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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR 536 OF 2020; CR 537 OF 2020; CR 538 OF 2020;
CR 541 OF 2020; CR 542 OF 2020; CR 543 OF 2020;
CR 544 of 2020 & CR 545 of 2020.
THE STATE
V
ISON KIPTAUN, DAVID LEE, TOBY KAROL, MICHAEL PAPI,
MOSES MINIS LOKO, HERTUE KAROL, VINCENT PUNAU &
STEVEN SINDOL
(NO. 1)
Manus: Geita J
2021:10th, 11th,16th &17th August
CRIMINAL LAW – Trial – Wilful Murder – Mob attack on the victim as he lay wounded and helpless after a long chase.
CRIMINAL LAW - Wilful Murder – Section 299 (1) Criminal Code – All elements successfully made out save for intention –
Wilful Murder count must fail.
CRIMINAL LAW – Section 539 (1) Criminal Code invoked
CRIMINAL LAW – Murder – Section 300 (1) (a) Criminal Code Act - Alternative count of causing grievous body harm with intent applied.
CRIMINAL LAW - Section 7 Criminal Code invoked and successfully made out.
Facts
The accused each and severally were arraigned on indictments to the charge of wilful murder of the deceased Moses Papi Kolohi on 29
April 2019 at Rambutso Island. The charge was laid pursuant to Section 299 (1) of the Criminal Code, Chapter Number 262. In the alternative, indictment of intending to cause grievous bodily harm to the deceased under Section 300 (1) (a) Code. Section
7 Criminal Code was also invoked. (Hereon Moses Papi Kolohi will be referred to as MPK).
Cases Cited:
Jimmy Ono v The State (2002) SC698
R v Phillips Boike Ulel [1973] PNGLR 254
The State v Kasaipwalova [1977] PNGLR 257
Counsel:
Linda Maru, for the State.
Kusunan Pokiton, for the Accused.
JUDGMENT ON VERDICT
17th August, 2021
1. GEITA J: All seven accused entered not guilty pleas except accused Moses Minis Lokon who entered a guilty plea. His case was stood down to
a later date, whilst awaiting completion of the trial for the seven accused.
Prosecution Evidence.
2. The following documents forming part of prosecution evidence were subjected to cross examination:
Exhibit 1 Dr. Otto Numan’s Affidavit – 1/8/2019
Exhibit 2 Post-Mortem Report of Moses Papi Kolohi by Dr. Otto Numan
Exhibit 3 Medical Statement of Moses Papi Kolohi by HEO Brian Kisel
Exhibit 4 HEO Brian Kiesel’s Affidavit – 2/8/2019
Exhibit 5 (a)(b) ROI David Lee 5/9/2019.
Witness 1. Salome Puntam-Age 37 years old, Elementary Teacher.
3. She gave testimony as follows: Upon hearing stories from some students that Moses Papi Kolohi had cut Willie Boni she walked over to the Health Centre. From there she saw some boys chasing Moses at the back of the Health Centre, so she walked down to the lawn and saw Michael Boni hit him with a knife, causing the knife to fall from Moses’s hand. As he continued running on the road, she saw Ison Kiptaun hit him with a long dry coconut. David Lee threw a stone at his head, causing him to fall down. She described the stone by showing two folded fists, estimated to be about 4 inches in diameter. As he fell down, the witness saw Moses Minis Lokon hit him with a piece of tree branch. She said she was about 6 meters away when she saw Moses fall. The witness said as the crowd dispersed Toby Karol came and cut his legs, thighs with a bush knife as he lay facing downwards.
4. The witness identified Ison Kiptaun, David Lee, Moses Minis Lokon and Toby Karol with ease as they were all related to her one way or another.
5. The witness cried and help carry him to her sister’s house, cleaned him up and took him to Paniselu Health Center. Brian Kisel stitched the wounds on his head and legs and referred him to be taken to Lorengau General Hospital, because his condition was not good with big cuts and heavy bleeding. He died along the way near Tiliemu Island as he was transported to Lorengau Hospital.
