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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NOs 876, 113, 114, 15, 116 of 2016
THE STATE
-v-
PHILIP PRANIS
FELIX AERAI
ELIUDA LISOM
NELSON TOMAR
LAMASISI MARENGI
Kavieng: Kangwia, J.
2018: 18 May & 06 July
Cases cited:
SCR No 2 of 1981: Re Section 14 of the Summary Offences Act [1981] PNGLR 50); John Jaminan –v- The State (NO. 2) [1983] PNGLR 318
Counsel:
R. Luman, for the State.
M. Mumure, for the Defence.
06th July, 2018
1. KANGWIA, J.: This is a Decision on verdict after a trial. The accused each and severally pleaded not guilty to one charge of Murder laid under s 300 (1) of the Criminal Code Act.
2. The background of the case are that on 20 November 2010 Turlit Kawasi (now deceased) (Turlit hereon) a prison escapee was dropped off by police at the main gate of the Correctional Services (CS hereon) at Kavieng with another person named as Philip Toaboli. Both had been apprehended by police in a dawn raid at Namatanai.
3. A few hours later other inmates alerted duty warders to transport Turlit to the hospital for medical attention which the Correctional Service (CS) Officers did but was pronounced dead on arrival.
4. No investigations were conducted either by the Police or CS. There was also no Coroner’s Inquest conducted into the manner and cause of death.
5. Five years later in 2015 the informant Sgt. Lynette Watah was tasked to investigate this case among other outstanding cases. Following that investigation the five accused were charged. It is believed one suspect is still at large and another is now deceased. The accused are all CS members holding various ranks.
6. The State alleged that 7 CS members each and severally assaulted the deceased between the main gate and the main office of the Kavieng CS after he was dropped off by Police. As a result of the assaults the deceased died a few hours later.
7. To prove its case the State tendered in to evidence the following documents by consent:
8. The state called six witnesses who gave sworn evidence.
9. For the Defence each accused gave sworn evidence. They called one former inmate who gave sworn evidence as well. They further called two alibi witnesses who also gave sworn evidence.
10. The evidence of all witnesses are briefly set out below.
11. The offence of Murder is created by s 300 of the Criminal Code and the relevant parts are as follows;
300. Murder
(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; or
(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; or
(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
Penalty: Subject to s 19, imprisonment for life.
12. It is an established principle of law that the onus is on the prosecution to prove the offence alleged. (See SCR No 2 of 1981: Re Section 14 of the Summary Offences Act [1981] PNGLR 50). The State therefore bears the burden of proving all the essential elements of the alleged offence beyond any reasonable doubt.
13. The burden of proving all essential elements of an offence emanates from the Constitutional protection pursuant to s 37 (4) (a) availed to all persons charged, where an accused was presumed innocent until proven guilty according to law.
14. Since all the accused maintained a complete denial of any involvement in the cause of death the State must prove that the accused murdered one Turlit Kawasi.
15. As to the defence of alibi it is a complete defence. It is not an excusatory defence like provocation, or self-defence. The law on the defence of alibi is as described by His Honour, Pratt J in John Jaminan –v- The State (NO. 2) [1983] PNGLR 318 as follows;
“Defence of alibi puts every matter in issue whereas other defences such as provocation, mistake or any other of the excusatory Defences concede the presence of the accused and his involvement in a series of events which led the final state of affairs giving rise to the charge. The excusatory defences are more like a confession and avoidance whereas the alibi is a complete negation.”
16. In the present case, if the defence of alibi fails the two accused will be left with nothing to fall back on.
17. The main issue for determination is whether each accused caused the death of Turlit Kawasi. Subsidiary to that issue is whether
the defence of alibi has been disproved.
18. In order to determine the two issues the evidence needs to be analysed.
EVIDENCE FOR THE STATE
19. The First and Second State witnesses gave evidence of being in the Police party that apprehended Turlit as an escapee and delivering him at the CS gate. They denied any resistance by Turlit nor any assault on Turlit during the raid.
