State v Mundi [2024] PGNC 244; N10911 (17 July 2024)

N10911

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1454 & 1456 OF 2023

THE STATE

V

GEE MUNDI & MICHAEL WANPIS OGUK

Minj: Miviri J
2024: 02^nd & 15^th - 17^th July

CRIMINAL LAW – PRACTICE AND PROCEDURE – Wilful Murder S 299 CCA – Trial – Denial – Death of Deceased By Gunshot – Bullet Passing through First Victim & Injuring Deceased in Chest – Whether Accused Fired Gun Into the Air or At the Victim & Deceased – Broad Day Light Shooting – Bullet Fragment Retrieved Not Matching – Gun Supplied 5 months by Father of Accused After Shooting – No Other Gun Fired Except One Held By Accused – Alleged Attempted Stealing Foiled – One Accused Injured No report Made to Police Including Properties Recovered – Not Immediately Reported – Both Accused Ran Away – Reliability & Credibility of – Circumstances Inconsistent With Warning Shot – K50, 000.00 & 20 Pigs Paid Compensation – Broad day Light Identification face & Name – Not Fleeting Glance – No Motive for Evidence – One Shot Only fired At the Victim & Deceased – Intent to Kill – Killing – Guilty of Wilful Murderx2 – Remandedx2.

CRIMINAL LAW – PRACTICE AND PROCEDURE – Wilful Murder S 299 CCA – Trial – Denial – Death of Deceased By Gunshot – Bullet Passing through First Victim & Injuring Deceased in Left Chest – Firearm Licence Section 7, 9 (5) of the Firearms Act – By section 7, 20, 21, 22 of the Firearms Act (As Amended) Permit to Carry Firearm Not Produced – Effect Of In Law – Credibility Of Accused As Witnesses – Major & Material Inconsistencies Firearm Surrendered to Police By Father of Accused – Not Fired At Scene – Retrieved Fragment From Body of Deceased Not Matching – Firearm Supplied by Father five Months After Shooting – Accused Has Not Supplied Firearm & Licence to Carry Firearm Ever – Concealment of Evidence – Accused University Graduate Majoring in Science & Pilot – Manufacturing Evidence – Lies Out of Conscious Sense of Guilt – Corroboration of State Evidence – Shoot them Kill Them – Express Intent to Kill – Acted on Shooting of Victim & Deceased – Guilty Of Wilful Murder x 2 – Bail Refunded x2 – Remanded to Wait Sentence x2.
Facts
Accused shot the victim penetrating his shoulder into the neck of the deceased who died as a result. He intended to kill the deceased and did kill him when he fired the gun.

Held
Second accused called out to shoot the deceased.
One gun fired by First Accused
Aimed at victim and deceased.
Fired at them
Intent to kill.
Killing.
Guilty of wilful Murderx2.
Bail refunded x2
Remandedx2.

Cases Cited:
Kuanande, The State v [1994] PNGLR 512
Amoko, The State v [1981] PNGLR 373
Wani v The State [1979] PNGLR 593
Tapea Kwapena v the State [1978] PNGLR 316
Beng v The State [1977] PNGLR 115
Pawa v The State [1981] PNGLR 498
Aquila v Independent State of Papua New Guinea [2020] PGSC 113; SC2023 (29 October 2020)
Bonu and Bonu v The State [1997] PGSC 11; SC528 (24 July 1997)
Morris, The State v [1981] PNGLR 493
John Jaminan v The State [1983] PNGLR 318
Kandakason v The State [1998] PGSC 20; SC558 (7 July 1998)
Waranaka v Dusava [2009] PGSC 11; SC980 (8 July 2009)

Overseas Cases
Barca v. The Queen [1975] HCA 42; (1975) 133 C.L.R. 82

Counsel:
F. Popeu, for the State
R. Mangi, for the Defendant

VERDICT

17^th July 2024

1. MIVIRI J: This is the verdict after trial of Gee Mundi of Kandal and Michael Wanpis Oguk of Waghi village, both of Banz Angalimp South Waghi, Jiwaka Province who were indicted with one count of wilful murder of one Joel Yambe pursuant to section 299 (1) of the Code.
   
