State v Jovu [2022] PGNC 542; N10066 (29 March 2022)

N10066

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 182 &197 OF 2021, 183 &198 OF 2021,184 &199 OF 2021,185 & 200, 186 & 201, 188 & 203, 189 & 204 OF 2021, 190 & 205 OF 2021 , 191 & 211 OF 2021, 192 & 212 OF 2021, 193 & 213 OF 2021 , 194 & 214 OF 2021, 195 & 215 OF 2021, 196 & 216 OF2021, CR(JJ)34 & 37 OF 2020, (JJ) 35 & 38 OF 2020, (JJ) 35 &38 OF 2020, (JJ) 36 & 39 OF 2020

THE STATE

V

CAMERON JOVU,
EMMANUEL KOVIRO,
HUMPHREY KONENE,
JOSEPH AKUMA,
BOBBY JOVU,
TIMOTHY JOFO,
MIKE JOFO,
HOWARD POU,
ZEBEDEE AKUMA,
FRANK JOHNSON,
LOIDE KOIKO SAWA,
CLANTY OROTU,
SMITH ARIKO,
BRENDON ESIKO,
TADIUS ROKO and
ROBERT JOVU
ANDREW SARIKO
JESSIE AKUMA

Popondetta: Sambua, AJ
2022: 9^th, 11^th, 14^th, 15^th, 17^th, 18^th ,21^st, 22^nd, 23^rd, 24^th & 28^th March

CRIMINAL LAW – wilful murder section 299(1) criminal code – not guilty plea – trial matter – issue of identification, involvement & participation - evidence overwhelming on issue of identification – evidence on issue of involvement & participation sufficient to convict 5 accuseds - 11 accuseds found not guilty and acquitted.

Cases Cited:

State vs Avana Latuve, Joel Lovi & Malo Bagesa [2013] N5182
John Beng v The State [1977] PNGLR 115
The State v Natuai Tibone & Thomas Some (1982) N361(M)
Philip Kassman v The State [2004] PGSC 9; SC759
R v Phillips Boike Ulel [1973] PNGLR 254
State v Moses Nasres [2008] PGNC 27; N3302

Texts:

Criminal Law and Practice in PNG – 3^rd Edition

Counsel

Mr R Luman and Mr S. Kuku, for the State
Mr E Yavisa and Mr S Kuruwalo, for all Accuseds

DECISION ON VERDICT

29^th March 2022

1. SAMBUA, AJ: Two indictments were presented against all eighteen (18) accused persons. The first indictment contained two (2) counts of wilful murder pursuant to section 299(1) of the Criminal Code was presented by the State against sixteen (16) accused persons, Cameron Jovu, Emmanuel Koviro, Humphrey Konene, Joseph Akuma, Bobby Jovu, Timothy Jofo, Mike Jofo, Howard Pou, Zebedee Akuma, Frank Johnson, Loide Koiko Sawa, Clanty Orotu, Smith Ariko, Brendon Esiko, Tadius Roko and Robert Jovu.
   
2. The two (2) counts of wilful murder on the indictment read:
   

HELD AT: POPONDETTA

Count 1 CAMERON JOVU, EMMANUEL KOVIRO, HUMPHREY KONENE,
JOSEPH AKUMA, BOBBY JOVU, TIMOTHY JOFO, MIKE JOFO, HOWARD POU, ZEBEDEE AKUMA, FRANK JOHNSON, LOIDE KOIKO SAWA, CLANTY OROTU, SMITH ARIKO, BRANDON ESIKO, TADIUS ROKO and ROBERT JOVU, all from AMBENE, SOHE, ORO PROVINCE stand charged that they the said CAMERON JOVU, the said EMMANUEL KOVIRO, the said HUMPHREY KONENE, the said JOSEPH AKUMA, the said BOBBY JOVU, the said TIMOTHY JOFO, the said MIKE JOFO, the said HOWARD POU, the said ZEBEDEE AKUMA, the said FRANK JOHNSON, the said LOIDE KOIKO SAWA, the said CLANTY OROTU, the said SMITH ARIKO, the said BRANDON ESIKO, the said TADIUS ROKO and the said ROBERT JOVU on the 13^th day of November 2019 at AMBENE in Papua New Guinea, wilfully murdered one BARTHOLOMEW UMBU.

COUNT 2: CAMERON JOVU, EMMANUEL KOVIRO, HUMPHREY KONENE,
JOSEPH AKUMA, BOBBY JOVU, TIMOTHY JOFO, MIKE JOFO, HOWARD POU, ZEBEDEE AKUMA, FRANK JOHNSON, LOIDE KOIKO SAWA, CLANTY OROTU, SMITH ARIKO, BRANDON ESIKO, TADIUS ROKO and ROBERT JOVU, all from AMBENE, SOHE, ORO PROVINCE stand charged that they the said CAMERON JOVU, the said EMMANUEL KOVIRO, the said HUMPHREY KONENE, the said JOSEPH AKUMA, the said BOBBY JOVU, the said TIMOTHY JOFO, the said MIKE JOFO, the said HOWARD POU, the said ZEBEDEE AKUMA, the said FRANK JOHNSON, the said LOIDE KOIKO SAWA, the said CLANTY OROTU, the said SMITH ARIKO, the said BRANDON ESIKO, the said TADIUS ROKO and the said ROBERT JOVU on the 13^th day of November 2019 at AMBENE in Papua New

Guinea, wilfully murdered one SIKO UMBU.
DATED this 10^th day of March 2022.

PONDROS KALUWIN
PUBLIC PROSECUTOR

3. The second indictment contained two (2) counts of murder under section 300(1) (a) of the Criminal Code and was presented against the two accuseds Andrew Sariko and Jessie Akuma. The two counts of murder on the indictment read:

HELD AT: POPONDETTA

Count 1. Andrew Sariko and Jessie Akuma both from Ambene, Sohe, Oro
Province stand charged that they on the 13^th day of November 2019 at
Ambene, Sohe, in Papua New Guinea murdered one Bartholomew
Umbu
Count 2. Andrew Sariko and Jessie Akuma both from Ambene, Sohe, Oro
Province stand charged that they on the 13^th day of November 2019 at
Ambene, Sohe, Oro Province in Papua New Guinea murdered on Siko
Umbu

DATED this 08^th day of March 2022

PONDRO KALUWIN
Public Prosecutor

Brief Facts

4. The State had alleged that between 6.00 am and 8.00 am on the morning of the 13^th day of November 2019, at Ambene village, Kokoda, Oro Province, the accused persons, Cameron Jovu, Emmanuel Koviro, Humphrey Konene, Joseph Akuma, Bobby Jovu, Timothy Jofo, Mike Jofo, Howard Pou, Zebedee Akuma, Frank Johnson, Loide Koiko Sawa, Clanty Orotu, Smith Ariko, Brandon Esiko, Tadius Roko, Robert Jovu, together with Andrew Sariko and Jesse Akuma and others went to the two deceased, Bartholomew Umbu and Siko Umbu's residence and attacked them with weapons on suspicion of them practicing sorcery.
   
