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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR No. 654 - 658 OF 2018
THE STATE
v
ABRAHAM ELIUDA
RUPAS KAORE
SIMON KAORE
JACK MISILI
JUNIOR MISILI
Kimbe: Numapo J
2021: 14th – 16th July & 24th August
CRIMINAL LAW – Particular Offence – Wilful Murder – s. 299 & 7 of Criminal Code – Not Guilty – Identification – General denial – Credibility & demeanour of witnesses – Possible alibi witnesses – Corroboration – Guilty verdict.
Held:
(i) Identification is one of the requisite elements of the offence of wilful murder under section 299 (1) of the Criminal Code where there is a denial of involvement.
(ii) Court to be cautious before entering a conviction in reliance on the correctness of the identification especially when the evidence against the accused person depends entirely or substantially on identification.
(iii) In assessing the credibility and reliability of the witness, a number of factors are taken into account such as; the impression left by the witness as to his reliability and accuracy; the existence of a motive for giving false evidence and any inconsistencies or contradictions made in his evidence to the Court.
(iv) Where evidence suggest a defence of alibi it is incumbent upon the defence to give notice and call on the possible alibi witnesses to give evidence.
(v) Accused persons each and severally found guilty.
Cases Cited:
State v Manasseh Voeto [1978] PNGLR 519
James Pari & Tine Kaupa Bomai v The State [1993] PNGLR 173
The State v Beng [1976] PNGLR 471
Beng v The State [1977] PNGLR 115
Bate v The State [2012] PGSC 46, SC1216
State v Ivanga Levi & 3 Ors (2015) N7585
State v Sakarias Givikain & Ors (2015) N7931.
State v Kipirai Gomos & 1 Or CR. No. 938 of 2017 & 919 of 2018
State v. Ankelman Keith (CR No. 785 of 2018) N7447
State v Solomon Jack Goimas (2015) N7485
Counsel:
E. Kave, for the State
D. Kari, for the Defence
RULING ON VERDICT
24th August, 2021
1. NUMAPO J: This is a ruling on verdict. The accuseds each and severally were arraigned on one count of Wilful Murder pursuant to section 299 of the Criminal Code and they all pleaded not guilty to the charge and the matter went to trial. The hearing of evidence took place over three (3) days for both the State and the Defence cases followed by their respective submissions on verdict at the close of the trial.
2. The facts were that; on the 13th of January 2018 at Galeoale village, Hoskins West New Britain Province, a “custom ceremony” was held at one, Zachery Gelu’s residence. People from within Galeoale village and other surrounding villages came and performed their traditional dances or singsing and there were a lot of people around at the time.
3. At around 2:00pm the accused persons attacked the singsing groups with axes, knives, stones and sticks. The deceased, Augustine Pola was also present at the time when the accused persons carried out the attack. He was attacked by the accused persons as he tried to run away. A person by the name of Mare Ga’a speared him on his leg with a fishing spear that caused the deceased to stumble when accused Rupas Kaore ran from behind and stabbed him with a knife on the right side of his stomach, spilling his guts as the knife was pulled out. Accused Abraham Eliuda then used an axe and cut the deceased on his right shoulder and struck him on his head as well. Around the same time accused Simon Kaore picked up a stone and hit the deceased on his head whilst he was lying on the ground. Accuseds Jack Misili and Junior Misili joined in and threw stones and sticks at the deceased as he was lying on the ground. The deceased was rushed to the hospital but died along the way.
4. The State alleges that the actions of the accused persons in attacking the deceased were unlawful and they had an intention to cause his death and did so by killing him. The actions of the accused persons each and severally contravened section 299 of the Criminal Code. The State also invoked section 7 of the Criminal Code.
Section 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.
(2) A person who commits wilful murder shall be liable to be sentenced to death.
5. Two issues were raised on trial. The first one relates to identification, that is; whether the accused persons each and severally were present at the scene and participated in the attack that led to the death of the deceased Augustine Pola?
6. The State’s case therefore, rest primarily on the positive identification of the accused persons as the first issue.
7. The second issue on trial relates to the accused Abraham Eliuda in that, whether he had the necessary intention to kill the deceased?
8. The State’s case comprised of documentary evidence and oral evidence. The documentary evidence comprised of:
(a) Police Records of Interview dated 03rd & 4th May 2018 - (‘Exhibits S 6 – S 10 (English (i) and Pidgin (ii) versions).
(b) Police Statement by Investigating Officer, Sgt. Samson Fanaso, dated 10th May 2018 - (‘Exhibit S 5’).
(c) Police Statement by Corroborator by Sgt. Tau Archy dated 10th May 2018 - (‘Exhibit S 4’).
(d) Medical Death Certificate dated 24th January 2018 - (‘Exhibit S 3’)
(e) Post Mortem Report dated 24th January 2018 (‘Exhibit S 2’).
(f) Affidavit of Dr Nuli dated 24th January 2018 – (‘Exhibit S 1’).
