the no case and the other at the end of the case is contradicting law and the Constitution. That is not our law and is unconstitutional.
    
30. Here therefore I am called to see prima facie on the face as opposed to seeing and weighing out credibility and the like in determining guilt or innocence. Making comparisons scrutinizing evidence drawing differences in witnesses evidence one from the other that is not my task at this juncture of the proceedings. See Pep’s case (supra):
    

“The former Deputy Chief Justice Kearney J in The State v. Lasebose Kuriday, (supra) stated that this submission can be entertained where there is no weighing up of the evidence involved. A judge in applying these guidelines or the principles is posing a question for the jury. In answering the query which he poses for the jury, he assumes the facts and considers what the jury may do. This is a hypothetical situation. This is significant because it avoids the possibility of a judge actually weighing the evidence. I have accepted these principles insofar as they were stated in the case of The State v. Paul Kundi Rape. It is clear from the cases I have discussed so far that the separation of the function of judge from jury has a significant influence in shaping the principles above. I am convinced that they are the proper principles to be applied in a jurisdiction where there is a jury trial. See also R. v. Prasad (1979) 23 S.A.S.R. 161.The question that arises in our jurisdiction is where there is no jury trial, should these principles be applied strictly? I do not think that there is any difficulty with the application of the first leg of the submission. However, on the second leg, the courts should view the principles carefully as we do not have any jury. The former Deputy Chief Justice Kearney J in The State v. Lasebose Kuriday attempted to do this. In Papua New Guinea, even though we do not have a jury trial, questions of law are still different from questions of fact and the principles stated above are helpful so far as they highlight the issues and the principles to be applied. However, in a jury trial a judge can only go as far as posing a question to the jury and assume what the jury may do in viewing the evidence at the end of the prosecution case. In a jury trial the function of assessing and weighing the evidence is the function of twelve different minds. In Papua New Guinea, where there is no jury trial, it is the same mind which also decides questions of fact. Whether the judge is applying his mind as a judge of law or as a judge of facts, his assessment of facts would be the same because it is the same mind. Therefore in Papua New Guinea, the hypothetical question which is posed for the jury is unreal and should not be maintained strictly. It could be logically concluded from this that the second leg of the test does not arise. Then it could be argued that a judge who is also the judge of facts could weigh the evidence in the sense which is prohibited by Barker’s case. However, there is a valid objection why the approach which I have just stated should not be adopted here. The objection is that it is of fundamental importance for a fair trial that a judge should only be required to weigh up the evidence once and that is only after all the evidence is in. See The State v. Lasebose Kuriday at 2, and The State v. Delga Puri and Tapri Maip. I would adopt the statement by the former Deputy Chief Justice in The State v. Lasebose Kuriday, who said: “It follows, I think, that in our system any weighing of the evidence by the judge or magistrate, required by a no case submission at the close of the State case, should be kept at the absolute minimum”. In my view, this is a good reason for adopting the view that a judge in a non-jury trial should not actually weigh the evidence in the sense which is prohibited by Barker’s case and should retain the second leg as set out in R. v. Galbraith (supra). It is a discretion which accords with good sense and the proper administration of justice. See Mohr J in R. v. Prasad (1979) 23 S.A.S.R. 161 at 177. It suspends the actual weighing of the evidence until all the evidence is in. At this point, a judge should keep an open mind about the prosecution evidence”.

31. In the facts before me there was argument over K30 for chicken outstanding yet to be paid by Jonas Koroi. Which Casper, Elizer and Morris went to collect from him. Argument developed into a fight there. Ex-Aviour Umbun armed with a grass knife with Maxillus Umbun ran up and the former cut Jonas who reverted back to his kitchen returning with a bush knife that he used to pursue and cut Ex-Aviour with on the stomach and Morris Lawrence at that instant threw a stone which hit Jonas Koroi on his left side of the head. He fell to the ground and was taken to the hospital in Kimbe where he died from internal bleeding therefrom. The five were drinking as they were heard to be singing and when they came for the money owing the Umbun brothers remained on the wayside and did not go all the way in, whilst the three went into the premise where the fight started spilling onto the road paved with rocks and culminated in the death when Jonas Koroi was hit with a stone to the left side of the head.
    
32. On the face of it or prima facie, I find that there is a case to answer against the defendants Ex-Aviour Umbun and Maxillus Umbun and Morris Lawrence. That they aided and abetted each other in the murder of Jonas Koroi and have a case to answer.
    
33. “It follows, I think, that in our system any weighing of the evidence by the judge or magistrate, required by a no case submission at the close of the State case, should be kept at the absolute minimum”.
    
34. In my view, this is a good reason for adopting the view that a judge in a non-jury trial should not actually weigh the evidence in the sense which is prohibited by Barker’s case and should retain the second leg as set out in R. v. Galbraith (supra). It is a discretion which accords with good sense and the proper administration of justice. See Mohr J in R. v. Prasad (1979) 23 S.A.S.R. 161 at 177. It suspends the actual weighing of the evidence until all the evidence is in. At this point, a judge should keep an open mind about the prosecution evidence.
    
35. In Avini v The State [1997] PNGLR 266 the Supreme Court stated as follows:
    

“We wish to point out, however, that this procedure does not have to be adopted in every case. It will depend on the facts of each case. The failure to adopt this procedure in itself cannot invalidate subsequent proceedings. Even when such a submission is made, whether or not, it will be successful depends on the facts of each case.

The question that arises in this case is whether a conviction should be quashed where a defence counsel is not allowed to make a no case submission. Counsel for the appellants has submitted that a denial of such submissions would result in a miscarriage of justice. On the other hand, counsel for the respondent has submitted that while a refusal to hear counsel on such a submission may result in an irregularity, the question whether there is a miscarriage of justice is a matter, which has to be determined from the facts of each case.”

