State v Orosota [2019] PGNC 66; N7794 (20 February 2019)

N7794

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1406 of 2014

STATE

V

SELWIN OROSOTA

Lorengau: Gora AJ
2018: 3^rd, 5^th & 6^th July
2019: 20^th February

CRIMINAL LAW – Practice and Procedure – Charge of Murder changed to Manslaughter – Accused part of group of police officers involved – Accused charge separated from other co-accused – All co-accused discharged on No Case to Answer submission- State invoked Section 7 of Criminal Code.

CRIMINAL LAW – Evidence of key witnesses inconsistent – Evidence of other witness shows no involvement of accused – Unsafe to convict on inconsistent evidence – Verdict of not guilty.

Cases Cited

Nil
Counsel

Mr. Pondros Kaluwin, for the State
Mr. Luke Siminji, for the Defendant

JUDGEMENT ON VERDICT

20^th February, 2019

1. GORA AJ: INTRODUCTION: This is a judgment on verdict. Accused Selwin Orosota is currently a serving police officer. He was initially charged with one count of murder pursuant to Section 300 of the Criminal Code. However the public prosecutor indicted him on charge of one count of Manslaughter under Section 302 of the Criminal Code largely due to the circumstances of the case. He is alleged to have committed the offence whilst in the course of his duties. He pleaded not guilty to the charge.
   
2. He was initially charged for murder with other co- accused police officers namely Francis Lamei, Mark Moina, Alex Aring and Aipe Gele, all members of the Police Mobile Squad Unit One (MS 1). However his charge was separated from others. His co – accused’s were trialed separately by my brother Justice Geita and subsequently discharged after a NO CASE TO ANSWER submission was upheld.
   
3. Accused pleaded not guilty to the Indictment which is in the following terms:

“SELWIN OROSOTA of KIKINONDA VILLAGE, SOHE, NORTHERN PROVINCE stands charged that he on the 13^th day of July, 2013 at LORENGAU in Papua New Guinea unlawfully killed one RAYMOND SIPAHUN JUNIOR.’’

4. State also invoked Section 7 of the Criminal Code.
   

BRIEF FACTS

5. Brief facts are that on Saturday 13^th of July 2013 between 7.30 am and 11.30 am, the accused namely Selwin Orosota and other members of the police Mobile Squad Unit One (MS 1) were in Lorengau town.
   
6. Accused was attached to the National Capital District Dog Unit and was part of the MS 1 and Dog Unit Contingent deployed to Manus Province for Asylum Seekers security operations directed by the Police Commissioner.
   
7. On Saturday 13^th July 2013 the Manus Provincial Police Commander made a request to the Contingent Commander for his men to assist the local police with providing security during the Local Level Government Elections in the province.
   
8. It is alleged that on that day between 7:00am and 8:00am the councilor of Ward 3 in the Lorengau Urban LLG Mr. Len Thomas and one Lawes Maiah were travelling in a vehicle to Lorengau town when they were sworn at by a drunkard later identified as Raymond Sipahun Junior, now deceased. They stopped the vehicle and tried to apprehend him but he escaped. At around the same time the members of the police contingent sighted him and apprehended him and took him to Lorengau police station.
   
9. At the police station he (Raymond Sipahun Junior) escaped and went to Ward seven (7) where he threatened a policewoman, Probationary Constable Barbara Leslie and said he will get all police one by one. Then he went to Lorengau main market where he disturbed people doing marketing. At the same time the members of MS 1 who apprehended him earlier passed by and were informed that there were some disturbances in the market. When the members of MS 1 investigated, they saw that it was the same person they had earlier apprehended and had him locked at the police station. So they apprehended again for the second time and then beat him up at the market before taking him back to the police station.
   
10. At the police station he was escorted into the police station by MS 1 members, where they continued to beat him by punching and kicking him.
    
11. It is alleged that they were then joined by the accused Probationary Constable Selwin Orosota of the Dog Unit in assaulting him.
    
12. It is alleged they took him to the cell blocks and continued to assault him by which time he was already weak and lying defenseless.
    
13. It is further alleged the accused was seen to be the last person to kick the deceased on the head against the brick wall which resulted in his death.

ISSUE

14. Question is whether the accused participated in the assault of the deceased and if so, did he cause the death of the deceased.

EVIDENCE FOR THE STATE

15. State relied on and tendered certain uncontested documentary evidence (exhibits 1-11). State also brought in two key witnesses to give oral evidence.