9. The oral evidence came from two witnesses:
(i) Martina Vaigea
(ii) Julius Vaigea
(i) Witness No. 1 – Martina Vaigea
10. Martina Vaigea comes from Galeoale village, Hoskins, West New Britain Province. She is related to the accused persons as they all come from the same village. She is also related to the deceased Augustine Pola who is also from the same village. She had no difficulty identifying each and every one of them. According to the witness, initially, there were ten (10) people involved in attacking the deceased. She identified the perpetrators as: Sebasco Bai, Julius Bai, Abraham Eliuda, Rupas Kaore, Simon Kaore, Jack Misili, Junior Misili, Tangole Misili, Mare Ga’a and Rodney Gela. However, for one reason or another the other suspects Mare Ga’a, Rodney Gela, Tangole Misili and Julius Bai were not arrested and charged. Sebasco Bai was arrested and charged but was discharged at the committal court for lack of evidence.
11. Martina described her relationship with each of the accused persons before the court as follows; Rupas Kaore is her cousin sister’s son, Simon Kaore is her cousin, Abraham Eliuda is related to her through her grandson, Jack Misili and Junior Misili are her cousin’s sons. Simon Kaore, Rupas Kaore, Jack Misili and Junior Misili are all from the same clan as her. They are all closely related and some are blood relatives. They are also related to the deceased Augustine Pola. The deceased is her nephew.
12. She told the court that on the 13th January 2018 she was at Galeoale village with the singsing groups. There was a custom ceremony at Zachery Gelu’s place and she came to watch the traditional dances. A fight erupted between the people of Kasia and Buluma earlier on in the afternoon but it was brought under control. At around 2pm another fight broke out and she ran to Zachery Gelu’s house but saw people throwing stones at each other so she ran towards her brother’s house, Philbert Kadiko. She was about to reach her brother’s house when she saw the accused persons standing there armed with knives, axes, stones and sticks. Junior Misili called out to her saying (quote); “Martina, you don’t run away as we got the weapons here” (end of quote). She got scared and told her children not to go where the accused persons were standing. The accused persons then ran towards them and chased her children away.
13. Her two nephews Augustine Pola (deceased) and Ambrose Gevia were walking towards her when they were attacked. Rodney Gela stabbed Ambrose Gevia on his back and Tangole Misili cut him on his back with an axe. She was standing less than a metre away and saw clearly the attack been carried out. She stood in an open area with no trees or houses to block her view. The whole area was cleared out for the custom ceremony. She clearly saw everything. Mare Ga’a then speared Augustine Pola with a fishing spear on his leg that caused him to stumble. As he was about to fall, accused Rupas Kaore ran up to the deceased and stabbed him on the right side of his stomach with a long knife and then twisted the knife and pulled it out spilling out the guts. The deceased fell to his knees and Abraham Eliuda used an iron handle axe and cut the deceased with it four times on the right shoulder and on his back. He then hit the deceased on the head with an axe. The deceased fell to the ground and the accused Simon Kaore hit him on the head again with a stone and all the other accused persons Jack Misili and Junior Misili joined in and threw stones and sticks at the deceased who by then was already lying on the ground. She screamed for help and begged the accused persons to stop attacking the deceased but they did not listen to her. After the deceased was attacked, Simon Kaore called out to Martina and dared her to go and report the matter to the police to arrest them if she is brave enough to do that. They then walked away.
14. According to her, the incident happened during broad daylight. She saw everything that happened as she was only less than a metre away from where the killing took place.
(ii) Witness No. 2 - Julius Vaigea
15. The witness is the deceased’s uncle. He is Martina Vaigea’s brother.
16. On the day in question he was at his block and at around 12pm he walked down to the main Galeoale village to Zachery Gelu’s residence where the custom ceremony was held. When he got there the fight between the Kasia and the Buluma people had just finished and people were getting ready to dance again (traditional singsing).
17. He met Sebasco Bai and Julius Bai and noticed that they were up to something and wanted to cause trouble. He told them to go back to the village because they have not yet resolved the previous dispute they had with Augustine Pola (deceased) and his family. All of a sudden he turned around and saw a group of people chasing Augustine “like a dog.” He was standing about 15 - 20 metres away from where Augustine Pola was chased. The place was crowded with people. He tried to run after them to stop them from attacking Augustine but he ran out of breath and couldn’t go any further. He stood at a distance of about 10 - 15 metres when he saw Mare Ga’a throw a fishing spear at Augustine that struck him on his leg causing him to stumble and accused Rupas Kaore ran after the deceased and stabbed him on the right side of his stomach with a knife and he fell down. Accused Abraham Eliuda also chased Augustine and cut him several times on his right shoulder and back with an axe and finally struck him on the back of the head when the deceased was lying on the ground. He heard a loud bang when the axe hit the deceased’s head. Accused Simon Kaore got a tanget leave and rubbed it on the deceased’s face and said (quote): “I have paid my debt” (end of quote).
18. Although, there were a lot of people around at the time, nobody did anything to stop the killing. They all stood there and watched. He only heard his sister Martina Vaigea screaming out for help and telling the accused persons to stop attacking Augustine (deceased) but they did not stop and continued to attack him until he was dead. It became obvious to him that the accused persons had intended to kill the deceased and killed him as they did. He tried to help but couldn’t do much as there were many of them involved, it was a mob attack.
19. He identified the persons involved as; Simon Kaore, Rupas Kaore, Abraham Eliuda, Junior Misili, Jack Misili, Sebasco Bai, Julius Bai and Mare Ga’a. He knew each and every one of them as they are all related and come from the same Galeoale village. The deceased is also related to some of the accused persons. Sebasco and Julius Bai are the deceased’s cousins.