2. The State invoked section 7 (1) (a), (b) and (c) of the Criminal Code in that both accused assisted each other in intending to kill the deceased and did kill him. Relevantly intent is personal unto the accused, and maybe deduced from the totality of the evidence: Kuanande, The State v [1994] PNGLR 512. Both were therefore liable for his death pursuant 1994to section 299 (1) of the Criminal Code. Here the evidence should be beyond all reasonable doubt that they are each principal offenders defined in Amoko, The State v [1981] PNGLR 373. They can be charged on the same indictment and can be termed accomplices to the offence. Read together with Wani v The State [1979] PNGLR 593, they were both there on the 3^rd July 2022, and assisted each other in the commission of the offence. Michael Wanpis Oguk called out to Gee Mundi shoot them, kill them which was responded to by Gee Mundi in shooting the victim and the deceased with the pistol that he had injuring them and killing the deceased. Not only were they there but participated in the common intention to kill. And that they both in pursuit of that common intention killed the deceased pursuant. They were not innocent bystanders but were part of that common intention to kill the deceased and did kill him. One Michael Wanpis Oguk procured Gee Mundi to realize that common intention to kill. And both acted in concert and unison with that common intention. One did not disassociate one from the other in it culminating eventually to the death of the deceased. As in Porewa Wani (supra) calling out “Alaia Alaia, kill him, kill him” Avia Aihi acting in accordance and stabbing and killing Morris Modeda. That is the classical situation here alleged against both Michael Wanpis Oguk and Gee Mundi.
   
3. Both Accused entered not guilty pleas to the allegation, so the State started its case on oath with the testimony of Augustine Kongiye a villager, 40 years old from Karkenjip Banz, Jiwaka Province. He was married with 3 girls and a boy resident at the Waghi Dump Area. He testified that on the 03^rd July 2022 at 9.’clock in the morning, he was heading to Banz town with Joel Yambe, Jimmy Pell, Siwi Mike. They were initially at Waghi Valley walking up that road towards Banz town. Near the Malolo Inn gate Gee Mundi had parked off the road a Toyota Hilux on the side of the road facing Kudjip on the left side and near to Banz on the right. We walked up and saw Michael Wanpis Oguk and Gee standing and drinking there. We passed the vehicle came up, Michael Wanpis Oguk without a single word took a can of Niugini Ice Beer and threw at us, late Joel Yambe missed it. Wanpis ran up to Joel Yambe grabbed his shirt by the neck and punched him. I saw the fight, so I ran in to separate and stop the fight. I stood in the middle with Wanpis to the front and Joel to the back. I heard Wanpis said shoot them, shoot them, kill both of them.
   
4. Gee came out of the crew side of the vehicle, other hand he held a SP Bottle with the other he held the pistol. He came close and held the pistol up to shoot with his left hand raised pointing directly held it up and shot straight. It penetrated my right shoulder and came out to Joel at the back getting him on the neck. When I got the bullet, I called out to Jimmy, Michael Siwi, I told them I had received a bullet. Late Joel Yambe said I also received that bullet. Both of us were bleeding and lying on the bitumen. I could see Gee turned the vehicle facing Banz and he wanted to run over us. But the crowd called out, you have shot them already don’t run over them. He left us and came. A vehicle came and took the both of us to Kudjip hospital. On Monday morning 4^th of July Joel Yambe died. The Doctor gave me medicine supply and I came home. In my view and opinion my statement is true.
   
5. On the 17^th August 2022 my brother Fredy Gispe came down to carwash. The Public Relations Officer (PRO) to Niugini Fruit Company, Edward Tubodumulia told my brother that the boss of Mountain Wine Robert Mundi has K10, 000.00 with a job at carwash, you come and get it. He told Freddy to tell me to come and get it. I could see it was an attempt to bribe me. So, on the 18^th August 2022, the same PRO Edward Tubodumulia came to my shop and asked for me. I said I am here, he came and asked me, you go to the station and give your statement, Bossman Mundi wants you to come to his office, and we sit down and talk about what had happened. At that time, I told him to wait whilst I went and saw my father, Pastor. By then Edward Tubodumulia had left.
   
