State v Teperi [2022] PGNC 261; N9719 (3 June 2022)

N9719

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 41 OF 2019

BETWEEN:
THE STATE

AND:
XAVIER TEPERI

Wewak: Rei, AJ
2022: 2^nd, 8^th, 9^th, 10^th, 11^th, 16^th February, 2^nd & 3^rd June

CRIMINAL PRACTICE – Wilful murder – verdict – identification and participation – company of people involved – same family, same village – whether accused participated – defence of alibi dismissed – guilty verdict.

Cases Cited:
Papua New Guinean Cases

The State -v- Timothy Wolfi CR No. 639 of 2019
John Beng -v- The State [1977] PNGLR 115
Biwa Geta -v- The State [1988-89] PNGLR 153
Bruno Taufa Junior -v- The State (2022) unreported judgment
The State -v- Tom Morris [1981] PNGLR 483
Paulus Pawa -v- The State [1981] PNGLR 418

Overseas Cases

Barca -v- The Queen (1976) 50 LJR 654
Peacock -v- The King ([1911] HCA 66; 1911) 13 CLR 619, 634
Plomp -v- The Queen [1963] HCA 44; (1963) 110 CLR 234, 252
Thomas -v- The Queen [1960] HCA 2; (1960) 102 CLR 584, 605-606

Legislation Cited:

Section 299(1) and 7(1) (a) & (b) of the Criminal Code

Counsel:

Ms. T. Aihi, for the State
Mr. A. Kana, for the Accused

3^rd June, 2022

RULING ON VERDICT

1. REI, AJ. The State presented an indictment at 9:45 am on the 9^th of February 2022 containing the charge laid pursuant to Section 299(1) of the Criminal Code which reads as follows:
   

“XAVIER TEPERI of Bogumatai Village, Wewak East Sepik Province, stands charged that he with others on the 15^th day of January 2018 at Bogumatai Village, Banak, East Sepik Province, Papua New Guinea wilfully murdered THOMAS MAIBOGU.”

2. The brief facts of the matter as related to by the Counsel for the State are that on the 1^st of January 2018 at Bogumatai Village, Banak, ESP, PNG, the accused being in the company of others who are Godfrey Teperi, Kelep Teperi, and Kesley and Anita Janis Teperi attended at the house of the deceased, and used 3cm x 2cm timber, bush knives and axes, struck the deceased on his head and other parts of his body which wounds directly resulted in his death some 9 days later. The accused and all the others are members of the one and same family. Their father is Godfrey Teperi.
   
3. Only the accused was arrested. The others are at large as at the date trial commenced.
   
4. The State further alleged that on the 31^st of December 2017, the father of the accused’s Godfrey Teperi, publicly announced that someone will be murdered on the 1^st of January 2018.
   
5. In the early hours of the 1^st of January 2018 at about 4 am, the accused and his family accomplices attended at the house of the deceased where they harassed and intimidated the deceased and his family members.
   
6. In fear for their lives and safety, the deceased and his family took cover in the house belonging to his father-in-law.
   
7. The accused and his accomplices returned at about 9:00 am when, as is alleged, the accused used a 3cm x 2 cm timber and hit the deceased on his head (two times) followed by Kesley and Kelep Teperi both who used bush knives and axes and struck the deceased on his head.
   
8. After being struck on his head, the deceased tried to escape but was caught at the nearby bushes at the brinks of the village and was slashed around the area of his ankles with a bush knife by Anita Jenis Teperi.
   
9. The State alleged, that the whole family was involved in this crime and invoked Section 7(1) (a) and (b) of the Criminal Code.
   

ARRAINGMENT

10. The charge of wilful murder was read to the accused and explained together with the facts.
    
11. When the accused was asked to plead to the charge, he entered a plea of not guilty.
    
12. Mr. A. Kana Counsel for the accused confirmed that such plea was consistent with his instructions.
    

EXHIBITS

13. The State tendered the following documents as exhibits. The defence did not object except for the medical report:
    

EXHIBIT “A1” Record of Interview Conducted in Pidgin

Dated: 29 June 2018

EXHIBIT “A2” Record of Interview Conducted in English

Dated: 29 June 2018

EXHIBIT “B” Sketch map of the Scene of the Crime

Dated: 10 February 2022

STATE WITNESSES

14. The first of the three witnesses who gave evidence is Kenneth Maibogu.
    
15. This witness is the eldest son of the deceased Thomas Maibogu.
    
16. He gave evidence that the father of the accused Godfrey Teperi, is the elder brother of the deceased and by that family relation, himself and his siblings are the first cousins to the accused and his brothers Kesley and Kelep Teperi and their sister Anita Jenis Teperi and that they all live in Bogumatai Village, Banak, Wewak, ESP.
    