20. Third State witness - Issac Hapman.
- The cousin brother of Turlit. Serving a sentence of 5 years when Turlit was brought in by Namatanai Police car. He was in the kitchen cooking his greens. He moved to the tool section and saw the following;
- Accused Felix Aerai told Turlit to do push ups and hit him with a fanbelt.
- Accused Nelson Tamar ran up from his residence and kicked Turlit on the head and side. He also used a vehicle spring to hit Turlit.
- Accused Lamasisi Marengi came in a white M/V and hit Turlit with a softball bat he usually carried around.
- Accused Eliuda Lisom hit Turlit on the side with a 2x2 plank.
- Officer Matere hit Turlit with iron rod for ringing bell
- Accused Paranis used buckline to hit Turlit
- Witness walked to the cell, hung on the wall and saw Turlit lie on the table.
- Matare hit Turlit on the left side of the head with an iron.
- Tried to get Turlit to shower when he died.
- Assault took one hour or so.
- Agreed 03 warders were on duty. Felix at gate, Paranis at reception and Gidion in the compound
- Denied as untrue that he was not qualified as low risk
21. Fourth State witness- James Simon Karapo
- Originally of East Sepik
- Serving 12 months- Usually worked at main gate area cleaning flower beds.
- Was at gate when M/V arrived and dropped off Turlit.
- Accused Felix Aerai did body search and told turlit to lie down in front of guardhouse and do push ups- Hit Turlit on the neck with an iron.He was about 10 meters from them.
- Accused Pranis and Awabe hit Turlit on the neck.
- Accused Nelson Tamar kicked Turlit with boot at the gate. Got same iron and hit Turlit on the left side of the rib area. Assault took 30 to 40 mins.
- Turlit ran slowly and sideways for 30 meters and fell near the office.
- Accused Pranis kicked Turlit again on left side.
- Inmates Hapman and Pella took Turlit to the shower.
- At main gate when inmates called for help.
- All accused known to him by name.
- Accused Felix had iron as big as his arm.
- Statement to police given 5 years after death.
- He was let out of the cell by Officer Matare (whereabouts unknown).
- Did not see what happened inside because of the fence.
22. Fifth State Witness – Pella Tabur
- Prisoner serving 18 years for incest. Brother to Turlit as their fathers were brothers.
- At kitchen baking wheat for prisoners when he saw M/V drop off Turlit.
- Moved to visiting area and saw Accused Felix Aerai tell Turlit to do push ups and hit him.
- Accused Pranis, Eliuda, Tomar and Awabe went and hit Turlit.
- Accused Eliuda Kicked Turlit on the side.
- Accused Tomar ran to the scene and kicked Turlit in the abdomen and head.
- Accused awabe and Paranis kicked Turlit on the rib side.
- Accused told Turlit to run and fell in front of accused Pranis.
- Pranis assaulted him again.
- Matare hit Turlit with a buck line at office and took him inside main compound.
- Left deceased at the shower and returned to continue baking.
- Turlit escaped two times from CS custody.
- Was regular lawnmower operator but Accused Lamasisi gave him kitchen work.
- Baking was from 8 am for next day’s meal.
- Prisoner Paul John was not cooking with him. Never saw him.
- Denied being coached by police.
23. Sixth State Witness – Sgt. Lynette Watah
- Her evidence was her conduct of the investigation five years after the death.
- Delay in investigation due to witnesses being scattered and others still in prison.
EVIDENCE FOR THE DEFENCE
24. First Defence witness - Felix Aerai (sworn)
- Corporal of 26 years with CS. Denied alleged assaults by CS officers.
- On 25 November 2010 was only one on duty at main gate of CS Kavieng
- Police M/V from Namatanai brought Turlit to gate by Policeman Willie Nongas and another and left quickly.