6. On the 26^th August 2022, Police from Minz arrested me. On the 29^th August 2022, Sergeant Gurabe charged me with firstly with property damage, secondly with car thief, and thirdly with assault. I bailed out on K 1000.00. I did not do anything, but the charges were laid against me. The property damage was in relation to the mobile phone charger of Gee Mundi. Which was a false charge. In the District Court the two charges were dismissed, the property damage and the assault. The car theft was committed to the National Court.
   
7. Other witnesses who also gave evidence were Augustine Kongiye, Jimmy Pell, and Sai Goi, chief Sergeant Joesph Numbos, with photographs, bullet fragment and a glock pistol, Sergeant Bill Kundala, Doctor Thadeus Gand with the medical report. And in the defence were the accused Gee Mundi, Michael Wanpis Oguk, defence witnesses Goi Karap, Julie Kambiye, and Peter Molu.
   
8. I find from the examination in chief, cross examination and re-examination, excerpts of witnesses compounded for the State that I have set out above, that the account that was given by the State witnesses, Augustine Kongiye, Jimmy Pell, and Sai Goi, is very consistent and credible account of what happened to them each as they came together that morning of Sunday 03^rd July 2022. Each witness in my view have given to the best of their abilities what they witnessed happened on this day. And there is material and fundamental consistency very clear by exhibits D1 and D2 that have been tendered in respect of the witnesses, Augustine Kongiye and Jimmy Pell. I do not find what the defence has alleged in respect of the sworn testimony and both statements. In all material aspects both are very strong coherent and very consistent. There is no discrepancy in the way that the defence has strenuously tried to show. In fact, both statements strengthen the State evidence even more. What has happened is that the defence has added even more to the state case.
   
9. The essence now sealed even more is that Augustine Kongiye has survived by the shreds of his neck because the bullet fired from three (3) or four (4) meters exited out with deadly force and extreme velocity into the left chest of Joel Yambe killing him. It literally tore through his left chest breaking the clavicle and the 1^st rib fracturing both including the underlying important and major blood vessels there passing almost out of the neck. Its effect collapsing the left lung replacing the air with massive bleeding in the thoracic cavity. This is the injuries that were out of the hand of Gee Mundi at that distance three (3) to (4) meters directly diagonally in front of Augustine Kongiye exiting deadly into Joel Yambe. It is the injuries that were at the dictate of Michael Wanpis Oguk, “shoot them kill them.” It was in unison and undeterred in a public place by the roadside where they had parked their vehicle a Toyota Hilux Double cabin to drink beer which they were consuming when the victim and the deceased and the others came upon and passed them.
   
10. The reason for the attack by Michael Wanpis Oguk can be explained in the way that he was drinking and was so consumed with the alcohol that he had no control on what he was doing. Alcohol had taken its toll on him so seriously that he lashed out with the ice can of beer at Joel Yambe. Both were drinking alcohol as witnessed by all State witnesses, Gee Mundi with one hand with the beer and the left hand with the pistol when he fired. It is the only reason stemming out of all the evidence by the state. Because it is common sense that, no ordinary person would fire a gun given the fact that Michael Wanpis Oguk was not under any threat to life or limb by the evidence of the witnesses. And in this respect Gee Mundi is a pilot a university graduate majoring in science. He would not have acted as he did unless he was so overwhelmed by the consumption of alcohol. A person does not get to be a pilot without intelligent and high distinction. He is a person of that Caliber. And to act as he did is clear demarcation of the rousing effect of alcohol. The evidence does not lay out what is seen in Tapea Kwapena v The State [1978] PNGLR 316. Michael Wanpis Oguk is faced with a deadly weapon there was no time for niceties. Gee Mundi reacted instantly, he had no time to reason as to what to do, it was either his life and limb or that of Gee Mundi. The evidence of the State in particular the medical evidence shows a one-sided injury on Augustine Kongiye and then on Joel Yambe the deceased. And it makes sense in the way that Augustine Kongiye acted because he broke up the fight. He was not armed with a bush knife and inflicted the injury upon the hand of Michael Wanpis Oguk. Because common sense and logic denotes that if Augustine Kongiye was armed with a bush knife, Michael Wanpis Oguk will not attack Joel Yambe and confront Augustine Kongiye. He did so because Augustine Kongiye was unarmed simply trying to break up the fight started by Michael Wanpis Oguk against Joel Yambe. He did so because they are from the same tribe, one council ward. I know him since I was a child up to now testified Augustine Kongiye in relation to Michael Wanpis Oguk. He also specifically identifies Gee Mundi as the son of businessman Robert Mundi who came and bought our land and settled on it.
    
