N8657
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOS. 994, 995, 996, 998, 999, 1000, 1001, 1002, 1003, 1004 of 2016 and 110 of 2018 (No.2)

THE STATE

V

JULY IROTO, GUNAN SAKAPIOK, NGUNIA PAIPO, BUBU VALUE, TIMOTHY SAMMY, EPHRAIM RANUI, BILLIE ROBIN, BENJAMIN PAIPO, ROMANUS TAENGE, TEKO GIRE, and NOEL BURBUR

Kokopo:  Anis J
2019: 2nd, 4th, 8th & 22nd July, 2nd, 3rd, 5th & 6th December
2020: 22nd & 23rd October, 4th December

CRIMINAL LAW – charge - wilful murder under section 299 of the Criminal Code Act Chapter No. 262 – 3 separate locations and 2 crime scenes - identification – 1 witness per location who testified – witness demeanour in court considered – want of corroborative evidence to attest to accounts recalled by the State’s 3 witnesses at the 3 separate locations - whether scenario conducive for witnesses to be able to identify the accused persons as alleged – logic of events alleged considered – whether the 3 state witnesses credible witnesses – whether they should be believed

Cases Cited:

State v. July Iroto and 10 Ors (2019) N7928
John Beng v The State [1977] PNGLR 115
State v. David Yakuya Daniel (2005) N2869
State v. Henry Toliu (2011) N4237
The State v. Stanis Gala (2005) N2846
State v. Ruddy Magum (2009) N3725

Counsel:

Ms J. Batil, for the State
Mr A. Tunuma, for the Eleven (11) Co-accused

VERDICT

4th December, 2020

1.	ANIS J:	The 11 co-accused were indicted to stand trial for wilful murder under section 299(1) of the Criminal Code Act Chapter No. 262 (Criminal Code) on 1 July 2019.  The trial commenced at 9:30 am on 4 July 2019.  At the end of the State’s case, the defence made a no case to answer application on 8 July 2019.  I heard oral submissions from the parties and on 22 July 2019, I handed my decision where I rejected the defence’s no case to answer submission.  The decision is published as State v. July Iroto and 10 Ors (2019) N7928.  

2.	The trial continued at Kokopo on the 2nd and 3rd of December 2019 where the defence called its witnesses.  Presentation of submissions were later heard on the 5th and 6th of December 2019.  I reserved my ruling on verdict to a date to be advised.

3.	This is my ruling.

BACKGROUND

4.	I set out the background of the matter in my earlier decision of 22 July 2019.  I re-state that here as follows:

4.  The defendants are all from Kabakada village.  It is situated in Reimber/Livuan LLG which is in the Gazelle District of East New Britain.  It is alleged that on 17 April 2015, at Vunairoto village, the 11 co-accused wilfully murdered one August Guere.

5.  The allegation made against them is this.  Between 10am and 11am on the said date, the defendants were at their neighbouring village Vunairoto.  The deceased was also at the same village with 2 other men.  The deceased and the 2 men were drying copra at a copra dryer.  A group of men shouted and approached the 3 men.  The 2 men who were with the deceased ran away leaving the deceased behind.  Amongst the men that approached the deceased were defendants July Iroto, Benjamin Paipo, Ngunia Paipo, Timothy Sammy, Noel Burbur, and Romanus Taenge.  The deceased was attacked where defendant July Iroto cut the deceased on his back with a bush-knife.  The deceased fell to the ground.  He was assaulted as he laid on the ground, and one of the men who was not identified stabbed his head and ears with a screw driver.  They later tied his hands and legs together and carried him down to the road.  On the road, defendants Gunan Sakapiok, Ephraim Ranui Jnr, Bubu Value, Billie Robin and Teko Gire joined in and the defendants continued to assault the deceased.  Police arrived later at the scene and the deceased was taken to the hospital.  The deceased died a few days later from severe head injuries that had been sustained from the assault on him by the defendants.