- Searched Turlit at guard house and noticed injuries and dried blood on face. Thought police assaulted him.
- Told Turlit to run to main office and remained at guard house. Ran lazily but normal.
- An hour later Turlit was assisted by others to hospital. Heard of death later that day.
- Accused Philip Pranis and Eliuda Lisom on duty in main office.
- Accused NelsonTomar at barracks due to appendix operation.
- Lamasisi Maringi at work parade at Fisheries College
- State witness Isaac Hapman – new high risk prisoner high and not allowed to come out of compound
- State witness Simon Karapo – new high risk prisoner and not allowed out of main compound. Separate classification. Not a cleaner. Cleaner was Steven Kapin
- State witness Pella Tabur – lawn mower operator. Not assigned to cook. Was cutting grass at barracks compound
- Did not see any of the State witnesses
- Cooking time was 8-9 am and eating time 12 noon
- Three State witnesses lied as they had prior knowledge of CS set up
- Low risk prisoners stay out and come later.
25. Second defence witness – Philip Pranis (sworn)
- Chief Inspector of CS was in office on 25 November 2010. Denied allegations against all accused. State witnesses lied and fabricated evidence to Court.
- Stood on porch of office and saw police M/V parked at gate and saw one person alight from M/V
- Saw bruises and cuts on face with blood
- Fell down exhausted. Kicked him and told him to go into the compound and returned to office
- Saw detainees surround someone and sought M/V to transport unconscious prisoner to hospital
- Called Accused Lamasisi Maringi with work-party and told him of death
- The relatives met with C/O on the need for a Coroner’s inquest but relatives preferred assistance with burial costs. K2, 000. 00 was given to the relatives
- Accused Felix Aerai manned the gate that day but could not see what happened there. Gate was 100 meters or so away.
- Turlit entered the CS gate with injuries
- Hit Turlit with a rope to get him to walk due to prior experiences of feigning and escape.
- State witness Hapman told untruths about assaults on Turlit. Only 03 CS officers were on duty then. Had served only four months and could not be allowed out of compound or given job as a cook. Usually after six months a new detainee is allowed out.
- Not true that he was cooking his greens. All boilers were in the compound to serve lunch
- State witness Simon Karapo was not the flower cleaner. Was to serve 8 months but had not reached period for classification as a drug dealer. The likelihood of permitting drugs into the CS was high if he was given such position as a flower cleaner. Cook jobs are given to older prisoners.
- State witness Pella Tabur was not baking wheat on day of incident. He was classified as low risk but could not be allowed outside work without escort. The other State witnesses were not classified.
- Lunch is cooked about 10 to 11 am and all boilers are used for the big population of detainees. Wheat was baked after lock-up at 4pm.
- Turlit had escaped two times but CS members were not angry about it.
26. Third defence witness – Eliuda Lisom (sworn)
- Corporal with 25 years of service in CS. In office on day of incident left at 1pm.
- Denied any involvement in alleged assault. Heard of incident after death occurred.
- State witnesses Isaac Hapman and Pella Tabur framed up their story that he and other CS officers assaulted Turlit with ands feet and objects.
27. Fourth Defence witness – Lamasisi Marengi (sworn)
- Inspector of CS and served CS 40 years. On 25 November 2010 was at Fisheries College with 10 prisoners building a stage for a school activity. Stayed at school till 4 pm. could not leave 10 prisoners with one guard as the ratio was 1warder to 5 prisoners.
- Heard of Turlit’s death at around 2pm from accused Philip pranis.
- Left CS after job distribution between 8 and 9 am in a blue Hyundai truck. Accused Felix Aerai was manning the main gate. Sgt Legum Eliakim was with him and the 10 prisoners at the College.
- Prisoner Steven Kapi cleaned the main gate area. State witness Simon Karapo lied about cleaning the gate area.
- State witness Isaac Hapman lied about him and others assault Turlit.