36. Angitai v The State [1983] PNGLR 185 (6 June 1983) stands for the proposition that the court in a no case submission can be made in a number of different situations. Except where an accused is acquitted, I consider no reasons should be given. The different situations in summary form are as follows:

(1) Reject a no case submission - no reasons

(2) Accept a no case submission and - give reasons acquit the accused.

(3) Accept a no case submission in - no reasons relation to one charge but allow the trial to continue in relation to a second charge, or a lesser charge open on the indictment.

(4) On a joint trial, accept the submission in relation to one accused, but reject it in relation to others. - acquit that accused without giving any reasons. Later, at the end of the trial of the other accused give reasons for that acquittal”

37. Accordingly the court returns that each of the defendants Ex-Aviour Umbun and Maxillus Umbun and Morris Lawrence have a case to answer in the murder of Jonas Koroi as they aided and abetted each other leading to the death of Jonas Koroi.
    
38. It is not my task at this juncture to dig deep to analyse, scrutinize, unearth, differentiate and reason deep as to why I am returning that there is a case to answer. It is sufficient and prima facie to hold as set out above that you three defendants Ex-Aviour Umbun and Maxillus Umbun and Morris Lawrence have a case to answer for the murder of Jonas Koroi. He died as a result of being hit on the head with a blunt object which is a stone. He was immediately before his death involved in a fight allegedly with the three of you .You have a case to answer on the murder indictment presented. I stress that I do so here prima facie on the face of it all against the three of you. I have in no way reasoned out differentiate or scrutinized evidence by the prosecution to arrive at this ruling. I have decided according to law not facts, that lawfully there is a case to answer against you as it is a question of law as opposed to facts here.
    
39. I reject the no case submission by you the defendants Ex-Aviour Umbun and Maxillus Umbun and Morris Lawrence.
    
40. I rule and hold that you the defendants Ex-Aviour Umbun and Maxillus Umbun and Morris Lawrence have a case to answer.
    

Defence case

41. Morris Lawrence on oath states: I am married with three children and am a harvester with NBPOL. On the 28th February 2012 at 5.00 to 6.00 am there was a fight between two people Casper and Elizah. I came later and I pulled them out. The two were fighting Jonas Koroi for the dinau of Kakaruk. I later came and pulled them out from the house belonging to Popotsi to road. At the same time Jonas Koroi got a knife ran up and cut Ex-Aviour. Know why he cut Ex-Aviour? Ex-Aviour swang knife at Jonas and cut him. Jonas cut Ex-Aviour and he fell and he wanted to cut second time Jonathan Vatete took a stone and he tried to attack Ex-Aviour but stone hit Jonas and he called out “Ah Ah” I told Jonathan Vatete you have shot Jonas. His mother said you see and shoot. When he fell same time I came and got Ex-Aviour to hospital. They took Jonas to Silanga and to Kimbe General Hospital. Distance they shot Jonas was 3 to 4 meters. The size of the rock is with both palms in a round bulge. Lawrence is my uncle and he is brother of Steven who is the father of Ex-Aviour and Maxillus. Lawrence father is married to family of Jonas and we are in-laws so the problem ensued among ourselves. There were no arguments and disputes until the 28th February 2012. Witness pauses for a while and answers I have an argument with Jonas which is now with the family of Jonas. On the 28th February 2012 morning you walked after Casper? Witness does not answer. Answers Casper and Elizah went first I came after. You all came from same area? Yes they went ahead I came later. We were at Block of Lawrence Section 5 Mamota at 6.00am you were already at Section 3 Mamota. Yes I was drinking at 4.00am. Yes they went ahead two of them went and woke him up. Maxillus was asleep in Stevens block but came out onto the road when he heard the commotion. Two of them went ahead I was drunk. Jonas chased Ex-Aviour after Ex-Aviour had cut him yes chased him and cut him at Steven’s block near road. You were close to where Jonas cut Ex-Aviour? I was standing in front on the road. Jonas on Steven Block? Yes facing Steven block when cut him looking to me directly. You would have been on the left side not in front on right hand side. You on road Jonas on block Steven? I was in front on road. You were on left side? No. you picked Stone and hit Jonas on the left side? Not true. No reason why your in-laws would mention you fought Jonas and later threw stone to the left side. Never any dispute between two family? Witness does not answer remain silent. Who received money? We did not give them amount to purchase food and assist them. Who received this from? My uncle Lawrence gave it to them. Who received on behalf of the deceased? Patrick Koroi. After incident matter reported to police our family reported to police? Incident police went two suspects Maxillus and Jonathan Vatete locked up in cells at Bilomi. Police found out John Vatete had killed Jason Koroi his uncle Patrick Korong told police not to lock them up I will sort in custom. Jonathan not before the court to be tried? No. Police found evidence to charge you Maxillus and Ex Aviour true? Witness does not answer and is silent. You Maxillus Ex-Aviour Casper Elizah woke up Jonas on 28^th February 2012. You woke him up fought him by all five of you, he was one men. Ex-Aviour armed himself with a grass knife and cut him. Later chased Ex-Aviour cut him and you shot with a stone on his head? Not true. The chicken taken belonged to who? Casper and Elizah. No reason for in-law to lie and say you fought Jonas and threw stone at Jonas? You did not answer that question? Do you know any reason why family of Jonas would say you were the one Jonas relatives would say you Morris Lawrence threw a stone at Jonas on 28^th February 2012? I have no argument to throw a stone at him. Why would Jonas family say you threw stone and he died? Not true. You don’t know why they would say you threw the stone? I got Ex-Aviour to hospital. Why would they say you threw stone? I did not throw stone, it was Jonathan Vatete.
    