5.	And if I can add there from the brief facts:

The State says that the actions of the accused persons contravened section 299(1) of the Criminal Code in that they wilfully murdered August Guere

The State invokes section 7(1)(a)(b)(c) against all the accused persons in that they aided each other in committing the offence.

ISSUES

6.	The main issues relate to identification and credibility of the State witnesses.  All the 11 co-accused deny being present at the crime scenes, and therefore they say that they cannot be held responsible for the wilful murder of the deceased.  They all raised the defence of alibi and called evidence in that regard.

ELEMENTS OF THE OFFENCE

7.	Section 299(1) identifies the elements of the offence wilful murder.  The section reads, and I quote:

299.  Wilful murder.

(1)	Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

8.	The elements of the offence wilful murder are, (i), the accused killed the deceased (ii), the killing was unlawful, and (iii), the accused had intended to cause his or her death or the death of some other person.  See case:  State v. David Yakuya Daniel (2005) N2869; State v. Henry Toliu (2011) N4237 and The State v. Stanis Gala (2005) N2846.  In this case, it is not disputed that someone or a group of people severely assaulted the deceased August Guere (the deceased) on 17 April 2015, at Vunairoto village, Reimber/Livuan LLG in the Gazelle District of East New Britain, which led to his death.  The defence does not deny the killing, and the State has, in my view, adduced evidence beyond reasonable doubt that the deceased was murdered on the said date.

IDENTIFICATION – JOHN BENG WARNING

9.	Let me remind and warn myself of the dangers in a case where conviction may be dependent entirely on the identity of an accused.  I refer to the case of John Beng v The State [1977] PNGLR 115, and quote in part:

“In proceedings where evidence of identification is relevant, the Court should be mindful of all the inherent dangers, the need for caution before convicting in reliance on the correctness of identification, the possibility that a mistaken witness could be a convincing one and that any number of such witnesses could all be mistaken; the Court should examine closely all the circumstances in which the identification by each witness came to be made bearing in mind that recognition may be more reliable than identification of a stranger, but that even where the witness is purporting to recognize someone he knows mistakes can be made.
When the quality of the identification evidence is good the matter should proceed to a verdict, when the quality of identification evidence is poor, unless there is other evidence which goes to support the correctness of the identification, an acquittal should be entered.”

TENDERED EVIDENCE

10.	Having cautioned myself, let me move on.  By consent, the following evidence were tendered by the State, and I set them out into a table format herein:

Exhibit Number	Description	Date filed	
P1	Statement of Police Constable Thrisha Wamboi	3 June 2015	
P2	Statement of Police Constable William Kalava	3 June 2015	
P3	Statement of Police Constable Johnson Bomokar	3 June 2015	
P4	Statement of Police Constable William Kalava	3 June 2015	
P5	Statement of Police Constable Thrisha Wamoi	3 June 2015	
P6	Statement of Police Constable William Kalava	3 June 2015	
P7	Record of Interview of July Iroto – English and Pidgin versions	3 June 2015	
P8	Record of Interview of Gunan Sakapiok – English and Pidgin versions	3 June 2015	
P9	Record of Interview of Ngunia Paipo – English and Pidgin versions	3 June 2015	
P10	Statement of Police Senior Constable Joe Martin	3 June 2015	
P11	Statement of Police Constable William Kalava	3 June 2015	
P12	Statement of Police Constable Johnson Bomokar	25 May 2015	
P13	Statement of Police Constable William Kalava	25 May 2015	
P14	Statement of Police Constable Esther Butinga	15 June 2015	
P15	Statement of Police Constable William Kalava	15 June 2015	
P16	Statement of Police Detective Sergeant Aiyofa Faregere	27 May 2015	
P17	Statement of Police Constable William Kalava	22 May 2015	
P18	Statement of Police Constable Esther Butinga	22 May 2015	
P19	Statement of Police Constable William Kalava	22 May 2015	
P20	Statement of Police Constable Johnson Bomokar	25 May 2015	
P21	Statement of Police Constable William Kalava	25 May 2015	
P22	Record of Interview of Bubu Value – English and Pidgin versions	3 June 2015	
P23	Record of Interview of Timothy Sammy – English and Pidgin	25 May 2015	
P24	Record of Interview of Ephraim Ranui – English and Pidgin versions	15 June 2015	
P25	Record of Interview of Billie Robin – English and Pidgin versions	22 May 2015	
P26	Record of Interview of Bengamin Paipo – English and Pidgin versions	22 May 2015	
P27	Record of Interview of Teko Gire – English and Pidgin versions	25 May 2015	
P28	Statement of Police Constable Johnson Bomokar	25 May 2015	
P29	Record of Interview of Romanus Taenge – English and Pidgin versions	25 May 2015	
P30	Statement of Police Senior Constable Joe Martin	9 June 2015	
P31	Statement of Police Constable William Kalava	9 June 2015	
P32	Record of Interview of Noel Burbur – English and Pidgin versions	9 June 2015	
P33	Post Mortem Report of deceased & attached Affidavit Statement of Doctor Tommy Walters	4 May 2015 & 17 January 2018	
P34	Affidavit of Doctor Tommy Walters – Attached to Post-mortem report	23 May 2016	
P35	Statement of Steven Joshua – English and Pidgin versions	20 April 2015	
P36	Statement of Colleen Kopis – English and Pidgin versions	20 April 2015	
P37	Statement of Birau Potol – English and Pidgin versions	23 April 2015	

STATE EVIDENCE

11.	The State tendered 37 documentary evidence as exhibits.  I have marked them all, namely, Exhibit P1 right through to Exhibit P37.  The State called 3 witnesses who gave sworn (oral) evidence.  They were (i), witness Potol Birau, (ii), witness Steven Joshua and, (iii), witness Kopis Colleen.  These witnesses also gave statements to police which have also been admitted as exhibits, namely, Exhibits P35, P36 and P37.

12.	The incident alleged, was said to have occurred at 2 separate locations or crime scenes.  State witnesses that were called gave accounts of their recollections, and of what they each said they had witnessed at the material time.  The first crime scene was at a copra dryer area inside the Vunairoto village, and the second crime scene was next to the main road of the village.

13.	Witness Birau’s evidence relates to the first location or crime scene.  He said the day was a Friday, 17 April 2015.  He said it was sunny and the incident occurred between 10am and 11am.  He said he was with the deceased and a Tade Boana.  He said they were drying copra at a copra dryer inside the village when a group of men came shouting their way.  He said he and Tade Boana ran away but the deceased remained behind.  He said he went and hid in nearby bushes about 10 meters away and looked back to see what was happening to the deceased.  He said the men surrounded the deceased.  He said he recognised and was able to identify 6 of the 11 co-accused, namely, July Iroto, Bengamin Paipo, Ngunia Paipo, Timothy Sammy, Noel Burbur and Romanus Taenge.  He said there were also 3 other men there as well, but they had masks on their faces, so he was not able to identify them.  He said they attacked the deceased.  He said co-accused July Iroto used a bush-knife to cut the deceased on his back.  He said the others attacked the deceased with sticks.  He said co-accused Romanus Taenge also used a bush-knife to cut the deceased on his back.  He said one of the masked men pierced the deceased’s head and both ears with a screwdriver.  He said later, they tied the deceased’s hands and legs to a pole and carried him away.  He identified the 6 co-accused in Court.

14.	As stated above, witness Birau also gave a statement to police on 23 April 2015.  It is tendered marked as Exhibit P37 (both Pidgin and English versions).

15.	The State’s 2 other witnesses gave evidence in relation to the second location or crime scene, that is, next to witness Joshua’s house and then at or next to the main road of the village.  Witness Steven Joshua was the second witness.  He said these.  He said on Friday 17 April 2015, between 11am and 12pm, he was walking back to his house at Vunairoto village.  He said he saw 2 men carrying the deceased on each sides of his arms, out of the bush.  He said the deceased was covered in blood.  He said the deceased cried out to him for water.  He said he fetched water from his house and gave it to the deceased.  He said he saw co-accused Noel Burbur, July Iroto, Billie Robin and Teko Gire standing beside the deceased.  He said he heard co-accused Teko Gire said loudly that they were going to gather dry coconut leaves and burn the deceased like a pig.  He identified the 4 co-accused in Court.  He said he went back to his house after that.  He said when he returned shortly after, he noticed that the deceased had already been taken to the side of the main road of the village.  He said not long, the police vehicle arrived.  He said he was there as well at the roadside and assisted in carrying the deceased onto the police vehicle.  He said the deceased was taken away to the Nonga General Hospital.  Witness Joshua also gave a statement to police on 20 April 2015.  It is tendered and marked as Exhibit P35.

16.	The 3rd State witness was Kopis Colleen.  She said on 17 April 2015 between 11am and 12pm, she was at her house at Vunairoto village.  She said she heard a commotion.  She said she ran outside and onto the main road.  She said when she arrived there, she saw co-accused Bubu Value, Timothy Sammy, Ephraim Ranui Jnr, Gunan Sakapiok, July Iroto and Romanus Taenge.  She said she stood 3 meters away from them.  She said other men were also there, but she could not recognise them.  She said in the middle of the men, she saw the deceased who was there covered with blood all over his body.  She said the men stood there whilst co-accused Timothy Sammy, Ephraim Ranui Jnr and another man assaulted the deceased.  She said co-accused Timothy Sammy assaulted the deceased by using his fist to beat him on his face.  She said co-accused Ramanus Taenge assaulted the deceased by kicking him on the side of his abdomen with his boot.  She said she then ran in and held the deceased in her arms and cried.  She said co-accused Romanus Taenge dragged a bush-knife on the bitumen whilst the other men there swore at her and the deceased.  She said the deceased later began to rub various parts of his body with his hands in agony.  She said a short while later, police arrived in a vehicle.  She said they took the deceased away.  Witness Colleen also gave a written statement earlier to police.  As stated, it is tendered and marked as Exhibit P36 (both Pidgin and English versions).

17.	Medical reports concerning the death of the deceased are tendered and are marked as Exhibits P33 and P34.  The Post-mortem reports of head injuries, lacerations or several cuts to the back shoulders of the deceased, and bruise on his chest area and left abdomen.  Internal injuries to the head include massive subgaleal haemorrhage and skull fracture (20cm beginning from the right frontal bone to the right parietal bone) and smashed brain tissues.

DEMEANOUR - CREDIBILITY OF STATE WITNESSES

18.	I have observed and considered the demeanours and credibility of the 3 State witnesses.

19.	Let me begin with witness Birau.  He gives evidence as the sole eyewitness in relation to the first location or crime scene.  I have considered his demeanour in Court.  I see that he has identified 6 of the 11 co-accused persons, namely, July Iroto, Bengamin Paipo, Ngunia Paipo, Timothy Sammy, Noel Burbur and Romanus Taenge.  His identification of these co-accused appears to show that he knows them.  He also gave sworn evidence to that effect.  However, the challenges I have with this witness are as follows.  Firstly, I observe that the witness was nervous when he was testifying in Court.  It is of course normal for witnesses to sometimes feel this way when they are in Court, so I take that into account.  However, given the fact that there is no one else who could corroborate his evidence in regard to his identification and also on what may or may not have transpired at the first crime scene, that may be a concern where I should perhaps not ignore.  The next concern is this.  I find the witness’s story somewhat doubtful.  I make particular reference to his testimony where he states that he really feared for his life at the time when he was chased or when he ran off into the bushes with one Tade Boana.  Despite his fears, he hid a short distance away of about 10 meters and watched.  His story, in my view, became sketchy from there onwards.  He said he hid in the bushes.  He said he crawled or went under a pig track where from there he was able to turn, watch and identify the 6 accused.  It is unclear whether he and Tade Boana ran together in the same direction, crawled under the same pig track, or hid together and watched, or whether they did that separately or otherwise.  Furthermore, there were many people at the first crime scene, that is, according to witness Birau.  Witness Birau was asked to give an estimate of how many people were there.  His response was that there were many people there.  When he was pressed with questions from the defence to state whether there were 10, or 20 or 50 people there, he said and I quote, there were so many people there.  This makes me wonder and I ask myself these questions or I have these queries.  If there were so many people there and if witness Birau was hiding beneath a pig’s track, how could he have seen clearly what was going, that is, given his position, his location and the huge number of people that were there?  And if there were so many people, 10 meters seems only a small distance away and with that many people who were present, I find it odd that he was able to remain there without being seen or discovered.  And if he said that he was fleeing for his life because he was really scared at the time, it does not make logical sense to me that he would run only a short 10 feet or so and hide there to watch.  The huge number of people who had converged to attack them, if I may assume, could have drawn witness Birau further and further away from the first crime scene.

20.	There is no corroborating evidence to witness Birau’s account at the first location or crime scene.  When I say corroborating evidence, I of course mean evidence in regard to the first crime scene only.  With these, I make the following findings.  Firstly, I am not convinced that I can rely on this witness.   I doubt his credibility and as such, I am not sure whether I should believe his account of what he said had occurred at the time.

21.	Let me turn to State witness Steven Joshua.  He testified in regard to the second location which is also part and partial of the third location or the second crime scene.  He identified accused, Noel Burbur, July Iroto, Billie Robin and Teko Gire.  His oral testimony shows that he knows of or has come across these co-accused before.  That said, I note, however, that his evidence is not corroborated.  I observed witness Joshua’s demeanour in Court.  I must say that I do have some doubts with this witness.  I am not reasonably sure or certain that I can believe him as a credible witness.  I note that his account of how the assailants carried the deceased out of the bushes is different to the account recalled by witness Birau.  Witness Birau said the deceased was carried away on a pole with both his hands and legs tied to it.  Witness Joshua, on the other hand, said the deceased was carried out of the bushes by 2 men with his hands around their shoulders.  I also find it difficult to comprehend this witness’s account of events, and say that it is very odd that the assailants, who had intended to kill the deceased, that after severely assaulting him, would carry him out of the bushes and into the open or public and past witness Joshua’s house; that they would stop by and permit witness Joshua to fetch water for the deceased to drink; and then they would carry him down onto the main road again in full public view, with a view it seems, to send him off to the hospital to receive medical attention.  Witness Joshua said that he later went down to the road where the deceased had been taken to.  He said he assisted to carry the deceased onto the police car.  However, I note that he makes no mention of witness Colleen nor did he corroborate her story, that is, despite that fact that witness Colleen, according to her testimony, appears to be at the centre of what had transpired at the second crime scene.  

22.	Lastly, I refer to the testimony of witness Kopis Colleen.  She gave evidence in regard to the second crime scene.  She identified accused July Iroto, Timothy Sammy, Ramanus Taenge, Bubu Value, Ephraim Ranui Jr and Gunan Sakapiok in Court.  She said she recognised them because they are related to her, she knows them and that they come from the neighbouring village.  Witness Colleen’s evidence of the second crime scene is not corroborated.  She is the only person called by the State to give evidence of what may have occurred at the time near the main road next to Vunairoto village.  I observed witness Colleen’s demeanour in Court.  She appeared to give evidence confidently at times.  But there were times when I had difficulty following her recollection or in trying to make logical sense out of her story.  The danger I see in regard to her evidence of identification is this.  Although I note that she appears to know the 6 accused, I am not sure whether they were the persons who were present at the material time.  The witness herself stated during cross-examinations that there were more than 50 people who were present at that time who had witnessed the incident.  This to me could mean 55 or 60 or 70 or more people who may have been there.  I find it odd that out of these so many people that no one else was called by the State who could corroborate witness Colleen’s account of (i) what may have occurred there and (ii) those persons whom she has identified in Court as being present at the second crime scene.  The State has that burden of proof, and it seems that for whatever reasons, these persons were not called.  The 3 State witnesses, if you like, gave independent accounts of what they each alleged transpired at these 3 locations, and they do so without the benefit of other witnesses who could have been called who could attest to and verify their respective accounts or recollections.  And because we have 3 different scenarios and 2 different crime scene locations, these 3 witnesses cannot and it is misconceived, in my view, to think or assume for a second that they each could corroborate their accounts.  How can that be so when these accounts are at different locations with different alleged facts and settings?

23.	Witness Joshua did state that he also participated when police arrived at the second crime scene to take away the deceased.  So, witness Joshua and witness Colleen were both present together at the second crime scene at one point.  This is another area where I have more doubts or questions.  Despite both witnesses’ presence at the side of the main road, they each did not acknowledge the presence of each other in both their oral and written testimonies to the Court.  It is of course not unusual for one witness to not see the other due to various factors that may be present at that time, and I acknowledge that.  However, in this case, witness Colleen, by her own testimony, shows that she was the only person that tried to protect the deceased or who came to his aid when he was assaulted at the second crime scene.  She said she held him in her arms and cried.  She said she was there with him until the police car arrived and took him to the hospital.  To my mind, and given the circumstances as she describes it, witness Joshua was also there, and he would have recognised or seen what was going on.  Witness Colleen’s evidence suggests to me that she was in the middle of the second crime scene as it was unfolding as well as after that.  But when I compare their evidence, they do not corroborate each other.  Instead, they both give independent account of what they each saw and observed, and witness Joshua makes no mention of witness Colleen.  Their only matching evidence was the part where the police arrived at the scene and left with the deceased.

24.	My main overall observation is that I do not believe the accounts as recalled by the 3 State witnesses, that is, in terms of identification of the 11 co-accused and the accusations that have been labelled against each of them.  Because of that, there is a need for corroborating evidence, and the State has, in my view, failed in that regard.  I must also say that I find it difficult or troublesome, in trying to understand or follow the logic in the testimonies of these witnesses.  And because I have doubts, it means that the burden of proof in this case has fallen below beyond reasonable doubt.

FINDINGS ON STATE EVIDENCE

25.	In the end, I am not satisfied that the 3 State witnesses are credible witnesses.  I find concerning issues in relation to the 3 witnesses in terms of their ability to identify the 11 co-accused persons at both crime scenes.  I say this despite the fact that the incident occurred at daytime and despite the fact that the witnesses may have known these 11 co-accused.  Their timelines were different; they involved different scenarios and circumstances; and they involved separate alleged facts.  I am also not convinced that what the 3 State witnesses state are true.

26.	There was no corroborating evidence to back up the claims by each of the witnesses on their independent accounts of what they each saw at their respective locations or at the 2 crime scenes.  The said burden is upon the State, and I find that it has failed in that regard.  

VERDICT

27.	I find that the State has failed to prove beyond reasonable doubt that the 11 co-accused have committed the crime or offence of wilful murder contrary to s. 299 of the Criminal Code.

28.	I therefore enter a verdict of not guilty to their respective names, namely, July Iroto, Gunan Sakapiok, Ngunia Paipo, Bubu Value, Timothy Sammy, Ephraim Ranui, Billie Robin, Benjamin Paipo, Romanus Taenge, Teko Gire and Noel Burbur.  I will order the bail monies for each of the co-accused, except for Noel Burbur, to be paid forthwith.  As for accused Noel Burbur who is in custody, I order that he be immediately released forthwith.  
________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Eleven (11) Co-accused