- Steven Kapi the usual cleaner at the gate was at gate area when they left for the College.
- Lunch for detainees provided by school so no need to return to CS for lunch. Did not return to CS till 4pm.
28. Fifth Defence witness – Eliakim Lekum (Alibi for 4th defence witness- sworn)
- Serving member of CS and 35 years’ service
- On 25 November 2010 was at Fisheries College with accused Lamasisi Marengi and 10 prisoners. Lunch was provided by the College. Returned at 4pm.
- Around 2pm CS people rang and informed them of Turlit’s death.
- Accused Lamasisi did not leave the College that day.
- Used a blue Hyundai vehicle and not white.
29. Sixth Defence witness – Nelson Tomar (sworn)
- Member of CS for 10 years. (known as Lightning)
- On 25 November 2010 was ill and in room at barracks. Stomach pains sustained from bumping a brace. Left hospital on 23 October 2010 and on medication. – Summary of discharge tendered by consent.
- Prescription by Dr after review
- Did not sprint from room to the gate as alleged. Not involved in any attack alleged.
- Room at the back and cannot hear what happens in the compound area.
- Inmates allowed out of compound through classification Manuel
- He was one of the CS members who escorted Turlit to a thanksgiving when the escape occurred.
- Resumed duties one month after discharge from hospital.
30. Seventh Defence witness – Kolis Tomar (Alibi for accused Nelson Tomar- sworn)
- In 2010 was with brother Nelson Tomar at CS barracks Kavieng
- Assisted Nelson Tomar as he could not walk due to abdominal pains. He took medicines regularly.
- Accused nelson Tomar did not involve himself in assault of any inmate.
31. Eighth Defence witness – John Paul (sworn)
- Former inmate at CS Kavieng. Convicted for assault by the Grade Five Court on 09 November 2010 and released on 11 August 2011.
- On 25 November 2009 was cooking. It was his regular work in jail.
- Saw police vehicle drop off Turlit and two others named as Philip and Steven Kapin.
- Turlit ran to the office like a drunk. Routine is that inmates are told to do push-ups and sometimes assaulted by CS members.
- Could not tell condition of deceased as he was too far from gate.
- Could not see what happened at the gate as a container blocked his view from the kitchen.
- Seven detainees including himself cooked rice for lunch. (Named some). Three boilers for rice and one for vegetables.
- State witness Pella Tabur not cooking wheat from 8am to time when Turlit was brought in by police. Wheat for next day is cooked after 4pm in the same boilers.
- State witness Issac Hapman was a high risk inmate and not allowed to cook in the kitchen
- He was medium risk classification.
- Turlit was not attacked by CS officers
- Prisoner Steven Kapin was also at the gate when Turlit was brought in. Steven Kapin died last year
- Knew of Turlit’s death in CS but did not see how he died. Only death during his time as detainee. Called as witness so came and testified
- Lock-up is done at 4pm each day. Only cooks for wheat are allowed into the kitchen to prepare wheat for next day which took 2 hours
- Only saw Turlit run from gate to main office which takes about five minutes.
Submission for the defence
32. For the defence it was submitted that a verdict of not guilty should be returned as there were doubts in the evidence by the State. The State evidence was that police captured Turlit in a dawn raid and brought to the CS without any injury. Career CS officers were blamed of assault.
33. The question was who should be believed.
34. The evidence for the State were by ex-prisoners against career officers of the CS. The evidence of the former prisoners should not be believed.
35. Their evidence were either exaggerated, inconsistent, a total mismatch and unbelievable. CS Officers were alleged of committing different acts and there was a lack of consistency in the evidence.
36. State Witness Isaac Hapman’s evidence was exaggerated. He was not present at the alleged scene. He was a new prisoner of 4 months and not classified yet. He could not be allowed in the kitchen. In his evidence he seemed to place himself all over the CS. He described the attack as very vicious and for one hour which was not consistent with the medical report of a ruptured spleen which could have happened prior to Turlit being brought CS.