42. Ex-Aviour Umbun sworn evidence in defence states: He is single, did grade 6 in 2012 at Mamota Primary School. Was living at Mamota Section 5 Block 0974. On the 28^th February 2012 about 5.00am to 6.00am I went to section 3 and woke Maxillus he was asleep. I woke him and we walked up the road. He was in front and I was behind him. Maxillus walked behind. I was in front I was still at the block I saw them fighting Casper Elizah and Jonas. I saw them fighting I went in got a grass knife swang at Jonas and later Jonas took a bush knife he came and cut me. I was unconscious and do not know what happened. Before you woke Maxillus where were you? I was at section 5 went down to section 3 and woke him. Got Sarif ran to Jonas and attacked him? Yes. Did you cut him? Yes. And that is when he was chased by Jonas? Yes. Was there any other person when Jonas chased you? Yes I wouldn’t know so many other people. Chased by Jonas explain what happened? I swang knife at him he chased me and cut me on my hips (shown to court). Lawrence block you stay with Lawrence? Yes. Relative of yours? Yes. How? Father Brother of my father. Morris Lawrence related? Grandfather. Maxillus Umbun real brother. Walk with Morris Lawrence? Yes. Together with Casper and Elizah? They went ahead. In the night I was fast asleep and in the morning I saw Casper and Elizah they were drinking. Morris we slept together they came and woke him up. They were drinking with Casper and Elizah. You joined them drinking? No. From Section 5 to Section 3 you were walking together with Morris Lawrence. Got to Section 3 fight started? No. You and your brother joined and your Ex-Aviour cut Jonas with knife? True. Jonas elder brother of your uncle’s wife you know family of Jonas long time you share things go to and from never any dispute with you and family of Jonas? Yes. No reason to call your name, Morris, Maxillus as being part of Killing of Jonas? Not true. When you chased see Morris? Yes I ran towards him. He was on the road when you ran into Steven’s Block? Yes. Closest person was Morris to you when Jonas chased you? Not true. Who was the closest person when Jonas cut you? No one close to me when Jonas chased me to our block and I fell. Are you aware of compensation bel Kol paid to Jonas family? K 28, 000 only with food. Payment for what? For the mourning house K28, 000 half money we gave to them. In re-examination he was asked, why did you join fight? Two of my boys involved so I took part Elizah and Casper.
    
43. Maxillus Umbun sworn in defence is a single man aged 20 years old lives at Mamota. On the 28^th February 2012 at 6.00am I was sleeping I do not know what they were doing. Ex-Aviour came and woke me and we walked up together. We heard a commotion Ex-Aviour went ahead of me and I came after him. They were fighting and came onto the road. Ex-Aviour had a knife I was bare handed. I went in and stopped the fight. I was standing in between the two parties fighting and I saw Ex-Aviour cut Jonas on his face. Jonas went in got Bush knife came out, I was thinking he was chasing Casper and Elizah he went and cut Ex-Aviour at the side of our block. I was in the middle of the road facing Ex-Aviour about 4 to 5 meters. Jonas cut Ex-Aviour fell to the side and second time he turned himself around stone came and hit him in the left side of his head. Stone came from my back. I did not know who threw the stone. K28, 000 was paid to line of Jonas for hire of boat and coffin. In laws with Jonas family no argument no ill feeling no reason to dope you in.
    
44. Steven Umbun sworn in pidgin from Tokoikum, East Sepik Province married plenty children was living at Section 5 Mamota trouble so left Section 4 to 5. On the 28^th February 2012 was sick and in the house on the other side from John Vatete and Francisca Popotsi. I was sick but came out because of the noise and they were fighting and I came out stood in the middle of the road and removed weapons they were armed with and stopped the fight. They fought with boys from Sepik. It was with in-laws they were fighting each other, son Jonathan picked up a stone. I told him you will hit one of us. Jonathan threw stone and hit one of his relatives. The deceased was hit. The deceased was hit on the head on the right back part of his head. Ex-Aviour Umbun I know him as the third born son of Morris Lawrence. Ex-Aviour Umbun was involved in the fight. Jonas got a knife and cut him second time and the stone hit him. I went away from my block in fear of my life. I moved out of the block my line paid some compensation sorry money K2, 500 plus goods to the mourning houses one here and one in Bali.
    

Observation defence evidence

45. Steven Umbun is a witness who is the natural father of both Maxillus umbun and Ex-Aviour Umbun. He is not an independent witness in the case. He is more inclined towards his sons as the father who wants to see his sons exonerated and set free of this criminal allegation. His evidence is tailored to suit a favourable outcome for his sons. Morris Lawrence is his cousin and therefore all the more to shift the blame away from Morris Lawrence to somebody else. He has lied on oath because if indeed he was at the scene of the fight he would have seen the injury that was sustained by Jonas Koroi on the left side of the temporal region of the deceased’s head that was hit with the stone depressing the temporal causing internal bleeding from which death culminated.
    
46. He is a sick man with Malaria who has not attended hospital for treatment on that day 28^th February 2012 sleeping alongside the fire when he heard the commotion and ran out and immediately stopped the fight by disarming those who were armed. He stopped the fight. For a sick man with Malaria he has the strength to disarm persons who are involved in the fight of their weapons and stop the fight. He is an old man who has come to the block that he stays at since 1960. For an old man sick with Malaria he is able to stop the other people who are fighting and disarm them of their weapons but he is not able to see Jonas with the knife pursing his son ExAviour Umbun and to disarm him before he inflicts a deadly blow on his son.
    
47. Not only that but he says his line paid K2,500 plus goods for two mourning houses one here in Kimbe and the other in Bali. Why pay compensation if the wrong is not by you and your sons but by Jonathan Vatete as you say. He has lowered the figure of the money but his sons and cousin put the figure at K28, 000 for hire of boat and coffin. If the sons and the father are speaking about the same matter why is there difference in the figure of the money paid? Clearly there is no consistency and credibility in their evidence. There is no ring of truth running through. If Jonathan Vatete is the one who threw the stone and hit Jonas Koroi on the left side of the temporal, why is the father saying it is on the right back of the head. Was he there when the stone was thrown, does he know the difference between right and left? Why is the compensation paid by his line his sons line and not the Bali if indeed Jonathan Vatete was at fault? Was there any need at all for Jonathan Vatete to throw the stone as Ex-Avior Umbun was already on the ground there was no need to throw that stone? He did not throw the stone.
    