17. As it was the eve of the New Year 2018, he stated that village people were in celebrations to usher in the New Year.
    
18. But on the 31^st of December 2017, Godfrey Teperi made public announcement that someone will be murdered on the New Year’s Day 1^st January 2018.
    
19. His son Kesley Teperi at that time was in Lae. The other son Kelep Teperi was in Madang. He said in public that they have been called to come to ensure the murder is executed as planned.
    
20. This witness also stated that these two (2) people came to Bogumatai Village, Banak on the 31^st December 2017 and at 4 am (in the morning) of 1^st January 2018, the whole family including the father Godfrey Teperi, the sons Xavier, Kesley and Kelep and the daughter Anita Jenis Teperi all attended at the house of the deceased and intimidated, harassed, abused and physically threatened them. In fear of their lives and safety they took cover in the grand father’s house in the early hours of the 1^st of January 2018.
    
21. However, when the deceased and his family members returned to their house at about 9 am on the same day, the family returned with each holding dangerous weapons.
    
22. In the ensuing encounters this witness gave evidence he saw the accused swing a piece of 2 cm x 3 cm timber twice which landed on the head of the deceased who then fell to the ground and Kesley struck him with a bush knife on his head followed by Kelep hitting him on his head with the use of an axe.
    
23. The deceased was still alive at that point in time. He struggled free and ran to the nearby bushes to take cover. It was at that point in time that Anita Jenis Teperi followed him and, as he laid on the ground, she struck him at the area of his two (2) ankles.
    
24. From the description of the witness Kenneth Maibogu, his father was still alive at that time whom they took to Boram General Hospital but died 9 days later.
    
25. When asked if his deceased father was fit and well before the incident, he said he was an active gardener who had cocoa and vanilla gardens to tend as cash crops. He was not sick of any known diseases prior to the incident.
    
26. Kenneth Maibogu was cross-examined by Mr. Kana in which he did not change his evidence in any material way.
    
27. The second witness was Misach Maibogu who is the brother of the first witness Kenneth Maibogu.
    
28. This witness confirmed the evidence of Kenneth Maibogu.
    
29. There was no substantial divergence from the evidence given by the first witness except that he was mistaken as to the location of the ankle. When asked he pointed to his elbow. This is not a significant inconsistency as the first witness did correctly identify that part of the body in his evidence in chief and cross examination.
    
30. However, in examination-in-chief and cross-examination he was closely asked as to the motive of the murder.
    
31. He stated that there has been a serious rift between the two brothers which persisted until his father died. He used the words: “jealous of his father.”
    
32. He said that Godfrey Teperi has been jealous of his father because of his success in growing cash crops of cocoa and vanilla and selling them for cash to earn a living. As a result of his toils, a trade store was built which services the village community as coming to Wewak Town is costly, especially to purchase basic goods.
    
33. The Medical Report was tendered in evidence but was objected to. No medical practitioner was called to testify on the extent and nature of the injuries sustained by the deceased resulting in his death. Apparently, the medical practitioner was ill having contracted Covid-19 and being isolated as required under the relevant health and hygiene legislations.
    

DEFENCE WITNESS

34. The accused was called and did give sworn evidence in Court.
    
35. He did not dispute the evidence as given by the State witnesses. He however relied in general denials pertaining to his physical unfitness on the morning of 1^st January 2018 as such he said he could not have taken part.
    
36. He gave evidence that on the 27^th of July 2017, he was injured in a fight resulting in serious wounds to his left shoulder.
    
37. He produced a medical report dated 23^rd June 2017 prepared by a Nursing Officer a Norbou Kuarujambi of Dagua Health Centre. It is not a medical report prepared by a registered medical practitioner. The contents of that report are reproduced here to show whether there are serious impairment or disabilities restricting mobility of limbs:
    

Mr Xavier Terepi was seen at Health facility around 6 pm with multiple knife wounds, Xavier alleged to have been slashed with bush knife by other person on duty stated about and time: On examination patient gone into shock due severe bleeding on cut sias. The length of cuts. Head 4 cm deep, kenut 7 cm long, hand – 6 cm deep 8 cm long. Other cuts were okay while both above continue bleeding = Total stiches of cuts = 35 excluding stiches inside. Rx Chloramphenicol / 3 cups QID / Panadol 2 tab and dressing PT stable and discharge here with supply and treatment 23 – 26/6 Stiches removed of 1 week (30/9/17).