5. The two deceaseds managed to escape and walked down to the main village to report the matter to the ward councillor. Upon arriving at the councillor’s house, they were surrounded by the accused persons together with others, who were armed with weapons, like homemade guns, bush knives, grass knives, hunting spears, stones etc.
   
6. The attack begun when the accused Timothy Jofo called out and gave orders that "boys move". The accused persons immediately formed two groups and chased and attacked the two deceased at different directions and locations.
   
7. The accused persons, Mike Jofo, Andrew Sariko, Clanty Orotu and John Jofo attacked the deceased, Bartholomew Umbu by cutting him with bush knives and grass knives resulting in his death and then joined the second group and attacked the second deceased, Siko Umbu.
   
8. The second group, comprising of Smith Ariko, Branden Esiko, Jessy Akuma, Humphrey Konene, Cameron Jovu, Emmanuel Koviro, Bobby Jovu, Timothy Jofo, Howard Pou, Zebedee Akuma, Frank Johnson, Loide Koiko Sawa, Tadius Roko and Robert Jovu, chased the second deceased Siko Umbu. When they caught up with him, they cut him with bush knives, grass knives, axe(s) etc, causing serious bodily injuries which eventually led to his death. In the course of attacking the deceased Siko Umbu, they chopped off his hands and his penis and then tried to shove his penis into his anus.
   
9. On the first count of wilful murder, the State alleged that when the 16 accused persons attacked and killed the deceased Bartholomew Umbu, they intended to cause his death thereby contravening section 299 (1) of the Criminal Code.
   
10. On the second count of wilful murder, the State alleged that when the 16 accused persons attacked and killed the deceased, Siko Umbu, they intended to cause his death thereby contravening section 299 (1) of the Criminal Code a.
    
11. While on the two (2) counts of murder against the (2) two accused persons, Andrew Sariko and Jesse Akuma, the State alleged that when they attacked and killed the deceased Bartholomew Umbu, they intended to cause him grievous bodily harm, but he died thereby contravening section 300(1)(a) of the Criminal Code.
    
12. And for the second count of murder against the two accuseds, Andrew Sariko and Jesse Akuma, the State alleged that when they attacked and killed the deceased, Siko Umbu, they intended to cause him grievous bodily harm, but he died thereby contravening section 300(1)(a) of the Criminal Code.
    
13. The State also invoked section 7 and 8 of the Criminal Code in that they aided each other in committing a crime during a common unlawful purpose

Arraignment.

14. On arraignment the sixteen (16) accuseds persons pleaded not guilty to the two counts of wilful murder under section 299(1) of the Code and a trial was convened while the two accuseds Andrew Sariko and Jessie Akuma pleaded guilty to the two counts of murder under section 300(1)(a) of the Criminal Code and their matter was then adjourned to the end of the trial of the 16 co- accused persons.
    
15. In its endeavour to prove its case against the 16 co-accuseds, the State called four (4) witnesses who gave sworn oral evidence and tendered some documentary evidence.
    

Sworn Oral Evidence

JENNIS SISAPU

16. The witness Jennis Sisapu was the first witness for the State. She gave evidence that she was at Perefi village close to the main Ambene village and around 6.00 am on the morning of the 13^th of November 2019, a group of boys from the main Ambene village who were armed with weapons went up looking for Bartholomew Umbu and Siko Umbu. She named them as Cameron Jovu, Jethro Orotu, Clanty Orotu and Lindsay Sawa. She said that Cameron Jovu and Jethro Orotu were armed with Home-made guns while Clanty Orotu was holding a bush knife and Lindsay Sawa was armed with a grass knife and a stone.
    
17. She told the court that Cameron Jovu fired a warning shot into the air and Jethro Orotu also fired a shot as well. Clanty Orotu stood at the doorway to the house and swore at Jennis saying, “eat vagina". She mentioned that the boys destroyed Bartholomew Umbu's house and returned to the main Ambene village.
    
18. She also told the court that after the boys had left, she followed Bartholomew Umbu and Siko Umbu down to Ambene village to report the incident to the Ward 12 Councillor Ezekiel Orotu. While they were in front of the Ward Councillor's house with Polikap Roko and Angela Sisapu, a group of boys surrounded the Ward Member’s house. She named them as Timothy Jofo, Mike Jofo, Andrew Sariko, Smith Ariko, Brandon Esiko, and Clanty Orotu.
    
19. She also stated that Timothy Jofo was unarmed however he gave orders to the boys to move and thereafter Mike Jofo who was holding a crowbar spear, speared Bartholomew Umbu on his right leg below the knee.
    
20. Andrew Sariko who was holding a grass knife then cut the side belly of Bartholomew Umbu. Smith Ariko who was holding a homemade gun then fired at Bartholomew Umbu but the gun did not discharge any projectile.
    
21. Brandon Esiko then threw a stone aiming at her (Jennis Sisapu) while she was standing with Bartholomew Umbu. Clanty Orotu then went to where Bartholomew was lying on the ground and called out "cut him". She was still watching and standing where Bartholomew Umbu was, when Macleen Jovu brought Siko Umbu's severed hands. She saw this and was afraid, so she went back to Perefi village to bring Bartholomew’s wife to the main Ambene village.
    
22. In Cross-Examination she maintained her story. However, she stated that Brandan Esiko who was wearing black shirt and white trousers at that time and threw a stone at her at that time. And that Bartholomew Umbu's wife was not there with them when they came down from Perefi village to see the Ward 12 Councillor Ezekiel Orotu at the main Ambene Village. She further said that the Ward Member was there when they came down.
    

ANGELA SISAPU

23. Angela Sisapu was the second witness for the State. She told the court that there was a disturbance at the small village, Perefi so Bartholomew Umbu and his wife and children including Siko Umbu went down to the main village to report the incident to the Ward 12 Councillor Ezekiel Orotu. Bartholomew Umbu called out to the ward member and said that boys went up to his place and disturbed him, so he came to report the incident to him.
    
24. As Bartholomew Umbu was talking to the ward councillor, the boys surrounded the Ward Councillor’s house and Bartholomew Umbu and Siko Umbu raised their hands as a sign of surrender. The group of boys wanted to fight with them.
    
25. Bartholomew Umbu was about to run when Mike Jofo speared him with a crowbar spear and Mike Jofo tried to shoot at them with the homemade gun. She stated that at the time they were only women standing there next to the mumu stones and she picked up a stone and hit Timothy Jofo's hand with it.
    
