State v Awas (No 1) [2023] PGNC 274; N10432 (11 August 2023)

N10432

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 12 OF 2021

THE STATE

V

SHANE AWAS JUNIOR
(NO 1)

Aitape: Miviri J
2023: 09^th August

CRIMINAL LAW – PRACTICE AND PROCEDURE – Wilful Murder S299 CCA – Not Guilty – Armed with Welded Iron Axe – Accompanied Others Armed with Offensive & Dangerous Weapons – Went to Dwelling House of Deceased – Attacked & Killed him Over Allegation of Sorcery – Accomplice Evidence – Corroboration of – Identification Evidence – Law on Identification – Recognition – Credibility of Witnesses For & Against – Alibi Effect of – Remanded for Sentence.

CRIMINAL LAW – PRACTICE AND PROCEDURE – Wilful Murder S299 CCA – Not Guilty – Identification – False Alibi – Material Inconsistency with Accused & Defence Witness – Incredible Evidence – Alibi False – Conscious Sense of Guilt – No Alibi – Accused Part of Group Attacked Deceased – Armed with Welded Axe – Hit Deceased On Head with Axe – Section 7 (1) (a) (b) (c) & (d) Aided Abetted Wilful Murder – Intent to Kill – Killing – Guilty of Wilful Murder – Remanded to Await Sentence.

Facts

The Accused was one of the persons in a group armed with very offensive and dangerous weapons who attacked the deceased intending to kill him and killed him. Over an allegation that he was a sorcerer responsible for the death of a relative. Accused was armed with welded axe that he cut the head of the deceased with in assisting the others.

Held

1. Incredible evidence by Accused.
2. Alibi witness lied Accused lied.
3. No truth Defence case.
4. Corroboration of State case on identification.
5. Guilty of Wilful Murder.
6. Remanded to await sentence.
   

Cases Cited.

Tonde v The State [1994] PNGLR 539

Hagena v State [2017] PGSC 55; SC1659

John Jaminan v The State [1983] PNGLR 318

The State v Nataemo Wanu [1977] PNGLR 152

Porewa Wani v The State [1979] PNGLR 593

The State v John Badi Woli and Pengas Rakam [1978] PNGLR 51

Beng, The State v [1976] PNGLR 471

Kandakason v The State [1998] PGSC 20; SC558

Waranaka v Dusava [2009] PGSC 11; SC980

James v State [2020] PGSC 39; SC1937

Paulus Pawa v The State [1981] PNGLR 498

State v Wer [1988-89] PNGLR 444

Counsel:
D. Mark, for the State

P. Moses, for Defendant

VERDICT

11^th August 2023

1. MIVIRI J: This is the verdict after trial where the accused was armed with a welded Axe that he used to cut the back of the head of the deceased killing him.
   
2. He was arraigned on the following facts that on the 24^th April 2020, around 4.00pm, Dominic Elias Elrem was with his family at Lemieng village, Aitape. He got up to see his mother when four men, Gabriel Tape, Vence Moipu, Rumold Moipu and the Accused Shane Awas Junior entered the premises. Gabriel Tape and Vence Moipu were armed with bush knives, Rumold Moipu was armed with a louvre blade and the Accused was armed with a welded Steel Axe.
   
3. Upon entering the premises, the accused and accomplices warned the deceased’s family to keep silent, and they proceeded to surround the deceased. He asked them why they had gone to his premises, and they told him that he did not respect his family. Gabriel and Vence started to swing their bush knives at the deceased and they cut him all over his body. Just then another group of men entered the deceased premises, they were also armed, and they destroyed his properties.
   
4. At that time the deceased managed to run away from the group, but the Accused Shane Awas Junior ran after him and struck him on the head with the welded steel axe. The deceased fell down, got up again and ran to a soccer field but the accused and his accomplices ran after him and again attacked him with their weapons. The accused persons left and told the family not to cry or they will attack the family too. The autopsy report confirmed that the deceased died from traumatic brain injuries and multiple bush knife wounds.
   