37. His allegation against accused Lamasisi and accused Tamar were not established. The State failed to disprove their alibi that Lamasisi was at a work party and Tamar was sick and in the barracks.
38. As to the evidence of State witness Pella Tabur his evidence should be disregarded. His evidence of cooking at 8 am was an unusual time. He was a lawn mower man and not a cook. He was a convicted prisoner and framed evidence to protect himself. He was also related to the deceased and had a motive to lie.
39. The evidence of State witness Simon Karapo was not believable. His evidence should also be disregarded. He was a convicted drug dealer and could not be given work at the gate to prevent drug import into the CS.
Submissions for the State
40. It was the submission for the State that a verdict of guilty should be returned for each accused. The State witnesses had provided reliable and credible evidence to prove the offence charged.
41. State witnesses William Nangas and Jimmy Buki were credible. They stood firm during their evidence that Turlit was not assaulted by police during his capture which was corroborated by the other state witnesses.
42. The evidence of State witnesses Hapman, Karapo and Pella Tabu were credible and logical.
43. They were adamant of their presence and witnessed the assaults. They gave evidence as eye witnesses. They should be believed as witnesses of truth.
44. As for the evidence of the accused they were largely self-serving, illogical and nonsensical.
45. They referred to the failure by the CS to refer the matter for a Coronial inquest as covering up their wrongs. They also referred to Turlit as being injured but instructed to run to the main office and whipping him made no sense.
46. The alibi evidence by accused Lamasisi Marengi and Nelson Tomar were not credible. Nelson Tomar had the strongest motive to assault Turlit because the first escape occurred under his watch. He was not sick as he had been discharged a month earlier. His alibi was coached into saying what he said.
47. The alibi evidence of Lamasisi Maringi was also not credible. His alibi was clearly there to support his colleague.
48. In all it was submitted that the credibility of the accused were lacking as they had a motive to lie. The accused as CS officers never complied with the classification procedures and were in breach of some of the rules.
49. This is a bad case. Bad in the sense that it had taken 5 years for the Police to lay charges against the accused. Police had powers in their investigative roles to conduct immediate investigation and take appropriate steps. The reason of inmates serving sentences in prison was a lame excuse.
50. The Correctional Service Act under s 99 (1) authorised such detainees to be made available for Court attendance and inquiries which included police investigations.
51. There was nothing preventing the police from investigating and interviewing detainees when the matter was fresh. They could have obtained as exhibits the various objects referred to by State witnesses had the investigation been conducted when the matter was fresh. That seems to be the reason why no exhibit was tendered at trial.
52. The State has relied heavily on oral evidence by three former inmates. Police had failed in their roles and responsibilities. That failure is apparent in the case presented by the State.
53. It is also apparent that no Coronial Inquest was held. It is unclear whether the CS or the Police gave any information of the death to the Coroner. It is a requirement under s 9 (1) & (2) of the Coroners Act for the CS Commander as the person under whose custody the death occurred and Police as the forefront investigator over deaths to give information of the death to the Coroner.
54. The Coroner then decides from that initial information whether an inquest ought to be held or not. There is no requirement for a formal request to be made to a Coroner for an inquest. There are standard forms prescribed in the Act to cater for such information to be given. This was completely lacking from both police and CS.
55. The evidence in the present case is generally in two parts. On the one part is the evidence for the State that the accused were each and severally involved in the assault of Turlit Kumasi which led to his death.
56. On the other part is the evidence for the defence that the accused did not assault the deceased prior to his death.
57. The following facts are generally not in dispute. Turlit died in CS custody. He was a prison escapee. Three State witnesses were members of the Constabulary. Three other State witnesses were former inmates who were in the CS at the time of death. It is also apparent that the three former inmates were purported eye-witnesses for the State.
