State v Maliaki [2022] PGNC 596; N10341 (17 June 2022)

N10341

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 691 OF 2019

THE STATE

V

BERRY MALIAKI
Accused

Bulolo/Lae: Polume-Kiele J
2021: 16^th, 17^th, 3^rd, 18^th & 22^nd, November 2^nd & 7^th December
2022: 1^st March, 14^th April, 17^th June

CRIMINAL LAW- Verdict – Trial - wilful murder – s 299 (1) - Criminal Code Act – Principal Offenders s 7 (1) (a) (b) (c) and s 8 – Offences committed in prosecution of common purpose - Criminal Code Act

Brief Facts

On 13 January 2019, between the hours of 7.00 a.m. and 8.00 a.m., the accused, Berry Maliaki was seen at 4 Mile Block, Wau accompanied by several of his accomplices and armed with weapons such as bush knives, grass knives and iron rods. The accused, Berry Maliaki and his accomplices chased the deceased Amos Yasep until they caught him and the used their bush knives and iron bars to inflict multiple injuries to the deceased who succumb to the injuries and died. An autopsy conducted by Dr John Roden revealed that Amos Yasep died from Hemorrhagic shock due to multiple knife wounds noted all over his body. The actions of the accused and his accomplices when they armed themselves with bush knives, chased the deceased and assaulted and inflicted multiple bush knife injuries all over his body they intended to kill him thereby contravening s 299 (1) of the Criminal Code Act. The State invoked s 7 (1) (a) (b) (c) and s 8 of the Criminal Code Act.

Cases Cited:

Papua New Guinean Cases
Devlyn David v The State (2006) SC881
Tawingo & Others v The State [2008] SC983
SCR No 2 of 1981: Re Section 14 of the Summary Offences Act [1981] PNGLR 50
The State v Eremas Kuvir (No 1) (2015) N6034
State v Basse [2016] N6322
The State v Nataemo Waun [1977] PNGLR 152
The State v Joseph Tapa [1978] PNGLR 134
The State –v- Raphael Kuanande [1994] PNGLR 512
The State v Kamo [2011] N4534
Constitutional Reference No. 1 of 1977 [1977] PNGLR 365

Overseas Cases
Davis v Director Public Prosecutor (1954) AC 278
R v Read (1942) VLR,

TRIAL
This was the trial of the accused, Berry Maliaki charged with wilful murder.

Counsel
Ms. S. Joseph, for the State
Mr. C. Boku, for the Accused

RULING ON VERDICT

17^th June, 2022

1. POLUME-KIELE J: On 3 November 2021, Ms. Matana of the Prosecution Office presented an indictment against the accused, Berry Maliaki, an adult male with one count of wilful murder under s 299 (1) of the Criminal Code Act.
   
2. On 15 November 2021, the accused appeared before me charged on an indictment with the murder of the deceased, Amos Yasep. He has pleaded not guilty to the indictment and raised a defence of self-defense.
   
3. A trial was then conducted to determine the issue of culpability of the accused of the charge of wilful murder under s 299 (1) of the Criminal Code.
   

The Offence

4. Section 299 of the Criminal Code Act provides for the offence of 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.
     
5. The State also invoked Sections 7 and 8 of the Criminal Code. Under Section 7 - Principal Offender- Section 7, it reads:
   

“(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.

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

(2) In subsection (1) (d) the person may be charged with-

(a) Committing the offence.

(b) Counseling or procuring its commission.

(3) A conviction of counseling or procuring the commission of an offence entail the same consequences in all respects as a conviction of committing the offence.

(4) Any person who procures another to do or omit to do any act of such nature that, if he had himself done the act or made the omission, it would have constituted an offence on its part is-

(a) Guilty of an offence of the same kind; and

(b) Liable to the same punishment,

As if he had done the act or made the omission and may be charged with himself doing the act or making the omission.”

Under Section 8 – Offences committed in prosecution of common purpose. Section 8 reads: -

Where-

(a) Two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another; and

(b) In the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of the purpose, each of then shall be deemed to have committed the offence”.