26. She stated that Timothy Jofo then called out and said to the boys 'boys move' and Andrew Sariko went and cut Bartholomew Umbu on the right lower side above the hip causing Bartholomew to fall and was rolling on the ground in pain. She then called for Thomson Sisapu who went over to take care of Bartholomew Umbu while she followed Siko Umbu who was being chased by the boys.
    
27. She also stated that Siko Umbu ran into Thompson Sisapu's house, and she saw Brandon Esiko throw a stone and hit Siko Umbu inside the house. Then Jessie Akuma, Alfie Orotu, Cliff Orotu tried to pull Siko Umbu out of the house, but he jumped out through a window and ran away. The boys then chased after him.
    
28. She told the court that the group of boys that chased Siko Umbu were Cameron Jovu, Bobby Jovu, Emmanuel Koviro, Zebedee Akuma, Joseph Akuma, Andrew Sariko, Francis Sariko, Steven Sariko, Brandon Esiko, Cliff Orotu, Robert Jovu, Tadius Roko, Humphrey Konene, Howard Pou, Robert Jovu, Robert Sawa, Jethro Orotu, and Eddie Orotu. That time Polikap Roko was following the boys who were chasing the deceased Siko Umbu.
    
29. They chased Siko Umbu up to the mourning house. At that time Cameron Jovu was armed with a homemade gun, Robert Jovu was also armed with a homemade gun, Zebedee Akuma was also armed with a homemade gun, Andrew Sariko was armed with a long bush knife, Howard Pou was armed with a knife, Frank Sawa was armed with a homemade gun, Brandon Esiko was armed with a stone and spear, Tadius Roko was armed with a bush knife, Robert Sawa was armed with a crowbar spear, and Joseph Akuma was armed with an axe.
    
30. She stated that Robert Sawa threw the spear at Siko Umbu and it slipped past his neck. Whilst the boys were chasing Siko Umbu, Jethro Orotu hit him on his head with a home-made gun barrel. She and others wanted to help but the boys were armed with homemade guns, so they just stood and watched. When Siko Umbu was laying on the ground, Polikap Roko slept on top of him to protect him from further attack, but they pushed Polikap Roko off and they dragged Siko Umbu to Bogger Koviro’s front yard.
    
31. She further stated that John Jofo and Tadius Roko then held Siko Umbu’s hands and dragged him to the field. Whilst at the field, Cameron Jovu told Robert Sawa to remove one of the volleyball posts. After Robert Sawa removed the volleyball post, it was placed next to Siko Umbu. Then Mcleen Jofo told Morgan Orotu to place Siko Umbu’s left hand on it and cut it and he, Mcleen cut the Siko Umbu’s right hand. Then Eddie Orotu removed Siko Umbu's trousers and cut off his penis and told Loide Sawa to shove it into Siko Umbu's anus. Loide Sawa tried to shove Siko Umbu’s cut penis into Siko’s anus but could not, so he left it on his buttocks.
    
32. She stated further that then Cameron Jovu told Tadius Roko to pull the volleyball post and put Siko's head up and he hit Siko three times on his chest. Mcleen Jofo than told Cliff to take Siko Umbu’s cut hands and go around towards where Bartholomew was. Clanty Orotu than urinated on Siko Umbu's dead body.
    
33. She stated further stated that she picked up Siko Umbu's other hand and penis and went straight to Thompson Sisapu's house. Thompson Sisapu than told her to leave the penis and take the hand to the police in Popondetta and report the matter.
    
34. In cross-examination, she maintained her story however she stated that the arrest of the accuseds who are now in court took place a year later after the incident. She also stated that at the time when Bartholomew Umbu and Siko Umbu went to report the incident which happened at Perefi village to the Ward 12 Councillor, Bartholomew Umbu's wife was with them. She also stated that the ward councillor was there when they went to see him.
    
35. She further mentioned that all the boys were wearing black clothes that time. She also mentioned that Timothy Jofo was with Bartholomew Umbu when the boys were chasing Siko Umbu.
    

THOMPSON SISAPU

36. The third witness for the State was Thomson Sisapu. He told the court that he was at the village when he heard loud noises coming from outside his house, so he went out to find out what was happening and the first person he saw was Timothy Jofo. Timothy Jofo was not armed but was showing off his muscles to the women who were there and went back to his house without saying a word.
    
37. At that time, he saw Bartholomew Umbu was laying on the ground and Andrew Sariko standing over his head, holding a grass knife. Andrew Sariko was calling to the boys to go and carry Bartholomew Umbu to the field, but they did not go so he (Andrew Sariko) held him by the trousers and dragged him on the ground for about three (3) metres. He was still there when he saw Clanty Orotu run towards the main field, shouting out "I will cut him". He was still standing there when Clanty Orotu pushed him aside and cut Bartholomew Umbu on the neck.
    
38. He also stated that John Jofo cut Bartholomew Umbu's right hand. Copland Bangoho who was armed with a grass knife also went over and hit Bartholomew Umbu on his stomach three time with the flat side of the grass knife. Ronald Orotu took a grass knife and hit Bartholomew Umbu twice on his chest. Jethro Orotu then cut Bartholomew Umbu on his left thigh. He (Thompson Sisapu) also said that Timothy Jofo was there who called out to his wife and others who were standing there to assist carry Bartholomew Umbu to the veranda of his (Thompson) house.
    
39. He also said that he was still there with Bartholomew Umbu when Angela Sisapu brought Siko Umbu's severed hand and penis. He then told Angela to leave the penis and take the hand to the police in Popondetta and report the incident.
    
40. In Cross-Examination he stated that he was there but did not see how Batholomew Umbu and Siko Umbu were attacked and killed. He also stated that Timothy Jofo did not say or do anything except that he helped carry Bartholomew Umbu to the veranda of his (Thompson) house.
    

POLIKAP ROKO

41. The fourth and final witness for the State was Polikap Roko. He told the court that at around 5.00 am and 6,00am, on the morning of the 13^th of November 2019, he was at his house in the village when Robert Sawa and Brandon Esiko went to him and warned him that a group of boys will be coming to burn down his house so he must escape. Both of them were holding a homebrew alcohol container each.
    
42. Then a group of boys arrived sometime around 5.30am and 6.00am to attack them and Angela Sisapu called out to him advising him of the arrival of the boys and he went outside. When he went outside, he saw Clanty Orotu, Cliff Orotu, Copland Bangoho, Jessie Akuma, Humphrey Konene and Alfie Orotu. Clanty Orotu wore a white shirt and was holding a knife at that time and Humphrey Konene was holding a petrol container and a bush knife.
    