48. For an old man a long-time resident at Mamota Section 4 he has left his block unceremoniously and is now living at Section 5. And he left it and said “I went away from my block in fear of my body. I moved out of the block 4 and am now living at Block 5”. He was stopping the fight disarming those who were armed at the fight. He did nothing wrong and he witnessed that Jonathan Vatete was the one who stoned the deceased. It is against common sense to just leave the block that he has been for quite a while and then go without proper dispensation either by sale or otherwise. It is as if he has being responsible for the killing of Jonas Koroi and fears retaliation on himself or his relatives. This is the most probable conclusion in view of the fact that together with his line they have paid K2,500 and food for the mourning house at Bali and also Kimbe. This figure is not the same as that of his sons and Morris Lawrence who say it is K28, 000 paid to the line of Jonas Koroi. Because it was for coffin and the boat to Bali. In ordinary language they accepted responsibility for the death of Jonas Koroi and were intent on settling the dispute in a peaceful way hence the spending of the money for the expenses in repatriating the body of Jonas Koroi back to Bali.
    
49. If the court were to believe Maxillus Umbun who was unarmed and was able to stop the fight successfully then there would be no bush knife in the hands of Jonas Koroi and there would be no grass knife in the hands of ExAviour Umbun to attack Jonas Koroi with. Jonas Koroi would not have died as a result of the hit with the stone to his left side of the temporal. The result would have been even safer in the light of the fact that his father Steven Umbun was also stopping the fight and disarming.
    

Accomplice Evidence no corroboration

50. Maxillus Umbun is an accomplice in the allegation of murder against him Ex-Aviour Umbun and Morris Lawrence. His assertion that Morris Lawrence was not involved must be corroborated by independent evidence that indeed Morris never took part in the assault of the deceased. The same is so of Ex-Aviour Umbun that Morris Lawrence never took part in the assault on the deceased or that he never took part in any fighting there: The State v Amoko Amoko [1981] PNGLR 373.
    
51. Where is the corroboration that Maxillus Umbun was at the scene stopping the fight, some independent evidence to confirm or deny that fact. He cannot rely on the evidence of Steven Umbun who is his father and even reliance on this evidence is not credible as the father’s evidence is leaning to paint that the son was not involved in the fight but was simply stopping the fight. Why is there death at the end of all the fighting if both father and son were immediately in the proximity of the fight but could not contain either Ex-Aviour Umbun or Jonas Koroi from the grass knife and bush knife they each had. They would have had no problems in stopping because two of them against Ex-Aviour Umbun who had a grass knife and Jonas Koroi who was initially unarmed but became armed after the cut by Ex-Aviour Umbun. If they were telling the truth they would have disarmed Ex-Aviour Umbun and he would not have assaulted Jonas Koroi and Jonas Koroi taking to arm himself and cutting him and then the death of Jonas Koroi.
    
52. Morris Lawrence cannot rely on the evidence of Ex-Aviour Umbun as supporting him because they are accomplices and there must be corroboration, it goes for the evidence of Maxillus Umbun if Morris were making similar assertions here.
    
53. Morris says that when he came he stopped the fight and led them out to the road from Vatete’s block if he too was stopping the fight who was fighting if all were stopping the fight as opposed to fighting? He was stopping the fight yet he stood by and watched Ex-Aviour cut Jonas Koroi who retaliated with a bush knife that he used to chase Ex-Aviour and cut him in the boundary between Steven and Vatete’s block. He was there and did nothing to stop the assault and the cut by Jonas Koroi. He was determined to stop the fight yet he made no attempt to stop the cut that was inflicted by Jonas Koroi upon Ex-Aviour Umbun who was his immediate relative.
    
54. Morris Lawrence says Jonathan Vatete was the one who stoned Jonas Koroi but why did his line pay a large sum for the coffin and boat, a total sum of K 28, 000 if it was the doing of Jonathan Vatete and not his. His conduct after the act is inconsistent with the defence that he has put up in court. His line is to Lawrence who is the blood brother of Steven Umbun who has fathered the sons Maxillus Umbun and Ex-Aviour Umbun, all are related and are a family and no doubt would care for each other like any other family. As here in times of serious consequences like any other family they would stand and look after each other. That is evident from the way all have given evidence in particular of the stone thrown allegedly at the hands of Jonathan Vatete on Jonas Koroi. The problem of believing this story is that on the one hand the sons and brother say it was on the left side of the head which is consistent with the medical report tendered but the father Steven Umbun says it was on the right side at the back of the head. Clearly this is contradictory evidence in the light of the medical report and makes Steven Umbun a liar. Because in his evidence he repeatedly said it was the back of the head on the right side and he pointed out the area in court.
    

Finding of Facts

55. I find as a fact that Steven Umbun has lied on oath he told a deliberate lie in the face of evidence that was proved beyond doubt that Jonas Koroi was hit. And the summary of significant, abnormal findings at examination, “(L) Temporal scalp haematoma-100 mls of blood. Depressed (L) temporal skull fracture-10cm long.
    
56. This is medical report that is before the court which is undisputed and tendered by consent that Jonas Koroi suffered a depressed left side of his temporal where internal bleeding took place leading to his death.
    
57. Doctor Annette Ketalu dated the 14th March 12 sworn 7th May 2013 attached compilation Post Mortem report and medical certificate of death she is a professional not related to anyone is schooled in her field and profession and comes to court with that knowledge. She is giving that evidence from the best of her knowledge and which evidence is before the court undisputed.
    
58. I find as a fact that the evidence of seeing Jonathan Vatete throw the stone from the evidence of Steven Umbun is a lie consciously made with intent to divert and distort the truth which is that Morris Lawrence is the author of the stone that hit Jonas Koroi on his left temporal.
    