58. State witnesses Issac Hapman and Pela Tabu were also close relatives of the deceased.
59. Also not in dispute is that there is a classification procedure at the CS for incoming and outgoing detainees. It is safe to assume that allocation of duties for inmates is done by the CS officers in line with the classification procedure and is not a choice available to detainees. The job of being a cook or a grass-cutter or outside work are allocated by the CS and not done through the choice of detainees.
60. Furthermore and not in dispute is the Doctor’s report and the findings on the cause of death.
61. Also not in dispute is that all the accused were serving CS members with varying ranks. Except for accused Nelson Tomar all accused were on duty at various locations on that fateful day.
62. The three State witnesses were serving time in the CS and were no strangers to the accused. It is evident from their identification of each accused at the trial.
63. They were also well versed with the routine practices and procedures at the CS. One obvious routine practice referred to by a number of witnesses was that a recaptured escapee was subject to a body search and ordered to do push ups. They were even assaulted by CS personnel. An inmate would assume this even without seeing it happen.
64. From the total evidence it boils down to who is to be believed.
65. Since the State bears the burden of proof, it requires an assessment of the evidence for the State, the credibility of the State witnesses and the weight to be placed on each State witness’s evidence.
66. The defence is not required to disprove anything the State alleges. They are entitled to remain mute. However, in the present case each accused chose to give sworn evidence denying the allegations and rebutting some of the evidence of the state witnesses. Whether their evidence is nonsensical, self-serving or illogical is dependent more on whether the State has established its case to the required standard; usually being beyond reasonable doubt. They are also entitled to the benefit of doubt on any issue arising from the State’s case.
SGT WILLIAM NANGAS & SC JIMMY BUKI
67. They were the first two witnesses for the State. They are policemen who gave evidence of their arrest and conveyance of Turlit from Namatanai to the CS main gate.
68. Their only evidence related to the present case is that Turlit did not resist arrest and was brought in unharmed. The alleged assaults did not occur in their presence.
SGT WATAH
69. She gave evidence of how she was tasked to deal with the case after a long delay and the charges she laid against the accused after her investigations. It is apparent she could not provide any exhibits to corroborate the evidence given by State witnesses due to failures by those who had carriage of the case five years earlier. How hard she tried she could not possibly collate them five years later. It has a strong bearing on the case for the State.
Isaac Hapman
70. The evidence of State witness Issac Hapman is that he was cooking his greens in the kitchen when Turlit was brought to the CS gate by police. He moved to the tool section and saw the various assaults and activities referred to earlier in his evidence.
71. As to his evidence of cooking his own greens the question that arises is whether any detainee in the CS could cook his own meal anytime he chose? There is no evidence that that practice was allowed in the CS. There is no evidence that he was even tasked to cook in the kitchen. The only inference to be drawn from his evidence is that he invented the story to place him at the crime scene. It would give great credibility to his evidence of seeing the assaults.
72. Without placing him in the kitchen area he would not convince anyone that he was an eye-witness and his evidence would be baseless.
73. The evidence by the defence witnesses Felix Aerai and Philip Pranis stated that Issac Hapman was a new prisoner and not allowed to come out of the compound. This was corroborated in the evidence of former prisoner John Paul who said that the prisoner was a new inmate and could not be engaged to cook in the kitchen. The corroborated evidence by the defence witnesses creates a strong doubt as to whether this State witness was actually telling the truth about his location and observations made therefrom on the day of the incident.
74. His evidence that he moved to the tool shed is obvious. It was common knowledge that one could not see from the kitchen as a container lay between the kitchen and the main gate.
75. That was evident to the Court when the Court party visited the alleged crime scene in the CS. His evidence of seeing the assaults had to be made plausible to be believable.
76. He would not have been believed had he said he saw the assaults from the kitchen. This in my view was a carefully manufactured situation created only to suit his evidence.