43. He stated that around 6.30am to 7.00am, he was there when Bartholomew Umbu and Siko Umbu were at the ward councillor’s house and a group of boys went and surrounded them. He named the boys as, Clanty Orotu, Cliff Orotu, Jessie Akuma, John Jofo, Mike Jofo, Timothy Jofo, Meledy Jofo, Zebedee Akuma, Smith Ariko, Bobby Jovu, Joseph Akuma, Cameron Jovu, Loid Koiko Sawa, Tadius Roko, Brandon Esiko, Howard Pou, Frank Johnson, Robert Jovu, Jethro Orotu, Eddie Orotu, and Alfieus Orotu.
    
44. He also stated that at that time Mike Jofo was armed with a half inch diameter crowbar spear. Timothy Jofo was not armed with anything but ordered the boys to move by saying “boys move". Then he saw Andrew Sariko, Morgan Soho and Macleen Jovu joined the group. Zebedee Akuma who was armed with a homemade gun pointed it at his (witness) head. Smith Ariko was armed with a homemade gun at that time and Bobby Jovu was armed with a crowbar spear and grass knife while Cameon Jovu was armed with a homemade gun. Emmanuel Koviro was armed with a homemade gun. Loide Koiko Sawa was armed with a grass knife, and Tadius Roko was armed with a grass knife. Brandon Esiko was armed with stones, Howard Pou was armed with a crowbar spear and bush knife, and Frank Johnson was armed with a homemade gun.
    
45. He mentioned that when Timothy Jofo said boys move, he saw Smith Ariko lift the homemade gun and fired at Siko Umbu but it did not discharge any projectile. Then he saw Francis Sariko hit Siko Umbu with a stone. Siko Umbu started to run, and the boys chased him. He left Bartholomew Umbu there and followed Siko Umbu.
    
46. He also told the court that he saw Siko Umbu going into Thompson Sisapu's house and the boys surrounded him, so he blocked the doorway. Smith Ariko then pointed the gun at him and told him not to block the doorway. They threw stones at the house, and he saw Brandon hit Siko on his right thigh with a stone.
    

He further stated that he saw Clanty Orotu, Cliff Orotu, and Jessie Akuma going into the house and Siko Umbu ran out and was about to jump when Brandon hit him with a stone. Siko Umbu then jumped out of the window and ran, and the boys followed and chased after him. He named the boys who chased Siko Umbo as Cliff Orotu, Jessie Akuma, Humphrey Konene, Eddie Orotu, Ronald Gilbert, Morgan Jovu, Robert Sawa.

48. When Siko Umbu was about to run into the bush, he saw Jethro Orotu blocked his way which slowed him down and Eddie Orotu hit him with a gun barrel and Siko fell. When he lifted his hand up to fend off the attack, Ronald Gilbert cut his two right hand fingers with a knife.
    
49. Morgan Soho also cut the same hand. Jessie Akuma hit Siko Umbu on his back, so he (Polikap Roko) slept on top of Siko Umbu to protect him from further attack. He was still lying on top of Siko when the boys stoned him (Polikap) and pulled him off from Siko Umbu and then dragged Siko Umbu to the field. He named the boys as Mckleen Jovu, John Jofo, Eddie Orotu, and Morgan Soho.
    
50. While the boys were dragging Siko Umbu, he (Polikap) followed and saw Jessie Akuma hitting Siko Umbu. Cameron Jovu then ordered Robert Sawa to remove a volley ball post. Mcleen Jovu placed Siko's hand on the post and cut off the right hand while Morgan Orotu cut off the left hand.
    
51. He further stated that Mike Jofo then took him (Polikap Roko) and locked him in his house. While he (Polikap) was locked inside the house he heard them planning to burn his house which was next to Mike Jofo's house.
    
52. In Cross-Examination he maintained his story and confirmed that the Ward 12 Councillor Ezekiel Orotu was not in his house when Bartholomew Umbu and Siko Umbu went to his house to report the incident that happened at Perefi village. He had escaped during the night into the bush.
    
53. Also, he stated that all the boys who were attacking the two deceased Bartholomew Umbu and Siko Umbu, wore black shirts except for Clanty Orotu who wore white shirt and black trousers.
    

Documentary Evidence

Record of Interviews

54. The accuseds in their respective Record of Interviews had this to say:
    

1. Cameron Jovu
   

His Record of Interview with police was tendered into court as evidence by consent and was marked as Exhibit S1 and S1 (a). He told the Police that he was there in Ambene village, but he didn’t see anything. It was a big story. He was at the haus krai (mourning house) but just before day broke, he went to his house and slept. He heard shouting and screaming coming from the village and went down to find out, but his aunty stopped him. He also told Police that Jennis didn’t see him. She was lying. He was not involved in the fight.

2. Emmanuel Koviro
   

His Record of Interview was tendered into court as evidence by consent and was marked as Exhibit S2 and S2(a). He stated that at that time he was not at Ambene but was at Ingiri village helping his uncle to build a new house when the incident happened. Later he heard about the incident.

100. Humphrey Konene
     

His Record of Interview was tendered into court as evidence by consent and was marked as Exhibit S3 and S3(a). He stated that he was with his wife and children at the garden at the time of the incident and did not know anything about the killing of Bartholomew Umbu and Siko Umbu.

4. Joseph Akuma
   

His Record of Interview was tendered into court as evidence by consent and was marked as Exhibit S4 and S4 (a). He stated that he was at Waseta School when the incident happened. He returned to the village after the incident.

5. Bobby Jovu
   

His Record of Interview was tendered into court as evidence by consent and was marked as Exhibit S5 and S5 (a). He told the Police that at the time of the incident, he was blinded and was in the house in the village and didn’t see how the incident happened.

6. Timothy Jofo
   

His Record of Interview was tendered into court as evidence by consent and was marked as Exhibit S6 and S6 (a). He told the Police that he was at Ambene village when the incident happened. He was trying to stop the people from fighting. The people suspected Bartholomew Umbu and Siko Umbu for killing Norman Sariko through sorcery and therefore attacked and killed them. He denied saying “boys move” but he recalled telling the boys, “Boys move out”. After that his family called and he returned to his house.

7. Mike Jofo
   

His Record of Interview was tendered into court as evidence by consent and was marked as Exhibit S7 and S7 (a). He told the Police that on the night of the 12^th of November 2019, he was at Norman Sariko’s mourning house. And at about 2:00 am of the 13^th of November 2019 he left the mourning house and went to his house to sleep. He was still sleeping when the incident happened. The two deceaseds Bartholomew Umbu and Siko Umbu were killed because they were suspected of killing Norman Sariko through Sorcery.

8. Howard Pou
   

His Record of Interview was tendered into court as evidence by consent and was marked as Exhibit S8 and S8 (a). He stated that he was there at Ambene village as a betelnut buyer. He was at the house where he lives when the incident happened. He said that at about 5 o’clock in the morning, the fight started. A person by the name of Taylor told him that the fight is between the locals and not yours. After they had killed the two men, the fight stopped, and he went out looking for betelnut to buy.