Elements of the offence

6. The essential elements of the offence of wilful murder are established to by a number of case authorities such as Devlyn David v The State (2006) SC881, Tawingo & Others v The State [2008] SC 983 to be:
   

(a) There must be a person.

(b) That person must unlawfully kill.

(c) Another person must be killed.

(d) There must be an intention to cause death.

Issues for determination

The issues for determination by this Court are to consider:

(1) whether the Accused, Berry Maliaki had the intention to cause the death of the deceased, Amos Yasep?
(2) whether the accused unlawfully killed the deceased, Amos Yasep?

7. It is a general principle of law that the onus is on the prosecution to prove the offence alleged. (See SCR No 2 of 1981: Re Section 14 of the Summary Offences Act [1981] PNGLR 50) The State therefore bears the burden of proving all the essential elements of the alleged offence beyond any reasonable doubt. The burden of proving all essential elements of an offence derives from the protection that is available to all persons charged with an offence under s 37 (4) (a) of the Constitution, where an accused was presumed innocent until proven guilty according to law. Similarly, under s 37 (4) (a) of the Constitution, it requires that the prosecution disprove each defence put forth or explanation given by an accused (see The State v Eremas Kuvir (No 1) (2015) N6034).
   
8. In this case the evidence adduced by the State stands alone and unchallenged owing to the accused electing to give unsworn evidence. His evidence is not tested by cross-examination by the State.
   
9. The position taken by the defence is not an admission or indication of guilt. The election is a matter of choice available to the accused as of right and not a concession that the prosecution had proved all the essential elements of the offence charged. Further and in addition, the Defence also purported to have taken issue with the element of self-defense and provocation and also opposed the tendering of the Record of Interview dated 17 May 2019 (Exhibit “A”) in which the accused admitted to cutting the deceased the deceased two times on the back of his left shoulder (Question and Answer 22) with a grass knife (Question and Answer 27) because the deceased has smashed his car glass and assaulted his son, Tita Berry. He also admitted that he was not alone when he cut the deceased, it was a group attack (Questions and Answers 24 & 25).
   
10. The Defence raised objection to the tendering of the record of interview was not pursued by way of a voir dire so the veracity of the admission can be tested. In that no notice of Voir Dire was filed and served on the State. Even if none had been filed, the Defence still had the opportunity to cross-examine the Arresting Officer, Constable Sam Maki on his evidence more so, in relation to the record of interview but the defence in this regard did not cross-examine the Interrogator on the veracity of the record of interview. Hence, there is no issue in relation to the admission of the record of interview and the record of interview was admitted into evidence.
    
11. Other documents tendered into evidence included an affidavit deposed to by Dr John Ropen, a medical practitioner (registered under the Medical Services Act of 1965) on 7 February 2019 where he testified that he conducted an autopsy on the deceased and as per his medical examination, he states that in his opinion, the deceased died from hemorrhage shock due to multiple knife wounds and bruises covering an area of 30 cm x 15 cm and 14 cm x 7 cm on the back of the hip, multiple knife wounds on the left with compound fracture of the olecranon, 4 cm x 5 cm wound anterior aspect of left arm with involvement of muscles, tendons and blood vessels, partially amputated right thumb at the distal phalanx, 4 cm x 2 cm, 1 cm deep wound on the left knee, 4 cm x 2,5 cm, 1 cm deep wound posterior amputated right foot at the 1^st to 4^th metatarsals. There were no internal examinations done and examinations of other systems was however unremarkable. The deceased died on 13 January 2019; however, the body was first viewed on 7 February 2019 and a medical examination was done on 7 February 2019 respectively. All these injuries show that there was intention to kill. The element of unlawful killing and death of the deceased is that the deceased was unlawfully killed.
    