Documentary Evidence tendered

16. Statement of Lewis Maiah dated 30^th July 2013, English and Pidgin versions, marked and labelled as Exhibits 1A and 1B respectively.
    
17. Statement of Abraham Jacob Popa dated 28 July 2013, English and pidgin versions, marked and labeled as Exhibits 2A and 2B respectively.
    
18. Statement of John Malemal dated 28^th July 2013, English and Pidgin versions, marked and labelled as Exhibits 3A and 3B respectively.
19. Statement of Adam Jonathan dated 29^th July 2013, English and Pidgin versions, marked and labelled as Exhibits 4A and 4B respectively.
    
20. Statement of Hilda Tewuh Kaheu dated 27^th July 2013, English and Pidgin versions. Marked and labelled as Exhibits 5A and 5B respectively.
    
21. Statement of S/Sgt. Lawrence Senais dated 22^nd July 2013, English version, marked and labeled as Exhibit 6.
    
22. Statement of S/C Alphonse Porowai dated 15^th July 2013, English version, marked and Labelled as Exhibit 7.
    
23. Statement of S/C Cosmos Langelupo dated 29^th July 2013, English version. Marked and labelled as Exhibit 8.
    
24. Statement of D/Sgt Aiofa Faregere dated 29^th July 2013, English version, marked and labeled as Exhibit 9. Including 28 pieces of Photographs marked and labelled as Exhibit 9.1 to 9.28
    
25. Record of Interview dated 06^th August 2013, English and pidgin versions marked and labelled as Exhibits 10A and 10B respectively.
    
26. Medical Report (Autopsy report) of Dr. Samson Bava dated 17^th July 2013, marked and labelled as Exhibit 11.
    

Oral Evidence of Key Witnesses

27. State produced only two key witnesses to give oral evidence. They are S/Const. Frank Guka and Prob/Const. Barbara Leslie. Both are police officers who were on duty at the Lorengau police station on the day the incident took place.
    

Consideration of Documentary Evidence for the State

28. Statement of Lewis Maiah- His evidence is that on Saturday 13^th July 2013 at 7:00pm he was travelling in a vehicle with one Mr. Len Thomas. At Ward 2 of Lorengau Urban LLG, the deceased who was on the road side swore at them so they stopped to confront him.
    

His evidence does not say anything about the accused and therefore is of no relevance.

29. Statement of Abraham Jacob Popa- His statement is that on Saturday 13^th July 2013 between 8:00am and 8:30am at Ward 2 of Lorengau Urban LLG he saw one fat member of the Port Moresby based Mobile Squad and one other policeman from Sepik assaulting the deceased with a tree branch and a big stone. This happened at the road junction to John Akau’s guest house where the Mobile squad members were residing.
    

His evidence does not show any involvement of the accused and therefore is of no relevance.

30. Statement of John Malemal- His statement is that on Saturday 13^th July 2013 between 8:00am and 10:00am he was walking to the main bus stop near the town market. When he got to the main bus stop, one brown 10 seat Toyota Land cruiser used by mobile squad police from Port Moresby stopped in front of them and a policeman sitting as offside in the vehicle called out to the deceased whilst he was talking with other boys. The deceased replied, ‘’what have I done.’’ At that instance all the doors of the 10 seat vehicle opened and all policemen in the vehicle rushed out. When the deceased saw this he ran in fear towards Papindo whole sale store. The off-sider of the police vehicle gave chase while others got into the vehicle and drove to Papindo store then towards that gate of the Harbor side Hotel and blocked off the road. When they saw the policeman who gave chase apprehend the deceased they drove towards the market and stopped. Witness say he saw one of the policeman come out of the vehicle and punch the deceased right on his face with a folded fist and deceased fell lying face down on the coronas (referring to gravel-sealed road) and the other policemen started assaulting him. When the public saw this they started shouting at the policemen and wanted to move forward because they were not happy with the kind of treatment they gave to the deceased. One policeman then came out from the second white vehicle which the police were also using and cocked his gun and stood. Witness further states that the actions of the mobile policemen of Port Moresby at that time was unnecessary. Deceased could have been arrested properly, charge him then lock him up. He says their actions were criminal in nature which resulted in public protesting the next day. He says all injuries the deceased sustained were from the hands of those policemen.
    

Evidence of this witness makes no mention of the accused and therefore is of no relevance. Identification is an issue.