1. Zebedee Akuma
   

His Record of Interview which was tendered into court as evidence by consent and was marked as Exhibit S9 and S9 (a). He told the Police that he was at Waseta when the incident happened.

10. Frank Johnson
    

His Record of Interview was tendered into court as evidence by consent and was marked as Exhibit S I0 and S I0 (a). He told Police that at that time, he was at Hawaki village. He was with Andy Andia Puisa and Bracelyn Puisa. He is an innocent man.

11. Loide Koiko
    

His Record of Interview was tendered into court as evidence by consent and was marked as Exhibit S11 and S11 (a). He told the Police that he was at the place of mourning when the incident happened and didn’t see what happened.

50. Clanty Orotu
    

His Record of Interview was tendered into court as evidence by consent and was marked as Exhibit S 12 and S12 (a). He told police that he was at the place of mourning when the incident happened but didn’t see the fight. He was assisting at the mourning house by fetching water and breaking firewood.

13. Smith Ariko
    

His Record of Interview was tendered into court as evidence by consent and was marked as Exhibit S13 and S13 (a). He told Police that incidents like this happened for a reason. As in this case it happened because people suspected the father and son for causing the death of Norman Sariko through sorcery. Bartholomew had asked the family for K800.00 but Uncle Norman Sariko died.

14. Brendan Esiko
    

His Record of Interview was tendered into court as evidence by consent and was marked as Exhibit S14 and S14 (a). He stated that he was at his house with his parents when the incident happened. He did not go out to see what was happening. Therefore, he has no idea about how it happened.

• Tadius Roko
  

His Record of Interview was tendered into court as evidence by consent and was marked as Exhibit S15 and S15 (a) whereby he generally denied participating in the incident.

16. Robert Jovu
    

In his Record of Interview which was tendered into court as evidence by consent and was marked as Exhibit S16 and S16 (a), he told Police that at the time of the incident he was in the house at Ambene village. He did not go out and see what happened and therefore has no knowledge of what happened.

MEDICAL EVIDENCE

55. The two (2) Medical reports Exhibits “S24” of the two deceased were attached to the affidavit of the Health Extension Officer Donald Salapwi which was tendered into evidence by consent and marked as Exhibit “S23”. In Paragraph 9 of his Affidavit HEO Donald Salapwi, concluded that both deceased died of heavy blood loss due to multiple wounds and lacerations which led into the condition of haemorrhage shock.
    

The Photographs

56. The photographs of the two deceaseds were tendered into evidence by consent and were marked as Exhibits S19a to S19f. The Photographs depicted pictures of two badly mutilated dead bodies of Bartholomew Umbu and Siko Umbu. From looking at the photographs, it was obvious and no doubt that whoever inflicted those injuries to the two deceaseds Bartholomew Umbu and Siko Umbu, wanted them dead. It was a horrific and brutal killing. The two deceased were tortured to death by their attackers and in this case the accused persons and the others who have not been arrested and charged.
    

Defence Evidence

57. The defence went into evidence however in exercising their constitutional rights, only one accused gave sworn oral evidence, four elected to make unsworn statements from the dock while eleven elected to remain silent.
    
58. The accused who gave sworn oral evidence was Bobby Jovu. In his sworn oral evidence, he stated that he was in his father's house when the incident happened. He had problem with his eyes and was blind and he could not see properly. He was always in the house and didn’t see what actually happened.
    
59. The four accuseds who elected to make unsworn statements from the dock were:
    

1. TIMOTHY JOFO
   

Timothy Jofo made an unsworn statement that the words he used at the time were misunderstood by the State witnesses. He was saying "move out" at the time because the boys went into his area as well.

2. CAMERON JOVU
   

Cameron Jovu gave unsworn statement that after leaving the mourning house at 2.00 am in the morning, he went to his house and was sleeping when he heard loud screams outside at around 6.00am. He went out and was standing at his house area and did not go anywhere near to the place where the attack of the two deceased took place.

100. ZEBEDEE AKUMA
     

He gave unsworn evidence that he was at Waseta village with his sister when the incident happened.

4. FRANK JOHNSON
   

He gave unsworn evidence that he was at Hawaki Block at the time of the incident.

60. The eleven accused that elected to remain silent were Emanuel Koviro, Humphrey Konene, Joseph Akuna, Mike Jofo, Howard Pou, Loide Koiko Sawa, Clanty Orotu, Smith Ariko, Brandon Esiko, Tadius Roko and Robert Jovu
    

Submissions by counsels

61. Mr Yavisa for the 16 accused persons submitted that there were inconsistencies in the evidence of Jennis Sisapu, Angela Sisapu, Thompson Sisapu, and Polikap Roko. Jennis Sisapu's evidence should not be believed because she stated that when she went down with Bartholomew Umbu and Siko Umbu to report the earlier incident that happened at Perefi village, Bartholomew’s wife was not with them, but later Angela Sisapu and Polikap Roko confirmed that the wife was also there with Bartholomew Umbu and Siko Umbu.
    
62. Furthermore, he submitted that Jennis Sisapu stated that Ward 12 Councillor Ezekiel Orotu was there, and they went and spoke to him while Polikap Roko confirmed that the ward member was not there as he had gone into the bush in the night. Angela Sisapu should not be believed also because when asked in cross-examination she stated that the ward member was there when Bartholomew Umbu and Siko Umbu went and spoke to him. Therefore, he submitted that Jennis Sisapu and Angela Sisapu are not credible witnesses.
    
63. He further submitted that Thompson Sisapu's evidence was inconsistent with other State Witnesses evidence in respect to Timothy Jofo. He stated that Timothy Jofo did not say anything while others mentioned that he said, “boys move”. Timothy himself confirmed that he was misunderstood to have said boys move but he actually told the boys to move out of the area.
    
64. He also submitted that there was inconsistency in the evidence in respect to Brandon Esiko. Jennis Sisapu told the Court that Brandon Esiko who was wearing black shirt and white trousers at the time and tried to attack her but left and she didn’t see him again. But the other witnesses said he threw a stone at Siko Umbu and hit him. Others said he was wearing all black clothes.
    
65. Also, he submitted that there was inconsistency with the clothing Clanty Orotu was wearing at that time. The other State witnesses mentioned that he was wearing all black clothes while Polikap Roko stated that he was wearing white shirt and black trousers.
    