59. His own conduct confirms this truth because he said “ I went away from my block in fear of my body. I moved out of the block my line paid some compensation sorry money K2, 500 plus goods two mourning houses one here and one in Bali”.
    
60. He would not move out of his block if he was stopping the fight and Jonas Koroi died at the hands of Jonathan Vatete. He moved out of the block and paid K2, 500 and food to the relatives of Jonas Koroi because he knows the truth that the death of Jonas Koroi was not at the hands of Jonathan Vatete as he would have the court believe.
    
61. Morris Lawrence also pursues this story that it was Jonathan Vatete who threw the stone that landed on the left side of the temporal of Jonas Koroi causing the depressed left temporal from which bleeding leading to his death. If this is so why did his line pay K28, 000 for coffin and boat. Jonas Koroi’s death did not arise from his stone that he threw so why pay as his line did.
    
62. I find as a fact that Morris Lawrence threw the stone that landed on the left temporal of Jonas Koroi. Because I have found as a fact that Jonathan Vatete did not throw the stone that hit Jonas Koroi, I find as a fact that Morris Lawrence cannot build his case on untruths and lies which is the case with Steven Umbun his witness and his brother. Untruths told on top of another untruth leave no substance for the case against Morris Lawrence. In fact his defence is not worthy of belief nor is it credible. It is not safe and satisfactory in law in the circumstances to believe that story.
    
63. I find that State witness Jonathan Gilis has given evidence of a dying declaration where Jonas Koroi has asked him to take the knife and to cut you Morris as you stoned him on his head. He knew that he was not going to come out well after you had assaulted him with the stone and he wanted Jonathan Gilis to avenge for the fact that you had stoned him on the head. And that he wanted Jonathan Gilis to cut you as you had stoned him. Section 20 of Evidence Act provides:
    
64. Section 20. Dying Declaration
    

A statement made orally by a person before his death relating to the circumstances resulting in his death is admissible in any legal proceeding if –

(a) at the time the person made the statement he believed, or may be reasonably supposed by the court to have believed, that his death was imminent, whether or not –

(i) he entertained at that time any hope of recovery; or

(ii) he thought that legal proceedings might eventually; and

(b) at the time the person made the statement he would have been a competent witness in the legal proceeding; and

(c) The person making the statement could, if he had not died, have given direct oral evidence in the proceedings of the matter in the statement

65. The admissibility of what was said by the victim in homicide depends upon the declarant having spoken under a sense of impending death and the principle upon which it is then admissible is that a sense of impending death creates a sanction equal to the obligation of the oath.

I have no doubt, upon the evidence, that when he answered his brother, Topuludou believed that he was about to die from the wound, which he had received in this encounter, and was without hope of recovery.

However, I have nothing before me to show that such a belief would create a sanction enjoining him to speak the truth.

In R v Woodcock [1789] EngR 2091; [1789] 1 Leach 500 at 504, Eyre CB, as cited in Phipson at p 331, remarked:

‘The general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone; when every motive to falsehood is silenced and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so awful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of Justice.’

It is generally assumed that such a sanction exists where the deceased was a civilized member of a Christian community and such an assumption is made in the application of the principle in Australia, but, I have not had occasion to consider its application to the dying declaration of a member of a native community in this Territory. However, I apprehend that it is based upon the Christian belief in a hereafter and that the ‘most powerful considerations to speak the truth’ are those which exercise the mind of a Christian about to meet his Maker. This exception to the hearsay rule evolved under a strong sense of punishment for falsehood and other sins.” Bulen, The State v [1990] PGNC 87; [1990] PNGLR 43 (16 January 1990)

66. Jonas Koroi spoke because of the extremity that he was in, he was at the point of death, and when every hope of this world was gone; there was no motive to falsehood as it was silenced and his mind is induced by the most powerful considerations to speak the truth to ensure that before he passed on the person who was responsible for stabbing him was also dealt with in the same way due him and he was injured from the hands of that person; a situation so solemn and so awful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of Justice. That was the case here for Jonas Koroi when he spoke to Jonathan Gilis.
67. Because if he had survived the attack and assault with the stone he would have been a very competent witness in court on the evidence that he was assaulted by Morris Lawrence and suffered the injury to the head on the left side of the temporal.
68. What he has done together with Steven Umbun is to corroborate and strengthen the case of the prosecution by the lies that they have told out of a consciousness sense of guilt for the offence. The lies are material and underlay, “The learned author however goes on to point out that there is a considerable amount of authority which may be thought to go the other way, and that in any case the words of the Court of Appeal just quoted are open to several interpretations. The case of R. v. Tripodi was dealt with by the Full Court of Victoria [1961] VicRp 30; [1961] V.R. 186. At 190 of the report, the court commences to deal with the question of corroboration and its relationship to the giving of false evidence, in the process of which the court refers to the important distinction between the task of isolating evidence which can amount to corroboration and the task of the jury in deciding whether such evidence should in fact be believed. At 191 the court reviews a number of cases where the giving of false evidence has in the circumstances been held to amount to corroboration. All the authorities dealt with by the Appeal Court on that page and the following, including the High Court’s decision in Eade v. The King [1924] ArgusLawRp 24; (1924) 34 C.L.R. 154, undoubtedly support the principle. The court however goes on to say that there are certain difficulties which emerged from Eade’s case and makes an observation, which, in my respectful view, is at the crux of the whole issue, namely that it rests “not so much on the denial itself of the accused as on the conduct which it betokens”. A proper confession is the strongest piece of evidence obtainable. However the conduct of the accused may also be very convincing evidence and such conduct taken in conjunction with a statement which the jury find to be a lie, may properly lead to a conviction; at 193-194:
    

“The lying statement must of course relate to incriminatory features of the crime; for if it were otherwise any lying statement by the accused might convict him of any crime in the calendar and such a result has only to be stated to be at once rejected. We think that this view may explain why the courts have not discriminated between statements made by the accused out of court and in his evidence in court. In the latter case the jury themselves observe his conduct in giving evidence and if they think he is lying draw their own conclusions as to why he is lying; and, no doubt, the prosecutor, in inviting the jury to reject the accused’s denial, will suggest the reason. It follows from Eade’s Case that ‘it is for the trial judge to decide whether the denials can in the circumstances in law furnish corroboration, and if he considers that they can, to leave it to the jury as a question of fact whether they do’...”.