20. According to the witness this was a revenge attack that has a bit of history to it. In 2016 two children died from drowning in the sea. Augustine Pola and his family suspected Sebasco Bai’s father to have caused their drowning through sorcery. As a result a fight erupted in 2017 between Sebasco’s family and the deceased’s family. A mediation was held to resolve the dispute but it failed. Out of anger the deceased’s family then went and burnt down a permanent house belonging to Sebasco Bai’s father. Augustine Pola (deceased) was the main suspect in the arson case and was arrested and charged. However, his case was dismissed for lack of evidence and that was why the accused persons were not happy and carried out the attack.
21. State informed the Court there was no further witnesses to call and closed its case after the two witnesses had given their evidence.
22. Defence opened its case immediately after the State closed its case and called five (5) witnesses to give oral evidence. The five witnesses were the accused persons themselves who testified on their own behalf. Below is what each of the accused persons told the court:
(i) Accused Abraham Eliuda
Accused told the court that he arrived at Galeoale village some 15 minutes later after the fight stopped between the Kasia and the Buluma people. Sebasco Bai walked past his enemies and they chased him and started throwing stones and sticks at him. The deceased’s Uncle Eugene Vaigea charged towards Sebasco and swung a bushknife at him but Sebasco blocked off the bushknife with a long stick he was holding. The bushknife fell off Eugene’s hands. Sebasco’s brother-in-law, Ereman Tawa went and picked up the bushknife and took it away. After that, Augustine Pola (deceased) with his small brother Rockus and members of his family started throwing stones and sticks at the accused persons and others who were with them.
Accused tried to stop the fight but it was too dangerous as there were many of them involved so he just stood there and observed. Other people also attempted to stop the fight but could not succeed. Augustine Pola was drunk at the time and charged at him and tried to hit him but he jumped away. He then picked up an axe that was lying on the ground. There were two axes, a big one and a small one. He picked up the small axe and swung at deceased and cut him on the right side of his shoulder. He swung at him the second time and cut him again on the right shoulder. The deceased started to run and he chased him and swung at him again the third time and cut him on his back. After that he saw the deceased’s relatives charging towards him and he ran away. He was running away when he saw the deceased falling down onto the ground. He then saw Julius Bai stab the deceased on the right side of his stomach with a knife. Deceased tried to stand up but fell to the ground again. Whilst the deceased was lying on the ground he saw Sebasco Bai hit him on the head with a stone. Defendant then went back to Zachery Gelu’s house where everyone were gathering.
(ii) Accused Rupas Kaore
Accused told the court that on the 13th January 2018 he was at his village at Galeoale and went to Zachery Gelu’s house to see the custom ceremony held there. Prior to that, there was a fight between the Kasia and Buluma people however, it stopped before he got there. He only heard about it later.
The ceremony was held towards the end of the village. It was about 150 – 200 metres away from where he was with other people. He was with his father Simon Kaore, Jeremy and Joshua Tikabun, all from Galeoale village. They all stood there and watched the traditional singsing. At around 1:00pm he left the others and went back to the big village to his house. At the village he met an old woman by the name of Scholie Magelau and sat with her and gave her some betelnuts. He stayed with her for a couple of hours and told her about the custom ceremony that was going on at Zachery Gelu’s place. He stayed there the whole time and never went anywhere. Later his father Simon, Jeremy and Joshua came and they all went back to their block. He did not hear about the fight from which the deceased was killed. No one told him anything.
Accused denied any involvement in the fight that resulted in the death of the deceased.
(iii) Accused Simon Kaore
Accused is also from Galeoale village, Hoskins, West New Britain Province.
On the 13th January 2018 at around 12 noon he and his son, co-accused Rupas Kaore went to Lamepo Trade Store within the main Galeoale village. Towards the end of the village at Zachery Gelu’s place there was a custom ceremony taking place. The fighting between the Kasia people and Buluma people had already stopped when they arrived.
At around 1:00pm, his son Rupas Kaore left them and went back to the main village. He remained behind with Jeremy and Joshua. At around 2:00pm the deceased’s father Oscar Pola came and joined them and they all stood there. Not long they heard some noise coming from the area where the custom ceremony was held. The noise got bigger and moved towards the cocoa and coconut plantations. He could not work out who was fighting who. People started running and some of them ran towards where they were standing. He then asked them about the fight and was told that it was between Augustine Pola (deceased) and Sebasco and Julius Bai. Some 15 minutes later he heard a woman screaming. The deceased’s father Oscar Pola went to find out. He then left the area with Jeremy and Joshua and they all went back to the main village where he met his son Rupas Kaore with Scholie Magelau. They then went back to their block. He later heard that the deceased was killed.
(iv) Accused Jack Misili
Accused is also from Galeoale village. On the 13th Januray 2018 there was a custom ceremony at Zachery Gelu’s place. At around 2:00pm he and his singsing group went there to perform when they heard about a fight between the Kasia and the Buluma people. The Organizers of the custom ceremony managed to stop the fight and everything returned back to normal. As he was getting ready with his group to dance, he heard some noise from the cocoa/coconut plantations and saw people throwing stones and sticks at each other. He was hit by a stone on his feet and he fell down. He also received a cut on his left eye. His sister Franscina Misili and his niece Gina Wanda came and took him to the main road and they all went back home. He later heard that some people were injured from the fight.