5. The State alleges that when the Accused person entered the premises of the deceased, they were armed and they had the intention to kill the deceased, therefore their actions contravened section 299 (1) of the Criminal Code Act. The State invoked section 7 (1) (a) (b) (c) and (d) of the Criminal Code against the Accused and his accomplices.
   
6. The accused pleaded not guilty and raised an Alibi that he was with one Quenten Langar and another at a funeral gathering for a relative one Ailleen Moipu. He filed a notice of alibi to this effect that he was with this witness and another Tasie Moipu.
   
7. In his record of interview exhibit P2 conducted on the 09^th July 2020 with police investigator Detective Senior Sergeant Rodney Malken, statement Exhibit P3, and corroborated by Exhibit P4, statement of Corroborating Officer Senior Sergeant Jacob Ramuai, translated into English P2 (a) there was no mention or evidence of the Alibi disclosed to police there. In it he admitted that he knew Dominic Elias Elrem who was his uncle, and he was from Kunai a small hamlet in Lemieng. Further He denied that he went with five others, Gabriel Tape, Rumold Moipu, Vence Moipu, Corniel Asol, Fredrick Naidon Lamei and some others to the house area of the deceased Dominic Elias Elrem. He denied cutting the head of the deceased with the welded steel axe. The State bears the burden to succeed beyond all reasonable doubt. The defendant is not obliged to disclose his defence or his alibi there and then. Not even in the record of interview: Tonde v The State [1994] PNGLR 539. But where there is weight to be drawn in its weighing it does seriously in my view, affect the way to be given it in the determination of whether the allegation he raises succeeds or goes by the wayside. Here there is nothing placed for the accused, and what he has recounted set out above goes against his cause.
   
8. In its endeavour to prove its case the State called one Ryan Bosco from a small hamlet Hadock in Lemieng, Aitape. He was educated to grade 8 at the Lemieng Primary School. He recalled the 24^th April 2020, and testified that he was at a funeral at Koruko hamlet with some people for the death of Aileen Moipu. Who is a young lady, cousin sister of his mother. Whilst there he witnessed that Rumold Moipu was swearing and went into his house got two pieces of iron and started running and people started running. I ran to the main highway with them and gathered there. There, Rumold Moipu told us to take our shirts off and to cover our faces with it. And told us to follow walk the main highway to Dominic Elias Elrem’s hamlet Kunai. We went and we divided ourselves into three (3) groups. Some took the main highway. Others we followed Dominic Elias Elrem’s road to his house.
   
9. In the group I was with, were the following: (1) Vence Moipu, (2) Gabriel Tape, (3) Shane Awas Junior who is now in court, pointing him out in Court. We went and I stood watching Vence Moipu, Gabriel Tape, and Shane Awas Junior went in and late Dominic Elias Elrem was standing there. Vence Moipu told him you are the one who killed my mother and swung the bush knife at both his legs and cut the calf muscles of Dominic Elias Elrem, who ran to the kitchen. Gabriel Tape ran after him and swung his knife at his right ribs area. He laid down when he swung the knife and he cut the bed where they put the plates on. After he got up and started running but couldn’t because of the cuts and fell down. And he sat down and Shane Awas Junior holding the axe welded with iron.
   
10. Late Dominic Elias Elrem got up to run but Shane Awas Junior got that axe with both hands and hit him on the head. He got up and ran towards the soccer field and went to the soccer field and fell down whilst lying called out. When I saw late Dominic Elias Elrem fell down, I went a bit closer and stood next to him. I stood and saw Gabriel Tape told Vence Moipu, he is one who killed your mother cut his neck and he will die. Vence Moipu said that is enough we have already spoilt him. When Vence Moipu said that Gabriel Tape got the bush knife and cut Dominic Elias Elrem on his neck. Finished so Gabriel Tape called out to the boys and said, lets return. Yes, I returned with the boys to the village.
    