66. It was his submission that, the inconsistencies in respect to the evidence against Timothy Jofo and Brandon Esiko, created doubt to the credibility of the evidence of State witnesses and therefore they should be accorded the benefit of the doubt. It is clear that Timothy Jofo's spoken words were misunderstood. As Thompson Sisapu stated Timothy Jofo did not say a word but helped carry Bartholomew Umbu to the veranda of his (Thompson Sisapu’s) house. Likewise, Brandon Esiko, according to Jennis Sisapu, he attempted to attack her but not the attack on the deceaseds. All the other witnesses said otherwise. Therefore, it was not safe to find Timothy Jofo and Brandon Esiko guilty of the charge in light of these inconsistencies.
    
67. He submitted that in State vs Avana Latuve, Joel Lovi & Malo Bagesa [2013] N5182, the court found Joel Lovi not guilty as he was holding a stone and following the crowd who were attacking the deceased on sorcery suspicion.
    
68. He submitted that there was evidence that different persons attacked Bartholomew Umbu and different persons attacked Siko Umbu. The evidence was that Mike Jofo, Clanty Orotu and Andrew Sariko were named as the persons who attacked Bartholomew Umbu with others apart from these accuseds. Most of these persons named in evidence are still at large. Therefore, submitted that the court should find each of them guilty according to the deceased they each attacked and killed and not on the two counts as indicted.
    
69. He submitted that the accused Robert Jovu should be acquitted as there was no evidence of him participating in attacking both deceased persons. A benefit of doubt should be accorded to him.
    
70. He also submitted that there was no evidence of Howard Pou, Frank Johnson, Emmanuel Koviro, Zebedee Akuma, Loid Koiko Sawa, and Smith Ariko participating in cutting the two deceased Bartholomew Umbu and Siko Umbu. There was also no evidence of gunshot wound on the two deceaseds.
    
71. In relation to sorcery, he submitted that there was no evidence produced by the State witnesses that both killing were related to suspicions of sorcery.
    
72. In respect to the Medical Report, he submitted that the medical reports did not support the charge of wilful murder. The reports only stated that both deceaseds died of loss of blood due to multiple knife wounds. It did not go to the extent of specifying the type of wounds suffered by the two deceaseds and the type of weapon used that caused those injuries. Furthermore, the reports did not show any wounds caused by gun shots.
    
73. On the basis of the foregoing, he submitted that the State's case as it stands has not been proven beyond reasonable doubt the guilt of the accuseds on the two (2) counts of wilful murder under section 299(1) of the Criminal Code. All the accused persons should be accorded the benefit of the doubt and the court return a verdict of not guilty on both counts.
    
74. And if the Honourable Court finds that the State has proven its case beyond reasonable doubt, he submitted that the court should return a guilty verdict on a lesser alternative charge and not on the charge of wilful murder.
    
75. Mr Kuku, on behalf of the State, submitted that the State’s four witnesses gave good evidence that clearly proved its case beyond reasonable doubt. The elements of the offence were made out by the two medical reports stating the cause of death and the nature of the injuries.
    
76. He submitted further that most accused persons in their Records of Interviews stated that they were elsewhere and have not taken part in the killing of the two deceaseds which gave rise to the defence of alibi and the rule in Browne and Dunn. The defence failed to comply by putting its case to State witnesses or serve a notice of alibi prior to the commencement of the trial. It is very vital on their part that such notice was given for fairness’ sake
    
77. He also submitted that since the defence witnesses chose to remain silent and gave unsworn statement, it is very crucial when it comes to the issue of identification and/ or alibi defence that there was supporting evidence to substantiate their defence. There must be evidence to cancel out the allegation brought against each of the accused persons.
    
78. Furthermore, Mr Kuku submitted that, the State has proven its case beyond reasonable doubt and that a verdict of guilty on wilful murder be returned. In the event that the court finds them not guilty on that said charge, an alternative charge of murder be returned pursuant to section 539 of the Criminal Code.
    

Issue

79. Whether or not there was sufficient and credible evidence before this court for the court to return a guilty verdict against all sixteen (16) accused persons on the two (2) counts of wilful murder under section 299(1) of the Criminal Code
    

Identification and Involvement Evidence

80. The law on the issue of identification is well settled in this jurisdiction in the case of John Beng v The State [1977] PNGLR 115. It was held that:
    

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

When the quality of the identification evidence is good the matter should proceed to a verdict, when the quality of identification evidence is poor, unless there is other evidence which goes to support the correctness of the identification, an acquittal should be entered......

........Recognition may be more reliable than identification of a stranger.

However, when the witness is purporting to recognise someone whom he or she knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made. All these matters go to the quality of the identification evidence. When the quality is good, the jury can be safely left to assess the value of the identifying evidence even though there is no other evidence to support. When the quality of the identifying evidence is poor, such as a fleeting glance or a longer observation made in difficult conditions, the Judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification: John Beng v The State [1977] PNGLR 115, followed in The State v Natuai Tibone and Thomas Some (1982) N361(M).

81. In this case, all four State witnesses correctly identified all the accused persons in Court. They are all from Ambene village and they know them very well. Each witness described their respective relationship with each of the accused persons. The incident happened around 7:00 am in the morning. It was a clear morning, and it was recognition of persons they knew rather than complete strangers. The evidence of identification and involvement were adduced from all four (4) State witnesses. They were Jenise Sisapu, Angela Sisapu, Thompson Sisapu and Policup Roko.
    
82. Jenise Sisapu told the court that between 5:30 to 6:00 am a group of boys arrived at their hamlet at Perifi (small village) which is part of the big Ambene village. The boys she saw were Cameron Jovu, who was armed with a homemade gun, Jethro Orutu, who was also armed with a homemade gun and Clanty Orotu who was armed with a bush knife.
    
83. They arrived and started to destroy Siko and her father Bartholomew Umbu’s house. At the same time Cameron Jovu fired a warning shot from his homemade gun followed by Jethro Orotu who also fired a shot from his homemade gun.
    
84. In cross-examination, she told the Court that the shot from Cameron Jovu’s home made gun hit the deceased Bartholomew Umbu on his side just above the hips. And Mike Jovu speared the deceased Bartholomew Umbu on his right leg with an iron spear.
    
85. Angela Sisapu told the court that Bartholomew Umbu tried to run but Mike Jovu shot him with a crowbar spear and Smith Ariko tried to shoot her and the girls with his homemade gun. The witness described the crowbar spear as half an inch thick in diameter and about two to three metres long. She also told the court that Andrew Sariko then cut Bartholomew Umbu on the right side just above his hip and then they chased Siko Umbu and he (Siko Umbu) went into Thompson Sisapu’s house. Brendon Esiko then threw a stone and hit Siko Umbu inside the house.
    
86. Then Jessie Akuma, Cliff Orotu and Alfie Orotu pulled out Siko Umbu from Thompson Sisapu’s house.
    
87. She said Timothy Jofo gave orders to the boys to move but he himself was not involved nor was he holding any weapon. Robert Sawa cut Bartholomew on his neck with a spear knife and Jethro Orotu hit Siko on the head with a pipe (gun barrel).
    