That lies told out of court and lies told in court may be treated on the same footing was finally enunciated by the Court of Criminal Appeal in Victoria in Steve Donovan Joseph Perera [1982] VicRp 91; (1982) 6 A. Crim. R. 225. A similar problem faced the Court of Appeal in New Zealand when dealing with the question of corroboration in respect of an appeal arising from the conviction for indecent assault. Whilst laying down the general principle the court was careful to point out that each case must depend on its individual facts and particularly upon the nature of the lie and the circumstances in which it was made. Special emphasis is also laid on the fact that the opportunity to commit the crime and to make the lie must be proved independently of the evidence of the person who has to be corroborated. In the present appeal such evidence in my view comes particularly from the girl Maria and the off-duty policeman Samuel Yamu:

“... a proved opportunity may have a sinister complexion put upon it by a statement made by a defendant that is proved to be false, and that such statement may thus amount to corroboration. That principle can operate only if both the opportunity and the falsity of the statement are proved by evidence other than that of the complainant.” (R. v. Vallance [1955] NZCA 9; [1955] N.Z.L.R. 811 at 815.)

The above statement is somewhat similar in content to that made by Lord MacDermott in Tumahole Bereng v. The King [1949] A.C. 253 at 270:

“Corroboration may well be found in the evidence of an accused person; but that is a different matter, for the confirmation comes, if at all, from what is said and not from the falsity of what is said.”

It is clear that the Court of Appeal in England was not happy with its earlier statement in R. v. Chapman [1973] 2 All E.R. 624. In R. v. Boardman [1974] 2 All E.R. 958 at 963, their Lordships make it quite clear that they are cutting down on what might be regarded as a broad application of the statement in Chapman and point out that the statement was correct “on the facts of that case”. A further reservation is enunciated in R. v. Lucas (Ruth) [1981] 1 Q.B. 720. At 724-725 of the report we find that the court has put lies told out of court and lies told in the court on the same footing. If I might be permitted a slight amount of paraphrasing their Lordships state that both may amount to corroboration if: (1) if it is deliberate, (2) if it relates to a material issue, (3) fear of the truth, and a rationalization of guilt must contribute to the motive behind the lie, (4) the statement is shown to be a lie by evidence other than from the source to be corroborated (for example the accomplice or the complainant). A glance at the report reveals that the principle evolved by their Lordships results from the collation of a number of cases and owes a particular debt to Lord MacDermott’s speech in Tumahole Bereng v. The King [1949] A.C. 253 at 270. Lucas’ case also makes reference to another authority which I consider is of some relevance and interest to the matter presently before us, namely, R. v. Knight [1966] 1 All E.R. 647. This case concerned an indecent assault on a young girl and the appellant’s defence was an alibi. He gave no evidence. After dealing with the question of distressed condition and corroboration, Lord Parker CJ on behalf of the Court of Appeal at 233-234 went on to say:

“Though it may be — I say no more — that this Court might have said that there was insufficient corroboration in this case if it had stood alone, it certainly did not stand alone. The other matter of corroboration concerned the approach the jury should make if they were satisfied that the defendant had lied on the very relevant issue as to whether he was in Parliament Street when the father claimed to have seen him there with the little girl ... if the jury believed the father and found that the defendant was telling a lie, it was certainly very cogent evidence capable of amounting to corroboration.”

In my view therefore the statement in Chapman’s case quoted earlier in this judgment does not represent a general principle of law but is rather a statement confined to the particular facts arising on that appeal. A false alibi given in evidence in court, which is subsequently determined untrue, may, depending on circumstances, amount to corroboration. In the present appeal the false alibi certainly does amount to corroboration. However, there is adequate material to corroborate the complainant’s evidence quite apart from the false alibi, and each aspect was referred to by the learned trial judge in various parts of his judgment and summarized at 12 to 13 (John Jaminan v The State [1983] PNGLR 318

69. I find as a fact basing on the case of Jaminan (Supra) that, your lies are deliberate and calculated, and relates to a very material issue which is who was responsible for throwing the stone at Jonas Koroi hitting him on his left temporal causing a depression there to cause internal bleeding leading to his death, and that you fear the truth you are acquainted with the truth that is why you and your brother and relative Steven Umbun have created the false story that it was Jonathan Vatete as the man who threw the stone leading to death but he has not paid for the funeral arrangements to move the body and the mourning of the deceased you have with your line which is clear acceptance of your role in the death of the deceased. This is the motive behind the lie and this is borne out by the false testimony of Steven Umbun who says that Jonas Koroi was hit at the back of the head on the right side contrary to the doctors medical report and affidavit tendered by consent with the post mortem report.
    
70. I find as a fact that your lies corroborate and strengthen the Prosecution case against you Morris Lawrence because you have tried by deliberate and calculated lies to disassociate distort conceal impair your role in the allegation leading to the death of Jonas Koroi.
    
71. Your co accused Maxillus Umbun states and adopts this lie and says he did not see who threw the stone that killed Jonas Koroi even though he was like you not fighting but stopping the fights if he was indeed then he ought to have seen Jonas Koroi or even Ex-Aviour Umbun come with the grass knife, and then stop them from hurting each other. In any case Ex-Aviour Umbun did not have any reason to attack as he did as no one was being attacked with a bush knife or offensive or dangerous weapon so as to put the lives of Casper and Elizah in danger. Jonas was using his bare hands so why the use of the grass knife by your brother was not justified.
    
72. If indeed you were stopping the fight you would have seen the grass knife as he went ahead and you followed. You did nothing to stop the attack by Ex-Aviour upon Jonas Koroi. You stood by and allowed knowing very well that what he was doing was wrong as that is what you said you purported to do with the others in the fight, but did not do with your brother.
    