11. Vence Moipu cut Dominic Elias Elrem on his left shoulder. Shane Awas Junior cut the deceased with axe on his head. It was a hard swing, and he held the axe with both hands and swung it with force. And the axe landed on the head of Dominic Elias Elrem, and he fell down on the ground and laid on the ground. He fell down and laid there for a long time. And I saw a group of boys come and cut his legs with bush knives, and he struggled up and ran again. The distance where I stood and watch is like from the front of the court wall to back wall diagonally, 10 to 15 meters. There were no bushes or anything that obstructed my view. There was nothing there at his house that obstructed my view. It was very clear inside his premises.
    
12. Shane Awas Junior is from Prou hamlet different from Lemieng village. The axe welded is not from the Shop. It is cut blade from Lucas Mill and welded on. It is an iron axe. I know Shane Awas Junior he is line of my father. I would call him uncle. I follow father’s side and he is my “kandre,” my uncle. Shane Awas Junior also attended that funeral because late Aileen Moipu is sister of Shane Awas Junior’s mother. He would call her aunty or mother. Vence Moipu is cousin brother. Shane Awas Junior is here and points to the Accused, it was 4.30pm and it was a sunny day when we arrived back. Gabriel Tape, Vence Moipu, and Shane Awas Junior attacked the deceased Dominic Elias Elrem because they suspected that he killed Aileen Moipu by “Poison, Sanguma,” or sorcery.
    
13. This is the primary evidence of the principle State witness Ryan Bosco from a small hamlet Hadock in Lemieng, Aitape, relative uncle of the Accused Shane Awas Junior. In cross examination he did not deviate from this evidence he maintained it throughout. He admitted that he went along with the group. And that at the time they all took off their shirts to mask their face, instructed by Gabriel Tape, they were altogether, Vence Moipu, Rumold Moipu, Koniel Asu, Fredrick Lamei and Shane Awas Junior. So, he was able to see who is who, even though they had their faces covered with their eyes exposed. That he could still see Shane Awas Junior as the person who attacked the deceased. They did that together in the group he was in, and he was able to see the Accused. “All of us went together so I could tell it was Shane Awas Junior.” Because he followed them as named. But did not have a weapon even though he was in the planning. He admitted that he was scared and shocked but could not do anything to help the deceased as they might attack him also.
    
14. The State also in its case tendered into evidence Exhibit P1 affidavit of Doctor Athanasius Kari of the Department of Health Medical Practitioner attached to the Raiho District Hospital. This doctor did the medical examination of the Deceased Dominic Elias Elrem including his postmortem Exhibit P1(a). Relevantly, “Evidence of recent injuries: All body lacerations were caused by bush knife; laceration over the left shoulder and arm with obvious deformity of bone. Right forearm with laceration and obvious bone deformity (figure 1 and 2). Left leg laceration where one on the lateral knee and the other is distal medial leg. Three lacerations on the back; one is deep situated over the right upper posterior chest which involves the lung pleura and parenchyma (figure 3).
    
15. Two lacerations over the head; one is measuring 9cm longitudinal and width of 1.5cm exposing the skull and brain matter (figure 4). The left neck is lacerated exposing the severed carotid artery and soft tissue structures of the left neck (figure 5).
    
16. The summary of the report by the Doctor is “The deceased who is a villager from group 3 to the group 3 village in Koruko, Ward 20 of Lemieng, was allegedly murdered at his home on the 24^th April 2020 at 4.30pm by the offender of a village from group 1. The deceased was accused of sorcery and was attacked with a bush knife by the offender, causing multiple lacerations all over the body.
    
17. At autopsy, the day later, a visual autopsy was conducted. Upon external examination, there was obvious bush knife lacerations at all limbs. Both arms appeared deformed with open fractures and left leg with lacerations. There are three lacerations on the posterior back, however one laceration appears to be deep involving the laceration lung cavity and parenchyma. There was skull laceration with open fracture of the skull and evidence of traumatic brain injury. The fatal blow would be the left neck laceration involving the carotid artery being severed which would have cause a lot of bleeding leading to his immediate death.
    