(v) Accused Junior Misili
Accused is also from Galeoale village, Hoskins. On the 13th Januray 2018 he was at the village for a custom ceremony at Zachery Gelu’s place when a fight broke out. He was with Clarence Bogi at the custom area but left soon after and went back to his house in the main village. He met Ignatius Bai sitting under the tree and spoke to him briefly and walked away to his house to sleep. He slept under a tree at the back of his house. Later he heard about the fight and the death of the deceased.
23. The agreed facts are as follows:
(a) On the 13th of Januray 2018 there was a custom ceremony held at Zachery Gelu’s place at Galeoale village.
(b) There were a lot of people attending from the surrounding villages including people from Galeoale village itself.
(c) The deceased was one of those people present at the custom ceremony.
(d) The accused persons each and severally were present there as well but at different locations to witness the ceremony.
(e) There was an earlier fight between the Kasia and the Buluma people but that was brought under control and no one was injured.
(f) A second fight took place between the people of Galeoale village themselves from which the deceased was killed.
(g) The deceased died from multiple injuries he sustained to his body including an injury to his head.
24. Facts in dispute are as follows:
(a) The accused persons and their accomplices were all present at the custom ceremony when the fight broke out that resulted in the death of the deceased.
(b) They were all armed with axes, knives, stones and sticks at the time.
(c) There were ten (10) men that attacked the deceased and they were; Sebasco Bai, Julius Bai, Rodney Gela, Mare Ga’a, Tangole Misili, Abraham Eliuda, Simon Kaore, Rupas Kaore, Jack Misili and Junior Misili.
(d) The accused persons and their accomplices took part in the fight and attacked Augustine Pola (deceased) and eventually killed him.
(e) Each accused persons played a role in attacking the deceased using axes, knives, stones and sticks.
(f) The accused persons and their accomplices had planned to attack the deceased and came fully armed.
(g) The State witnesses Martina Vaigea and Julius Vaigea were present at the scene of the crime and saw everything that happened.
(h) The accused persons had intended to kill the deceased.
25. The guidelines to be followed when assessing and weighing up the evidence is set out in case of State v Manasseh Voeto [1978] PNGLR 519. Things such as the demeanour of the witness, the manner in which he presented his evidence, his interest or lack of it, his accurate recollection of events etc. are all taken into account.
26. The general principle is that the court is not bound to accept the evidence of any witness, unless that evidence commends itself to the court. This does not mean that all the evidence of a witness should be accepted without qualification. It is within the discretion of the court to accept or not to accept any piece of evidence that does not stand up to scrutiny without having to reject the whole of the evidence. In doing so the court is required to apply a bit of commonsense and logic.
27. In assessing the credibility and reliability of the witness, a number of factors are taken into account such as; the impression left by the witness as to his reliability and accuracy; the existence of a motive for giving false evidence and any inconsistencies or contradictions made in his evidence to the Court. (James Pari & Tine Kaupa Bomai v The State [1993] PNGLR 173).
28. The general rule on identification is that when the evidence against the accused person depends wholly or substantially on identification there is a need for caution before convicting the accused in reliance on the correctness of the identification.
29. Identification is one of the requisite elements of the offence of wilful murder under section 299 (1) of the Criminal Code where there is a denial of involvement. The other two elements are that; the killing was unlawful and that the accused intended to cause the death of the deceased or some other person. The onus is on the prosecution to prove the element of identification beyond a reasonable doubt. There are however, certain rules developed over the years by the Courts through case laws on the issue of identification. When identification is raised as a defence the rules generally requires the court to be cautious before entering a conviction in reliance on the correctness of the identification especially when the evidence against the accused person depends entirely or substantially on identification. The general rule for caution on identification still applies even if the accused is known to the witness personally. This requires the court to carefully examine the circumstances in which the identification by each witness came to be made and whether such evidence is sufficiently corroborated to establish the correctness of the identification. Furthermore, the witness’s observation of the accused at the time of the offence must be precise and accurate in that there was nothing to obstruct the view from the distance from which the observation was made or that there was sufficient light at the time and therefore, the witness was able to clearly recognize the accused. Finally, any evidence of prior knowledge of the accused by the witness may provide as further evidence to strengthen the identification of the accused such as for example; close relatives, familiar faces, living together in the same place or close proximity for many years or knowing the accused through social and other interactions. What it means is that on the part of the witness the identification of the accused must be honest and accurate so that he could not have possibly mistaken the accused for another person.
30. The Supreme Court in Beng v The State [1977] PNGLR 115, (Prentice DCJ, Williams & Kearney JJ presiding) sets out the guidelines to be used when the issue of identification is challenged. In that case, the Supreme Court held that:
“In proceedings where evidence of identification is relevant, the court should be mindful of all inherent dangers, the need for caution before convicting in reliance on the correctness of identification...the court should examine closely all the circumstances in which identification by each witness came to be made bearing in mind the 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 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.”