73. I find as a fact that you Maxillus Umbun were there to assist and was ready to assist the fight because you did nothing to stop Ex-Aviour who ran towards them. Ex-Aviour held a knife chased Jonas and cut him. Jonas retaliated and chased Ex-Aviour and cut him at Steven Umbun’s block. Your presence was not accidental nor were you an innocent bystander going about your business, but an active participant of the assault perpetrated by your brother. You stood ready to assist him as you did not do anything to prevent or stop the assault that was perpetrated by Ex-Aviour and then when Jonas retaliated you did not stop the cut with the knife.
    
74. To see the death and to believe you when you say you were stopping the fight, means not only you were stopping the fight but Morris Lawrence and Steven Umbun. Your combined effect could not even stop Jonas Koroi from going right into your block and cutting you there. Or even better still you could not stop ExAviour Umbun from initially attacking Jonas so I find it very difficult to believe you as a witness of truth.
    
75. I contrast your evidence all with that of the state witnesses and consider that you all were up at 5.00am to 6.00am which is normally the time that majority of persons could be still asleep so at that time there were not a lot of people up and awake. All of you were known to the witnesses Mrs Francisca Popotsi and Kasmera Kura. I am drawn safe and satisfactory in law to consider this as a sound basis by the following, “It has long been recognized that there are dangers inherent in eye-witness identification evidence. The Court was referred to a number of authorities, the latest of them being a decision of the House of Lords in Raymond Turnbull & Ors.[cxxvi]18. In that case guidelines were laid down as to the manner in which identification evidence should be treated. The following points (as set out in the headnote to the report) were made:
    

“Whenever the case against an accused person depends wholly or substantially on the correctness of one or more identifications of the accused which the defence allege to be mistaken, the trial judge should warn the jury of the special need for caution before convicting in reliance on the correctness of the identification. He should make some reference to the possibility that a mistaken witness could be a convincing one and that a number of such witnesses could all be mistaken. Provided such a warning is given, no particular form of words need be used.

Further, the trial judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made....

Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made. All these matters go to the quality of the identification evidence. When the quality is good, the jury can be safely left to assess the value of the identifying evidence even though there is no other evidence to support: Provided always, however, that an adequate warning has been given about the special need for caution.

When the quality of the identifying evidence is poor — i.e. a fleeting glance or a longer observation made in difficult conditions — the judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification.

The trial judge should identify to the jury the evidence which he adjudges is capable of supporting the evidence of identification. If there is any evidence or circumstances which the jury might think was supporting when it did not have this quality, the judge should say so.” Beng v The State [1977] PGSC 3; [1977] PNGLR 115 (2 May 1977)

76. You were personally known to the witnesses both you were married into and were in-laws, you were seen in the early morning 5.00am and 6.00am where the sun is already up. And you were seen at close quarters firstly as you came by the main road then as you came into the premises of the witnesses speak to them about the whereabouts of Jonas Koroi then got directed by the witnesses to where he is, where you wake him up and the confrontation verbally leading to the fight in the premises and on to the main road and to where Steven Umbun’s block where the deceased was stoned and killed.
    
77. They had no motive to lie against you and to bring you to trial on a serious matter as the killing of their brother Jonas Koroi. He was their brother and they were prepared to tell the truth and their truth is verified by your own conduct together with your co-defendants in the payment of the K28, 000 for coffin and boat hire. You are related by marriage and it is a very serious matter to bring an allegation such as the present against an in-law. The possibility of very grave consequences by themselves would no doubt draw an in-Law for that matter an immediate relative not to bring the assertion as is the case here against an in-law or an immediate relative considering that Papua New Guinea has very strong extended relatives’ situation and that is still the case in your case here. Your brother Steven Umbun the father of both Maxillus and ExAviour refers to the witnesses as in-laws. Amongst you three defendants you are related by blood including Steven Umbun the father of your co-defendants and your brother and you all are related by marriage to the witnesses including the deceased Jonas Koroi. He is the brother of Kasmera Koroi and the son of Francisca Popotsi.
    
78. In fact you agreed with the Prosecutors questions that there were no grievances or a motive for the witnesses to bring the allegations against you. You maintained a very good relations right up to the fighting with the deceased and that is when your relationship turned in opposite directions.
    
79. Always a very important basis upon which courts reject or accept the evidence of witnesses is the motive of the underlying evidence given. I find as a fact that there is no motive established before me to reject the evidence of the state witnesses Francisca Popotsi, Kasmera Koroi, Paulus Nale, Jonathan Gilis and Jonathan Vatete.
    
80. I find as a fact that all these witnesses told the truth of what happened on that day. Each recounts the events of the day as it unfolded before her or him in the order as it went in the course of the events now before me. There is logical sequence and credibility in the way they recounted their evidence. They did not set out to get a conviction for the death of their brother and son Jonas Koroi. They were interested in getting the truth as was known to them.
    
81. I find their credibility unshaken and sound. There is nothing apparent or evident to not believe what they testified in court. It is common sense and in line that early morning wake up is always reasonable to attend to the calling in life, work, commitment or a matter that must be attended to at that hour, possibly because the person the subject of must be seen at that hour so that he or she is not called away to avoid what is intended upon that person. Here it was necessary that Jonas Koroi be “caught” before he set out elsewhere so as to avoid what the defendants had with him. The payment of the K30 for the credit of the chicken was outstanding and needed immediate replenishing and could not be further avoided.
    
82. And the reason for the waking up at that hour for the defendants to be able to confront Jonas Koroi and get the money K30 that was due on credit of the chickens to him. Morris Lawrence was drinking at 4.00am and by 5.00am and 6.00am would have been one to two hours and indeed would have been effected by the alcohol taken. Sense of reasoning is impaired when alcohol is taken, intelligence is lowered, restraint in conduct in everyday matter is not easily compounded or comprehended as was the case here against you Morris Lawrence.
    