31. Statement of Adam Jonathan- His statement is that on Saturday 13^th July 2013 he was driving passing Ward 2 when he saw a crowd gathering and watched members of the Port Moresby based police mobile squad holding onto the deceased and taking him up the main road. Sometime later he saw the deceased again at the main market. He thought the deceased was already picked up by the mobile squad police at the Ward 2 and taken to the police station cells but he was surprised to see him walk into the main market. Then about 5 to 10 minutes later the mobile squad police drove into the market area in a brown Toyota Land Cruiser vehicle. Another white 10 seater vehicle also came and parked at the back of the brown Land Cruiser. The witness then walked into the market and when he saw the mobile squad police go into the market too, he thought to himself there was going to be trouble, so he stood and watched what was going to happen. He then saw the back door of the land cruiser vehicle open and a mobile squad policeman came out. He was smoking as he came out, he wore mobile police uniform but no shoe only tongs. And then he saw the deceased boy come out of the market house. As he was walking out a mobile police squad member threw his hands and slapped the deceased on the mouth with his open hands and he fell down on the caranas (gravel sealed road). At that instance three other Mobile squad policemen booted him. When the public saw this they wanted to run forward but one of the policemen stood with the gun at the side of the white 10 seat vehicle, cocked his gun and was pointing it at the public and yelling at the same time. Then the four mobile squad policemen put the deceased into the vehicle and drove out. As they were driving out he saw them assaulting the deceased in the vehicle and he could hear the deceased shouting in pain.
    

In this witnesses evidence there is no mention on involvement of the accused, identity is an issue. Therefore this witness evidence is of no relevance.

32. Statement of Hilda Tewuh Kaheu- Her statement is that police had detained her in the police station cells at Lorengau Police Station in relation to a death of a man in her village. On Saturday morning 13^th of July she was sitting in the female cell block. Some male detainees were also sitting in their cell block when the Mobile Squad police from Port Moresby came in a brown 10 seater vehicle. They took Raymond (deceased) out of the vehicle and told policeman Frank to lock him in the cell but the cell blocks were locked and he did not have the keys. So they put Raymond in the fence outside the cell. The mobile squad policemen then jumped into the vehicle and left. When they left, the deceased went out of the gate which was unlocked and escaped.
    
33. Sometime later the same mobile squad policemen brought Raymond (deceased) for the second time in the same brown 10 seater vehicle. As soon as the vehicle stopped they took Raymond out and walked him into the police station. As the deceased was walking a policeman slapped him. The policeman who drove the vehicle, a tall black skin person held a stone and was hitting the deceased on the head and back. Then they, the mobile squad police, told the deceased to jump over the fence into the cell, but he could not jump over the fence. So they told him to seat down at the back of the police station back door. When he sat down they kicked and punched him. The policeman who held onto a stone started hitting the deceased’s legs with the stone. And a policeman who held a tree branch whipped him on his back. They ordered him to jump over the fence again and same time they lifted him up, assaulted him and kicked him and told him to go inside and they pushed him to the side of the cell because the cell was still locked. As they were pushing him they continued to assault him as a group.
    
34. Another dog unit policeman came and took him to the old office building. They (mobile squad and dog unit) later brought him back and kept on assaulting him. They took him to the cell fence again and in the front of the cell gate, went to the side and assaulted him again until he fell lying on the cement. When they saw the deceased falling to the cement they all withdrew and went outside.
    
35. Later duty police got the cell key, opened the gate and they carried the deceased and laid him on the cement floor inside the cell block corridor. She saw bleeding in deceased’s nose. Deceased was still on the floor until in the afternoon when police checked him and upon realizing he was not moving took him to the hospital. Witness says she saw all that happened except the last part when she did not see clearly how they were assaulting him because they were all gathered around him whilst assaulting him until he fell to the cement.
    

This witness evidence is about what she witnessed at the police station. She was a detainee in the police cells at that time and she saw members of mobile squad police including those from the dog unit assault the victim continuously at the police station. But her evidence is not specific on who actually assaulted the deceased. She generally refers to members of the police mobile squad and the dog unit. There is no evidence of accused being involved. It is an issue of identity. Therefore her evidence has no relevance.

36. Statement of S/sgt. Lawrence Senais- His statement is that on Saturday 13^th July 2013 he was on Special Operation during the LLG elections. He was the 2IC Field Commander stationed at the Police Command Center in the communications office, Lorengau Police Station. At about 7.45 am he was already at the Lorengau Police Station to perform his Special Operation Duties. On that day at about 10.00am the shift NCO Senior Constable Frank Guka informed him that a suspect namely Raymond Sipahun Junior (deceased) had escaped through an open gate. Between 11.00am and 12.00pm he walked into his training office situated at the old police building at the back of the main Lorengau Police Station and the Police holding cells for lunch break.
    