31. The rationale was later applied in the Supreme Court case of Bate v The State (2012) PGSC 46, SC 1216 (20th December 2012) (Injia CJ, Cannings & Gabi JJ presiding). In applying the view held in John Beng (supra), the Supreme Court in Bate held that:
“In assessing identification evidence, relevant consideration include, that an honest witness can be mistaken and still be convincing that an identification witness must both be honest and accurate; whether the evidence is corroborated, whether the witness is purporting to identify a person who was a stranger or someone he recognized, the length of time the witness observed the accused (prolonged or fleeting glance), the emotional state of the witness at the time of the incident, the prevailing conditions, the line of sight (did the witness have a clear view of the front or the line of sight interrupted, did the witness just see the accused from the side)”.
32. Following these two Supreme Court’s decisions the court would, in summary, be expected to do the following when the issue of identification is raised as the main defence:
(i) If the evidence against the accused is based wholly or substantially on identification there is a need for caution before convicting the accused in reliance on the correctness of the identification.
(ii) The court should examine closely the circumstances in which the identification by each witness came to be made and whether such evidence is sufficiently corroborated to establish the correctness of the identification.
(iii) Any prior knowledge of the accused such as a close relative, a familiar face to the witness, living in close proximity to each other, any special relationship they might have and the frequency of their meetings etc. are all taken into consideration.
33. Based on these guidelines, I make the following findings based on the evidence given thus far:
(i) Prosecution’s Evidence on Identification
34. The prosecution’s evidence on identification is based on the testimony of witnesses Martina Vaigea and Julius Vaigea. Both clearly identified the accused persons each and severally as the ones who were present at the crime scene on the 13th January 2018 at Galeoale village when the fight broke out and the deceased was killed. Accused persons each and severally admitted being present on that day to witness the custom ceremony taking place at Zachery Gelu’s place at Galeoale village but denied taking part in the fight.
35. I find no inconsistencies or contradictions in the prosecution’s evidence regarding the identification of the accused persons each and severally. The evidence on identification stood up to scrutiny. The witnesses sufficiently corroborated each other in identifying all the accused persons as the ones who took part in the fight and killed the deceased. This was further confirmed by the accused persons themselves when they admitted being present at the time when the fight broke out resulting in the death of the deceased. Furthermore, the identification is made easier given that the State witnesses and the accused persons all come from the same village and are related to each other. Needless to say, the accused persons are no strangers to the witnesses as they have sufficient knowledge of them through the various relationships they had with them and the close proximity they live with each other. They could not have possibly mistaken them for other persons: (State v Sakarias Givikain & Ors (2015) N7931 & State v Ivanga Levi & 3 Ors (2015) N7585);
36. All in all, I am satisfied that the evidence on identification has sufficiently been corroborated and that the correctness of identification of the accused persons each and severally has been established beyond doubt.
37. With respect to the events that took place on that day, I am satisfied with the narratives of the two State witnesses. Although, there were a lot of people at the time attending the custom ceremony, the two State witnesses were nonetheless steadfast in their evidence that the accused persons were responsible for the death of the deceased. That piece of evidence from the State was neither weakened nor destroyed in cross examination.
38. Martina Vaigea was only less than a metre away from where the deceased was attacked and told the Court that it all happened right in front of her. Julius Vaigea was standing at a distance of about 10 – 15 metres away from where the deceased was killed. The attack took place in a clear, open area with no trees, houses or bushes to obstruct their views. The place has been cleared for the custom ceremony. The attack was carried out in the broad daylight in front of many people. The accused persons continued to attack the deceased until he died. In the circumstances, I am satisfied that the witnesses’ observation of the accused persons at the time of the offence were not impeded or obstructed in any way and that the witnesses were able to clearly recognize and identify the accused persons from their respective locations where they were observing and described the events as they saw it unfolding: (State v Kipirai Gomos & 1 Or CR. No. 938 of 2017 & 919 of 2018); State v. Ankelman Keith (CR No. 785 of 2018) N7447).
39. All in all, I am satisfied that the State witnesses have correctly identified the accused persons each and severally as the perpetrators responsible for the death of the deceased, Augustine Pola. Furthermore, the evidence from the witnesses were sufficiently corroborated to establish beyond doubt the correctness of the identification made of each accused persons.
(ii) Defence Evidence on Identification
40. The accused persons generally denied being involved except for the accused Abraham Eliuda who admitted attacking the deceased with an axe. Some said they were not present at the scene of the crime when the attack was carried out. They were in the village but elsewhere away from where the fight took place. Some of them were with other people at the time the deceased was killed and did not see and hear about it until much later. They also denied seeing the State witnesses Martina Vaigea or Julius Vaigea around the area at the time and which is expected as there were a lot of people around at the time because of the custom ceremony.
41. Some of the accused persons denied being related to the two State witnesses but have not provided any evidence to back that up. The accused persons in their evidence admitted that they are all from Galeoale village. This is consistent with what the State witnesses Martina Vaigea and Julius Vaigea told the court that they all come from the same village as the accused persons and are related to each other. The only evidence is that some of them live in their small blocks away from the main Galeoale village otherwise, they are all from the same village. There is no evidence to suggest that they were total strangers to the State witnesses and therefore, they could not have been mistaken for some other people.
42. The evidence of Martina Vaigea and Julius Vaigea that they both saw about ten people taking part in the attack on the deceased and named them as; Sebasco Bai, Julius Bai, Abraham Eliuda, Rupas Kaore, Simon Kaore, Jack Misili, Junior Misili, Tangole Misili, Mare Ga’a and Rodney Gela has not been disputed by the defence. Accused Junior Misili saw Martina and told her not to run away as they have the weapons with them. This piece of evidence is also not been challenged and it remains intact. The evidence by accused Simon Kaore that he heard a woman screaming is consistent with what Martina Vaigea and Julius Vaigea told the court that Martina screamed and called for help when the accused persons were attacking the deceased which means that Simon Kaore could not have been further away from the crime scene when he heard Martina screamed.
43. There were some inconsistencies in the evidence given by the accused persons. Rupas Kaore, Simon Kaore, Junior Misili and Jack Misili in the ROI stated that they were not present at the custom ceremony and did not hear about the fight. In their evidence to the court they said they were present but did not take part in the fight. They were with some other people and left and went back to their houses.
44. Accused Rupas Kaore said he went to a Scholie Magela’s house in the middle of the village away from the singsing area and chewed betelnut with her until his father arrived and they went back home. However, he never mentioned Scholie’s name in the ROI. He has not called Scholie to testify in his defence and corroborate his evidence that he was with her whole the time when the fight was going on. His evidence on his whereabouts at the time the fight broke out stands uncorroborated and unsupported. I conclude therefore, that the Scholie Magela story is a recent invention. On the whole, there is no evidence to suggest to the contrary that he was not present at the scene of the crime and therefore, did not take part in the fight that resulted in the death of the deceased. He has not produced any evidence of substance to rebut the prosecution’s evidence on his whereabouts. The evidence by the prosecution remains that he was the one who stabbed the deceased on the right side of the stomach and twisted the knife and then pulled it out that caused the deceased’s guts to spill out. That piece of evidence has not been challenged and remains intact.
45. I have no doubt in my mind that the accused Rupas Kaore was present at the crime scene and actively took part in the fight that led to the demise of the deceased. Based on the evidence before me, I am satisfied beyond doubt that the accused stabbed the deceased with a knife on his right side of the stomach that ultimately led to his death. This is also consistent with the post mortem report that the deceased died from a deep penetrating wound to the right side of his abdomen that ruptured the common iliac artery.
46. Accused Simon Kaore was very detailed in his evidence. Most of what he told the court was consistent with what he told the police in his ROI. He said he met Jeremy and Joshua Kitabu and was standing with them some 200 metres away from the custom ceremony area. Deceased’s father Oscar Pola later came and joined them. They then heard some noises from Zachery Gelu’s place and the noise got bigger and moved towards the cocoa and coconut plantations. They could not tell who was fighting who given the distance they were standing. Some people approached them and told them that there was a fight going on. Oscar Pola left them and went to find out. He and the two others also left and went back to the house where his son Rupas Kaore was. They saw Rupas sitting with Scholie Magelau. They then left and went back to their block.
47. Like Rupas Kaore, his evidence is not supported by any cogent argument or credible evidence that independently verifies his assertion that he was not at the crime scene at the time and therefore, could not have taken take part in the fight. He has not called Jeremy or Joshua Tikabu or Oscar Pola to testify in his defence. His evidence is therefore, uncorroborated and not supported by any independent witnesses to give it any credence. He didn’t think it was important to call the people he named to come forward to give evidence to support his claim of being with them at the time the deceased was killed. This would have made a world of difference to his case.
48. The evidence against accused Simon Kaore is that he threw a stone hitting the deceased on the head and all the others joined in and threw stones and sticks at the deceased whilst the deceased was lying on the ground. The evidence against the accused stacked up and has not been challenged to any great lengths by the defence to convince the Court otherwise, that he did not participate in the killing. It is clear to me that accused Simon Kaore was one of the perpetrators that took part in attacking the deceased that led to his death. I am convinced therefore, that the accused Simon Kaore participated in killing the deceased.
49. Accused Jack Misili was very brief with his evidence. He maintained the same story as he told the police in the ROI. He was at the custom ceremony on the day in question. There were a lot of people attending the ceremony. There were traditional dances and singsings going on. He was dancing with his group when he heard some noise from the cocoa and coconut plantations. Some people were fighting and they threw stones at each other. One of the stones hit his leg and he fell down. He was also hit on his left eye brow. His sister Franscina Misili and her daughter Gina Wande came and helped him to the main road and they all went back home. He later heard that there was a fight and Augustine Pola was killed.
50. Like Rupas Kaore and Simon Kaore, his evidence is one of possible defence of alibi however, it stands uncorroborated and unsubstantiated. Defence did not call any evidence to substantiate his claim that he was not present when the deceased was killed. His sister Franscina Misili and his niece Gina Wande were not called to testify on his behalf and support what he told the court that he was taken away immediately after he received injuries to his leg and left eye brow and therefore, he could not possibly be present when the deceased was attacked. Furthermore, there is no medical report on the injuries he sustained. There was no serious rebuttal to the prosecution’s claim that the accused Jack Misili was with the group of people that attacked the deceased. The defence response that the accused did not take part in the killing is not supported by any independent credible evidence. The evidence against the accused is sufficiently corroborated to support a finding of guilt. I am therefore, satisfied that the accused Jack Misili took part in the killing of the deceased.
51. Accused Junior Misili gave a very brief evidence. He gave a conflicting account of where he was on that day. In the ROI, he said he was in the main village the whole day and never attended the custom ceremony however, in his evidence to court he said he was at the custom ceremony area on the day in question with a Clarence Bogi however, he left soon after the fight broke out and went back to his house. He met a Ignatius Bai on the way and spoke to him briefly before going to his house. Later he heard that Augustine Pola was killed in the fight. He never mentioned Clarence Bogi or Ignatius Bai in his ROI, an obvious inconsistency in his evidence. I consider his evidence as nothing more than a recent invention. This line of story appears to be same for all the other co-accuseds except for accused Abraham Eliuda.
52. I am satisfied beyond doubt that the accused Junior Misili was one of those who killed the deceased. He hit the deceased with stones and sticks when the deceased was lying on the ground. He was the one who told Martina Vaigea not to run away as they have weapons to carry out the attack.
53. Accused Abraham Eliuda initially denied his involvement in the attack on the deceased and exercised his right to remain silent during his ROI. However, in court, he admitted cutting the deceased twice on his right shoulder and once on his back with an axe. Infact, when he was first arraigned he admitted to committing the offence which according to Counsel, Mr Kari was not consistent with the instructions he gave to him. Counsel then sought a brief adjournment and asked that the accused be re-arraigned. The accused then pleaded not guilty thereafter.
54. I observed his demeanour as a witness for himself and found him to be an honest and truthful witness. He gave a full account on the attack itself and his involvement in it. He described in details what he did and how he attacked the deceased using an axe. Most of what he said is consistent with what the State witnesses told the court of what he did. The evidence is also consistent with the post mortem report on the type and the extent of injuries sustained by the deceased that eventually led to his death.
(iii) Intention to Kill the Deceased
55. The second issue on trial was whether the accused Abraham Eliuda had the requisite intention to kill the deceased. His admitted to chasing the deceased and cutting him twice on his right shoulder and once on his back with an axe. The deceased fell to the ground immediately after that. The post mortem report is consistent with the injuries described by the accused. There were multiple penetrating trauma wounds to the body and a severe head injury. Deceased succumbed to those injuries and died. The accused’s version of events on what he did is also consistent with what the State witnesses told the court.
56. As I have said in the past in similar cases that the use of any offensive or dangerous weapon to carry out an attack such as an axe, a knife or a gun etc. reveals the accused’s intention to inflict serious bodily injuries to the victim that could be fatal and could lead to death: (State v Solomon Jack Goimas (2015) N7485). A sharp, hard and heavy instrument such as an axe is likely to cause serious bodily injuries that may result in death depending on which part of the body the deceased was hit and the amount of force used and the extend of the injury sustained to the body. According to evidence, accused chased the deceased with an axe and cut him three times with an axe which caused the deceased to fall to the ground. He then hit the deceased on the head when the deceased fell down. All the other accused persons later joined in and attacked the deceased with stones and sticks as he was lying on the ground. I have no doubt in my mind that this was a deliberate attack with an intention to cause his death.
57. Based on the evidence, I am satisfied beyond a reasonable doubt that the accused Abraham Eliuda had an intention to kill the deceased and did so by cutting him with an axe three times, twice on his right shoulders and once on his back and hit his head with the axe.
58. I am also satisfied that the other co-accused persons namely; Rupas Kaore, Simon Kaore, Jack Misili and Junior Misili all had an intention to kill the deceased when they attacked the deceased with knives, stones and sticks which resulted in his death. The deceased received multiple injuries to his body and died from it according to the post mortem report.
59. Although, there were some slight variations in the order of events which is expected as very much will depend on the location from where each witness is observing from when the incident happened, the main body of evidence nonetheless remains substantially the same throughout. Might I add also that the evidence is sufficiently corroborated linking the accused persons to the crime.
60. Having said that, I find both witnesses honest, credible and reliable and I have no reason whatsoever to doubt them. I observed their demeanour and found them to be honest and truthful witnesses and I have no doubt that both told the truth. They had no reason to lie and have nothing to gain by telling lies. All they want is to see justice done. Both witnesses were determined to give evidence against their own relatives (some by blood) knowing full well of the possible repercussions and/or consequences. They did so at a great personal risk to themselves and their families given the extensive family network and its complexities interwoven into our PNG culture and society. They stand to be ostracized or worse still, being castigated by their family members and relatives for giving evidence in the case that could possibly send their relatives away to a long prison sentence or even death if found guilty. I admire the two State witnesses for their courage and steadfastness.
61. As it seem, all the accused persons except for accused Abraham Eliuda were either not present at the crime scene or if they did, they were with other people at the time when the fight broke out and the deceased was killed. They mentioned the names of the people they were with at the time who were mostly their own relatives from Galeoale village who could be possible alibi witnesses for the defence had they being called. However, for reasons only known to the accused persons, they decided not to call on these witnesses to testify to the fact that they were with the accused persons when the fight broke out from which the deceased was killed and therefore, the accuseds could not have taken part in the attack. Again, I reiterate that this is no ordinary assault or GBH case but a wilful murder case, the highest form of homicide case prescribed in the Criminal Code, the maximum penalty for which, is a death sentence if found guilty. Obviously, it did not dawn on the accused persons the importance of calling these possible alibi witnesses that could have made a huge difference to their defence case. Some or any evidence from an independent credible source will no doubt, go a long way in strengthening the defence case. This did not happened in this case.
62. I find the story of the accused persons pertaining to their whereabouts at the time of the killing as lacking in weight and substance for whatever it is worth. They cooked up the story in an attempt to shift the blame elsewhere. It’s a hard sell, unfortunately, I am not able to buy it.
63. For the record, the defence had not filed any formal defence of alibi and this might explain why the witnesses were not called to give evidence however, I can only assume. Nonetheless, it does not prevent the defence from calling these possible alibi witnesses where evidence suggest a defence of alibi.
64. I reiterate once more that any evidence from an independent source that independently corroborates the evidence of the accused persons is better than having nothing at all. Defence had the opportunity to call on these people who were with the accused persons at the time the deceased was killed but they did not make use of that opportunity.
65. The accused persons gave evidence on their own behalf after which the defence closed its case. Except for accused Abraham Eliuda, I observed the demeanour of all the other co- accuseds as witnesses for themselves and found some obvious variance, inconsistencies and contradictions in what they told the police in the ROI and what they said in their evidence to court. For example; in the ROI all of them admitted attending the custom ceremony at Zachery Gelu’s place and were present when the fight broke out. However, in their evidence to court they denied their presence at the custom ceremony place whilst some of them denied going there at all. Some of their stories were far-fetched and defies logic and commonsense, to say the least.
66. They did not stay focused in their evidence to rebutting the prosecution’s line of evidence on point especially in relation to their identification and their presence at the crime scene therefore, linking them to the crime. They did not challenge the assertion made by the prosecution that they were the ones who carried out the attack on the deceased despite the fact that there were many people around at the time. They did not challenge the credibility of the State witnesses to create doubts in the minds of the court whether or not to believe them given the close ties the two State witnesses had with the deceased person hence, the possibility of fabricating stories to punish them. These, I would have thought are important considerations if the defence is to discredit the prosecution’s evidence in any substantial way. It was, with respect, an abysmal performance by the defence.
67. The accused persons told a story to suit themselves instead of discrediting the prosecution’s evidence in vital areas. ‘The Latin maxim; ‘semper necessitas probandi incumbit ei qui agit’ (He who asserts must prove) essentially requires the prosecution to prove the case beyond a reasonable doubt so let them tell the story, the full story. Defence should focus its energy and attention on any piece of incriminating evidence emanating from the story that the prosecution told that might be fatal to their defence and provide a vigorous response to weaken or destroy that piece of evidence by effectively using the tools of examination especially, cross - examination. Defence failed to do that.
68. In so far as demeanour and credibility of the accused persons are concerned, I find them to be unreliable and untrustworthy witnesses of their own. Their evidence is tainted with so many contradictions and inconsistencies that no reasonable tribunal would believe them. The accuseds, it seems, were making up stories as they go on and it became obvious to me that some of what they said were recent inventions. It is difficult to accept on face value what they told the court, let alone the absence of any supporting evidence. The net effect therefore, is that they are not honest and are not telling the truth.
L. FINDINGS
69. The evidence from the State witnesses on the identification of the accused persons has been sufficiently corroborated and the correctness of that identification is established beyond doubt. The State witnesses have positively identified the accused persons each and severally as the perpetrators who carried out the attack on the deceased. The State witnesses knew the accused persons and have correctly identified each and every one of them. The evidence on identification is further strengthened by the fact that the accused persons are familiar faces to the witnesses and they had sufficient prior knowledge of them through their network of extended family relationships they had with each of the accused persons as they all come from the same Galeoale village. They could not have possibly mistaken them for other persons: State v. Ankelman Keith (supra).
70. The State has proven beyond doubt the first essential element of the offence being; the positive identification of the accused persons each and severally and the correctness of that identification. The accused persons were the assailants who attacked and killed the deceased Augustine Pola on the 13th of January, 2018 at Galeoale village.
71. Secondly, I am satisfied that the accused persons each and severally had intended to cause the death of the deceased and they did so by attacking him with offensive weapons consisting of axes, knives, stones and sticks that eventually led to his death. They continued with their attack even after the deceased was already lying on the ground helplessly unable to defend himself. If the accused persons had no intention to kill him, they would have walked away after injuring him but they did not. I am therefore, satisfied that the State has proven beyond doubt that the accused persons had intended to cause the death of the deceased.
72. According to evidence, the motive was clear in that this was a revenge killing for a sorcery-related killing of two small children (through drowning) that occurred in 2016 caused by the deceased’s family which resulted in a fight and later led to the burning down of a permanent house belonging to Sebasco Bai’s father allegedly by the deceased, Augustine Pola in 2017. Augustine was charged with arson but was acquitted by the committal court. This angered the accused persons who decided to retaliate by attacking the deceased.
73. There is no justification in a payback or revenge killing and no one has a right to take away another person’s life. The killing was unlawful. Any person who takes away a life of another person without a lawful justification is guilty of an offence. The injuries sustained by the deceased is so severe and extensive that his chances of survival was very minimal according to the medical report deposed by Dr Nuli. The deceased died as a direct result of the attack carried out on him by the accused persons.
74. I find the accused persons each and severally guilty of Wilful Murder as charged, pursuant to section 299 of the Criminal Code and I convict them each and severally accordingly.
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defence
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