Sister Norbou Kuarujambi

Community Health Worker

38. This medical report does not say whether the wounds inflicted caused impairment or inability of either the upper or lower limbs of the accused. It does not say mobility of upper limbs are restricted by reason of those injuries.
    
39. He also stated that on the morning of the 1^st of January 2018 the first State witness Kenneth Maibogu went to his house and fought with him. He received serious wounds to the upper part of his body. He then stated that he did not participate in inflicting wounds to the deceased because of the serious injuries he said he received from Kenneth Maibogu and that the injuries which resulted in the death of the deceased were in fact inflicted by his brothers Kesley Teperi and Kelep Teperi. But he said he was not present at the scene of the incident and did not see what exactly happened.
    
40. No medical report was also tendered in evidence on this.
    
41. However, the accused said that it was because of the injuries inflicted by Kenneth Maibogu on 1/1/18 which incapacitated him as such he could not have inflicted the wounds on the head of the deceased on 1^st January 2018. But no proper medical report was tendered in evidence. I did ask for the production of this report even on the day submissions were made but was not produced.
    
42. The time at which he sustained the injuries and the time at which the State witnesses said the accused inflicted wounds to the head with the use of a 3 cm x 2 cm timber were not clarified in the evidence of the accused in examination-in-chief, cross-examination or re-examination.
    
43. But in cross-examination, the accused was asked whether he became angry after receiving the injuries then retaliated to take revenge, the accused emphatically responded in the negative.
    

ASSESSMENT OF THE EVIDENCE

44. Counsels filed written submissions. Mr. Kana filed his on 5^th May 2022 and the State filed its submission on 31^st May 2022.
    
45. Both submissions set at the elements of the crime being:
    
    • (a) a person who must be identified as having participated in the crime;
    • (b) he unlawful killed the deceased;
    • (c) death arising from wounds inflicted by the accused; and
    • (d) cause of death directly resulting from the wounds inflicted by the accused.
      
46. The charge was laid under Section 299(1) of the Criminal Code which reads that:
    
    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.

47. The State also invoked Section 7 of the Criminal Code which reads:
    

Section 7. PRINCIPAL OFFENDERS

(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) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c) every person who aids another person in committing the offence; and

(d) any person who counsels or procures any other person to commit the offence.

48. The issues pertinent here are whether the accused was part of the group of men who assaulted the deceased on the 1^st of January 2018 and, if so, whether the accused unlawfully killed the deceased and that he be found answerable.
    
49. Mr. Kana for the accused submitted that the accused was present at the scene but quality of identification was poor as many people were milling around the area when the events unfolded. He relied on John Beng -v- The State [1977] PNGLR 115.
    
50. Mr. Popeu for the State submitted that the whole incident took place in Bogumatai Village between the hour of 9:30 and 11:00 am in broad daylight and the visibility and quality of identification was fair and not poor. Furthermore, the accused and the witness are relatives, first cousins, as such this supports the proposition that the accused was properly identified.
    
51. The two (2) eye witnesses for the State are related by birth. They are the sons of the deceased Thomas Maibogu whose names are Kenneth Maibogu and Misach Maibogu.
    
52. The evidence they gave in Court was strong and uncontradictory as to identification and participation.
    
53. In cross examination questions were put to them they were coached by someone to give the evidence they gave in Court. This was vigorously denied by both witnesses.
    
54. The evidence of the accused is clearly different from that of the State witnesses. A chasm exists between the evidence of the witnesses for the State and the evidence of the accused.
    
55. His evidence portrays a scenario that he was not present at the scene of the incident because he said he was injured by Kenneth Maibogu. In his submission yesterday, the defence Counsel did stress that the accused was present but identification on who inflicted fatal wounds was scant and lacking relying on the case of John Beng -v- The State [1977] PNGLR 115.
    
56. This evidence is not supported by medical report such that he was physically incapacitated from the injuries he alleged were inflicted by Kenneth Maigobu.
    
57. This evidence has not been clarified by the defence in examination in chief or re-examination as to the (point in) time it happened. The unanswered questions are:
    
    • (i) whether the injuries were inflicted before the incident happened so that the accused was physically handicapped to attack the deceased as espoused in the evidence of Kenneth Maibogu, so that the evidence of identification and participation is untenable;
      
    • (ii) if Kenneth Maibogu did inflict wounds to the accused before the incident, were those injuries serious enough to disable and prevent the accused from participation;
      
    • (iii) whether there is medical evidence suggesting the extent and nature of the injuries with a conclusion that he was immediately disabled to use his limbs in any manner that day;
      
    • (iv) if indeed the allegations of the accused are correct, should a conclusion be drawn that Kenneth Maibogu retaliated to take revenge on the accused who is alleged to have hit his deceased father first on the head;
      
    • (v) whether, if the accused was strong enough after being hit by Kenneth Maibogu took revenge by going to the scene and hitting the deceased first with a 2 cm x 3 cm timber as the evidence of Kenneth Maibogu and Misach Maibogu is that the accused inflicted the first two blows and his brothers Kesley and Kelep inflicted subsequent blows immediately after his blows but the evidence of the accused is that his brothers Kesley Teperi and Kelep Teperi hit the deceased first and not him.
      
58. As I said in the recent case of The State -v- Timothy Wolfi CR No. 639 of 2019 involving the charge of rape, these are questions of fact which must be weighed on the balance to determine the guilt or innocence of an accused person. I should add here that these are questions that should be determined by a jury. But our system of justice does not have that body in existence therefore its functions are carried out by a Judge of the National Court of Justice.
    
59. I have, in the short time of being an a/Judge, experienced this to be a very difficult task given the evidence adduced in Court in almost all the cases which have come before me involve witnesses whose evidence are conflicting and starkly different as between the State and the various accused persons.
    
60. In this case the two State witnesses identified the accused swinging a 3 cm x 2 cm timber inflicting wounds to the head of the deceased. He was seen participating in the crime. This happened during broad day light for 2 hours between 9:00 am and 11:00 am.
    
61. Furthermore, the witnesses are related to each other as biological first cousins who live together in the same village. So, how can it be taken that identification of the accused was poor?
    
62. On the other extreme, the accused gave evidence that he was in Bogumatai Village on the 1^st of January 2018 but did not participate in the commission of the crime because as he said, he was seriously injured by Kenneth Maibogu and could not have the strength to participate and did not participate. But the fact is that he was seen at 9:00 am on 1^st January 2018 on which he swung a 3 cm x 2 cm timber and hit the deceased. If he was not there, then did the witness see an apparition?
    
63. I am not convinced beyond reasonable doubt to give weight to this evidence for reasons that:
    
    • (i) he did not give evidence as to what point in time Kenneth Maibogu injured him – whether before or after his father was struck with the 3cm x 2 cm timber followed by being hit by Kesley and Kelep Teperi;
      
    • (ii) even if Kenneth Maibogu did so, he could have done so after his father was hit by the accused in retaliation as no evidence was given by the accused as to the reasons why Kenneth Maibogu may have hit him and inflicted the alleged wounds;
      
    • (iii) the accused was certainly not sure who hit the deceased when he said Kenneth Maibogu was in his house and did wound him but did say Kesley and Kelep Teperi hit the deceased: obviously he did not see for himself who did so;
      
    • (iv) most importantly, this is a situation where the whole family of Godfrey Teperi (5 of them) attacked the deceased who then outnumbered, Kenneth Maigobu so how could Kenneth Maigobu by himself enter the house of the accused, under those circumstances and cause grievous bodily harm to the accused (while being outnumbered).
      
64. The background of this case and the actions of the father Godfrey Teperi should be probed to further clarify any reasonable doubt in the evidence of the State.
    
65. There is evidence that he was jealous of the success of the deceased. Hence on the 31^st of December 2017, he stood in the village and shouted words to the effect that someone will be murdered on the 1^st of January 2018.
    
66. Although he did not make mention of who was to be murdered, the facts are clear that the deceased Thomas Maibogu was murdered and that; even if the evidence of the accused is to be given credibility which I have found against, the deceased was murdered by a group of men who are the members of the same family including their sister. It is also clear from the evidence that Kesley and Kelep did attend at Bogumatai Village on the 1^st of January 2018 and participated in the whole affair and since then they have left Maprik and are at large. The whole thing was carefully planned and executed given that Kesley Teperi and Kelep Teperi, had to fly in to Wewak on 31^st December.
    
67. No other explanation by way of direct evidence was given in Court as to who may have murdered the deceased except the accused in the company of others whose names were clearly mentioned in evidence.
    
68. The defence of the accused that he was previously injured in an attack on 23^rd June 2017 and the other attack on the 1^st of January 2018 which caused him not to participate in the commission of the alleged crime cannot be given credibility as there are no medical reports duly prepared by registered medical practitioners verifying this. Nor was a medical practitioner called to testify on this.
    
69. In my view the accused depleted all reasonable defences and/or excuses to escape the grip of the law on him as circumstances surrounding this matter direct me to the conclusion that the accused did participate whose participation assisted in the death of the deceased.
    
70. The law on circumstantial evidence is settled in Barca -v- The Queen (1976) 50 ALJR 654; and adopted in Papua New Guinea in The State -v- Tom Morris [1981] PNGLR 483.
    
71. Generally, the law is that it is not safe to convict an accused person if the evidence rests substantially on circumstantial evidence. There has to be evidence of direct involvement of the accused to the crime. Circumstantial evidence alone should not be used to affect conviction.
    
72. In the case of The State -v- Tom Morris (supra), His Honour Miles J said:
    

“When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: Peacock -v- The King [1911] HCA 66; (1911) 13 CLR 619, 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’: Plomp -v- The Queen [1963] HCA 44; (1963) 110 CLR 234, 252. See also Thomas -v- The Queen [1960] HCA 2; (1960) 102 CLR 584, 605-606. However, ‘an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence’: Peacock -v- The King, 661. These principles are well settled in Australia.”

73. It was also said in the case of Paulus Pawa -v- The State [1981] PNGLR 418 that if the evidence in a criminal case is wholly circumstantial, the Court must acquit unless the facts proved in evidence with any reasonable hypothesis other than the guilt of the accused.
    
74. This is a case in which the evidence given by the State witnesses say that they saw the accused swing a 3 cm x 2 cm timber and hit the deceased who fell to the ground then Kesley Teperi and Kelep Teperi had their turns hitting the deceased on the head. This evidence is therefore not wholly circumstantial in this case.
    
75. The whole episode took place in Bogumatai Village between 9:00 am and 11:00 am on 1^st January 2018 broad day light as such visibility of witnesses was not affected therefore the quality of identification is not poor as was decided in the case of John Beng -v- The State (Supra) and Biwa Geta -v- The State [1988-89] PNGLR 153 which confirmed John Beng case.
    
76. Furthermore, and as I said earlier, the witnesses are related. They know each other by face, sound of voice and good physical stature. The accused was seen hitting the deceased and was properly identified.
    
77. Finally, it is noted that the accused ironically raised and relied on the defence of alibi. I say this because the evidence of the accused is that he was injured and did not participate.
    
78. The law is clear. A requisite 14 days’ notice must be given by the defence to the State Prosecutor handling the matter of its intention to raise this defence at the trial of the matter. This was not done. I however, exercised my discretion to allow evidence of this to be adduced in the interest of justice in as I did in Bruno Taufa Junior -v- The State (2022) unreported judgement dated 27^th April 2022, Vanimo, West Sepik Province, of CR No. 574 of 2020.
    
79. I have considered the evidence of alibi and must say this defence must fail. This entails that the evidence of the accused is untenable.
    

CONCLUSION

80. A precious life of a hard working men who was involved in the welfare and well being of Bogumatai Village, Banak, East Sepik Province has been lost; a healthy versatile man who honestly laboured tilling the soil growing the cash crops of cocoa and vanilla.
    
81. Human life should never be devalued to the extent of being worthless thus resulting on his demise for apparently no good reason.
    
82. Anybody who devalues the life of another by taking it unlawfully must have his valuable time in the community devalued by imprisonment because a precious life has been lost forever for no valid reason as such the life of the perpetrator must also be spent in incarceration, at least for a limited number of years to pay for his misdemeanour.
    
83. This feud existed and perpetuated in a closely knitted family setup between the elder brother and his second born brother. Instead of revelling, they rivalled under the banner of jealousy because of the success of the deceased. There should be revelry in family circles. Not rivalry as is evident in this case. The rivalry was initiated by the father as is alleged in evidence by insulting the deceased. It resulted in the children of the father assaulting the deceased with dangerous weapons which directly resulted in his death.
    
84. From all the evidence adduced in Court, I find that the State has proven its case beyond reasonable doubt and the accused stands guilty of the offence of wilful murder under Section 299 (1) of the Criminal Code as indicted.
    
85. Orders are therefore made that:
    
    • (i) the accused is guilty of the charge of wilful murder; and
    • (i) submissions on sentence be made forthwith or as agreed but by the end of June 2022.
      

Ordered accordingly

________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defendants