37. He was in his training office when he heard cars driving up to the police station back entrance and stopped at the back car park. He heard the doors of the cars opened and commotions of persons talking loudly from the duty office and cell block area. He came out of his office and looked out to the duty office and the cell gate area but his view was obstructed by the cell block and the two hire cars, a brown and white Toyota Land Cruiser used by the Mobile Unit and the Dog Unit. He then walked towards the back area of the PPC’s office to have a clear view of what was going on. He could see through between the back door of the Public Safety Unit Office and the front area of the Police Holding Cell.
    
38. From where he was he could see four (4) mobile policemen, one dog handler and a youth namely Raymond Siphun Junior (deceased). He was the same suspect who had escaped from police custody earlier in the morning. Witness then states that all the five (5) policemen escorted the deceased towards his side and as they passed the corner of the police station cell block they turned and walked along the eastern side of the cell block towards the drive-in of the police station back car park. As they were escorting the deceased he heard one of the policeman say in pidgin ‘’you tasol you threatened police meri’’ (You are the one that threatened a police woman). He saw deceased was walking normal but notice a line of blood from the left edge of his mouth down his chin.
    
39. Of the five (5) policemen he was able to identify the dog handler as Constable Alphones from Manus. As for the other four (4) from the Mobile Unit he did not know their names but he is able to identify them in person. At about 4.30pm he was informed that the deceased was just lying down without any movement. He then asked the shift NCO S/C Frank Guka to check the condition of the deceased but he did not respond. He then directed him by saying ‘’Senior Guka, check the deceased and arrange for him to be taken to the hospital to be checked but S/C Guka did not respond.”
    

Evidence of this witness does not name the four (4) Mobile Unit policemen who escorted the deceased into the police station but says he is able to identify them in person. However he was able to identify the fifth (5^th) person as Constable ALPHONES from Manus from the Dog Unit. He was in the group who escorted the deceased. Accused is from the Dog Unit too but it was one ALPHONES from Manus which the witness was able to identify. Therefore his evidence has no relevance. Identification is an issue.

40. Statement of S/C Alphonse Porowai- His statement is that he is a Senior Constable, a Police Dog Handler attached to the National Capital District (NCD), Police Dog Section and was engaged on Special Operations (Dog Unit) in Manus. He states that on Saturday 13^th of July 2013 he was with Senior Constable Reeves Mota and Probationary Constable Selwin Orosota, also from the NCD Police Dog Section.
    
41. He states that on that day at about 10.00am they were in a police hired vehicle, a Toyota Land Cruiser parked at the Lorengau Police Station. They were there to get Police dog Max and carry out task to assist in LLG elections along the Manus Highway. He says while he was exercising police dog Max at the back of the run down building next to the sea shore he suddenly saw a teenager coming towards him and Probationary Constable Orosota walking at his back. They both came towards him and by surprise Police dog Max attacked the teenager. The dog only grabbed his clothes without biting him as he was still holding on to the rope and pulled the dog away. The teenager was taken back to the cell by Probationary Constable Orosota. He saw him in good condition as he could see from where he was standing. He says that is all he could see due to the building blocking his view.
    

Evidence of this witness is that he saw accused and deceased walk towards him where he was exercising police dog Max who charged at the deceased. Then the accused took the deceased back to the cell and that is all he could see. His evidence does not say anything about accused assaulting the deceased. Therefore his evidence has no relevance.

42. Statement of S/Const. Cosmos Langelupo- His statement is that on Saturday 13^th of July 2013 about 10:30am he reported for duties at the police station. At about 11:30am he received a call on his mobile phone from Mr. James Sipahun enquiring if one Raymond Sipahun was in the cells after he was picked up by members of the Mobile Squad Unit after causing nuisance at the market.
    
43. He then checked the duty NCO S/C Guka who told him that he (Raymond) had been locked up in the inner cell. He then checked on Raymond in the cells and found him lying face down. He called his name but S/Const. Guka informed him that he was drunk when apprehended and could be asleep. Between 5:00pm and 6:00pm he decide to check on Raymond again to see if he had woken up. At the station he was informed that something was wrong with Raymond and that he was not breathing normal. He immediately knew Raymond needed medical attention. He was then transported to the hospital but was pronounced dead.
    

His evidence make no reference to accuse assaulting the deceased and therefore has no relevance.