88. She also told the court that when Siko Umbu fell, they dragged his dead body to the village field where Mclean Jovu cut one hand and Morgan cut the other hand. Eddie Orotu removed Siko Umbu’s shorts and cut off Siko Umbo’s penis and gave it to Loide Sawa and told him to push it up Siko Umbu’s anus. Loide Sawa tried to push the penis into Siko Umbu’s anus but was unsuccessful. Then Clanty Orotu urinated on Siko Umbu’s dead body.
    
89. Thompson Sisapu identified each of the accused persons in Court but was not able to tell the Court how each of the accused attacked the two deceased persons. In cross-examination, he admitted that he did not see how each of the accused persons attack the two deceased.
    
90. Polikap Roko told the court that he saw Brendon Esiko and Robert Sawa first when they went to his house and warned him that the boys were planning to burn his house. He knew them both and identified Brendon Esiko in Court. Robert Sawa was not in Court. When they went, they were each holding a container of homebrew alcohol.
    
91. Not long after that, the second group arrived. His sister Angela Sisapu saw them and advised him of the arrival of the second group. He went out and saw the second group and turned around and pretended to call his boys by saying, “boys, they are here, come out now”, and when the second group heard that they moved back and did not set fire to his house but started throwing stones at him.
    
92. At that time, he saw Clanty Orotu was armed with a knife and entered his area. He also saw Cliff Orotu and Copland Bangoho. That time, those boys did not cover their faces with mask or anything. He also saw Humphrey Konene at that time with the second group and he was holding a container of petrol intended to be used to set fire on his (Polikap Roko’s) house.
    
93. He told the Court that the accused Zebedee Akuma was also there, and he pointed him out in court as the person who pointed his homemade gun on his (witness) head.
    
94. He also identified Smith Ariko who was armed with a homemade gun. Smith Ariko fired a shot from his homemade gun at them, but the bullet landed in front of Siko Umbu and him (witness). He also told the Court that Zebedee Akuma was also there and was armed with a homemade gun.
    
95. He further told the Court that the accused Bobby Jovu was also there armed with a crowbar spear and a grass knife and Joseph Akuma was there too and was armed with an axe. He also told the Court that Cameron Jovu was there and was armed with a home-made gun.
    
96. Emmanuel Koviro was armed with a bush knife and also identified Loide Koiko Sawa who was armed with a spear and a grass knife and was with the group. He also identified Tadius Roko who was armed with a grass knife and was with the group of boys that attacked and killed the two deceaseds Bartholomew Umbu and Siko Umbu.
    
97. He also identified Howard Pou who was armed with a crowbar spear and a knife and joined the boys to chase the deceased Siko Umbu.
    
98. He also identified Frank Johnson and Robert Jovu. Frank Johnson is the brother of Smith Ariko. Frank Johnson was armed with a homemade gun and Robert Jovu was also armed with a homemade gun as well.
    
99. When Siko Umbu was inside Thompson Sisapu’s house, he was standing at the doorway and Smith Ariko pointed the gun on his head and told him to move.
    
100. Then Clanty Orotu, Jessie Akuma, Cliff Orotu went inside the house and pulled Siko Umbu out from the house. As they were pulling him out, Siko Umbu jumped out through the window, and they chased him again. He also followed after them. Siko Umbu was going to run into the bush however Jethro Orotu blocked his way.
     
101. When Siko Umbu slowed down, Eddie Orotu hit him with the gun barrel on his head and Siko Umbu fell down and lifted his hand up as a sign of surrender and to fend the attack, but Ronald Gilbert cut his finger with a bush knife. Morgan Sawa also cut the same right-hand fingers.
     
102. Jessie Akuma then hit Siko Umbu on his back with the flat side of the bush knife. That was when they took him away, but he managed to come back and followed them to the village field. There he saw Cameron Jovu ordered them to remove a volleyball post. Robert Sawa removed the post and placed it next to Siko Umbu.
     
103. Mclean Jovu put Siko’s right hand on the post and cut off his right hand (palm) and Morgan Jovu cut off his left hand (palm). After that Mike Jovu pulled him (witness) away and locked him inside his (witness) house.
     
104. All the accused persons except for Bobby Jovu, they either gave unsworn statement or remained silent. In their respective unsworn statement, they denied being involved in the killing of the two deceased persons.
     
105. This what the Supreme Court stated in the case of Philip Kassman v The State [2004] PGSC 9; SC759 (20 August 2004), Waigani, Jalina, Sawong & Batari JJ. The Appellant was convicted by the National Court in Waigani on 21st September 2001 of the offence of robbery following a trial and sentenced him to a term of 10 years imprisonment. He appealed to the Supreme Court against both conviction and sentence. He challenged his conviction on the grounds that the evidence of identification was "very poor and insufficient" and that the conviction was unsafe in the circumstances. His ground of appeal against sentence was that "The sentence should have been under the level of the charge."
     

“During trial in the National Court, the appellant and his co accused both gave unsworn statements on their defence. They both denied being part of the robbery but were at the scene for different reasons when they were caught up in the general melee that followed the robbery. The appellant said after he disembarked from a PMV at the bus stop next to ANZ Bank, he made his way across towards Boroko Motors but was distracted by people running out of the bank and shouting, ‘holdup, holdup.’ He walked to the main gate to the bank to investigate and at the same instant, a police vehicle stopped in front of him and others. A policeman he said stepped out of the vehicle and discharged several shots into the air. Fearing for his own safety, he ran towards Boroko Motors for cover. He was arrested for no reason and that he is innocent of the charge.

The state of the evidence at the end of all the evidence comprised on the one hand, the sworn testimony from State witnesses and on the other, the unsworn statement of the appellant from the dock. In assessing the evidence, the trial judge had quite correctly alluded to the fundamental and well settled principle of law that, an unsworn statement , though is evidence in the case, does not have the same weight as sworn evidence: R v Phillips Boike Ulel [1973] PNGLR 254. Bearing that in mind, the trial judge carefully analysed all the evidence including the unsworn statements of the appellant and his co accused which contained broad allegations of false accusation and concluded that those general denials do not match the quality of the identification evidence of the three prosecution witnesses”.

106. The principle stated in the abovementioned case is relevant and applicable to this case and I adopt in as part of my decision in this case. Except for Bobby Jovu who gave sworn evidence whilst the others 15 accuseds decided to give unsworn evidence or remain silent. Hence, less weight will be given against the sworn evidence of the four (4) State witnesses. According to the state’s evidence, the accused Bobby Jovu was present at at the scene however did not specify how he was involved in the killing of the two deceaseds.
     