(i) Yasep Wapahimo

12. As to the issue of identification of the alleged offender, the evidence for the State came from the biological father of the deceased, Yasep Wapahimo, who gave oral evidence that between 7.00 a.m. and 9.00 a.m., on Sunday 13 January 2019, eight men killed his son, the deceased, Amos Yasep. Amongst these 8 men was Berry Maliaki and Yakasing Morgan the accused persons now before the Court.
    
13. He gave evidence that Berry Maliaki used a grass knife to cut his son and Yakasing Morgan used a bush knife to cut his son. At that time, he could not do anything. He watched helplessly as the accused and his accomplices killed his son. He saw everything from a distance not too far away (distance of from this Court House (Bulolo) to the Bulolo Police Station) which is estimated to be about 15 to 20 metres. Their houses are close by and the accused and his accomplices are all from the same area. Yasep Wapahimo also identified the accused, Berry Maliaki, the person sitting in the dock wearing a blue face mask as the person who killed his son, Amos Yasep.
    
14. He gave evidence that Yakasing Morgan used a bush knife to cut his son. At that time, he could not do anything. He watched helplessly as the accused and his accomplices killed his son. He saw everything from a distance not too far away (distance of from this Court House (Bulolo) to the Bulolo Police Station) which is estimated to be about 15 to 20 metres. Their houses are close by, and the accused and his accomplices are all from the same area. Yasep Wapahimo also identified the accused, Yakasing Morgan, the person sitting in the dock wearing a maroon face mask as the person who killed his son, Amos Yasep.
    

(ii) Max Patrick

15. The other witness called by the State is Max Patrick who gave sworn oral evidence and was cross-examined. Max Patrick gave evidence that he is from Awale Village, Bulolo, Morobe Province. He recalled that on Sunday, 13 January 2019, between 7.00 a.m. and 9.00 a.m., he was at home next to the Church at 4 Mile, Wau. He was at home when this incident happened when he saw Tita Berry came up and swung a bush knife at Amos Yasep. He does not know the reason for the attack. He also saw Amos pulled out a bush knife and swung a bush knife at Tita chopping him. Tita then ran to his house and called his family, and they came out. He knows the family and that was when he heard Membi Maliaki shouting,” kilim em, kilim em, grass nogud” Berry Maliaki also came out, Barry (Barney) Maliaki cut Amos on the left leg, The distance is about from here to the witness book in the Court house. He also gave evidence that there were eight people involved in the attack on Amos Yasep. They were Berry Maliaki, Timon Maliaki, Yakasing Morgan, Membi Maliaki, Petrus Isaiah and Tita Berry. He also gave evidence that these people are known to him as they all live in the same area. He gave evidence further that Berry Maliaki ran up and cut the deceased, Amos Yasep on the shoulder and everywhere with a bush knife and Yakasing Morgan also took the bush knife out and cut Amos on his leg. After cutting the deceased, Berry Maliaki and Yakasing Morgan left the deceased there and went away. We then took the injured Amos Yasep to the hospital. He identified the accused persons Berry Maliaki and Yakasing Morgan sitting in court in the dock, Berry Maliaki wearing a blue face mask and Yakasing Morgan is the other person wearing a maroon face mask.
    
16. Max Patrick was cross-examined on his evidence and confirmed that he did make a statement to the police of his story about the incident. He states that he heard people shouting and came out. He was at home at that time when the incident occurred. His house is on the hill, so he ran down hill to see what was happening. When it was put to him that he was not there at the scene, he denied this suggestion and said that this was not true, and he was there and that is why he is in court. When put to him that defence witnesses will be called to give evidence that the was not there, he reiterated that he was there at the scene and saw with his own two eyes. He was then shown a copy of his statement made to police and identified his signature and confirmed that his house is close to the church on the hill. The church is downhill, it is very close. It is about 30 metres that is the distance from the Court to the Police Station. He gave evidence that he could see everything that was going on with his own two eyes. He does not know why or the reason, they attacked the deceased but all he saw is that the son of Berry Maliaki attacking the deceased when he first swung his bush knife at him. He also gave evidence that he does not know if the deceased attacked the accused Berry Maliaki and or Yakasing Morgan, but they attacked the deceased. All these men were attacking the deceased.
    
17. In re-examination, the witness re-affirmed that he saw Tita Berry swung a bush knife at Amos Yasep, Amos Yasep swung a bush knife at Tita Berry and cut him. Heard people shouting, kilim em, kilim em, saw Berry Maliaki cut the deceased with a bush knife, saw Yakasing Morgan cut the deceased with a bush knife. He also re-affirmed that it was true that the deceased, Amos Yasep did not fight with Berry Maliaki and Yakasing Morgan. He also confirmed that the deceased died in the morning that day and that also true that the evidence he gave in court is in relation to what he saw that day.
    
18. The State then closed it case.
    

Evidence for the Defence

19. Prior to opening its case, the Defence indicated that they will be calling 4 witnesses and the matter was adjourned to 16 November 2021 at 9.30 a.m.
    

(i) Tita Berry

20. When the matter returned to Court on 16 November 2021, at 9.30 a.m., the Defence called its first witness, Tita Berry.
    
21. The State objected to this witness giving evidence as the witness is an accomplice and by virtue of s 7 and 8 of the Criminal Code, is a principal offender in the allegations before the Court and has been on the run and was not charged. Further, the defence did not give notice that it will be calling this witness, who by law shall be treated as an accomplice and that he will be arrested. Counsel for the Defence, Mr. Boku however insisted on calling this witness, so the Court adjourned to allow Mr. Boku to seek instructions from his superiors. Upon returning to Court, Mr. Boku insisted that he will still call the witness, Tita Berry and if the State takes issues with this witness’s participation in the offence, the State can deal with him separately.
    
22. The Court then proceeded to hear this witness give evidence of the offending. The defence then called Tita Berry and he gave sworn oral evidence and stated that he is aged 29 years old and has not gone to school. He says that he is in court today and knows why he is here. This is because of an incident which he recalled that occurred on 13 January 2019 where a “heavy” occurred or happened. He gave evidence that he was at home was at home when he heard noise under the house and that was when he saw Berry and Amos fighting on the road. He saw Amos cut Berry on the hand with a bush knife and he turned and left to go to the house.
    
23. He also gave evidence that Amos cut him on the hand in front of the house and the scare is on the hand and other injuries on the other hand. He then showed to the Court, the scared hand. He said further that when he was cut, he left and went to the hospital. He also said that he does not know the reason that he was attacked by the deceased, but he has no wrong with the deceased. As to why Berry and Amos were fighting, he said, he does not know the reason. All he was concerned about was the injuries that he had sustained so he went to seek medical attention.
    
24. Upon cross-examination, he confirmed that his name is Tita Berry and the son of Berry Maliaki. He also confirmed that on Sunday 13 January 2019, a fight occurred with the deceased Amos Yasep. He denied however, that he was armed with a grass knife and fought with Amos Yasep and that he swung the grass knife at Amos Yasep and Amos retaliated. When put to him that upon Amos Yasep cutting him, his father and other members of the family came and cut Amos, he also denied this suggestion. When put to him that it was Membi Maliaki who called out, kilim em, kilim em, he also denied this suggestion. It was also put to him that his father Berry Maliaki used a bush knife to cut Amos, and he died, he replied., “no”. It was put to him if he knew Yakasing Morgan, he replied yes’ and if he was related to him? He replied yes’. It was also put to him that it Yakasing Morgan also used a bush knife to cut the deceased, he replied ‘no’. He was then asked as to where he was when Berry Maliaki and Yakasing Morgan were arrested, he replied “at home”.
    
25. Furthermore, it was also put to him that it was fair to say that you did not see anyone attack the deceased, he replied ‘no’. It was then put to him if he saw who attacked Amos Yasep, he replied, ‘I didn’t see’ and it was put to him that it was him who swung a grass knife first at Amos? He replied ‘no’.
    
26. When Court adjourned, the witness was arrested by Police and taken to the Bulolo Police Station for questioning.
    
27. Ms. Joseph in her submission to the Court on the aspect of the evidence submitted that the Court should completely disregard the evidence of Tita Berry and relied on the case of the State v Basse [2016] N6322 where his Honour Salika DCJ (then) defined the word accomplice using the Oxford Advanced Learners Dictionary 8^th Edition and defined accomplice as ‘a person who helps others to commit a crime or to do something wrong”. Further the Osborne: A Concise Law Dictionary defines an accomplice as “any person who, either as a principal or an as accessory has been associated with another person in the commission of an offence”.
    
28. Another case relied upon by Ms. Joseph is Davis v Director Public Prosecutor (1954) AC 278, the House of Lords held that persons who participate in the actual crime charged, whether as principals or accessories before or after the fact, are to be treated as accomplices. That is the common law position. In Victoria, it was held by the Full Court in R v Read (1942) VLR, that an accessory after the fact is not an accomplice within the meaning of accomplices stated in Davis v DPP (1954) AC 578. Frost CJ appears to favour the views of the Full Court of Victoria, when discussing this issue in the case of The State v Nataemo Waun (1977) PNGLR 152 where he cited with approval, the statement made by the Full Court in McNee v Kay, where the Full Court stated:
    

“An accomplice must be a person privy to the criminal intent of the accused....”

29. In this case, all State witnesses have testified that Tita Berry attacked the deceased, Amos Yasep first and when Amos reacted to the attack and cut Tita Berry back, Tita Berry’s family and clan members retaliated and killed Amos that same morning. Given these factors, Ms. Joseph submitted that this Court should not give any weight to the evidence of Tita Berry who is an accomplice and whose evidence has not been corroborated by any independent witness especially where the evidence is weak and unreliable and marred with inconsistencies. Ms. Joseph relied on the case of The State v Joseph Tapa [1978] PNGLR 134 to support her submission.
    

(ii) Aita Seikon

30. The third witness called by the defence was Ata Seikon who gave sworn oral evidence that he is from Kabwum and resides at 4 Mile, Wau. He is married with three children and is a Sunday School Teacher. He states that he recalled the details of what occurred on 13 January 2019. He states that he was in Church when the incident occurred. He heard Amos Yasep shouting and that he wanted to kill someone, so my wife and I just stood there and watched. He saw Amos walked towards the car and hit the glass of the car; glass broke (big noise). Berry is the owner of the car, and he came out of his house and saw what had happened. Berry ran back and pulled a branch of a tree and ran towards Amos and Tita saw that and he also came out. Amos then swung his bush knife at Berry, Tita said enough but Amos swung at Tita and cut Tita on the hand with the bush knife. When Amos saw that he had already cut Tita, he ran away. When we turned, we saw that there were already 5 children at church, so we stayed there with the children.
    
31. The witness was cross-examined on his evidence and in his evidence, he confirmed that his name is Ata Seikon and that he knows Amos Yasep. Amos died on Sunday, 13 January 2019 at 4 Mile, Wau. He also states that it is fair to say that he did not see who killed Amos and how he died.
    
32. On re-examination, he stated that it was Amos who started the fight.
    

(iii) Morgan Kitaleng Yakasing

33. Witness no. 3 called by the State was Morgan Kitaleng Yakasing, who gave sworn oral evidence that he is from Watut and lives in 4 Mile, Wau. He is married with 4 children. He states that he is a Leader in the Village but does not know which electorate. He also gave evidence that on Sunday, he was at “the house and he heard some noise on the road so came down and saw Amos cutting Tita and Tita went down.
    
34. He also states that a Sunday School Teacher came and kept Sunday School children to stay at the church and went to stop the fight as there was no one to help. He said that body was taken to the morgue and Tita went to hospital.
    
35. He was then asked if he knew Berry Maliaki, he said, he knows him and that he is his son. He was at the house at that time and heard noise and came out. Firstly, he said, to Amos, you broke glass to my car. When also questioned if he knows Yakasing Morgan, he replied yes’. When asked where he is, he replied, at his house at that time. When asked further if he saw what happened and heard the exchange between the deceased and the accused, he replied, that he was only repeating what the Sunday School Teacher, Aita Seikon told him.
    
36. In cross examination, the witness agreed that he is a community leader and father of the accused, Yakasing Morgan. He agreed with the State that he was not present when the fight occurred and his evidence is based on what he was told by others, the Sunday School Teacher, and his wife.
    

(iv) Berry Maliaki

37. The last witness called by the defence is the accused, Berry Maliaki. The witness elected to give unsworn evidence. He was then informed of the nature of his decision to give unsworn evidence which he indicated that he understood. The effect of his unsworn evidence and the trial progressed.
    
38. The accused, Berry Maliaki Morgan in his unsworn statement, stated that he is from Wau and resides at 4 Mile until his arrest. He states that on Sunday 13 January 2019, he and his wife were going to church when the incident occurred. He states that it was Amos Yasep who broke the glass to his car. When it happened, Amos cut him with a bush knife. Because when he got injured, he does not know what else happened to Amos. He states that Amos’s father gave permission for community to do it
    
39. The defence closed it case.
    

Analysis of evidence

40. In the analysis of all the evidence adduced during trial I find that the evidence of Yasep Wapahimo is corroborated by the autopsy report and medical examination conducted by Dr. John Ropen who also confirmed that the deceased sustained multiple knife wounds to the body.
    
41. The medical examination confirmed that the deceased died from hemorrhage shock due to multiple knife wounds and bruises covering an area of 30 cm x 15 cm and 14 cm x 7 cm on the back of the hip, multiple knife wounds on the left with compound fracture of the olecranon, 4 cm x 5 cm wound anterior aspect of left arm with involvement of muscles, tendons and blood vessels, partially amputated right thumb at the distal phalanx, 4 cm x 2 cm, 1 cm deep wound on the left knee, 4 cm x 2,5 cm, 1 cm deep wound posterior amputated right foot at the 1^st to 4^th metatarsals. There were no internal examinations done and examinations of other systems was however unremarkable. The deceased died on 13 January 2019. Furthermore, and in addition, the accused also confirmed that he cut the deceased on the left shoulder, such is confirmed by the medical report of 7 February 2019.
    
42. Thus, I find the evidence of Yasep Wapahimo acceptable as truthful given his demeanor as a witness who maintained his composure. He gave evidence that was logical despite the distressful situation he was in to give evidence of his son, being assaulted by the accused and his accomplices resulting in his death. I am unable to find that he had a motive to lie when it is his son, who has died.
    
43. In consideration of the evidence and the elements of the offence under s 299 (1) of the Criminal Code Act, the State has established the following elements:
    
    • (i) A person who
    • (ii) Unlawfully kills
    • (iii) Another person
    • (iv) With intent to cause his (deceased) death or that of some other person.
      
44. On the element of intention to cause death I accept the submission of Ms. Joseph where she submitted that “intention” involved the state of mind of a person and that “intention” could be discerned from the facts and circumstances of the offence alleged. She referred this Court to the case of The State –v- Raphael Kuanande [1994] PNGLR 512 where his Honour Injia AJ, (as he then was) stated:
    

“Intention is a matter which goes to the state of mind of the accused at the time he acted. It may be proved by direct evidence of the accused’s expression of intention followed by the act itself or by circumstantial evidence. In either situation, it is necessary to examine the course of conduct of the accused prior, at the time and subsequent to the act constituting the offence.”

45. Here, it is safe to say that the conduct of the accused at any stage of the offence would determine what the accused intended.
    
46. In applying this analogy to the present case, the court can infer an intention to kill from the Doctor’s report which confirms multiple knife wounds of various degrees, serious injuries resulting in hemorrhage shock (severe loss of blood). Furthermore, the multiple knife wounds that the Doctor referred to in his report could be attributed to the grass knife which the accused Berry Maliaki used to cut the deceased which form part of the evidence of Yasep Wapahimo and Max Patrick (State witnesses). Further and in addition, in the evidence of Yasep Wapahimo, it can be inferred that the assault by the accused, Berry Maliaki was encouraged by the words uttered by one, Membi Maliaki who shouted, “kilim em, kilim em”. From those facts it could be inferred that an intention to cause death was present and a verdict of guilty of wilful murder should be returned.
    
47. In the alternative, should the Court find that intention to kill was not present then the Court has recourse to s 359 of the Code which provides for alternative verdicts.
    
48. In relation to the submission presented by Counsel for the accused that the record of interview was illegally obtained, and he invited this Court to reject the record of interview citing the case of the State v Kamo [2011] N4534 and Constitutional Reference No. 1 of 1977 [1977] PNGLR 365 in support of his submission. I have taken the liberty to peruse the case of the State v Kamo (supra) In that case, the accused through his counsel filed a Notice of Objection to the Admissibility of the Record of Interview dated 10th July 2008 and also the Confessional Statement of the accused dated 15th March 2008. The defendant objected to the admissibility of the Confessional Statement on the basis that it was involuntarily made in breach of section 28 of the Evidence Act. It is particularly alleged that at the time of the arrest at Tapini, Central Province, the accused was assaulted, and gun butted by the commander of the Tapini Police Station, Sergeant Rara Didei and forced him to admit to killing the deceased. It is further alleged that as a result of the assaults he reluctantly admitted to killing the deceased. The accused also alleges that he made the confessional statement in circumstances that were unfair to him. In particular he states that he was never told that whatever he said would be recorded in writing and used as evidence in court against him. That is a breach of the right accorded to accused persons under Constitution section 42(4). The accused also objected to the admissibility of the Record of Interview. This was on the basis that the Record of Interview was involuntarily obtained and that it was obtained under circumstances of unfairness. The particulars of involuntariness are that it was obtained through force and threats at the time of arrest by the arresting officer Senior Constable Raymond Bayamo and initially by Sergeant Rara Didei. At the time of conducting the Record of Interview Senior Constable Raymond Bayamo is alleged to have placed a knife on the table and forced the accused to admit the killing under threat of assault with a knife. Finally, it was alleged that the accused made the admission under circumstances of unfairness in that the accused was not accorded his rights under sections 42(2) and 42(4) of the Constitution. The particular rights breached were:
    
    • (a) The right to be told of the reason for his arrest.
      

(b) The right to see a lawyer or see his relatives or his lawyer.

49. In support of the ground of objection relating to the confessional statement being made involuntarily and the other allegations raised by the accused, the accused gave evidence in voire dire and on oath. This is in complete contrast to this present case where there are no specific details identified in the element of objection particular to the record of interview. In addition, counsel failed to call the accused to give evidence in voire dire. He also failed to put it through the State witnesses during cross-examination. Furthermore, the accused elected to give unsworn evidence and thus his evidence was not tested by cross-examination. Given these matters, I therefore find that the objections therefore are unfounded and misconceived.
    
50. Furthermore, when prompted to even put the allegations to the Arresting Officer and Interrogating Officer by cross-examination, Counsel did not pursue this approach. Hence, I am satisfied that the record of interview is properly before the Court, it remains unchallenged and is accepted into evidence by consent.
    
51. I am satisfied that the accused, Berry Maliaki did voluntary surrender to the police. He was administered his constitutional rights under s 42(2) of the Constitution. He voluntarily admitted to cutting the deceased with a grass knife (Question and Answer 27). He was also given an opportunity to speak with a relative, but he did state that they were all far (Question and Answer 6).
    
52. Whilst I note that the accused, Berry Maliaki has elected to give unsworn evidence during his trial, which is his right to do so, in his statement to the Court, he did say that Amos Yasep broke the glass of his car and ran and cut Tita. He has no argument with Amos and that he did not kill Amos but states that the community fight with Amos and he has no further story to tell the court. I give this statement little weight. Although, this may be so, I am led to believe that the circumstances prior to, during the fight with his son, Tita, and Amos (deceased), which led to his son being cut on the hand, are sufficient reasons for the accused, Berry Maliaki to react to the attack on his son so much so that he retaliated and subsequently attacked the deceased, resulting in his death. As he did state in his unsworn evidence, the “community did it”. It was a group attack and because the State has invoked s 7 (1) (a) (b) (c) and s 8 of the Criminal Code Act, the accused, Berry Maliaki is caught in this offending. Consequently, I give no or little weight to his unsworn evidence.
    
53. Now turning to the evidence of the State witness, if they gave inconsistent evidence in relation to who did what and what type of weapon was used, these inconsistencies were corrected in cross-examination by the witnesses. For instance, when Max Patrick stated that the deceased was cut by Berry Maliaki on the shoulder and his back, and upon being prompted by the State, with a grass knife, he replied “correct” and that he saw the cutting with the grass knife with his own two eyes. I accept his explanation to be correct and logical position and find no inconsistency in his evidence. Even if it was an inconsistency, it was a minor inconsistency that did not affect the crucial parts of the evidence.
    
54. There is no evidence challenging or disputing the evidence of an attack on the deceased by the accused, Berry Maliaki with a grass knife and there is also evidence of the attack being occasioned on the deceased by his accomplices with some weapons of sorts thereby causing serious injuries resulting in the death of the deceased.
    

Can I then be satisfied beyond reasonable doubt that intention to cause death was present under the circumstances described above?

55. As stated in The State –v- Raphael Kuanande it is necessary to examine the course of conduct of the accused prior, at the time and subsequent to the assaults. In applying this principle to this present case, firstly, I am satisfied that there is some evidence of what the conduct of the accused prior to the assaults. His conduct at the time of the assault seemed to be he was at home when the deceased broke the glass of his car, and he ran and cut Tita Berry (his son). But he denied killing the deceased. He said the community did.
    
56. His conducts subsequent to the assaults are summarised as:
    
    • (i) He gave no reasons to anyone for the assault. He made it look like a common community problem and that the community is responsible for the death of the deceased, Amos Yasep.
      
    • (ii) He gave no reason for his action in attacking the deceased with a grass knife
      
    • (iii) He has no further story to tell the court
      
57. All these are in contradiction to the admissions made in the record of interview (Questions and Answers 21, 22,23, 24, 25, 27, and 28) dated 17 May 2019.
    
58. Consequently, in my view, the combined conduct of the accused at the time of and after the assault as referred to above are sufficient from which an inference could be drawn conclusively that the accused intended to cause the death of one, Amos Yasep.
    
59. If the accused had intended to cause the death, the common sense and logical thing the accused could have done was to escape or make him absent from the scene of the crime to avoid the repercussions associated with the death, however, because he was of the view that because he was one of the alleged offenders, he thought that if he passed that responsibility to the community and the community was involved in causing the death of the deceased, he would escape punishment however, because the State in this case has invoked s 7 (1) (a) (b) (c ) and s 8 of the Criminal Code Act, the accused is caught by these provisions and must answer for the charge.
    
60. From his conduct it could be inferred that the accused made an error of judgment that the deceased would not die from his assaults. The accused’s relentless assaults were sufficient to draw an inference that he intended to cause the death of the accused. Hence, his conduct subsequent to the assaults reveals actions from which an inference could also be drawn that intention to cause death of the deceased was present. There is therefore no doubt that the accused did intend to cause the death of the deceased.
    
61. In conclusion, I find that it was the accused, Berry Maliaki unlawfully killed the deceased. I also find that the accused did intend to cause the death of the deceased. In light of the above findings, I return a verdict of guilty of wilful murder pursuant to s 299 (1) of the Criminal Code Act and enter a conviction against the accused, Berry Maliaki accordingly.
    

Verdict accordingly
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Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Defence