Consideration of Oral Evidence for the State

44. Evidence of S/Const Frank Guka- His oral evidence is that he knows the deceased Raymond. On Saturday 13^th July 2013 he was on duty from 6:00am to 6:00pm at Lorengau Police Station enquiries. At 8:30am one 10 seater vehicle brown in colour pulled into the police station. This vehicle was used by the Mobile squad police. At that time they brought one young man into the police station. He recognized him as Raymond Sipahun Junior (deceased). The Mobile police informed him that he was drunk on the road and acted disorderly. He was told to lock him in the cell for his safety. However the main cell gate was locked as he did not have the key with him. So he left the deceased outside the cell. He could see that Raymond (deceased) was looking for ways to escape. He tried to block him from escaping but the main gate was open so he ran away. He ran after him but could not catch up with him.
    
45. Sometime later the same vehicle brought the deceased back to the police station. They escorted him back to the cells but at that time he still did not have the keys to cells. When the deceased stood near the cell block the police who brought him started assaulting him. By that time accused Selwin (accused) joined in assaulting the deceased. He saw the accused kick the deceased with the boot. After that they left him at the police station and they walked back to the vehicle. The deceased who was standing started sitting slowly on the floor. He sat on the floor and he slept until late in the afternoon. By then cell keys had been delivered to him and with help of another policeman they put the deceased into the cells. After that he signed off duty.
    

Evidence of this witness is that he saw the four (4) Mobile Squad members who brought deceased to the police station in a brown 10 seater vehicle assaulted the victim. Later he saw the accused join the others in assaulting him.

(Note: This witness had also given written statement to the police which is dated 15^th July 2013. I will refer to this statement when analysing evidence).

46. Evidence of Probationary Constable Barbara Leslie- Her oral evidence is basically made up of answers to questions put to her during Examination In chief, Cross-examination and Re-examination. She was not given the opportunity to tell her own story in full to the court but was questioned on her written statement she gave to police dated 15^th July 2013.
    

(I will refer to this statement when analysing evidence).

DEFENCE EVIDENCE

47. Defence called only the accused to give oral evidence in his defence. He gave oral evidence that on the 13^th of July 2013 he was with his two NCO’s when they received instructions to assist local police. So they prepared and went to the police station to get the police dog. When they arrived at the police station they drove to the back car park. He then heard shouts and screams from the side of the cells so NCO went to get the police dog and went to the back of the cell.
    
48. He says he walked to where the noise was coming from and he saw two mobile squad members FRANCIS LAMEI and ALEX ARING, they were hitting the deceased. As he walked to them the deceased moved towards him and passed him and went to the old building at the back of the cells. So he followed him knowing that the police dog was at the back. As he went pass the old building his NCO was exercising the police dog which was tied onto a rope. The dog charged at the deceased and almost bit him but he ran between the two old buildings and went back, so he followed him and FRANCIS and ALPHONES were shouting at the deceased to go back to the cell.
    

Witness say he followed them, they left deceased at the unlocked cell fence in the outer fence. By then his NCO had put the police dog in the vehicle so he got into their hired vehicle and they left.

ANALYSIS OF ALL EVIDENCE

49. State’s evidence against the accused is based on written statements of nine (9) witnesses which I alluded to earlier. These statements were tendered to court by consent of both counsels. State also relied on oral evidence of two (2) key witnesses who also gave written statements earlier. Other evidence tendered to court by consent were the Record of Interview and the Medical Report.
    
50. Considering the witnesses evidence in totality, there appears to be four (4) scenarios of events which took place on Saturday 13^th July 2013 in Lorengau town leading to the death of the accused.
    
    • (a) First Scenario relate to events which took place at Ward 2 of Manus Urban LLG between 7:00am and 8:00am involving the deceased and members of the Port Moresby based Mobile Squad Unit.
      
    • (b) Second Scenario relate to events which took place at the Lorengau police station between 8:30am and 9:00am involving the deceased and S/Const. Frank Guka after members of the Mobile squad Unit had left deceased at the police station.
      
    • (c) Third Scenario relate to events which took place at the Lorengau main market between 9:30am and 1:00am involving the deceased and members of the Mobile Squad Unit.
      
    • (d) Fourth Scenario relate to events which took place again at the Lorengau police station between 10:30am and 11:30am involving the deceased, members of the Mobile squad Unit and the accused who is a member of the Port Moresby based Dog Unit.
      
51. Hence evidence of witnesses relied on by the state (documentary or oral) relate to events which took place at the locations and times indicated. All documentary evidence were tendered to court as observed earlier.
    

First Scenario- Events at Ward 2- Lorengau Urban LLG

52. Statements of Lewis Maiah and Abraham Jacob Popa. These two persons were at Ward 2 when deceased was first apprehended. Jacob saw one fat member of the Mobile squad and a police man from Sepik assault the deceased with a stone and a tree branch.
    

No mention of the accused is made in their evidence. Therefore I disregard their evidence.

Second Scenario- Events at Lorengau Police Station (First Occasion)

53. This relate to deceased being brought to the Lorengau police station on the first occasion by members of the Mobile Squad Unit and was left there under the care of S/Const. Frank Guka who was on duty at the police station enquiries counter that morning. In his statement dated 15^th July 2013 he says after deceased was left at the station by members of the Mobile Squad Unit the deceased escaped through the main gate.
    

His evidence relating to this occasion make no mention of the accused and therefore I disregard this part of his evidence.

Third Scenario- Events at the Lorengau Main Market

54. Statements of John Malemal and Adam Jonathan relate to members of the Mobile Squad Unit assaulting the deceased at the main market area by punching and kicking him and dropping him onto what they referred to as caranas or stone/gravel.
    

Their evidence make no mention of the involvement of the accused. I therefore disregard their evidence.

Fourth Scenario- Events at the Lorengau Police station (Second Occasion)

55. Witnesses who gave evidence in relation to events which took place at the Lorengau police station on the second occasion when deceased was brought again to the police station were S/Sgt. Lawrence Senais, S/Const. Alphones Porowai, Hilda Tewuh Kaheu, S/Const. Frank Guka and Prob/Const. Barbara Leslie.
    
56. Evidence of these persons is very crucial because it is in this fourth scenario of events accused is implicated as having taken part in the assault of the deceased and causing his death.
    
57. All their evidence relate to the four (4) members of the Mobile Squad Unit bringing deceased to the police station for the second time and continuously assaulting him by punching and kicking him all over his body until he collapsed on the cement floor.
    
58. Evidence in the form of statements of S/Sgt. Lawrence Senais, S/Const. Alphones Porowai and Hilda Tewuh Kaheu make no mention of the accused taking part or being involved in the assault of the deceased. Their evidence is too general in that there were four (4) members of the Mobile squad Unit and one (1) member of the Dog Unit involved but no names mentioned. However S/Sgt. Lawrence Senais does say in his statement that he saw a member of the Dog Unit who was with the members of the Mobile Squad. He identified him only as ALPHONSE from Manus. So evidence of these three witnesses shows no direct evidence on identification of the accused being involved in the assault of the deceased. Therefore their evidence has no weight to support the charge against the accused.
    
59. The only evidence remaining which appear to be direct against the accused and which court has to consider are evidence of Prob/Const. Barbara Leslie and S/Const. Frank Guka to which I had briefly alluded to earlier.
    
60. Evidence of Barbara Leslie- This witness gave evidence in the form of a statement dated 15^th July 2013 (Exhibit 13) and oral evidence in court on 04^th July 2018. In her statement she makes no mention of the accused involved in the assault of the deceased. In the last part of the third paragraph of her statement at page 1 she said;
    

‘’...while we were talking about how deceased escaped, the Mobile Squad one (MS 1) members from Port Moresby drove in a brown 10 seater hired car, Toyota Land cruiser. They drove to the back car park, I heard Mobile Squad members questioning and assaulting deceased and I walked to the back door of the Public Safety Unit office and saw deceased sitting at the side of the door. Other Mobile Squad members questioned him whilst one of them holding the stone was hitting him on the leg down with the stone still in his arm. I identified Raymond and said ‘that’s the person who threatened me at the polling booth at Ward 7.’ I then walked back at the enquiries counter while the Mobile Squad Members continued assaulting Raymond.

61. In the first and fourth paragraphs of page 2 she stated:
    

As I was attending to a complaint at the enquiries counter, I looked out through the open back door and saw mobile squad members surrounded deceased assaulting him and leaving him lying on the cement. After the Mobile Squad members left I saw the stone held by one of them lying outside at the back door where deceased sat and was assaulted. I later found that the stone had gone.’’

62. Then in the last paragraph of page 2 she stated:
    

‘’ I wouldn’t know the names of those four (4) Mobile Squad members and dog Unit member.’’

63. So in her statement, she has not been able to identify the members of the Mobile Squad who assaulted the deceased. More so, she has not been able to identify the involvement of the accused.
    

Therefore her evidence in the form of written statement does not have weight particularly on the issue of whether the accused was involved in assaulting the deceased.