18. Cause of death direct cause; (A) Severe Haemorrhage due to Severed left Carotid artery. (B) Left Hemo-pneumothorax, Traumatic Brain Injury from Multiple bush knife wounds.”
    
19. In defence on oath Shane Awas Junior 24 years old testified that he attended school up to grade 10 at Vanimo Secondary School. From Prou hamlet, he was not married. On the 24^th April 2020 at 4.00pm he was at the funeral of Aileen Moipu at Koruko. And he was helping to look after People who had come to the “haus Karai” assisted us. I was helping together with Quenten Langer. I did not see Vence Moipu, Gabriel Tape and Fredrick Lamei. I don’t know about them. I was doing what I was told to do what I was told at the haus karai. I don’t know how and where they went. Also, I do not know where the group of young men went. I don’t know I was busy doing what I was told to do at haus Karai. He denied in all material particulars the role that he played in offence deposed to by Ryan Bosco. Including that the group returned at 4.30pm to 5.00pm. He said he had by then left with his parents’ brothers and sisters back to their home after that. It was 5.00pm we cooked ate showered and went to bed.
    
20. In support of his alibi, he called one Quenten Langer 26 years old married with a child. That on the 24^th April 2020 She was at Lemieng Aitape. And Shane Awas Junior was with her during the house Karai. And when the Man had already died, we were together. We were helping to dish out food. Group of men went to the house of the deceased. I don’t know the reason why they went there. The deceased Aileen Moipu is aunty. I am not clear if Shane Awas Junior went with group and attacked. We are related, he is my cousin, my grandmother is related to his grandfather.
    
21. Tasi Moipu was with me then at that time. My cousin brother came and told me when they returned from that trouble. It was the whole group when they returned, they shouted, that they had killed the deceased Dominic Elias Elrem. Peter John announced that. Shane Awas Junior was with me shoulder to shoulder. They called out Dominic Elias Elrem. Shane knew Dominic Elias Elrem.
    
22. In cross examination Quenten Langer’s evidence conflicted with Shane Awas Junior in very material and fundamental particulars. She testified that the group of men who had gone to the deceased came back shouted, that they had killed the deceased Dominic Elias Elrem who was also known to the Accused. And at that time both the witness and accused were sitted shoulder to shoulder, yet Shane did not see this nor did he hear this. Quenten Langer heard it, but he didn’t. The announcement was made 1.5 meters apart and she showed that in court with the Accused shoulder to shoulder with her that time. She indicated by the same distance from the witness box to the chair of the defence lawyer. Prosecutor asked that one of the two were lying. She agreed and when asked by the Court who was lying, she said it was the Accused. And when given a fictitious name Peter John She said that person uttered the name and made the announcement. But the whole evidence did not disclose this person or his identification. She later agreed that she did not know that person.
    
23. What puzzles is that, accused if indeed he was sitted alongside Quenten Langer, he would have seen the return of the group of men who had returned from Killing the deceased Dominic Elias Elrem. Because both were shoulder to shoulder and in court clearly the Accused did not have hearing problems. He was able to hear very well and respond when he was giving his evidence the same distance. And no doubt just as Quenten Langer heard and saw he would have done the same. She is giving evidence of his continued presence with her even after 4.30 and 5.00pm when he says he had gone with his parents’ brothers and sisters back home to their hamlet. Here he is still alongside her. And it is his evidence that he does not know about the boys who went there and returned, and he was busy with the tasks there at the haus Karai. And he does not know about the death of Dominic Elias Elrem. This is now false and lies because he is present with her when the group return from killing Dominic Elias Elrem. It is common knowledge, and he has denied that common knowledge.
    
24. His own witness Quenten Langer admits that one of them has lied in Court in their evidence. And when asked by the Court as to who has lied, she says it is the Accused who has lied. She also tries in desperation to help the Accused with an Alibi but places the Accused with her when he says he had already left with his family home. Further she is led astray when she agrees to a fictitious person, Peter John who called out made up by the Prosecutor. The overall evidence does not have this person in it. She merely agrees trying to create an alibi but puts lies in it herself. When all this evidence unfolded the Accused had his head bowed accepting that it was not going the way he wanted it to go. He did not look up at this juncture as was the case when he earlier gave evidence himself. His body language did not tell the confidence that it was the truth that was unfolding. He knew by that body language that it was made up to conceal the truth. His conscience depicted out by his body language showed clear acceptance that his alibi was not living up as he expected. Because he sat Bowed as this excerpt unfolded.
    
25. The result is lies are used to corroborate lies given by the witness. Both are related to each other have an interest to have the Accused out of the realm of the law. But in their desperation have forgotten where ends lie, and where begins the truths. The result is that Quenten Langer’s evidence sets out clearly that both herself and the Accused have tried to create an alibi that was not there in the first place ever at all. Lies upon Lies have now tendered to have the strong effect of corroborating the account identifying the Accused as one of the perpetrators of the offence. It means there is no independent verification of that alibi. His evidence is self-serving not corroborated by any independent and material evidence to point in his favour: Hagena v State [2017] PGSC 55; SC1659 (11 December 2017). That means he has given false and belated evidence disassociating himself from the truth to avoid the guilt that is glaring against his action, he was one amongst Vence Moipu, Rumold Moipu, and Gabriel Tape who were initially upfront with the witness in the killing of the deceased and later joined by the others including Koniel Asu, and Fredrick Lamei.
    
26. The effect of which is that the accused has consciously told lies to disassociate that he was not in that group. He knows that the truth now verified by evidence of Ryan Bosco. Because lies told consciously to avoid guilt has been held to amount to corroboration of the State account: John Jaminan v The State [1983] PNGLR 318. Here particularly the identification and the role that the accused played out in the offence. That is the effect of the lies that he has now told with his witness. He corroborates the evidence of Ryan Bosco that he was armed with a welded iron axe which he used to cut the head of Dominic Elias Elrem, in helping Vence Moipu, Rumold Moipu, and Gabriel Tape with the common intention to kill him and did kill him. This is such that even though Ryan Bosco is himself an accomplice in the offence this corroboration clears his evidence out in material particulars that he is telling the truth and nothing but the truth: Hagena (supra). Yes, he participated but I do not see that he has minimized his role in the crime and exaggerate that of the accused or made false accusations: The State v Nataemo Wanu [1977] PNGLR 152. I find him to be witness of the truth in all material particulars I have no reason apparent or identifiable to doubt the veracity of his evidence. I believe that he has deposed to the truth in all respects of his evidence.
    
27. And so I hold that, the Accused is clearly a principal offender within the meaning set out in Section 7 of the criminal Code canvassed by Porewa Wani v The State [1979] PNGLR 593. It is likened to The State v John Badi Woli and Pengas Rakam [1978] PNGLR 51 both accused were responsible in law for death resulting from an attack where both, in the presence of each other and with intent to harm, were aiding and abetting each other in the attack. It was not to the point that it could not be elicited whose blow caused death. The intention to kill was common to the Accused Shane Awas Junior and all he was with Vence Moipu, Rumold Moipu, and Gabriel Tape. They led upfront and by their overt actions in no uncertain terms displayed out the intent to kill and exterminate the deceased and did exterminate.
    
28. The medical report postmortem report is conclusive that the secondary cause of death was “Traumatic Brain Injury from Multiple bush knife wounds.” And the evidence is explicit that the head wounds were authored by Shane Awas Junior holding the axe with both hands and swinging as he did. The extent of that injury is well covered corroborating the account of Ryan Bosco. It is independent verification of his account that he was indeed telling the truth befalling before his eyes. And which also make up the other injuries also. They are independent confirmation of his account. He is an accomplish in the offence, but the truth of his account is verified by this independent medical report by the Doctor. I hold him on account to be a witness of the truth. There is nothing to doubt the veracity of his evidence compared with the defence evidence in total, Accused and witness in support.
    
29. In my view the aggregate is that there is firm and conclusive ring of the truth spiralling through the state evidence, so much so that the only credible version is that of the state which I prefer over and above that of the accused. Because here the evidence of the witness is made in broad daylight in close quarters. It would be harmonious to read the test in Beng, The State v [1976] PNGLR 471. That what the Accused did was observed in broad daylight, in very good lightening, at close quarters by Ryan Bosco who was a relative. It was recognition of an immediate relative who was assisted to what happened. And who was there together initially from the haus Karai, onto the highway where all removed their shirts and covered their faces in the presence of each other, and then all proceeded together to carry out what is described above. All knew each other, there was no room for mistakes and the veracity stands uncontradicted compared to the accused.
    
30. Because assessment of logic and common sense and consistency in evidence are important tests for credibility of witnesses and their testimony. Any serious unexplained inconsistency in evidence and evidence not in keeping with logic and common sense are basis for rejection of such evidence: Kandakason v The State [1998] PGSC 20; SC558 (7 July 1998); Waranaka v Dusava [2009] PGSC 11; SC980 (8 July 2009). That is not the case against Ryan Bosco with the totality of the State evidence but is the case for the accused case with his false alibi set out above. His evidence will be rejected outright with his false Alibi. There is clear evidence of animosity by the Accused prior and leading up to the killing in conjunction with the other co accused, James v State [2020] PGSC 39; SC1937 (24 April 2020). That is the only rational and only reasonable hypothesis that the Accused was seen actively involved as part of the group that were upfront set determined to kill Dominic Elias Elrem because he was alleged to have killed Aileen Moipu by sorcery, poison, or sanguma, Paulus Pawa v The State [1981] PNGLR 498.
    
31. And the argument that all were taken over by adrenaline has no basis in the evidence to put foot hold to that argument, because reasons from the bar table are not before the court by and supported by evidence and relied on: State v Wer [1988-89] PNGLR 444. There is no alternative to the assertions by the Prosecution. And the only rational and reasonable hypothesis by the evidence beyond all reasonable doubt is that Accused is singled out by clear evidence there on 24^th April 2020 was armed with a welded iron axe accompanying Vence Moipu, Rumold Moipu, and Gabriel Tape. All armed with bush knives and cutting the deceased all over his body. Because he it was suspected he was responsible for the death of Aileen Moipu immediate relative of all Accused including the Accused now before the Court. Shane Awas Junior was a principal offender within the meaning in section 7 (1) (a)(b)(c) and (d) of the Criminal Code Act. He intended to kill the deceased Dominic Elias Elrem because he held the axe with both hands and gave a very hard swing to the head of the deceased. The medical evidence contributes that the secondary cause of death was the “Traumatic Brain Injury from Multiple bush knife wounds.” The doctor describes the head injury this way, “There was skull laceration with open fracture of the skull and evidence of traumatic brain injury.”
    
32. In my view this is conclusive evidence beyond all doubt that Shane Awas Junior was responsible for this particular injury with the use of the welded axe that he had and used in that manner described. The head is a very vulnerable part of the body holding one of the most important organs of the human body, the brain clear by the medical evidence set out above. And he intended to cause the death of Dominic Elias Elrem. And did in fact caused his death. I am satisfied beyond all reasonable doubt that he is guilty as indicted of Wilful Murder pursuant to section 299 (1) of the Criminal Code.
    
33. I return a Verdict of Guilty of Wilful Murder pursuant to section 299 (1) the Criminal Code Act.
    

Ordered accordingly.

Public Prosecutor : Lawyers for the State
Public Solicitor : Lawyers for the Defendant