83. I find that you were not briefly on the Vatete premises to stop the fight but that you were on the premises together with Casper and Elizah. That you assisted them in the assault of Jonas Koroi there and leading onto the main road. That Ex-Aviour Umbun and Maxillus Umbun purposely went with you there to carry out to support you three in what transpired in the course of the asking for the K30 from the credit sale of the chicken. That is why they remained as seen by the witnesses out on the road and that is where Ex-Aviour Umbun ran up with the grass knife and cut Jonas Koroi. He was prepared and armed with the grass knife and he says this in his evidence when questioned by the State Prosecutor, “In re-examination he was asked, why did you join fight? Two of my boys involved so I took part Elizah and Casper.” He was not there by accident but by will and pre planning and discussion as all came together between 5.00am and 6.00am. This is also clear from the behaviour of Maxillus Umbun who also ran up when the fighting started. He admits that in-laws with Jonas family no argument no ill feeling no reason to dope you in.
    
84. So when the witnesses recount that he ran up together with his brother Ex-Aviour Umbun who was armed with grass knife and cut Jonas Koroi on the face he was acting in concert with the way that his brother acted. He did nothing to stop his brother from delivering the blow with the knife upon Jonas Koroi. If he was indeed stopping the fight as he testified that is not evident here where he stood by and allowed his brother to join Morris Lawrence, Casper and Elizah on the assault against Jonas Koroi who was outnumbered by you all, hence the reaction to run in and to get a bush knife to defend himself and to chase Ex-Aviour Umbun right to the block of his father Steven Umbun and to cut him there.
    
85. Morris Lawrence ,Maxillus Umbun, and Ex-Aviour Umbun, you were not acting in isolation of each other, distinct in time and date, you were acting in synchronization in aiding and abetting each other and the defendants not before the court Casper and Elizah, you all had gone that early 5.00 am to 6.00am when it was already the early hours of the day where there were not many people up and around because of the early hour and that many were asleep, where you would have no resistance upon Jonas Koroi. And was so that Jonas Koroi was caught before he set out elsewhere in the call of the day upon his life. And you succeeded waking him up from his sleep and then getting him on the K30 that he owed from the credit sale for the chicken to him. He was honest to say he did not have the money there and then and would do so upon return from town presumably Kimbe later in the afternoon. You were all not content to wait out and to give him that time to make good the credit due which is not K1000 but K30. And for that you assaulted him in a pack. Morris Lawrence, Casper, Elizah, and Ex-Avour Umbun and Maxillus Umbun waited at the road within sight and distance to ascend up Jonas Koroi or any other who assisted his cause in support, you were prepared to aid and abet each other, you were prepared to defy the law to get that money K30 from him at all cost, waking up between 5.00am and 6.00 am and to get to his block to get it out from him. He was not even awake to meet you. You woke him up and set upon him. Casper went and got the wheel barrow in substation to make him meet for the K30 outstanding which culminated in the fight as Casper assaulted Francisca Popotsi who was intent to get her wheel barrow back, and Jonas Koroi coming to the aid of Francisca Popotsi his sister, and you Ex-Aviour coming to the aid of Casper with a grass knife cutting Jonas Koroi on the face prompting him to run and fetch a bush knife from the house and chase after you. Ex-Aviour Umbun, you were cut near the boundary of the Block of Steven and Vatete and you Morris Lawrence picked up a stone and hitting Jonas Koroi on the left side of his head in the temple area which caused a depression there where bleeding eventuated within which led to his death at 4.00pm 28^th February 2012 at the Kimbe General Hospital.
    
86. I therefore find that you Morris Lawrence intended to cause grievous bodily harm upon Jonas Koroi and did cause Grievous bodily harm upon him when you threw the stone that hit him in the left side of his temporal causing depression therein and bleeding internally leading to his death at 4.00 pm on the 28^th February 2012.
    
87. You were aided and abetted by the defendants Ex-Aviour Umbun and Maxillus Umbun in this instance when they stood in wait on the road ready to assist when the need arose posed and when the fight started both ran up and Ex-Aviour Umbun went with a grass knife cut Jonas Koroi on the face, he reacted went and fetched a bush knife chased after you and cut you ExAviour Umbun and you Morris Lawrence threw the stone at Jonas Koroi hitting him in the head on the left side on the temporal from which he bled to his death despite being admitted at the Kimbe General Hospital.
    
88. Death resulted as a result of the aiding and abetting and together with you Morris Lawrence the defendants Ex-Aviour Umbun and Maxillus Umbun are guilty of the charge of Murder as indicted by the state contrary to Section 300 (1) (a) Criminal Code Act. I accordingly return a guilty verdict for murder against you Maxillus Umbun and Ex-Aviour Umbun both of Toukim village and Morris Lawrence of Nale village All in Wosara, East Sepik Province.
    
89. I do not find that you Morris Lawrence acted in self- defence because you denied ever assaulting Jonas Koroi all throughout the matter when it was initially put and now in court where you continue to deny taking part in the fight and of assaulting Jonas Koroi with the stone, that the man who did was Jonathan Vatete and whom you blamed for the assault of Jonas Koroi with the stone. You cannot deny and also invoke self -defence now and say I did not assault him with the stone but if the court finds I did then I acted in self-defence. It is either you assaulted in self-defence or not in self-defence you cannot have it both ways. The effect of this is that you are a witness who cannot be believed in your case and as such the prosecution evidence stands up and I am duty bound in the light to find that there are no reasonable doubts of the allegation raised in the evidence in law and fact and it is safe and satisfactory for me to return a guilty verdict of murder on the indictment against you Morris Lawrence aided and abetted by Ex-Aviour Umbun and Maxillus Umbun.
    
90. Morris Lawrence, Ex-Aviour Umbun, & Maxillus Umbun are all found guilty of murder.
    

Orders Accordingly.

________________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant