State v Lare [2019] PGNC 130; N7851 (10 May 2019)

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CR Nos. 1043, 1044, 1045, 1047, 1048, 1050, 1051, 1052, 1053, 1054, 1055, 1056, 1057, 1059, 1060, 1061, 1062 and 1063 OF 2016

WILLIAM LARE, CAMILUS MARKUS, ALWINUS EMIL, FRANCIS SUANG, NATHAN THOMAS, ALPHONSE LARE, NERIUS KUANG JRN, BLASIUS JOHN, NATHANIEL KENMI, JOSHUA BRUNO, KALUBAN CASPAR, PASKALIS LARE, BART TALSISIUS, JAMES OSCAR, BRIAN BURE, BONIFACE RAPHAEL, BERRY BRUNO and JONAH BRUNO

CRIMINAL LAW – Application – no case to answer – whether all, some or any of the 18 defendants have cases to answer for the two (2) counts of wilful murder – identification – whether there are evidence identifying all, some or any of the defendants to be trialled for wilful murders – whether the circumstantial evidence sufficiently provides for each of the elements of wilful murder - whether primary evidence disclosed by the State, if considered at their highest, would be sufficient to convict all, some, or any of the 18 defendants

State v. Henry Toliu (2011) N4237
State v. Roka Pep (No. 2) [1983] PNGLR 287
State v.Tom Tomugal (2016) N6329
State v. Titila Tomur (2017) N6798

1. ANIS J: The defence made a no case to answer application on 23 April 2019. I reserved my ruling thereafter to today at 1:30pm.

3. On 4 April 2019, the 18 defendants were indicted on two (2) counts of wilful murder in relation to the deaths of Bernard Mursing and Ereman Kle. The defendants are all accused of committing the offences on 20 January 2016, at Mak village which is situated at Sinivit Local Level Government at Pomio District in East New Britain.

4. In the morning of that day, it is alleged that the defendants, with other members of their village called Merai (who are also referred to as the Bainings), attacked another village called Mak which is also situated in a nearby location. It is alleged that the attack was well planned and executed by the Bainings of Merai village. It is alleged that during the attack, the defendants with others, wilfully murdered the two (2) deceased by chopping them up with bush knives, spears or by using sharp objects.

5. The issues are, (i), whether the State failed to identify the principal offenders, (ii) whether the State failed to adduced evidence to establish the elements of wilful murder for the two (2) counts alleged against the defendants, and, (iii), in the event that the Court finds evidence that establish the elements of the offences, whether the circumstantial evidence were insufficient and therefore the Court should exercise its discretionary power and dismiss the wilful murder charges against the defendants and stop the proceedings.

6. The State, in its preliminary reply, informs the Court that four (4) out of the 18 defendants have not been identified by its witnesses. These defendants are (i), Francis Suang, (ii), Blasius John, (iii), Bart Talcicius and (iv), James Oscar (the 4 defendants). The State tends to concede that these witnesses appear to have no cases to answer. I must say that I had obtained no assistance from the defence counsel on the subject matter. Before Ms Batil presented her reply to the no case to answer application, I had inquired with Mr Paisat whether all the 18 defendants have been identified by the State witnesses. Mr Paisat, however, did not identify or name the 4 defendants. I find counsel’s lack of assistance in this regard very concerning given the fact that this was his clients’ application.

7. That said, let me say this. I have considered the State evidence. In so doing, I confirm the State’s position concerning the 4 defendants. I concur and find that the 4 defendants have not been identified by any of the State witnesses. I will therefore partly uphold the no case to answer application, that is, in relation to the 4 defendants. But before I do so, let me now consider whether the other defendants, namely, William Lare, Camilus Markus, Alwinus Emil, Nathan Thomas, Alphonse Lare, Nerius Kuang Jr, Nathaniel Kenmi, Joshua Bruno, Kaluban Casper, Paskalis Lare, Brian Bure, Boniface Raphael, Berry Bruno and Jonah Bruno (the 14 defendants) should also be discharged because they do not have a case to answer.

8. The 14 defendants remain charged with 2 counts of wilful murder under section 299 of the Criminal Code Act Chapter No. 262 (Criminal Code Act). The elements of wilful murder are settled, and they are, (i) a person killed the deceased, (ii), the killing was unlawful and (iii), there was an intention to cause the death of the deceased. See cases: State v. Henry Toliu (2011) N4237 and State v. Titila Tomur (2017) N6798.

9. The State has also invoked sections 7 and 8 of the Criminal Code. I will come to deal with these provisions separately below.

10. The defence rely on both limbs or tests in their no case to answer application. The case law is settled on this. In this case, I refer to and adopt what was held in the case State v. Roka Pep (No. 2) [1983] PNGLR 287. The Supreme Court held, and I quote in part:

(By Kidu CJ Kapi DCJ Andrew and Kaputin JJ) Where in criminal proceedings at the close of the case for the prosecution, there is a submission of no case to answer, the matter is a question of law for the judge as a tribunal of law; the test is whether the evidence supports the essential elements of the offence.

Where the tribunal decides there is no case to answer the accused is acquitted and that is the end of the matter.

Where the tribunal decides there is a case to answer, it nevertheless has a discretion to stop a case at the close of all the evidence in appropriate circumstances; this discretion is exercisable where there is a mere scintilla of evidence and where the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it.

11. I will also adopt herein what I have said, in relation to the Court’s role when dealing with this type of application, in the case State v.Tom Tomugal (2016) N6329. I quote at paragraph 12 therein, as follows:

(ii) Review the prosecution's evidence taking into account what had transpired during examination in chief, cross-examination and re-examination together with the evidence tendered without objection or evidence tendered by consent, and then consider as a matter of law whether there is evidence that supports each element of the offence (first limb).

(iii) If one or more of the elements of the offence does not have evidence supporting it, the Court must uphold the no case to answer submission and acquit the accused (first limb).

(iv) If there is evidence supporting each of the elements of the offence generally, the next consideration again as a matter of law is whether the evidence is insufficient or is tenuous. Matters such as credibility, inconsistency and weighing of evidence are irrelevant. The presiding judge must ask himself or herself this hypothetical question: Could a judge of fact, considering the prosecution's evidence at its highest and as accurate, convict the accused? If the answer is 'yes', the Court should allow the trial to continue. If the answer is 'no', the Court may exercise its discretion and stop the trial (second limb).

(v) The Court's power under the second limb is discretionary. This means that even after the Court finds insufficient evidence on the elements of the offence it may nevertheless order the trial to continue (second limb).

12. The defence raise an argument of law in relation to sections 7 and 8 of the Criminal Code Act. Counsel submits that because there was no actual evidence adduced of the principal offender(s), none of the defendants can be held liable or be captured under sections 7 and 8. As such, the defence submit that there is no basis for the case to continue and that the no case to answer application should be granted.

13. The State submits otherwise. It says its evidence are circumstantial. It says no one actually saw which defendant(s) chopped or killed the two (2) deceased. However, it submits that some of the defendants were identified at the two (2) crime scenes by its witnesses. It submits that, if not all, some of the defendants were principal offenders, who, together with the others, have aided each other in the killings. That is why, the State submits, it has invoked sections 7 and 8 of the Criminal Code, that is, to capture those defendants who may not have been directly involved in the killings.

14. In my view, I find the argument by the defence to be partially misconceived. I uphold the State’s submission that its evidence are circumstantial. And for the application that is before me, what I am simply required to do is to consider the circumstantial evidence and then make a ruling that is based on the required considerations. I will get to deal with the required considerations in the next sub-heading. If I determine that the circumstantial evidence, which will have been assessed at their highest value, do not show who the possible principal offenders are, then I may be inclined to stop the proceeding.

16. The State tendered a total of 32 exhibits, and it called a total of nine (9) witnesses. The adduced facts, based on State evidence, may be summarised as follows. In the morning of 20 January 2016, at about 6am, armed men from Merai village, painted with facial body paints and traditional attires, conducted an attack at Mak village in Sinivit LLG at Pomio District in East New Britain. These men, including the 14 defendants, were armed with weapons such as bush-knives, stones, sticks or clubs, sling-shots and spears. The incident was well planned, and it was a deliberate attack. Tendered confessional statements show that the attack was a retaliated attack by the Baining people living in Merai village. People from Mak village had in the past been harassing the Bainings on the main road. The Bainings of Merai village said they had had enough of the harassments which was why they had planned the attack. The people from Mak village were caught-off by surprise that morning and they fled for their lives into the nearby bushes. Immediately after the attack, it was discovered that two (2) people from Mak village had died. The first deceased was Bernard Mursing. Evidence adduced by witnesses show that deceased Bernard Mursing was inside his house at Mak village that morning when the Merai people attacked. Shortly after the attack, he was found dead inside his house. At the time of the attack, witness Jacob Stanley was next to deceased Bernard Mursing’s house. He identified defendants Alphonse Lare, Camilus Markus, William Lare, Alwinus Emil, Paskalis Lare and a person by the first name Cosmas, as persons who were armed with weapons and who were at the first crime scene during the attack that morning. Tendered medical report shows that deceased Bernard Mursing was chopped all over his body, particularly on both his upper and lower limbs. The report concluded that the deceased died from cardiorespiratory arrest due to massive haemorrhage from knife wounds.

17. The second deceased person was Ereman Kle. Evidence adduced show that he was alive at Mak village that morning before he was killed in the attack. State witness Matius Leo said he and Ereman Kle were together at Mak village in a house called the haus boi (kitchen or worker’s rest house) which was next to the beach that morning on 20 January 2016. He said he had just left Ereman Kle and had gone done to the beach to relieve himself. He said when he returned to where Ereman Kle was, which was the second crime scene, he met the attackers there and they chased him. He said he ran towards Bernard Mursing’s house. He said the attackers captured him. He said others ran down to cut him with knives that they held. He said they however decided to spare his life after five (5) of the attackers identified him as a person they knew. He said they told the others not to hurt him. He identified the attackers as (i), Barry Bruno, (ii), Joshua Bruno, (iii), Florian, (iv), Sammy and (v), Kenneth. He said when the attackers left him, he ran back to the haus boi where he saw Ereman Kle’s dead and chopped up body. Tendered medical report shows that deceased Ereman Kle was also chopped all over his body, particularly on his head and limbs. Regarding his limbs, his left arm and left leg were amputated. The report concluded that he died of cardiorespiratory arrest due to massive haemorrhage from knife wounds.

18. The identity of the 14 remaining defendants is relevant for this purpose. Have they all been identified by the State witnesses, I ask myself? Well, some of them have been identified by two (2) of the State witnesses at paragraphs 16 and 17 above in my decision. Let me say this. This is not the time for me to lay out completely and address in detail what every State witness has said or seen. Having considered each of the State witnesses’ testimonies and the tendered exhibits, let me summarise in a table format the State evidence that identifies each of the 14 defendants, as follows:

No	The 14 defendants	Identified by whom?
1	William Lare	Identified by Jacob Stanley; identified by Henry Clement; identified by Jacinta Lucas; identified by Margaret Bernard
2	Camilus Markus	Identified by Jacob Stanley; Identified by Henry Clement
3	Alwinus Emil	Identified by Jacob Stanley; identified by Henry Clement; Identified by Langerius Kape; identified by Margaret Bernard
4	Nathan Thomas	Identified by Bosco Kuta; identified through confessional statement he gave
5	Alphonse Lare	Identified by Henry Clement
6	Nerius Kuang Jr	Identified through confessional statement he gave
7	Nathaniel Kenmi	Identified by Henry Clement
8	Joshua Bruno	Identified by Langerius Kape; identified by Matias Leo; identified by Margaret Bernard
9	Kaluban Caspar	Identified through confessional statement he gave
10	Paskalis Lare	Identified by Jacob Stanley; identified by Henry Clement; identified by Jacinta Lucas
11	Brian Bure	Identified by Margaret Bernard
12	Boniface Raphael	Identified by Henry Clement
13	Berry Bruno	Identified by Langerius Kape; Identified by Matias Leo; identified by Margaret Bernard
14	Jonah Bruno	Identified by Margaret Bernard

19. Of the 14 defendants, two (2) of them, namely, Kaluban Casper and Nerius Kunag Jr have identified themselves to be at the vicinity of the crime scenes with the others at the material time in their confessional statements. Both confessional statements have been tendered and are marked as exhibits P31 and P32 respectively. Defendant Nathan Thomas also gave a confessional statement of him being at the crime scene area, that is, in addition to him being identified by State witness Bosco Kuta. His confessional statement is marked as Exhibit 30. The confessional statements reveal that the Merai people were upset that they had been harassed by the people from Mak village which was why they had decided to plan and execute their attack on Mak village that morning on 20 January 2016. They also confirmed the two (2) deaths at Mak village as a result of their attack.

20. The next thing to do now, in my view, is to consider whether based on the State case, there is evidence that supports each of the elements of the offence wilful murder. My views are as follows. Firstly, I see evidence of identification of the 14 defendants at the two (2) crime scenes or at the vicinity of the two (2) crime scenes at the material time and place as alleged in the indictment. Secondly, I also see circumstantial evidence that show that the 14 defendants had participated or had aided each other together with other unidentified persons from their village, Merai village, in regard to the killing of the two (2) deceased, namely, Bernard Mursing and Ereman Kle, in the morning of 20 January 2016. The evidence adduced also show that the killings, if proven, would be regarded as unlawful.

21. And finally, I ask myself this. Are there evidence adduced which show that the 14 defendants with other unidentified Merai persons had intended to cause the deaths of the two (2) deceased? In my view, I would say, “yes, there are evidence adduced to that effect.” State evidence show that it was a planned attack by the Merai people which included the 14 defendants. They carried weapons, painted their faces with body paints and dressed themselves in traditional attires, before the attack. They travelled in groups and they arrived there at Mak village at around 6am on 20 January 2016, where everyone from the village were caught unaware. And they attacked together in groups. During the attack, other members of their groups were told to remain on guard at the main road. After the incident, and I refer to the testimony of Senior CID Officer Aiyofa Faregere, the Merai people organised themselves where they set-up a barricade to the road that leads into their village. They put up armed guards there to mend the barricade. Police who attended the scene were initially prevented from entering the Merai village in the aftermath. Police had to negotiate with the Merai people before they were allowed access to their village. The other evidence were the medical reports and post mortem reports of the two (2) deceased. They are marked as exhibits P7, P8, P9 and P10. Evidence of the two (2) deceased being killed by multiple lacerations and chopping of their various body limbs, to me, shows the intentions of the persons that had attacked them. These persons included the 14 defendants who have been identified as present at the crime scenes at the material time.

22. Let me remind myself that the evidence as I have summarised above are all based on what has been presented by the State, and they are being considered at their highest. See case: State v. Roka Pep (supra). The State evidence consist of primary facts that have not been subjected to the tests of consistency, accuracy, credibility or to the question of how much weight should be given to each of the evidence, and to other possible rebuttal evidence that the defence may produce.

23. What the State evidence show for now and for this purpose, is that the 14 defendants have cases to answer in relation to the two (2) counts of wilful murder that are laid against them.

24. In summary, I find evidence that supports each of the elements of wilful murder for the two (2) counts, as stated in the indictment, against the 14 defendants. I do not find the State evidence tenuous. When I consider the circumstantial evidence, I am satisfied that the 14 defendants have cases to answer.

25. I will not dismiss the charges against the 14 defendants. Their trial, in my view, must continue.

26. In relation to the 4 defendants, namely, Francis Suang, Blasius John, Bart Talcicius and James Oscar, I dismiss the charges against each of them, that is, for the two (2) counts of wilful murder in relation to the deaths of Bernard Mursing and Ereman Kle, at Mak village in the morning of 20 January 2016.

27. I note that the 4 defendants also face two (2) other pending indictments, namely attempted to unlawfully kill one Patrick Tentau, and nine (9) counts of wilfully and unlawfully setting fire to dwelling houses of various family members of Mak village. The two (2) indictments for these charges were also presented on 4 April 2019. The prosecution in this case has opted to firstly deal with the indictment for wilful murder first in time. I will therefore order that the 4 defendants shall remain on bail and continue to observe their bail conditions. I will also order that they shall appear at the next call-over in June of 2019 at the National Court in Kokopo to be informed of when the State will prosecute the two (2) pending indictments.
ORDERS OF THE COURT

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Office of the Public Prosecutor: Lawyers for the State
Daniels & Associates: Lawyers: Lawyers for the 18 Defendants

National Court of Papua New Guinea

State v Lare [2019] PGNC 130; N7851 (10 May 2019)