107. In his case the State invoked section 7 and 8 of the Criminal Code when it indicted the 16 accused persons as they aided and abetted each other in the killing of the two deceased persons in the course of an unlawful purpose which was revenging the death of Uncle Norman Sariko. The evidence so far from all four (4) State witnesses in my view did not establish or show encouragement by each of the accused persons however there may have been indirect evidence. But in my view, it was not sufficient for me to rely on to make a finding that there was encouragement by each of them. There was however very strong evidence by all four (4) State witnesses that all the accused person split up in two groups and attacked and killed the two deceased persons. And each of the State witnesses were able to describe what each accused did in relation to the killing of the two (2) deceaseds Bartholomew Umbu and Siko Umbu
     
108. According to Jennis Sisapu’s evidence, she saw Cameron Jovu fired his homemade gun at Bartholomew Umbu and hit him on his backside. She also saw Mike Jofo spear Bartholomew Umbu with a crowbar spear on his leg.
     
109. In Angela Sisapu’s evidence she saw the accused Andrew Sariko cut Bartholomew Umbu with the knife. She also saw and identified the accused Brendon Esiko hit the deceased Siko Umbu with a stone and then with help from, others pulled him (Siko Umbu) out of Thompson Sisapu’s house. This evidence is corroborated by Polikap Roko. She also saw Jessie Akuma hit Siko Umbu with flat side of the bush knife. She also saw Cameron Jovu who was present when Siko Umbu’s hands were cut. He was the person who told Robert Sawa to remove the volleyball court post and had it placed beside the deceased Siko Umbu.
     
110. The witness Polikap saw and identified the following accuseds persons involved in the killing of the two deceased persons. First, he saw Brendon Esiko at about 5.30 am when they went over to his house to warn him of a plan to burn down his house. Then he saw Clanty Orotu cut Bartholomew on his neck with a bush knife.
     
111. He also saw Smith Ariko fire his homemade shortgun at Siko Umbu and the shot landing close to his leg. He (Smith Ariko) was not just a by-stander, he was actively involved. He also saw Cameron Jovu who was present when Siko’s hands were cut off. Cameron Jovu was still armed with a homemade gun. Cameron Jovu was the one who told Robert Sawa to pull out a volleyball post which was placed beside Siko Umbu and his hands were placed on it and were cut by accuseds Mcleen Jovu and Morgan Orotu. After that Mike Jovu pulled him (witness) away and locked him inside his (witness) house.
     
112. From all these evidence, the accused Cameron Jovu shot Batholomew Umbu with his homemade gun and was also present and told Robert Sawa to remove a volleyball post and placed it beside Siko Umbu and his hands and his penis were cut off.
     
113. And therefore, from these evidence I can find that the accused Mike Jofo, Clanty Orotu and Cameron Jovu were involved in the attack and killing of the deceased Bartholomew Umbu and the accuseds Cameron Jovu, Smith Ariko and Brendon Esiko were involved in the attack and killing of the deceased Siko Umbu.
     
114. The next issue is whether the accused Mike Jofo, Clanty Orotu, Cameron Jovu whom I found involved in the attack and killing of Bartholomew Umbu and the accuseds Cameron Jovu, Smith Ariko and Brendon Esiko whom I found to be involved in the attack and killing of the deceased Siko Umbu had the intention to cause their deaths. In this case there was no direct evidence on the question or the element of intention. None of the four (4) state witnesses gave evidence that those persons who surrounded the two (2) deceaseds Bartholomew Umbu and Siko Umbu said kill them or any evidence to that effect.
     
115. However, in the absence of any direct evidence of intention, intention can be inferred from the nature and type of the injury inflicted on the deceased persons. In this case, the photograph depicts pictures of badly mutilated bodies. The attack was so gruesome with no regard to the sanctity of human life. The attackers had no regard and respect for the God created human lives when they attacked and killed the two (2) deceased persons in the way they did.
     
116. In State v Moses Nasres [2008] PGNC 27; N3302 (25 March 2008), which is a Kimbe case by Cannings J, the accused was indicted for the wilful murder of a 30-year-old man. It was undisputed that the deceased was killed when someone pushed an iron rod through his head. He was attacked several hours after he and others watched a State of Origin match on television. The State produced an eyewitness, the deceased’s sister, who said she was with the deceased shortly before and when he was attacked. She identified the accused as the attacker. The accused gave sworn evidence that he was at his house asleep at the time of the incident. The court held that there was sufficient evidence to conclude beyond reasonable doubt that the accused was the person who attacked the deceased with the iron rod, thereby killing him. There were no defences available to the accused, so the killing was unlawful. An intention to kill was inferred given the nature and force of the attack and evidence of a motive to kill. The prisoner was accordingly convicted of wilful murder.
     
117. Accordingly, I find that when the accused persons attacked and killed Bartholomew Umbu and Siko Umbu, they intended to cause their deaths. In my view they had the necessary intent, that was the intention to kill the two (2) deceased persons Batholomew Umbu and Siko Umbu after suspecting them of causing the death of Norman Sariko through sorcery and had the motive to do so.
     
118. The evidence on sorcery came from the record of interviews from the accuseds Timothy Jofo, Mike Jofo and Smith Ariko. The accused Timothy Jofo told the police that the people suspected Bartholomew Umbu and Siko Umbu for killing Norman Sariko through sorcery and therefore attacked and killed them while the accused Mike Jofo told the Police that the two deceaseds Bartholomew Umbu and Siko Umbu were killed because they were suspected of killing Norman Sariko through Sorcery. And the accused Smith Ariko told Police that incidents like this happened for a reason. As in this case it happened because people suspected the father and son for causing the death of Norman Sariko through sorcery. Bartholomew had asked the family for K800.00 but Uncle Norman Sariko died.
     
119. I find the accuseds Mike Jofo and Clanty Orotu, guilty for the wilful murder of Bartholomew Umbu and convict them accordingly. I also find that there is no evidence against Mike Jofo and Clanty Orotu for the killing of Siko Umbu and find them not guilty and acquit them on the charge of wilful murder of Siko Umbu in count 2.
     
120. I find that there is no evidence against the accused Smith Ariko and Brendon Esiko for the killing of Bartholomew Umbu and therefore find them not guilty and acquit them on the first count of wilful murder of Bartholomew Umbu however I find them guilty of the second count of wilful murder of Siko Umbu and convict each of them accordingly.
     
121. As to the accused Cameron Jovu, I find him guilty on both counts of wilful murder under section 299(1) of the Criminal Code and convict him accordingly.
     
122. In regard to the accuseds Emmanuel Koviro, Humphrey Konene, Joseph Akuma, Bobby Jovu, Timothy Jofo, Howard Pou, Zebedee Akuma, Frank Johnson, Tadius Roko, Loide Koiko Sawa and Robert Jovu, I find them Not Guilty and acquit them on both counts of wilful murder
     

______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused