State v Tavua [2022] PGNC 85; N9497 (18 March 2022)

N9497

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1285 OF 2013
CR 1286 OF 2013
CR 1287 OF 2013
CR 1288 OF 2013

THE STATE

V

ROBIN TAVUA
KAWA YAPU
JEROM KORUA
ISMAEL KAIA

Murray J
Bulolo/2017: 4^th, 5^th, 6^th, 7^th, 11^th & 14^th April
Lae/2018: 7^th August
Bulolo/2022: 18^th March

CRIMINAL LAW – wilful murder – Criminal Code, Section 299(1) – elements of the offence – whether any of the accused killed the deceased – whether killing unlawful – whether the accused who killed the deceased intended to do so – Criminal Code, Section 7 (1) (c) – whether any accused enabled or aided another in committing the offence.

Cases Cited:

The State v Raphael Kuanande [1994] PNGLR 512

Counsel:

Ms P. Matana, for the State
Mr. J. Unido for the Accused persons

DECISION ON VERDICT

18^th March, 2022

1. MURRAY J: The four accused, save for Robin Tavua who is from Pilala village, Rabaul, ENB Province, the other 3 who are from Winima Village, Wau, Morobe Provice, are all charged with the wilful murder of Darius Abraham (the deceased) at Winima village, Wau, Morobe Province, on 16^th July 2013. The Autopsy Report, Ex P5, states, the deceased died from severe head injuries caused by a bush knife (slash) wound to the left side of the head. All 4 accused pleaded not guilty to willfully killing the deceased, so a trial has been conducted.
   
2. Facts to which all 4 accused pleaded not guilty to are that:

On the 16^th of July 2013 between 5pm and 6pm the accused persons namely Robin Tavua, Kawa Yapu, Jerom Korua and Ismael Kaia were at Winima village, Wau. The deceased Darius Abraham was also there after travelling from Wau with group of men. Whilst they were there, the deceased jumped off the vehicle he was in to enquire why someone had thrown a stone at their vehicle. As he approached the entrance to the house belonging to Councilor Korua Kaia, the councilor himself yelled out in pidgin “bai dai blon yu” (you will die). As the Councilor said that, he hit the deceased’s head with a wood he was holding. After the councilor hit the deceased, Robin Tavua went and cut him on his head with a bush knife. The deceased fell down on the ground and cried out; “ayo mama help me”. At that time, the others namely Kawa Yapu, Ismael Kaia, Jerom Korua joined in and kicked the deceased all over his body. Prior to that, the accused persons were seen drinking Live Lave and sharpening their bush knives.

3. The State called four eye witnesses. Save that, the second witness, Robert Abraham, did not see the other accused persons namely: Kawa Yapu, Jerom Korua, and Ismael Kaia, kick the deceased whilst he was on the ground, which the other three eye witnesses, witnessed, all four each gave evidence of seeing firstly, Councilor Korua Kaia, hitting the deceased on the head with a piece of wood and secondly, the first accused, Robin Tavua cut the deceased on his head with a bush knife.
   
4. The defence called eight witnesses. All eight witnesses gave sworn evidence. The first, third and fourth accused persons (ie: Robin, Jerom & Ismael), all gave evidence that, they were present at the crime scene but denied any involvement in the death of the deceased and further denied knowledge of how the deceased was killed, whilst the second accused person (Kawa) gave evidence that he was not at the crime scene and denied any involvement in the death of the deceased and further denied knowledge of how the deceased was killed. As for the other four witnesses, Ronne Kawa and Daniel Yana both gave evidence on events that took place elsewhere and not of the crime scene, whilst the last two defence witnesses, who are husband and wife, gave evidence that, although there was a fight within their premises, they also denied knowledge of how the deceased was killed.
   

UNDISPUTED FACTS

5. Following undisputed facts have emerged from the evidence:
   • On 16^th July 2013, Councilor’s family was preparing to have a small celebration or kaikai for him at his residence, to celebrate his LLG Ward Council Election win.
   • A fight broke out on his premises in the afternoon of the same day
   • The deceased was on the premises at that time when he received severe injuries to his head which he died from.
   • The injuries to his head were caused by a knife wound to his head
     

CHARGE & ISSUES

6. The four accused persons are alleged to have willfully killed the deceased. The charge is laid pursuant to Section 299 (1) of the Criminal Code which states:
   

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 willful murder.

7. The State has the onus of proving beyond reasonable doubt that: (1) the accused persons, (namely: Robin, Kawa, Jerom and Ismael) killed the deceased (2) the killing was unlawful and (3) that they intended to cause his death. These are the three elements of the offence of willful murder.
   
8. State has also invoked section 7 of the Criminal Code alleging that all 4 accused persons acted in concert, aiding, and abetting each other.
   
9. Based on the allegations by the State as presented and also based on the medical report which states that the deceased died from bush knife slash wound to the head, I consider Robin as the principal offender. I must therefore determine first whether State has proven all the elements beyond reasonable doubt against him. If the first two elements are proved beyond reasonable doubt but not the final element, an alternative verdict of murder can be considered under Section 539 (1). If he is found guilty of willful murder, the Court’s attention will then shift to the other three accused persons to determine whether they are criminally liable under Section 7 of the Criminal Code. But if Robin is found not guilty of any offence, the others will also be acquitted.
   
10. So, the issues for this Court to determine are:
    

1. Did Robin kill the deceased?

2. Was the killing of the deceased unlawful?

3. Did Robin intend to cause the death of the deceased?

4. Is Robin guilty of willful murder?

5. Are the other 3 accused persons, namely: Kawa; Jerom & Ismael guilty of willful murder?
   

Did accused Robin Tavua kill the deceased?

Evidence

(a). State Evidence

• Oral testimonies
  

11. Four witnesses gave evidence for the State. Their evidence can be summarized as follows:
    
    1. Pawia Awi- (He is a Pastor))
       
12. His evidence is that: He is from Winima village. He is a Pastor with the Church of Christ and resides at Winima village which is located on a hill. He has been there since he was born. On 16^th July 2013, he was in the village cutting the grass at his area. Whilst he was cutting the grass he saw, Samson Kawa’s white Toyota Landcruiser, drive into the village. On the vehicle were so many people and they were making noise. There was also noise coming from the councilor’s house. Curious as to what was happening, he left his area and went to the roadside to see what was happening. As he stood there, he saw two men jump off Samson’s vehicle, but he could not work out who they were because, when they jumped off, Councilor’s wife, who was also there when the 2 men jumped off, held onto one of them and blocked his view so he could not see who they were. But as he stood there, he heard Councilor screaming ‘kilim em’. When he heard that, he walked over to Councilor’s yard and stood about 5 meters away from the Councilor. As he stood there, he saw the Councilor hit the deceased on the head with a piece of wood and Robin cut him (the deceased) with a bush knife on the left side of his head, and he (the deceased) fell. Then whilst the deceased was on the ground, he saw Robert Abraham, the deceased’s brother, going to them with his hands up trying to stop the fight. Robert did not have anything on him. When Robin saw Robert, he swung the bush knife at him, cutting his (Robert) pointer and thumb fingers off his right hand. Then, when he (Pawia) saw that Robin was going to cut Robert the second time, he quickly picked up a bamboo stick and hit Robin’s hand with it. That caused Robin to drop the bush knife. When the knife fell, he picked it up and at the same time, Kawa, the second accused, who is also the son of the Councilor, whom he (Pawia) would also regard as a son, went to him, and tried to get the knife from him. They then tussled over the knife for a while, but he let go and left. He correctly identified both, Robin and Kawa in Court.
    
13. Under cross examination, he said, the distance from where he was to where the men jumped off the vehicle was about 10 meters. As there were no trees or tall grass or anything between his house and the road to obstruct his view, he was able to see the road and the vehicle on the road that day clearly from where he was. He also said, when the 2 men jumped of Samson’s vehicle, his view was obstructed by the Councilor’s wife who was also there and so he could not identify those 2 men until later when he went into the councilor’s yard. That was when he recognized who the 2 men were. One of them was the deceased. He had left Councilor’s wife and went to the Councilor. He also agreed that the deceased was drunk but he maintained that he (deceased) did not hold a bush knife or a can of beer and further, he said the deceased never swung a bush knife at Councilor as claimed. He walked to the Councilor unarmed. He also said that he himself never swung a grass knife at Kawa because did not have one on him. He stated further that, when he and Kawa were tussling over the bush knife that Robin had dropped when he (witness) hit his hand, Kawa’s mother went to them and said to them in pidgin‘yutupla papa pikinini yet, yutupla lusim’. When she said that, he let go off the knife and he left and went home and did not know of any other person getting injured until after the fight stopped.
    
14. In re- examination, he said, the other person who jumped off the vehicle with the deceased and was held by Councilor’s wife was Greg Buka. She was holding him because when he jumped off the vehicle, a stone hit him on his eyes.

When asked where he (witness) was standing when he first heard the Councilor’s voice saying, “kilim em’’, he said, he was on the road close to Councilor’s house and the Councilor’s wife was also there on the road and holding onto Greg Buka.

2. Robert Abraham

15. He is the brother of the deceased. His evidence is that, on 16^th July 2013, a fight broke out at Winima. Before the fight started, he was in Samson’s vehicle, a land cruiser, open back. He was seated in the cabin. Also on the vehicle were, the deceased, Bob, Jerom, Lisen Jerom, and some others. They all got on the vehicle in Wau and were going to the village. As the vehicle drove into the village and as it passed Korua, he heard someone at the back of the vehicle shouted out swearing words. He didn’t know who did that. When the vehicle got to the clinic and stopped, which is about 12 – 15 meters away from Councilor’s house, he saw there was a fight inside Councilor’s yard. He then jumped off the vehicle and walked back to where the fight was. When he was about 6 – 7 meters away from where the fight was, he heard Councilor’s voice first saying ‘kilim em’, then he saw Councilor going straight to his brother, the deceased, with a piece of wood and hit him on the head. After that, he saw Robin cut his brother on his head with a bush knife and his brother (deceased) fell. When he saw what the Councilor and Robin did to his brother, he ran into the fight, and raised his hands up to stop the fight, however, Robin swung the knife and chopped his hand, whilst, Kabu Kaia cut his right-side shoulder and someone else cut his head and nose. He didn’t see who cut him on his head and nose, because by the time that happened, he was dizzy from loss of blood from the other injuries and he fell down. Before he got dizzy and fell, he saw the other 3 accuseds, namely, Jerome, Ismael and Kawa in front of him. He correctly identified Robin and he also said, Robin is a Tolai and is married to Councilor’s niece.
    
16. Under cross examination, he said, apart from the deceased, others who were also on the vehicle were, Greg Buka, Waku Rex, Paul Koumu, Tom Awi, and Bob Jerome. They all got on at the same time he got on. He sat in the front cabin with Bob and Samson who was driving, whilst the rest sat at the back, so, he would not know exactly what those seated at the back of the vehicle were doing or who got on or off at the different stops.
    
17. He also said, when the vehicle went and stopped at the clinic area, there was no game and where the vehicle stopped, the verandah of the clinic could not be seen so he could not see if there were people sitting at the clinic. But there were village people along the road to the clinic area who gave way for the vehicle. As to Paul Koumu being with him in the vehicle, he said, Paul was at the back of the vehicle whilst he was seated in the cabin, so he did not see if Paul jumped off the vehicle, went to Daniel and cut him. And as to the allegations that he cut Daniel, he denied doing that and also denied knowing Daniel. He said, he only learnt later that Daniel also sustained injuries which were inflicted on him somewhere else and not at Councilor’s house because that’s where he was and got injured.

He also denied the allegations that, he was with Bob Jerome the candidate who lost in the election to Councilor Korua and because of that, he mobilized the witness and others to fight with Councilor Korua.

3. Wali Maru

18. At the time of trial, this witness was residing in Wau. He moved there but he is from Winima Village. On 16^th July 2013, he was in the village. At about 4 o’clock in the afternoon, whilst he was drinking water, he heard a vehicle driving up to the village. He then went out to where the sign board was to see whose vehicle was coming. When the vehicle reached the village sign board, it slowed down. When the vehicle slowed down, he saw stones being thrown from the Councilor’s yard to the vehicle. As stones hit the vehicle, the deceased called out, ‘husat tromoi ston’. Then, he (deceased) jumped off the vehicle and ran towards Councilor’s house. He was not holding anything. As he (the deceased) ran, he (the witness) saw Councilor and Robin come down from the house and he (the witness) heard Councilor shouted and said, dai blo yu’, and at the same time he saw Councilor hit the deceased on his head with a piece of wood, then Robin cut him (the deceased) on his head with a knife. When that happened, the deceased fell onto the arms of Kabu Kaia, who put him down on the ground. Whilst the deceased was on the ground, the accused persons, namely, Kawa, Ismael and Jerome went and kicked him. When he (the witness) saw that, he got scared and went back to his house. He correctly identified all 4 accused persons. As for Robin Tavua, this witness went further and said, Robin is a Tolai man and he is married into their village, Winima. He also said he was able to see clearly what he told the Court because he was standing very close. He was about 5 meters away and it was a very clear afternoon. The time was about 4 O’clock.
    
19. Under cross examination, he denied all suggestions that he did not see what happened because he was elsewhere when the fight started and maintained that he was in the Councilor’s house and saw what happened to the deceased.
    
20. He also denied the suggestion that it was the Councilor who was attacked by the deceased and his brother, Robert and that both of them used bush knives to inflict injuries to his body.
    
21. In re-examination, he said, the Councilor did not sustain any injuries at all as claimed.
    

4. Martha Awi

22. She is from Winima Village and the wife of Pastor Pawia Awi. She knows the accused, Robin well as they are both married into the same family. On 16^th July 2013, at about 3o’clock in the afternoon, whilst she was preparing dinner for her family in her house, she heard a vehicle on the road. She then left her house and went out to see whose vehicle was coming. When she got to the side of the road, she heard the deceased’s voice calling out ‘husat sutim mi long ston’. (“who shot me with a stone”). As the vehicle reached the junction to the Councilor Korua’s house, the deceased jumped off the vehicle, and ran into the Councilor’s yard. As he walked towards the house, the Councilor who was there holding a piece of wood, hit the deceased on his head with the wood. Then Robin came with a bush knife and cut him (deceased) on his head. When Robin cut the deceased, he fell into the arms of Kabu. Kabu is the Councilor’s brother. When the deceased fell on him, he put him down on the ground. Whilst, he (the deceased) was on the ground, Jerome, Ismael and Kawa, the other accused persons, came and kicked him. She described her distance from where she stood and watched to where the Councilor and Robin attacked the deceased to be from where she was at in the Court room (witness box) to the main court room door which was agreed to be about 8 meters.
    
23. Under cross examination, she denied all suggestions that, the deceased was armed with a bush knife and that he was the one who attacked the Councilor first, then his brother, Robert went and helped him. She said, when she saw the deceased being attacked, she did not see Robert and where or how he came. There were many others there. She left soon after she saw the other accused persons kicking the deceased whilst on the ground because she was shocked at what she saw. So she did not see who else was injured after that.
    
    • Documentary evidence
      
24. The following exhibits were tendered by the State and admitted into evidence by consent:
    
    • ROI of Robin Tavua Pidgin & English version dated 30/09/13 - marked as Exhibit P1A & P1B

• ROI of Kawa Yapu Pidgin version dated 05/10/13 & English version dated 08/10/13 marked as Exhibit P2A & P2B
• ROI of Jero Korua Pidgin & English version dated 30/09/13 marked as Exhibit P3A & P3B
• ROI of Ismiel Kaia Pidgin version dated 05/10/13 & English version dated 08/10/13 marked as Exhibit P4A & P4B
• Autopsy Report of Dr. Lucas Komnapi marked as Exhibit P5
• Affidavit of Dr.Lucas Komnapi marked as Exhibit P6
• Medical Certificate of Death dated 1/08/13 marked as Exhibit P7
• Medical report of Kusunan Popau marked as Exhibit P8
• 8 pages of Crime Scene is marked as Exhibit P9
• 13 pages of photographs of the deceased and 2 other victims marked as Exhibit P10
• 2 pages of the vehicle in which the deceased travel from Wau to Winima village marked as Exhibit P11
  

(b). Defence evidence

• Oral testimony
  

25. Eight witnesses gave evidence for the defence, including the four accused persons, each of whom gave sworn evidence. Their respective evidence is summarized as follows:
    
    1. Robin Tavua – First accused
       
26. He is from Pilapila village, Rabaul, East New Britain Province and is married to Councilor Korua’s niece from Winima village. They have been married for 9 years. They have three houses. Two are in Wau town. One at No. 6 block, and the other one at Harmony compound and the other one is in the village. Sometimes, he goes and live in their house in the village, to look after his wife’s coffee garden and some other things in the village.
    
27. On Tuesday 16^th July 2013, between 5.30pm – 6.00 pm he was at their house at Banis cow. That is the name given to the area where their house is at. The distance from his house to Councilor’s house is like the distance from here (accused referring to the witness dock in the Court Room to the Food Mart, store). Next to their house, is a small river, called ‘Hu’ in the local language. The landscape is not straight. To get to Councilor’s house, they would have to go downhill to the small river, cross it, then climb uphill. At that time, he was at his house, cleaning it. Whilst he was doing that, he heard a vehicle approaching in full speed. Their area is not far from the main road. The distance is like from here (witness referring to the witness dock) to the main road outside the Court premises). As the vehicle got closer, it accelerated up hill. That made a lot of noise. At the same time, people on the vehicle were also shouting very loud. Then he heard someone in an angry voice, from the vehicle said ‘nau em dai b’long kaunsol’. (Councilor will die now.) He said, he heard that as the vehicle passed their house and went down to the river. When he heard that, he was really worried about Councilor. So he left everything, ran out of the house, and ran to Councilor’s house. He took a shortcut through his in-law, Ismael’s house, which is near River Hu. As he ran up the hill, he heard a lot of noise coming from the Councilor’s house. By the time he reached the top of the hill where Councilor’s house was, , he was exhausted, so he stopped running. However, fearing what he heard earlier about Councilor might really happen, he went in search of the Councilor. On his way to the house, he saw his in law, Ismael, the third accused, at the water supply but he did not talk to him as his mind was on the Councilor. It took about 3-4 minutes to take him from his house to Councilor. When he found the Councilor, he also saw Robert, the brother of the deceased. Robert was holding a green can of beer on his left hand and a black bush knife (half a meter long) on his right hand and was wearing a blue coat and a long pair of trousers. At that very moment, he saw Robert lift the black bush knife, and cut the Councilor. When he saw that, he looked around for a wood to defend Councilor but could not find any. Instead, he found a bush knife, half a meter in length. He picked that up and when he saw Robert trying to cut the Councilor the second time, he swung his bush knife with the intention to disarm Robert, but as he did that, he felt a stick hit him on his hand. That caused him to drop the knife. When the knife fell, he felt he was being attacked by so many people, so he ran to the back of the house to take cover. The whole incident took less than a minute. When asked if he saw the deceased or anyone else at that time, he said, he did not see the deceased and also that he does not know him but he saw a lot of people attacking the Councilor and one of those was Robert.
    
28. Under cross examination, he said, said, the fight took place in the front yard of the Councilor’s house. There were a lot of people. The only person he saw fighting with the Councilor was Robert who was also the only one who had a bush knife that he used to attack the Councilor with. He did not see the deceased there. Nor did he see any of the other accused there, where the fight was. However, he did see Ismael, his brother in law at the water tap near the Councilor’s house. He saw Ismael there on his way to help Councilor.
    
29. He also said, when he saw Robert Abraham swinging his bush knife the second time at Councilor Korua, he (accused) swung his bush knife at Robert Abraham’s right hand. The hand that was holding the bush knife, to disarm him (Robert). If Robert’s hand was cut, he would not know how it happened because he did not see how the knife landed.
    
    2. Kawa Yapu - Second accused
       
30. He is also form Winima village in Wau. At the time of the incident, he was employed as a Heavy Equipment Operator at Hidden Valley.
    
31. His evidence as to what he knew about the incident on Tuesday, 16^th July 2013, is that: On that day, he was on his field break and was on his way to the village. He travelled together with the deceased, Darius Abraham who was also employed at Hidden Valley as a Driller. They both travelled down in the NKW truck to Bulolo. As they got to Bulolo No. 1 Store, Darius got a call from his brother, Robert on his mobile. After he spoke to his brother, he told me that, he would go and meet him. He then got off the truck we both came down in and walked off to a NKW land cruiser parked next to the BSP Bank. Standing beside the NKW car, were his brothers, namely: Robert, Bob Jerom, Daniel Jerom, and Lisen Jerom. The deceased and his brothers went ahead to Wau. When he got to Wau, he went straight to his elder sister’s house in Harmony Compound. His older sister is married to Robin Tavua. Waiting for him at his sister’s house was his wife and child. Whilst at his sister’s house, his family vehicle driven by Samson Wabu went to the house to get him. In the vehicle were, Martha Awi, samson’s wife, their 2 children, Kamu Jerom (Jerom’s wife) and his father, Yapu Sowi. They had been out shopping for food and other staff for a small family party back in Winima village to celebrate the Councilor’s election win. They left Wau at 12.00 midday and arrived in Winima at 2.45 pm. They drove straight to Councilor’s house, they all got off, unloaded the vehicle, then he left everyone, and went to the back to where the kitchen was, and went to sleep as he was so tired from his night shift the night before.
    
32. Whilst sleeping, a big bang on the wall woke him up. He got up and as he stepped out of the house to see what was happening, he saw Greg Buka first. Greg is from Wau and Watut. When Greg saw him, Greg picked up a stone and threw it at him, but the stone missed him. At the time Greg was looking for a stone to throw at him, he saw 2-green cans in Greg’s
    
33. The next person he saw was Pastor Pawia Awi. Pastor Pawia is Robert and Darius’ uncle. Pastor had a grass knife in his hand. The grass knife had a brown handle but had black rubber wrapped around it. Pastor went straight to him and without saying anything, swung the grass knife at him and cut him. When that happened, he ran to the kitchen, picked up a piece of firewood and was about to hit Pastor Awi, when his mother, Maroa Sowi, held his hand, stopped him and scolded both him and Pastor Awi. Pastor Awi then left and he remained with his mother. As they stood there, they saw the accused, Jerom and his brother, accused Ismael carrying their father, the councilor, to the lemon tree. By that time, the fight was over and as they remained at the Councilor’s house area, they heard news from people returning from Wau that Darius Abraham had died.
    
34. In cross examination, he said, the councilor is his uncle as his mother is the Councilor’s sister. He also said, he was aware that there was an election for the Ward Council and that Bob Jerome, who was his uncle’s opponent had lost the election to his uncle, the councilor, but denied knowledge of any dispute between his uncle and Bob Jerome. As to whether, the deceased and his brother Robert, were drunk or were drinking when he saw them in Bulolo, he said, he saw them at 9 o’clock in the morning. They were not holding or drinking any beer. As to the suggestions that, he was not asleep as claimed but was awake and was involved in the fight, he denied all of that.
    
    3. Jerom Korua – Third accused
       
35. He is also from Winima village and one of the Councilor’s sons. At the relevant time, he was employed at Hidden Valley. His evidence as to what happened on 16^th July 2013 is that: At about 5.30 pm, he and his brother, Ismael were working on the flooring of their new house and while they were working, a vehicle sped past his house, heading towards his parents’ house. As the vehicle passed them, he heard people shouting out. “Councillor, you are a dead man” He then stood up to see who was on the vehicle. As the vehicle reached the sign board, which is infront of his parents’ house, he saw the deceased on the truck shouting. At that time, he noticed that, the deceased was holding in his right hand, a meter-long bush knife which had a black handle and in his left hand, the deceased had a green can of beer. He quickly ran to his parents’ yard and as he got there, Tom Awi came out from the corner of the house and swung his bush knife attempting to cut him twice. On his third attempt, he ran to Tom Awi, held him tight and removed the bush knife from his hand and threw it to the flower bed at the back of the house. After that, Paul Komu and Lisen Jerome went to him and fought with him. To protect himself, he used Tom Awi as shield. Whilst they were tusseling, he heard his father calling to him and his brother, saying, he was dying. When he heard that, he pushed Tom Awi to Lisen Jerom and Paul Komu and went to his father. By then, his father was lying on the ground and Daniel Jerom was kicking him on his right side. He then punched Daniel Jerom, picked up his father, and with the help of Ismael his brother, they took their father to the lemon tree where he was laid down to rest. By then, it was about 7pm and everyone had left. It was also at that time, that they heard Darius Abraham had died. When they were interviewed by the police on the Saturday, following the incident, they remained silent for fear that, what they say to the police would be reduced into writing and will be used as evidence against them in Court.

36. In cross examination, he denied all suggestions that,he was involved in attacking the deceased and said, it was he himself that was attacked by Tom Awi..
    
37. In reexamination, he said, he never saw Darius anywhere in the vicinity of his father’s house.
    
    4. Ismael Kaia – Fourth accused
       
38. He is accused Jerome’s younger brother and the second child out of 3 children of the Councilor. Kaia is his grandfather’s name which he uses. At the time of the incident, he was upgrading his marks at Unitech – DODL Centre.
    
39. His evidence as to what happened on 16^th July 2013, is that: Prior to the time of the incident, he was with his brother, Jerome the whole time helping him to build his house. Whilst they were working on the house, they saw Samson Kawa’s vehicle drove past the house heading up the hill towards their father’s area and as it reached the top, it stopped next to a sign board which is next to the entrance into their father’s area. On the back of the vehicle, they saw the deceased. He was holding a green can of beer on his left hand and a meter-long bush knife with a black handle which he lifted and pointed in the direction of their father’s house. When they saw that, they stopped working and ran towards their father’s house. Jerome ran ahead and he followed. When he reached his father’s house, he saw Benjamin Komu and Bernard Awi. Benjamin picked up a big stone and threw it at him, but the stone did not hit him because he tripped and fell on his back. As he was on the ground with his legs in the air, Bernard tried to cut his legs with a bush knife but missed. Then when he saw Bernard making a second attempt to cut him again, he got up and ran to a water tap located at the side of their father’s house to find something to defend himself. He passed Robin on his way to the water tap and when he reached the water tap, he heard his father call out to him for help. He then turned around and went to his father. When he got to his father, Jerome was already there holding onto one side of their father. He then supported their father on the other side and together, they took their father to safety. Apart from Benjamin Komu and Bernard Awi, he did not see anyone else at his father’s house.
    
40. In cross-examination, he denied any involvement in attacking the deceased.
    
    5. Ronnie Kawa
       
41. This witness is the wife of Kawa, one of the accused person. She is also from Winima Village. Her evidence as to what happened on 16^th July 2013 is that: She was in Wau town at her sister-in-law’s house. Her sister in law, is Lydia Sowi. Lydia is her husband’s older sister, and she is married to Robin. At 1.30 pm, whilst she was there, sitting on the verandah of the house, she saw a NKW vehicle parked at the junction just before the house. As she watched, she saw the deceased, Tom Awi, Paul Komu and Benjamin Komu jump off the vehicle. They all had on them, a meter-long knife, black handle and a SP Green can. She also saw Greg Buka, Bernard Awi, Daniel Jerome and Lisen Jerome. They were on the back tray of the same vehicle. She also saw Samson Kawa, who was the driver of the vehicle, Bob Jerome, sitting on the middle seat and Robert Abraham who was seated on the left seat in the cabin of the vehicle. After, the deceased, Tom, Paul and Benjamin jumped off the vehicle, Samson drove the vehicle with the others she named still on the vehicle, to a beer shop next to the junction and parked there. When the vehicle moved away, the four (4) boys who jumped off went into her sister in law’s yard uninvited. When they were inside the fence, Paul Komu and Benjamin Komu stood at the gate whilst Darius Abraham and Tom Awi cut all the flowers, then they swear at her and asked her for her father in law, councilor Korua. As she was alone with her son, she just stood there on the verandah crying. After cutting the flowers, the deceased went up into the house and went through the rooms looking for her father in law. After that, he left the house but before he left, he told her that he would go to the village and kill her father in law.
    
42. In cross examination she said, her husband, Kawa is councilor Korua’s nephew. His mother is Maroa Sowi, councilor Korua’s sister.
    
    6. Daniel Yana
       
43. Daniel is from Zumera village, Umi Atzera in Markham, Kaiapit District. However, at the relevant period, he was staying in Winima village. The reason for that is, he was a student there learning to do small scale mining at Wau and by the time holidays came around he did not have any bus fare to return to Markham so with the approval of Kabu Kaia and Elis Pawia, he stayed back in Winima with them whilst he waited for his parents to send his bus fare. As to what happened on Tuesday 16^th July 2013, it is his evidence that, after doing some house chores at Councilor Korua’s house, he went to the aid post area, where children were playing soccer. That was around 5.30pm - 6.00pm. When he got there he sat down and was watching the game and whilst he was watching, he saw a vehicle driving very fast towards him. When the vehicle stopped in front of him, Paul Komu got off with a 1-meter Tramontina bush knife, went to him and swung the bush knife at him cutting him on his head. That caused him to fall onto the floor of the aid post. As he fell, his legs went up and whilst his legs were up, he saw Robert Abraham got off the vehicle holding a half a meter Tramontina bush knife with black handle and a green can of beer and went to him and cut his leg. After Robert cut his leg, he fell down as he was in so much pain, and as he also lost so much blood, he lost consciousness. He also said, whilst he was on the floor, Robert walked off to the Councilor’s house.
    
44. Under cross examination, he said, when the vehicle went up, it parked at the step of the clinic and he was sitting on the verandah watching the game. He also said, close to the clinic was the community hall which is closer to Councilor’s house than the clinic where he was and where the vehicle was parked blocking his view of Councilor’s house. However, he said, he was able to see Robert walking towards the Councilor’s house because it was a full day light and he fell sideways not on his back. So, he was able to see Robert going to Councilor’s house.

He also said, although, it was Kavu Kaia and Elis Pawia who let him stay in Winima, he did not stay with them because they were newly married so he goes to sleep in a haus boi owned by the Councilor’s son and for his meals, he goes to Pawia Awi’s house and eats with the whole family.

7. Ibi Korua
   
45. This witness is from Winima village and is the wife of Korua Kaia, the Councilor. Her evidence of what she recalled happened on Tuesday, 16 July 2013 is that, on that date, her family was preparing for a party to celebrate her husband’s Ward Council Election victory. The celebration was going to take place at their house when the whole family got together. Her husband had bought some food and they were waiting for the rest of the family to bring their food so they can start cooking. Whilst she was waiting for the family to come, she raked in front of their house which is situated on the hill. As she was raking, she heard a vehicle driving up on high speed. She stood and watched the vehicle. It went up the hill and slowed down at a sign board which is on the side of the road but in front of her house. As she looked at the vehicle, she saw the deceased standing up. He was holding a knife on his right hand and a green can beer on his left hand. Whilst still there, she saw the deceased pointing to their house and she heard him swear at her husband and said her husband is a dead man. After that, the deceased got off the vehicle and ran towards their house. Behind the deceased, were Lisen Jerom and Daniel Jerom. When she saw them heading to the house, she went to the deceased, held him and tried to stop him. While struggling with the deceased, she saw Daniel and Lisen getting 2 stones from the flower bed and at that same time, Kaila Peter went to her so she left the deceased to Kaila and moved aside. By that time, Lisen Jerom picked up a stone and shot her on her leg whilst Daniel Jerom got a stone and threw it at Kaila. At that time, Kaila who was at that time holding onto the deceased who was struggling to break free from him and to go to their house. When the stone hit both of them (Kaila & the deceased) and they both fell down. The deceased fell down whilst holding onto the knife and beer. After she saw that, she left and didn’t see anything else after that or any other injured person. She also said what she saw took place between 5.30 and 6 o’clock in the afternoon.
    
46. Under cross examination, apart from the 4 people she named, she denied seeing her husband, nor the 4 accused persons or anyone else there. As to her husband’s whereabouts, she said, after he brought home the food to cook, he left, and she was home alone until the deceased came with Lisen and Daniel Jerom and later Kaila.
    
    8. Korua Kaia – Last witness
       
47. This witness is the elected Ward Councilor of Winima Village. He is the husband of Ibi Korua and the father of 2 accused persons, namely: Jerome and Ismael. It is his evidence that, on Tuesday, July 16, he was at his house. Whilst there, he heard a vehicle coming. It approached a small creek, then went to his area. As the vehicle reached his area, he heard them calling out his name, swore at him and they also said, ‘today Councilor – you will die’. When he heard that, he went out of the house and saw the deceased. When the deceased saw him, he lifted his bush knife. Three other boys followed behind him. Those other boys were, Kawa Kaibe, Daniel Jerome and Lisen Jerome. They all ran into his area shouting; ‘kilim em – kilim em’, (‘kill him, kill him’) and chased after him. Those boys had stones and sticks which they threw at him. He then ran to find something to protect himself. Under his house, he found a piece of wood. He pulled it out and defended himself in the fight. While fighting, he saw Robert walking fast into his area. He (Robert) was holding a green can of beer on his left hand, and a bush knife on his right hand and walked quickly into his (Councilor) area. The knife Robert was holding was half an inch, short and had a black handle. When he looked at Robert, he noticed, he was very drunk. Robert swore at him then swung the bush knife at him, which he (Councilor) blocked with the piece of wood he picked up from under his house. Robert, swung the bush knife at him a second time. This time Robert swung with so much force that caused him to move back and he bumped on a stone and fell to the ground. When he fell, Daniel Jerom went and kicked him. He then called out to his sons’ names and asked where they were. After he called his sons, he lost consciousness for about 15- 20 minutes.
    
48. It is also his evidence that, when he went outside the house, he did not see anyone else except his wife who was outside raking rubbish and after that, the deceased and the other 3 boys attacked him.
    
49. Under cross examination, he denied seeing Robin at the house and said, the only people he saw were the deceased, Daniel and Lisen Jerome and Robert.
    
50. As to his wife, he also denied seeing her holding the deceased and said, when he came out of the house, he saw his wife and she had gone ahead of him to stop the deceased and he followed behind but when he saw the 3 boys, following the deceased and at the same time, they were saying, ‘kill him, kill him”, he ran back so he did not see if his wife held the deceased.
    
51. He denied that all suggestions that, it was him and his family that killed the deceased.
    

DETERMINATION OF THE ISSUES

Issue No.1: Did the first accused kill the deceased?

52. My short answer to this question is yes. After considering and assessing all the evidence and submissions from each side, I have concluded that the State has proven beyond reasonable doubt that the first accused, Robin Tavua killed the deceased by cutting him on his head with a bush knife, and I have made this finding on the following basis:
    
53. Firstly, I have accepted the evidence of the four State eyewitnesses to be convincing, credible, and consistent and where there were inconsistencies or discrepancies, I found those to be peripheral.
    
54. From my assessment of Pawia Awi, Robert Abraham, Wali Maru and Martha Awi, I consider them as witnesses of truth. Despite being subjected to vigorous cross-examination, the demeanor of each of them were impressive. None of their evidence were distorted or shaken in anyway, leaving this Court satisfied to make the following findings of facts:
    
    • The deceased, Darius Abraham who is from Winima Village was in the back tray of Samson Kawa’s land cruiser with Lisen Jerom, Daniel Jerom, Greg Buka and others.
      
    • They had drank beer and were on their way home.
      
    • As the land cruiser reached the village, it drove up the hill heading towards the clinic, but slowed down at the sign board in front of Councilor Korus’s house
      
    • When the vehicle slowed down, stones were thrown at the vehicle from Councilor Korua’s yard.
      
    • When the stones hit the vehicle, the deceased called out, asking who threw the stones. About the same time he asked, he jumped off the vehicle with Greg Buka and was heading towards Councilor Korua’s house.
      
    • At that time, Ibi Korua, Councilor’s wife, was on the side of the road, right in front of their house. Seeing that the deceased was heading towards their house, she went to them and tried to stop them from going into their yard.
      
    • She held onto both of them, however, the deceased managed to leave her, whilst she held onto to Greg Buka, whose eyes were hit by a stone as he jumped off the vehicle.
      
    • The deceased left Ibi Korua and continued to walk to their house.
      
    • As the deceased got into Councilor Korua’s front yard, Councilor Korua and Robin came down from their house.
      
    • Councilor Korua shouted “kilim em” at the deceased
      
    • At that time, Councilor Korua was holding a piece of wood, whilst Robin was holding a bush knife.
      
    • As Councilor shouted those words at the deceased, he ran to the deceased and hit him with the piece of wood.
      
    • Soon after Councilor Korua hit the deceased, Robin Tavua, the first accused, cut him on his left side of his head.
      
55. I accept the evidence of Martha Awi, and which is supported by the evidence of Wali Mari about the deceased falling onto Kabu Kaia after Robin cut his head and he put him down on the ground and while he was on the ground, Kawa Yapu, Jerome Korua and Ismael Kaia went and kicked the deceased.
    
56. I also accept Robert’s evidence that, when he saw the deceased fall, he ran into Councilor Korua’s yard with his hands opened and stretched out in the air trying to stop the fight. However, Robin swung his bush knife at him, cutting his right hand. The thumb and pointer fingers were severed from his right hand.
    
57. I also accept the evidence of Robert that he was unarmed when he walked into Councilor Korua’s yard.
    
58. I accept the evidence of Pastor Pawia Awi about him hitting Robin Tavua’s hand with a stick when he saw that Robin was going to cut Robert the second time.
    
59. I also accept the evidence of Pastor Pawia about him picking up the bush knife that Robin Tavua dropped when he hit his hand with a stick and further his evidence about the tussel between him and Kawa Yapu over that bush knife until they were stopped when Kawa’s mum scolded them.
    
60. I reject Mr. Unido’s submission that, the demeanor of State witnesses, Pastor Pawia Awi, Wali Maru and Robert Abraham were of persons who were suspicious and not truthful. As I have set out above, I found nothing wrong with all State witnesses’ demeanor. They were impressive, particularly those 3 men.
    
61. I also reject Mr. Unido’s argument, as I was not convinced about the 4 major inconsistencies he raised between the evidence of the State witnesses arising from the details they gave, firstly on the timing of when the incident occurred, secondly on the question of whether or not Robert drinks beer, thirdly, on the positioning of the head injury of the deceased and lastly on where the deceased fell after he was cut on the head.
    
62. Looking quickly at each of those inconsistencies and why I am not convinced, starting with the timing, the incident occurred in the village. The times given by the 3 witnesses are: about 3pm, about 5.30pm and about 6pm. They were all estimated time but they all said there was still sunlight so they could see clearly. Also, there is no real reason for the village people to be concern with exact timing to do anything, let alone a fight. Who keeps track of timings in a dramatic event like that. Thus, it is understandable that the timing will vary from person to another. The next inconsistency is about Robert saying he had 12 pack beer whilst Pastor Pawia said Robert does not drink. Clearly, there is an inconsistency, but it is not a serious one that can affect the State evidence. The next inconsistency is about the evidence of Martha Awi as to the positioning of the head injury on the deceased’s head. The argument by the defence is that, she pointed to the back of her head to show where the cut was whilst the photographs shows the cut is on the left side of the head. Her explanation is that she saw what she saw from where she stood. It is not difficult to accept Martha’s explanation. She watched from the roadside. About 8 meters away. She saw that he was injured on the head. It is not uncommon for mistakes to be made on exact details. The last inconsistency raised was about where the deceased fell. Mr. Unido submitted, Robert’s evidence is that the deceased lay near his feet, whilst Martha’s evidence is that, the deceased fell onto Kabu who put him down. It is understandable that the exact details of what happened could not be recalled. The witnesses were observing the event from different angles and also it is understandable that evidence from someone being attacked will differ somewhat from someone observing without any distraction.
    
63. The second reason for my finding that State has proven beyond reasonable doubt that Robin Tavua killed the deceased, is that no clear motive for the State witnesses giving false testimony was established.
    
64. All 4 State eyewitnesses were vigorously cross-examined by Mr. Unido who put to each of the four eyewitnesses that they were lying but failed to convince me that in fact any of them had a motive for lying. The proposition that they were all supporters of Bob Jerome, who was angry at Councilor Korua for winning the LLG Council election would give false testimony to get back at Councilor Korua was a weak one. I reiterate that the four State eyewitnesses were convincing and credible witnesses. They were present and saw what happened the different angles they were positioned.
    
65. The third reason for my finding that State has proven beyond reasonable doubt that Robin Tavua killed the deceased, is that, the medical evidence is consistent with the State’s case.
    
66. The evidence of Dr Komnapi and the autopsy report are consistent with the State’s case that the deceased died as a result of his head being slashed with a bush knife.
    
67. The fourth reason for my finding that State has proven beyond reasonable doubt that Robin Tavua killed the deceased, is that, None of the 4 accused was a convincing witness. Their demeanour was poor. They all appeared to have been coached. For instance, they all started by saying they had to introduce themselves first and they all were giving the same description of the deceased and his brother, Robert holding a green sp beer can in the left hand and a bush knife in the other hand, which they all described as having a black handle. Also, they were over-keen to distance themselves from involvement in or knowledge of killing the deceased. They all said, they were concentrating on defending themselves and so they did not see the deceased and how he was killed but yet they were all able see what Robert was holding and what the deceased was holding and were even able to describe that both the deceased and Robert each held a green sp can in their left hand and each held a bush knife with a black handle in their right hand. Such evidence is too incredible.
    
68. Given the strength of the evidence of the State eyewitnesses, the defence evidence had to be credible, so as to cast doubt on the State’s evidence. That was not the case. Robin Tavua was not an impressive witness at all. He said when he saw Councilor was being attacked, he went to help him but did not see the deceased anywhere near them. The only person he saw attacking Councilor was Robert. That is not corroborated by Councilor Korua whose evidence is that, he saw the deceased running to him to attack him. If Robin said he was defending Councilor Korua, he would have been fighting with the deceased as well because Councilor Korua said the deceased was the first one going to attack him. They are both close to each other. Councilor saw the deceased running to attack him. Meanwhile, Robin Tavua is helping the Councilor. Clearly, their evidence not only contradict each other, but more importantly, the evidence of Councilor Korua puts the deceased where both him and Robin were. But yet both of them said, they did not see how the deceased was killed and was not involved in the killing. Both their evidence is too incredible to believe.
    
69. I also found Daniel Yana was not impressive at all. He said that he was able to see Robert going to Councilor Korua’s house from the clinic varandah where he laid down after he was attacked. However, the photograph evidence of the location of the clinic shows the clinic’s veranda faced the the Elementary School which is on the opposite direction of Councilor’s Korua’s house. Clearly, anyone on the clinic verandah will be giving their back to the direction of Councilor’s house. Not only is the veranda facing away from councilor Korua’s house, but there is another building in the middle of the clinic and the councilor Korua’s house. Clearly that would obstruct the view of someone trying to see to the Councilor’s house from the clinic verandah at the clinic. The evidence of Daniel Yana is also too incredible to believe.
    
70. Having assessed the defence evidence, it must be observed that their evidence was uncorroborated, leaving me to accept the State evidence without a doubt that, what its witnesses saw was what had happened that afternoon.
    
71. Lastly, I uphold the submission by Ms. Matana for the State of the theory of the State’s case: that councilor Korua Kaia had a stick in his hand that he used to injured Darius (deceased) on the head causing Darius to lose his balance and when that happened Robin cut Darius with a bush knife on his head and the other three (3) accused, namely: Kawa, Jerome and Ismael came in and kicked the deceased.
    
72. There were four eyewitnesses. Their identification of all 4 accused persons is one of recognition. They all know each other and related either through blood or marriage. The eyewitnesses were in close proximity to the event. The medical evidence was consistent with their evidence.
    
73. I find therefore that the State has proven beyond reasonable doubt that Robin Tavua directly killed the deceased. The first element of wilful murder is proven.
    

Issue No.2: Was the killing of the deceased unlawful?

74. Section 289 of the Criminal Code (homicide) states:
    

It is unlawful to kill a person unless the killing is authorized or justified or excused by law.

75. The first accused did not rely on any specific excusatory defence such as accident, compulsion, insanity, provocation or self-defence. His killing of the deceased is therefore not authorized, justified or excused by law and is deemed by force of Section 289 of the Criminal Code to have been unlawful. The second element is proven beyond reasonable doubt.
    

Issue No.3: Did the first accused intend to cause the death of the deceased?

76. This issue requires the court to consider the accused's state of mind at the time he did what he did to the deceased. This can be assessed through his behavior or conduct before and after the act. (see The State v Raphael Kuanande [1994] PNGLR 512).
    
77. Here, I find nothing in the conduct of Robin Tavua before he cut the deceased that he had a premeditated intention to kill him. Likewise there is nothing in the conduct of Robin Tavua after he cut the deceased that supports the contention that he had an intention to kill. I find that this was a spur of the moment attack or reaction to Councilor Korua shouting “kilim em’’ upon an unarmed innocent man who was going to Councilor Korua to ask him why they threw stones at the vehicle he was in. However, on the spur of the moment, Robin Tavua reacted to what Councilor Korua said that lead to him to swing his bush knife at the deceased with such viciousness and intensity, that the only reasonable conclusion can be that, he intended to kill the deceased. I find that the State has proven beyond reasonable doubt that Robin Tavua intended to kill the deceased.
    

Issue No.4: Is the first accused guilty of wilful murder?

78. Yes, as all elements of the offence have been proven beyond reasonable doubt.
    

Issue No.5: Are the second, third and fourth accused guilty of any offence?

79. The criminal liability of the other accused must now be considered in the light of Section 7(1) of the Criminal Code: Section 7 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; and

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

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

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

80. As to the second, third and fourth accused, the State has not presented a strong case that they were actively involved in the killing of the deceased. State’s evidence against these 3 accuseds is that, after the deceased was on the ground, they went and kicked him. That’s all the evidence, State has against them in so far as the death of the deceased is concerned.

The question is, did the assault by them contribute to the death of the deceased? The summary of the autopsy repost states: The deceased was slashed on the head and he died instantly. This is indication that, when the second, third and fourth accused kicked the deceased, he was already dead and his death was directly caused by the bush knife slash to the head.

81. In the light of the medical evidence, it has not been proven beyond reasonable doubt that Kawa Yapu, Jerome Korua and Ismael Kaia assisted Robin Tavua with the intention of killing the deceased. I find Kawa Yapu, Jerome Korua and Ismael Kaia not guilty.
    

VERDICTS

82. Verdicts for Robin Tavua, Kawa Yapu, Jerome Korua and Ismael Kaia, having each been indicted on a charge of wilful murder under Section 299(1) of the Criminal Code, are entered as follows:
    

1. Robin Tavua: guilty of wilful murder as charged

2. Kawa Yapu: not guilty of any offence

3. Jerome Korua: not guilty of any offence

4. Ismael Kaia: not guilty of any offence

Verdict accordingly.

____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyers for the Accused