77. Then there is the evidence of State witnesses Pella Tabur and James Simon Karapo who stated that when Turlit entered the compound Gidieon Sirigin and State witness Isaac Hapman took Turlit to the shower. He himself confirmed that he and Pella took Turlit to the shower.
78. There is no evidence of how Hapman could be at the kitchen and inside the compound at the same time. The distance between the kitchen and the compound gate was nearly 100 meters away.
79. The evidence of State witnesses Pella Tabu and James Simon Karapo conflicts with Hapman’s evidence that he was at the kitchen cooking his greens which renders Hapman’s testimony as manufactured and totally untrue. His evidence in total cannot be believed under such circumstance.
80. His other evidence that stood alone was that accused Lamasisi Marengi drove into the main gate in a white M/V. That is not supported in evidence by any witness from either side. That evidence was countered by accused Lamasisi Marengi and witness Eliakim Lekum that they used a blue M/V. It is safe to infer that State witness Isaac Hapman described the colour from his prior knowledge of seeing accused Lamasisi drive a white M/V rather than what he allegedly saw.
81. Also alone is his evidence of seeing Matare hit Turlit with the iron for ringing the bell. He had prior knowledge of the iron used for ringing the bell hence it was not difficult to link it to his evidence. There is no evidence to corroborate this piece of evidence.
82. He further gave evidence of seeing accused Paranis use a buck line to assault Turlit. That is contrary to the evidence of State witness Pella Tabur who identified CS officer Matare as the one who hit Turlit with a buck line. This is a mismatch in evidence on the part of the State. The veracity of the evidence by the State witnesses are brought into serious doubt.
83. There is a clear indication that his evidence did not constitute of what he actually saw. Instead he recited what was common knowledge and his own prior knowledge to make his story credible and believable.
84. Doubts are present as to the authenticity and truthfulness of the evidence by this witness. I have no doubt that he had a motive to make up the story. His cousin brother had died in the CS. His total evidence is rejected as largely invented and without substance.
James Simon Karapo
85. The evidence of this was that he was cleaning flower beds next to the main gate which he said was his usual task when accused Felix Aerai directed Turlit to do push-ups and further hit on the back of his neck with an iron rod.
86. CS officers Pranis and Hewabe were at the visiting house. Hewabe used the same iron rod to hit Turlit on the back of the neck. Accused Nelson Tomar ran to the gate and kicked Turlit on the face and then got the iron rod and hit Turlit on the left side of the rib area.
87. He identified accused Felix Aerai, Philip Pranis and Nelson Tomar as the ones who assaulted Turlit. He further added that he was 10 meters or so from the scene of the assault. According to him it took 30 to 40 minutes to assault Turlit. There is allegation that 7 CS members assaulted Turlit. He placed himself in a perfect location to see all the assailants yet he was only able to see three accused assault Turlit.
88. His evidence is not consistent with the evidence of State witnesses Issac Hapman who had moved to the tool section to see accused Lamasisi Marengi driving into the main gate and assaulting Turlit with a baseball bat.
89. The question is if he was truly at the gate area and observed clearly the alleged assaults then how is it that he made no mention of accused Lamasisi Marengi? It is safe to infer that he did not see Marengi because he was not at the gate area as alleged or that he made up the story that he was at the gate area. Conversely it is also possible that Issac Hapman framed the allegation against accused Lamasisi Marengi.
90. The evidence of this State witness indirectly supports the defence of alibi for accused Lamasisi Marengi.
91. His other evidence is that when Turlit entered the compound State witnesses Pella Tabur and Isaac Hapman washed the blood on Turlit. If that evidence has any truth then it is safe to infer that this witness was not at the CS gate but inside the compound. It also goes to affirm that State witnesses Pella Tabur and Isaac Hapman were also in the compound and not at the kitchen.
92. It is 100 meters or so from the main gate and kitchen area to the compound gate and one would have to follow Turlit that long distance to justify their being at the two locations. There is no evidence from the three State witnesses that that happened. It seems the witnesses just placed themselves at locations to suit their evidence only.
93. Then there is the opposing evidence of accused Philip Pranis who stated that the State witness Karapo was to serve 8 months for drug related offences and that type of person was not allowed out to prevent importation of drugs into the CS; that flower cleaning jobs were given to older inmates and not active prisoners.
94. In my view the defence evidence has merit. Detainees are allocated duties according to the classification guidelines and the evidence that the State witness could not be given flower cleaning job makes a lot of sense.
95. Apart from his utterances there is no evidence that the State witness was given the duties of cleaning the flower beds at the CS gate. His evidence that his usual task was cleaning flower bed at the main gate has no basis.
96. Owing to the findings against him in respect of his job allocation, the inconsistency in his evidence with the evidence of the Issac Hapman over accused Lamasisi Maringi and his presence at the compound when Turlit was brought in, the inference to be drawn is that he was not at the gate area. It is concluded that he manufactured the evidence of seeing the alleged assault on Turlit.
97. The whole evidence of the State witness James Simon Karapo is all over the place and not corroborated in any material particular and is rejected as recent inventions without any substance.
Pella Tabur
98. He was a prisoner serving 18 years for incest. He was a brother to Turlit as their fathers were brothers. His evidence was that he was at the kitchen baking wheat whole day commencing 8 am. What he allegedly saw have been highlighted in his evidence earlier in this decision.
99. His evidence of baking wheat whole day has no support from any of the State witnesses. State witness Issac Hapman was cooking his greens in the kitchen that same day that this witness was baking bread. There is only one kitchen in the CS and they ought to have been together.
100. However, in their evidence there is no mention of the other being in the kitchen. They gave evidence as if they were working alone in the kitchen. It raises serious doubts as to whether these two witnesses were telling the truth of their location when they purportedly saw the alleged assaults.
101. His evidence on baking wheat has been opposed in the evidence of accused Felix Aerai, Philip Pranis, and former inmate John Paul. They said he was a lawn mower operator cutting grass in the barracks area. It was also their evidence that wheat was baked after 4pm each day as the boilers were used to cook lunch in the daytime.
102. The defence evidence makes a lot of sense and is more believable than the evidence by this witness that wheat baking took a whole day from 8am. In my view the evidence that he was baking wheat whole day was manufactured to give credibility to his other evidence of what he allegedly saw.
103. His evidence on the use of the buck line conflicts with the evidence of State witness Issac Hapman where two separate persons were named as using the buck line to assault Turlit. It borders on an untruth. His evidence is therefore rejected as manufactured and lacking in credibility.
104. The evidence of the three State witnesses have been rejected as manufactured and not credible or admissible. They are in total far from the truth. They placed themselves at a convenient location to frame up a story that they did not actually see. Most of their evidence consist of what they already knew and heard coupled with the usual occurrences at the CS. Not what they actually saw.
105. It is not easy to comprehend whether it was a mere coincidence that two close relatives of the deceased were in the kitchen at the same time that Turlit was brought in. In their evidence this situation did not receive any attention at all. They gave differing accounts of what they purportedly saw. There is a lack of consistency in their evidence. Their presence and evidence from their locations was crucial in the State’s case. A failure to give evidence that was consistent was fatal to the State’s case.
106. Their evidence of seeing the accused assaulting Turlit falls into disarray with the inconsistencies, and the deficiencies already found therein. I can safely conclude that they were motivated by the death of the late Turlit to deceitfully place themselves in front of an alleged crime scene and frame up a story.
107. Having rejected the evidence of the three former detainees as inventions without substance it follows therefore that the State has not proved to the required standard that the accused each and severally assaulted the deceased.
108. In view of the determination of the first issue it is not necessary to deal with the issue of alibi.
109. Under the circumstances of this case it would be unsafe for this Court to convict the accused of the charges laid against them.
110. A verdict of Not Guilty is returned for each accused.
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Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defence
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