6. The witness said more than 20 people were chasing Moses, but she only recognised the four accused. She said they did not say anything as they were chasing the victim and she did not find out the reason why the chase. Eighteen to twenty boys were chasing Moses when four boys approached him from the front. She said Moses’s attackers were nearby within a 6 meters radius.
Cross Examination.
7. In cross examination the witness said she does not know why Moses was chased by the four men, but he heard that Willie Boni was cut by Moses. She said Moses ran into the bush and later ran towards the Health Center armed with a bush knife and was swinging the bush knife at the group of men nearby. The men were from Lankot village. The witness admitted that the boys attacked Moses because he provoked them. She agreed that David and Ison threw a stone at Moses because he was armed with a knife. She said Michael Papi distracted him by hitting his hand with an iron, which caused the knife to fall.
8. When questioned what Moses Pappi did before Tobby cut him, she said Moses was calling out Jesus’s name for help. Toby cut him and walked away.
Witness 2. Nicky Holland-aged 49 years. Catholic Church Catechist from Paniselu.
9. As he sat with his brother under his house between 7:00 am to 7.30 am that day, a fight erupted between Willie Kepui and Eddy Joseph, so they went and stopped the fight. The community bell summoned the community and we all attended but were told that community work was suspended for the day due to the fight. Some big men were invited to try resolve the problem.
10. From where we were seated, I heard swearing and shouting from Ward 7 boys coming from the side of the cemetery. Three villages make up the Panchal village namely Punehandran, Lankot and Rabutan. We walked over to the boys and tried to calm them down, but they were still talking and swearing. The boys were related to Willie.
11. The witness said the commotion was near Kepui and Moses Papi’s area. I heard swearing but I did not see if Moses cut someone. I saw all the boys sitting in court chasing Moses into the community. Moses ran towards the beach and hid and whatever happened thereafter I don’t know.
12. Later on, I was told by one of my brothers that Moses cut Willie and was taken to the Health Center. I went to the Health Center between 9am and 10am and the place was crowded. I saw Michael Boni Papi who came and told the boys that Moses had been sighted and saw the boys went searching for him in two groups. One group went up the highway and another group of boys from Penchal went searching from him around the hospital.
13. As I was standing with Vincent Punau, Moses was chased from the back of the Health Center. I saw Moses fall down for the first time, but I don’t know why he fell down. Vincent, Salome and I tried to help him, and I told him to run to my house, He was still holding on to the bush knife in his hand. He got up and called out I surrender.
14. Michael Boni Papi who was standing near a coconut tree attempted to hit his head but as his hands were raised in the air the iron, he used hit Moses’s hands causing the bush knife to be dislodged. Moses continued running as Vincent Punau and I raced for the bush knife.
15. I followed to the area where he fell down, facing downwards. I don’t know who caused him to fall down. The first person I saw hitting him on his head with a stick several times, possibly six or seven times was Moses Minis Lokon. As I tried to pull Moses Lokon away, he fought back. Vincent Punau saw what happened. I told Moses Lokon you have killed him what more do you want out of him.
16. The second person I saw was Chapau Kipoi who hit the back of Moses Kolohi’s head with a stone.
17. The third person I saw who hit Moses Kolohi on his head with a piece of stick was Ison Kiptaun. At the time the deceased was lying on the ground face down, so he hit his back. He was hit several times. Solomon Steven went and pulled Ison away. As Ison came away I told him you have killed him, what more to you want.
18. I saw Hertue Karol hit Moses Kolohi with a stick once on his back and stood afar off.
19. I saw Ate Karol used the flat side of a knife and hit Moses Kolohi once and retreated.
20. As they all moved away, there was an opening from where Toby Karol came and cut the victim’s thighs once.
21. They all left, and we carried Moses Kolohi to my younger brother’s house. He has blood over his nose, ears and the back of the head which was very soft. We cleaned him up and took him to the Health Center who tried to stop the bleeding. He was later referred to Lorengau General Hospital but died along the way.
22. As the boys from Paniselu were chasing the victim, they were calling out “TE MATE”, (Kill him). I heard many voices calling “Te Mate” as they chased the victim towards the Health Center. He said Chapan Kapui was from Panchal community, Moses Minis Lokon was from Punehandran, Ison Kipiton is from Raputau village, Michael Papi is from Penchal community. Hertue Karol is from Punehandran and Toby Karol is from Punehandran. Hertue and Toby Karol are blood brothers.
23. The witness said Moses Kolohi and Willie were close neighbours. Their house were about 30 meters apart from each other. Chapan Kepui is still in the village as he was not arrested by Police. Moses Minis Lokon is still in prison.
24. All the accused were identified in court with relative ease as they were all related to him one way or another and speak the same language. He said it a clear sunny day.
Cross Examination.
25. As to defence suggestions that the victim was not a good person in the community and put himself in harm’s way that day the witness disagreed. The witness denied suggestions that the victim attacked Hertue Karol. Similarly, he denied suggestions that the victim came to attack Ward 7 boys. Cross examination continues:
Q. 1 Did you see him surrender?
A. He said, I surrender, with his hands raised.
Q. 2 He was swinging at people?
A. He came out with his hands raised in the air.
Q. You saw Toby Karol cut him with a knife, what color shirt did he wear?
A. I cannot tell.
Q. Ison Kiptaun never assaulted the victim?
A. No.
Q. Hertue Karol never assaulted the victim?
A. No.
Q. I am saying that because there were lots of people assaulting the victim and those nearby?
A. There were plenty of people, but only 7/8 were charged. I told court what I saw.
Q. When police came, were these the only people charged?
A. I only saw those who assaulted the victim and mentioned their names.
Q. You are angry because the victim is your nephew?
A. No.
Q. You were told to talk about that because you want the accused persons to be blamed for killing the victim?
A. No, I saw accused with my eyes.
Re-Examination.
26. All the accused are my relatives and I gave their names to the Police because what they did was not right. The victim was chased from near his place and Willie Kapu’s place towards the beach area. They were the same boys from Panchal community.
Court Question.
27. Who else helped you and Vincent try to stop the fight or pull the victim away?
A. Salome Steven and Ross Simon tried to help us rescue the victim.
State Question.
28. Was Vincent trying to stop the boys from hitting Moses Kolohi?
A. I cannot tell but Vincent was there. Only Rose and Salome assisted.
Defence Question.
29. Why didn’t you do more to save victims life?
A. I tried my best to save him but there were lots of boys and he was already on the ground.
Witness 3. Brenda Karem – Grade 8 student, 17 years- Paniselu village.
30. The witness testified that after seen a photo of the cut caused by Moses to Willies body, she together with other girls went to the Health Center during school recess around 10 am. Along the way they stopped at Monica’s sisters house and were given some rice to eat. From there they heard noise coming from the back of the Health Center and saw some men chasing Moses through Davis house. We saw Hurbert Mosin chase victim with a piece of timber.
31. As Moses surrendered Hubert swung a timber at him so the victim used the knife to defend himself. As Moses ran towards Steven Sindol, he was shot with a catapult, but he kept running. I was about 10 meters away when I saw Steven Sindol shot the victim. The witness said Steven and Hurbert were not part of the group of boys who chased Moses Kolohi. She said the three boys, Steven Sindol, Herbert Mosin and David Lee were known to her she referred to them as brothers. As for Toby Karol the witness they both went to school together and she knew him well. She said the boys were all standing within a 9-10 meters radius area. Steven was about 9-10 meters away from her, David Lee was about 5 meters away from her and Tobby Karol was about 4-5 meters away from her.
32. As he kept running David Lee threw a stone at the back of his head and he fell down, got up and kept on running. As he ran towards the crowd, I saw Toby Karol cut him with a knife as everything ended. She demonstrated swinging action with bush knife downwards. She demonstrated the size of the stone to be the size of her folded fists. The Court estimated the width of the stone to be 3-4 inches in diameter,
33. The witness said as they were chasing Moses Kolohi they were shouting in language “letuhia temate’ kill him kill him.
33. As they dispersed, the victim was taken to Sam Holen’s house, clean up and taken to the hospital. His condition was not good, so he was referred to Lorengau General Hospital but died along the way.
Cross Examination.
34. Asked whether Steven Sindol shot him with a catapult, the witness said as Moses, slipped and fell down, the missile missed him and hit a nearby coconut tree. As to suggestions that the stone thrown by David Lee missed the victim, the witness said the stone, demonstrated to be about 4 inches in diameter or two folded fists hit the victim causing him to fall down but he got up and kept running. Cross examination continue:
Q. 1 I put to you that David Lee threw a stone, but it did not hit Moses Kolohi?
A. Stone hit Moses Kolohi. There were other boys chasing but I don’t know what they did.
Q. Who else hit Moses?
A. Plenty of people but those that I saw I called their names.
Court Question.
35. Who was the last person to hit Moses before he fell down and was cut on his legs by Tobby Karol?
A. Moses Minis Lokon.
Witness 4. Marry Jerry – 34 years, married to man from Panaselu village.
36. In giving her testimony, the witness said as she sat in front of her house around 10 am – 11 am she heard some men chasing Moses Kolohi towards the Health Center. His hands were raised as a sign of surrender and said, “that’s enough”. She indicated her house to be approximately 15 to 16 meters away from the Health Center.
36. As he ran past David Lee, standing under a coconut tree, I saw Ison Kiptaun hit the victim with a dry coconut, forcing him to fall. However, he got up and continued running. David Lee threw a stone and hit him on the back of his head, and he fell down. A big group of men began assaulting him. I don’t know who is from what village. Ison Kiptaun and David Lee are from Lankot village ward 7.
37. I saw Moses Lokon hit Moses Kolohi with a tree branch on his head as he lay on the ground. I saw Toby Karol cut the victim on his legs. He is from Panaselu village.
38. The witness estimated the distances from her to Toby Karol to be between 2-3 meters. Distance from Ison Kiptaun to be between 15-20 meters, Distance from David Lee to be between 5-6 meters and distance from Moses Lokon to be 3 meters,
39. The witness said I don’t know the men who were chasing Moses towards the hospital however I know the three men, Ison Kiptaun, David Lee and Moses Minis Lokon as they are my husband’s family members.
Cross Examination.
40. Before Toby Karol cut the victim Hubert Mosin hit him with a stone and he fell down?
A. I saw David Lee hit him with a stone and he fell down.
Q. Before victim fell Hubert Mosin hit him with stone?
A. I didn’t see Hubert Mosin threw a stone at him.
Q. Who was the last person to hit the victim, causing him to fall down.
A. David Lee.
Q. Moses Kolohi got up and ran?
A. “Nogat” When he hit him, he fell down and crowd assaulted him.
Q. Catechist was also standing nearby and did not, see?
A. Nicky was not there when victim was chased. He came when David Lee hit Moses with stone, causing him to fall and was crowded by the mob.
Q. Catechist stopped the fight?
A. Yes, he was there that time and tried to stop the fight as Moses Lokon was hitting him.
Q. Where you standing with Brenda, she said something else?
A. I don’t know. Brenda’s story is hers and my story is what I saw.
41. The witness said as Moses Kolohi surrendered with his hands raised in the air, he was not carrying anything. She described the width of the stone to be the same as her tow folded fists, estimated to be 4 inches in diameter. In like manner she described the coconut to be elongated in size. The coconut was used to hit the back of the victim as he was running. As to suggestions that Ison Kiptaun and David Lee never assaulted the victim, the witness maintained that both men assaulted Moses Kolohi.
Witness 5. Solomon Steven -22 years, married with 1 child-Panaselu village
42. The witness said he was at the Community Hall when he heard swearing coming from Billy Kepuis house. The fight was between Eddy Charlie and Billy Kepui. Vincent Punau and Ison Kiptaun tried to stop the fight. Hurbert Mose and David Lee went to fight at Billy Kepuis house. There were lots of people, some are sitting in court. That fight ended.
43. He said Moses Kolohi heard the swearing and I stopped him from going as the trouble had ended. He was carrying a knife in his hand. As they were going Hertue Karol threw a stone at Moses but missed him and the stone hit the rainwater tank.
44. The witness said three boys came charging at us. Kapun Karol, Hertue Karol and Willie Boni. Hertue Karol carried a small knife, others carried stones. AS Wellie took a short cut towards Moses Kolohi he was cut by Moses on his left hand.
45. He said all the boys from Lankot, Penchal and Punehandran villages began chasing Moses Kolohi towards the beach area. I followed them but stopped short and returned to my house. As me Vincent and Ross Simon were sitting under the house, we heard swearing coming from behind the Health Center: “Te mate” in tok ples or kill him, kill him.
46. I ran towards where the noise was coming from and saw Vincent Punau, Hertue Kapuwen, Hurbert Mosin, Moses Lakon and Michael Boni, all fighting with Moses Kolohi. Hertue carried a piece of timber, Michael Boni carried a piece of iron and Hurbert Mosin carried a tree branch. As Hertue hit him with a timber he fell down and I went and stopped Hertue. Moses got up and stood behind me.
47. To my surprise Vincent Punau threw a stone at Moses. The stone missed him and hit me on my hands, and it went numb. Moses was trying to defend himself by swinging the knife.
48. He said as Moses Kolohi ran, Michael Papi threw a piece of iron at him which caused the knife to fall off his hand. At that time Vincent Punau and Nicky Holland both raced for the knife as Moses raced off.
49. David Lee was standing near a coconut tree and hit Moses’s head, causing him to fall down. Ison Kiptaun held a tree branch and hit the back of his head., Michael Boni and Hertue Karol hit him on his head with a piece of timber.
50. As Moses Kolohi was lying on the ground Moses Minis Lokon hit him on the back of his head with a stick.
51. He said those that I saw, I called their names and when I tried to stop them, they stopped but Tobby Karol cut him on his left legs as Jacob Palae hit him with a piece of iron.
52. The witness said as everyone left, Moses was carried to his uncle’s house, cleaned up and taken to the Heath Center. He was unconscious and bleeding from his legs, ears, nose, and head. As we carried him towards the Health Center, he called out Jesus help me and remained quiet. My brother was later transported to Lorengau but died on the way near Tiliemu island.
53. The witness pointed out to Ison, Hertue, Michael, Vincent, Toby, and David Lee in court and said all those boys were seen at Kepui’s house and they chased Moses Kolohi towards the beach. He also mentioned Moses Minis Lokon and Hubert Mosin’s names. He said Hurbert Mosin and Kepui Karol and Willie Boni were not in court.
55. The witness said he knew the boys very well and referred to them as his brothers and uncles. He said I came to court because Moses is my blood brother and what they did to him was not right.
Cross Examination.
56. As regards suggestions that Hertue Karol only threw a stone at the victim, the witness said he went to observe and was carrying a knife. The witness maintained that his brother did not run into the bush, but he ran towards the beach and later into the bush. He agreed that he was at the health center with Rose and Niky and they both tried to stop the fight. Cross examinations continue: -
Q. Vincent did not throw a stone at your brother, the stone hit you instead?
A. If I am a small boy, I will tell lies.
Q. Vincent wasn’t doing anything, he went to stop the fight?
A. Vincent had a stone in his hand
Q. Did Gibson try to stop fight?
A. I did not see him.
Q. When was the first time of fall?
A. When Hertue Karol hit him with a piece of timber and he fell down? As he got up and ran, I went and tried to stop Hertue as victim ran towards the hospital. As he ran on Vincent Punau hit me with a stone. David Lee stood near a coconut tree and hit victim and he fell down. That was the second fall. David was standing about 4 meters away from me.
Q. I put to you that David Lee did not throw a stone at the victim.
A. I saw him throw stone.
Q. Ison did not hit victim on his head as he lay facing downwards?
A. I saw Ison and other boys I mentioned.
Q. There were lots of people assaulting your brother because it was not possible?
A. True there were plenty of people, but I saw the men I told court.
Q. Did your brother try to surrender?
A. As he ran, he raised his hands and said Äiyo, aiyo.”
Witness 6. Dr Otto Numan - Medical Doctor. Lorengau General Hospital
57. Dr Numan deposed in his affidavit and post morten report, market Exhibit 1 & 2 respectively that he carried out the post-mortem on deceased Moses Papi Kolohi aged 27 years on 8 May 2019. He observed 8 wounds on the back of Moses Papi with the longest being 5cm and the smallest being 2cm in length. He also observed a 12 cm laceration on the left thigh. His skull fractured and soft with heavy bleeding. In his opinion he said a blunt object was used over the head while a sharp object like a bush knife was used to cause the left thigh wounds, resulting death. The combination of hypovolaemia shock and severe brain injury caused his death.
Witness 7. HEO Brian Kisel - Panaselu Health Center, Rambutso Island.
58. The witness gave testimony of receiving two wounded persons on 29 April 2019. The first one had knife wound on his upper arm. As he was treating him, they brought in Moses Kolohi who was disoriented and had wounds at the back of his head and thigh and was bleeding heavily. He observed Moses Kolohi to have suffered from a skull fracture. He was treated and referred to Lorengau General Hospital. He authenticated his notes and signatures on his statements and were received into court. He was cross examined.
Witness 8. Channel Yakom - Police Officer - 4 years with CID Division.
59. He gave testimony of corroborating accused David Lee’s interview which was conducted by Ralwin Lamu, now deceased on 5 June 2019 at Lorengau Police Station. He said he was part of the group of policemen who went to Rambutso Island and conducted investigations and apprehended several suspects. He verified his signature on the record of interview which was accepted into court.
No Case Submission.
60. At the close of prosecution evidence Mr Pokiton moved a no case on behalf of accused Vincent Punau and Steven Sindol. He relied on both limbs in the Paul Kundi Rape case authority. He submitted that there is little or no evidence pointing to the involvement of the two persons and both ought to be acquitted at this stage.
61. This brief application was overruled by court. The court decided otherwise.
Defence Evidence.
62. On their part all seven accused elected to give unsworn statements.
Submissions on Verdict – Defence.
63. Counsel of defence Mr Pokiton submitted that the prosecution witnesses were selective in identifying accused from a group of people who took part in assaulting the deceased, hence their evidence lacking truthfulness and consistency. He argued that the state witnesses were coached and as such they were not telling the truth.
64. He submitted that there was a disconnect in prosecution evidence as they were inconsistent, only focused on the accused in dock and no other. Defence submitted that the actual murder took place when the deceased fell down. He said in view of varying versions of which accused did what and with what weapon unreliable and not to be believed.
65. Mr Pokiton submitted that with exception of Toby Karol, David Lee and Ison Kiptaun to be found on a lesser charge of grievous bodily harm, not guilty verdicts be entered for the rest of the accused. He submitted that s.7 Criminal Code will only come to play at the time the victim fell on the ground and not prior to that. Mr Pokiton argued that the indictments for Wilful Murder and Murder not proven beyond reasonable doubt and be dismissed.
66. As regards defence submissions that the prosecution witnesses were selective in identifying only the accused and no other thereby lacking credibility, that assertion is erroneous in my view as other persons were also named in their evidence. For instance, Hubert Mosin, Jacob Palae, and others. Charging and bringing those boys to court is not within their powers. Only the police and prosecution make those decision.
67. Mr Pokiton’s submission of s. 7 Criminal Code coming to play immediately after the fall of the victim on the ground again is erroneous in my view. I have not been assisted with any case authority on this legal point. In the absence of that, my view is that s. 7 Criminal Code kicked in at the first fight right up to the eventual fall and assault. Eyewitness accounts placed Vincent Punau, Ison Kiptaun, David Lee and Hertue Karol at the location of the first fight. What each of them did or did not do is a matter for submissions at the appropriate time.
Submissions on Verdict – Prosecution.
68. Counsel of State Mrs Maru submitted that the deceased reacted in the manner he did and cut Wellie Papi as he was confronted by three boys, one of which is accused Hertue Karol. She submitted that the accused were present at the Health Center and upon hearing that the deceased was sighted, they all sandwiched the deceased and assaulted him. Their identities were not in issue and they were easily made out.
69. She submitted that when considering the evidence of State in totality, there was a chase, the victim cornered and as he fell down, they all took part in assaulting him. They have a reason to attack the deceased and invited the court not to believe their version of events. Since they all gave unsworn statements, no weight ought to be given to their statements.
70. The Court was invited to believe their version of events as they came prepared to testify despite their close relationship with all the accused. Their motive was to tell court the truth on what happened that day. As for the defence any suggestions of ulterior motives were not put to prosecution witnesses. The deceased was chased with one purpose in mind and that was to kill hence the call “Te mate” in language kill, kill.
71. She submitted that intention was proven, and the State has overwhelming evidence to support the wilful murder indictment. As to their degree of participation their actions fell with the ambit of Section 7 Criminal Code. Mrs Maru submitted that the alternative count of murder under s. 300 of the Criminal Code was still available to the Court and invited Court to have recourse to Section 539 Criminal Code.
Issues raised by the Evidence.
72. Involvement. – Fighting between 7 am and 8 am.
72. The state of the evidence covering, what is now regarded in evidence as the first fight places accused Vincent Punau, Ison Kiptaun, David Lee and Hertue Karol in the fighting area. When the other boys from Lankot, Panchal and Punehandran villages learnt that Willie was cut they began chasing Moses Kolohi towards the beach. Vincent Punau said in his unsworn evidence that he helped stop the fight and returned to the community hall.
74. Inferentially therefore some of them or all of them together with the boys from the three villages were involved in chasing Moses Papi Kolohi towards the beach.
75. Fighting behind the Health Center.
76. Fighting- Involvement and who did what?
77. The state of the evidence covering, what is now regarded in evidence as the second fight places all accused who took part in assaulting MPK as he was running and as he lay facing downwards. Some other boys who assaulted MPK but not indicted were Jacob Palae, Hertue Kapuwen, Hubert Mosin, Chapau Kipoi and Ate Karol. All five prosecution witnesses gave direct eyewitness account of who did what and to whom. All their evidence remains intact despite extensive cross examination. The accused unsworn evidence also corroborated their involvement and touched on the role they each played in assaulting MPK. Accused David Lee’s admission in his record of interview (ROI) of hitting MPK with a stone on his back causing him to fall down finds corroboration in all prosecution eyewitness accounts of this event. Besides David Lee’s admission no opposing evidence was presented. It follows that I have no reason to disbelieve their eyewitness accounts. I find all of them to be truthful witnesses.
78. I am therefore satisfied beyond reasonable doubt that all accused including those boys not on indictment contributed one way or another in assaulting MPK as he lay face down, wounded, and helpless which contributed to his eventual death.
Other Relevant Matters.
79. (1) Identification of the accused
The identification of all the accused is not in contention and accepted as they were presented. They were all from ward 7 comprising of the three villages of Punehandran, Lankot and Rabutan. All prosecution witnesses identified them with relative ease as they were either, uncles, brothers, close school friends and related to them by marriage. The common theme in their identification made easy which set them apart from the crowd were their involvement in doing one or more of those assaults or a combination of them which contributed to the death of Moses Papi Kolohi on 29 April 2019. Be it chasing MPK or in assaulting him. In these types of crimes, eyewitness accounts may vary and for very good reasons. They each saw things differently independent from each other and their evidence will vary.
Inferentially therefore I have no reason to disbelieve their eyewitness accounts of identification. In any event the accused in their respective unsworn evidence corroborate their identification,
(2) Two Medical Reports.
The Health Extension Officer Brian Kisel and Dr Otto Numan attest to receiving and treating the deceased, Moses Papi Kolohi, a 27 year of male from Panaselu village. In his post-mortem findings Dr Numan attributed MPK’s death to loss of blood and shock due to severe head injuries caused by blunt objects. His observations on the type of injury suffered by the deceased find corroboration with eyewitness accounts of the victim being hit on his head and body several times with, stones, sticks and knives.
(3) Was intention manifested?
In this case intention manifested itself in several way: Not long after the first fight was stopped Moses Papi Kolohi was chased by a group of men from ward 7 towards the beach area. State witness attest to hearing MBK’s attackers calling out in language kill him, kill him: Two witnesses said “temate”or kill him. Student witness Brenda Karem said “letehia temate” or kill him. Upon learning that he was sighted two groups of boys went looking for him. Despite him showing signs of surrendering by raising his hands in the air his attackers continued to assault him.
Several opportunities presented themselves for some of you to stop or withdraw from assaulting the victim, however you persisted on the assault resulting in death. It follows that your individual or collective intentions were manifested when the victim was pursued with aggression which resulted in him succumbing to the chase and falling face down on the ground. As he lay exhausted from the long chase, the injuries he received, wounded and now defenceless you all continued assaulting him, resulting in his eventual death from the wounds he received.
However, notwithstanding the presence of your collective intentions in committing this heinous crime, the prosecution has failed to prove specific intent and connect specific individuals or collectively on how they were out to bring about specific consequences for his or their actions. For instance, the cries for kill him, kill him were not uttered by particular accused for Court to draw a specific intent by linking him to what he did as the victim was assaulted as he lay on the ground. The prosecution evidence to prove intent is disjointed and not successfully proven.
(3) Unsworn evidence.
The accused all gave unsworn evidence, it follows that they were not able to present any reason to compel this Court not to accept the sworn evidence against them. The prosecution’s case consists entirely of tested sworn evidence. To this end I remind myself, as the tribunal of fact, of how I should treat their unsworn evidence. I find some comfort in this passage in the case of The State v Kasaipwalova [1977] PNGLR 257; R v Phillips Boike Ulel [1973] PNGLR 254.
“The jury should take the prisoners statement as a possible version of the facts and consider it with the sworn evidence giving it such weight as it appears to be entitled to in comparison with the facts clearly establish by the evidence":
Furthermore, this is what the Supreme Court said in the case of Jimmy Ono v The State (Unreported judgment delivered on 4/10/2002) SC 698:
“In your case, you presented no sworn evidence to rebut the sworn evidence against you. You were only prepared to give an unsworn statement. Whilst that was your right to do so and that no inference of guilt can be drawn against you because of that, it means that you were left with sworn evidence against you without any rebuttal from you. You were not able to present any reason to compel the trial judge not to accept the sworn evidence against you.”
Now going by the principles stated in these three cases, I have considered your respective evidence and considered them with sworn evidence. For their worth they all find corroboration with prosecution evidence in placing you all within the crime scene.
The relevant laws: -
80. Section 299 Criminal Code Act creates the offence of wilful murder and it is in the following terms:
S. 299 (1) 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.
(2) A person who commits wilful murder shall be liable to be sentenced to death.”
Elements of the Offence:
1. A person
2. Who unlawfully kills another person
3. Intending to cause his death.
Findings
81. (1) That the seven (7) of you together with other persons not named in this indictment were the persons who unlawfully killed Moses Papi Kolohi on 29 April 2019 at Rambutso Island. You were all collectively involved in the assault.
(2) The prosecution has not successfully proven the element of intention to cause the death of Moses Papi Kolohi on 29 April 2019 at Rambutso Island.
82. Due to the foregoing reasons, I find that the prosecution has not successfully made out all the elements of the charge of Wilful Murder under s. 299 (1) Criminal Code Act against all accused.
83. However, in the exercise of my powers under Section 539 (1) of the Criminal Code Act, I find you all guilty of the alternative count of murder under s. 300 (1) (a) of the Criminal Code Act.
84. Other relevant laws
Principal Offenders.
Section 7 (1) When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it: –
(a) every person who actually does the act or makes the omission that constitutes the offence;
(b) ...;
(c) every person who aids another person in committing the offence...;
as if he had done the act or made the omission and may be charged with himself doing the act or making the omission.
85. This Court is also satisfied that you each and severally aided each other and caused the death of the deceased. I find you all criminally liable by operation of s.7 Criminal Code.
86. Verdict.
Accordingly, I return a verdict of guilty against the seven (7) of you for intending to cause grievous bodily harm to Moses Papi Kolohi
under s. 300 (1) (a) of the Criminal Code Act and have you all convicted accordingly.
| 1. Ison Kiptaun | Guilty |
| 2. David Lee | Guilty |
| 3. Toby Karol | Guilty |
| 4. Michael Papi | Guilty |
| 5. Hertue Karol | Guilty |
| 6. Vincent Punau | Guilty |
| 7. Steven Sindol | Guilty |
Verdict: Guilty Each and Severally.
_________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused
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