64. In her oral evidence in court during Examination in Chief she was asked–
    

“Who is that Dog Unit member?’’ She replied “Selwin’’. When asked ‘’Selwin who? She replied ‘’I don’t know his name.’’ She was asked ‘’have you known Selwyn before?” She replied ‘’yes’’. She was asked ‘’how?’’ She replied ‘’we trained together at Bomana and passed out same time.’’

65. So here Barbara identifies the Dog Unit member only as ‘’Selwin’’ not knowing his other name. This is quite ridiculous, isn’t it? They trained together at Bomana police collage and passed out same time and yet still don’t know his second name.
    
66. Her oral evidence given in examination in chief appears to be inconsistent with her written statement. She could not identify the member of the Dog Unit who was with the members of the mobile squad assaulting the deceased.
    
67. In Cross- Examination she gave evidence that:

Q. Mobile Squad car drove in

A. yes

Q. they brought Raymond back

A. yes

Q. agree that they took him out of the vehicle and started beating him.

A. I did not see

Q. One member of the mobile squad had stone and hit him on the leg

A. yes

Q. Remember Raymond telling you that he would get police one by one

A. yes

Q. Did you tell Mobile Squad members about this?

A. No

68. This answer is inconsistent with what she stated in her last sentence of page 1 of her statement where she stated:
    

“I identified Raymond and said that’s the person who threatened me up at the polling booth at ward 7 and also said he will get police one by one.’’

69. This is confirmed by S/Const. Frank Guka in paragraph 2 page 2 of his statement stating that you told them that deceased threatened to get police one by one.

Q. One member of the Mobile Squad was hitting Raymond with stone on the leg, did other members of the Mobile Squad assault Raymond?

A. That time I was at duty counter and I saw all of them hitting him too.

Q. Did accused come with the Mobile Squad in their car?

A. I did not see him in the car but I saw him together with them.

Q. You said Selwyn came with the Mobile Squad?

A. yes

These are inconsistent statements.

Q. Selwin did not assault Raymond

a. He assaulted him

Q. With What

A. he kicked him with boot

Q. on which part

A. I could not see properly

Q. He did not kick deceased

A. He kicked him but not sure on which part of the body.

Q. You don’t know where so you did not see him

A. I saw him kick him on the head and on the body.

Again Barbara is contradicting herself. First she told court she was not sure on which part of the body accused kicked the deceased. And then later she told court she saw him kick deceased on the head and body.

Q. Why didn’t you mention Selwins name to the police in the first place

A. they were all together with the Mobile Squad

Q. So first time you now calling selwin’s name?

A. yes

Q. First time you telling court you saw Selwin kicking deceased

A. yes

These evidence raise questions of credibility. It appears to the court that Barbara’s evidence may have been manufactured to suit someone’s interest. Her evidence is therefore unreliable.

70. This now leave the court with only evidence of S/Const.Frank Guka.
71. Evidence of Frank Guka- his evidence is also in the form of a written statement dated 15^th July 2013 and oral evidence he gave in court on the 03^rd of July 2013.
    
72. In his statement at paragraph 3 page 2 he stated:
    

“I saw deceased had no way to go and he slowly moved down looking weak and sat down on the cement leaning against the cell brick. I saw Probationary Constable Selwin Orosota of Dog Unit was last to throw leg in between the defendants with police issued boot and kicked deceased once on the face and heard a hit against the brick wall of the cell block. Not long I saw deceased lying face upwards and then turned and face down-wards on the cement in their middle. Then they all left him and walked out.’’

73. In his oral evidence during examination in chief, he told the court
    

“when they brought deceased to the cells, the police who brought him started assaulting him. By then Selwin joined in assaulting him. I saw Selwin when he started assaulting him, he kicked him with the boot.’’

74. When he was asked ‘’he kicked on which part.’’ He replied ‘’on his ribs”
    
75. He gave further oral evidence as follows;

Q. When deceased was taken into the police station second time, you saw members of the Mobile Squad assaulting him.

A. yes

Q. They were joined by Selwin.

A. yes

Q. How did the Mobile Squad Police assault him?

A. They used hands to hit him. They also used boots to kick him.

Q. How did Selwin hit him?

A. He used his hands on the body and kicked him with boot on his side. That is all I saw how Selwin assaulting him.

Q. Deceased was assaulted on the body. What about the legs

A. yes

Q. They assaulted him waist to shoulder

A. They kicked him on the body

Q. On the head

A. They hold his head and bumped his head against the brick wall

Q. Who did that?

A. it’s a long time but one of the three mobile squad members,

76. In cross-examination he told the court as follows:

Q. You said Selwyin assaulted the deceased, with his hands or boot.

A. Hands and boot

Q. He hit him on his sides

A. yes

Q, Which side

A. left and right.

77. It is clear that this witness oral evidence is inconsistent with his evidence in the statement. In his statement he stated accused hit the deceased on the head with his boot. Now he is telling the court in both examination in chief and in cross-examination that accused hit the deceased with his boot on the ribs and on the sides of the body, left and right sides. Such inconsistency puts into question the credibility and reliability of his evidence. His evidence is doubtful and therefore I am of the view that it is not safe to convict accused on inconsistent and doubtful evidence.
    
78. Medical Report
    

Medical report – Internal examination of the head and the brain revealed:

– Subdural haematoma with blood clots extending over the right frontal lobe and the anterior half of the right parietal lobe of the brain

– Post Mortem examination findings suggest that the deceased sustained blunt trauma to the head/face, as well as the upper limbs, back and right hip. There was evidence of injury to the head.

79. Record of Interview
    

In the Record of Interview accused denied committing the offence. He has maintained his denial in his oral evidence in court.

CONCLUSION

80. It is now apparent that a large volume of evidence (say 98%) relied on by the state against the accused does not reveal anything to comfortably show and conclude that on Saturday 13^th July 2013 he actively participated in the assault of the deceased and that he was responsible for the death of the said deceased. Majority of the state witnesses in their statements failed to identify the accused as participating or being involved in the events which took place in Scenario 1 to Scenario 3. In these scenarios the issue is of identity and accused has not been sufficiently identified. Therefore evidence of witnesses in the three scenarios lack weight to hold accused criminally liable for the death of the accused.
    
81. Total evidence relating to events in scenario 1-4 from 7.00am to about 11.00am centers mainly on the four (4) members of the Mobile Squad Unit and the deceased. There is overwhelming evidence to show deceased went through an ordeal, in fact a very cruel ordeal, at the hands of the Mobile Squad members starting at 7.00am to about 11.00am. Firstly at Ward 2, then at the police station when he was taken in first. Then at the main town market and at the police station again when he was taken in the second time. On each of these occasions he was continuously beaten up, punched, kicked and heavily dumped on hard sealed street road.
    
82. The only evidence which appears to connect the accused to this incident are evidence of Prob/Const. Barbara Leslie and S/Const. Frank Guka. Their evidence relate to Scenario 4 events which took place at the Lorengau police station when deceased was taken in for the second time. However as observed, evidence of Barbara Leslie appears to be unstructured and full of inconsistencies. All these inconsistencies lead to one thing and that is to say that her evidence is not reliable and credible and does not have weight to sustain the charge laid against the accused.
    
83. Evidence of S/Const Frank Guka is also inconsistent in respect of where accused is alleged to have kicked the deceased with his boot. In his statements he stated that accused kicked deceased with boot on the head against the brick wall. When he gave oral evidence in court he changed his story. He told court firstly that accused kicked deceased on his ribs then later he told court he kicked him on the sides of his body, left and right sides. All his evidence appears to be inconsistent as well and in view my lacks weight and credibility to hold accused criminally liably.
    
84. There is no doubt deceased died as a result of damage and or injuries done to his brain as shown by medical report. And there is no dispute he was subjected to cruel assault and treatment by members of the police Mobile Squad Unit 1 from 8.00am to about 11.30am on 13^th July 2013. This was a continuous group or mob assault on the deceased for about 3 to 4 hours. One person cannot be singled out; all were responsible for causing the death of the deceased.
    
85. In any case in homicide crimes such as this, court cannot in my view rely on evidence which appears to be inconsistent because burden of proving criminal liability is PROOF BEYOND RFEASONABLE DOUBT. If court is left with doubts and uncertainties in so far as evidence is concerned then it is not safe to convict on such inconsistent evidence. I must therefore admit that I have serious doubts as to the credibility and reliability of states evidence in this case, particularly the evidence of Barbara Leslie and Frank Guka which appear to be fundamentally inconsistent in so far as the critical aspects of this case are concerned. I am therefore unable to find and am not convinced that the state has proven its case BEYOND REASONABLE DOUBT.
    
86. Accordingl, I find the accused NOT GUILTY of the charge of Manslaughter. And order that he be acquitted of the charge forthwith and his bail monie be refunded.

VERDIT ACCORDINGLY
________________________________________________________________
Public Prosecutor: Lawyer for the Sate
Public Solicitor: Lawyer for the Accused