11. This is very sound convincing identification made and falls into place with the law relevant here. This is not the case of a fleeting glance of a masked hood on a dark street corner leading out. Both Accused are identified by the witnesses Augustine Kongiye, Jimmy Pell and Sai Goi within the principles in this area of the law set out in Beng v The State [1977] PNGLR 115. Which principles canvas logic and common sense. That is the essence of the circumstances here. Each identifies both accused at about three (3) to four (4) meters apart at 9.0’clock on a Sunday morning. They are not strangers but known to each other. The identification is made with the accused face fully exposed and described by all witnesses in principally same terms as to what they are both doing in the morning, drinking beer alcohol. It would be erroneous to ignore this compliance square with the law. And there is sound consistency based on common sense and logic with the evidence that has been elicited by the State from its witnesses. All have one theme in common and that is telling the truth as best as they individually observed on this day. Which is verified by the accused admission of being there. But that the gun was discharged into the air against Augustine Kongiye and Joel Yambe to stop the act of stealing presumably seen by the accused Gee Mundi. What comes out here is the direction of the fire of the gun. If that is where the State says accused are guilty, if it is where the Accused say, they are not guilty.
    
12. I believe all State witnesses fully without any reservation. I reject in total the evidence entirely of the defence case in total because this is accounts that were given of what was witnessed at very close quarters, bodies touching as the assaults were committed initially, and primarily instigated by the accused Michael Wanpis Oguk upon the deceased Joel Yambe, against whom he threw that beer can followed by a second that was witnessed by Sai Goi. He was not part of the group of boys that were coming with Augustine Kongiye. It so happened as he was on his way to sell his coffee and pick up his outstanding. Their paths met when the accused set upon them in that manner. “I saw no reason Wanpis had a second can of beer that he threw it and pulled shirt of Deceased and hit him on the back. Kongiye went to stop fight and raised his hands. Wanpis said shoot him, Shoot him. Gee lifted gunshot straight. I was scared and ran. I ran all the way to Banz.” This is the fibre and the truth in Sai Goi summed which runs through the evidence of Augustine Kongiye and Jimmy Pell. It is as clear as the sun that was up that morning before it witnessed by all three from where they were as they walked. All witnesses in my view were firm consistent with their evidence in chief and maintained that consistency in cross examination. Because none is drinking or intoxicated by alcohol in any way. Each clear recounts that it was a Sunday, and people were going to church. When particulars as these are set out by witnesses it means that is the truth. Details elicited in this manner shows a very good witness. No amount of cross examination dismantled their evidence in principle. All in my view were witnesses of the truth. Their veracity and consistency challenged by the vigorous cross examination of defence did not shatter. In fact, that made out the truth of what happened on that day bold and glaring. To ignore that truth would have been erroneous in law. It could not be set aside without causing injustice to the victims leading to the death of the second. It would be seriously against the credibility that is overt from the evidence of all witnesses for the State.
    
13. The same cannot be said of the defence case evidence led by the accused Gee Mundi followed by Michael Wanpis Oguk both agree that the subject gun was fired but not at the direction of the witnesses for the state. It was fired into the air to stop Augustine Kongiye who had removed the phone charger from the vehicle Toyota Hilux parked on the side of the road, including a black laptop bag. And that because of the gun fire into the air by Gee Mundi the bag was dropped, and Gee Mundi retrieved it. Incredibly Gee Mundi is along in this regard because Michael Wanpis Oguk says he hears the gunshot; he is in pain after being cut by Augustine Kongiye with a bush knife. And it would be against common sense and logic for Michael Wanpis Oguk to confront Augustine Kongiye unarmed. If the gun is fired harmlessly into the air, why is Augustine Kongiye injured in the neck treatment covering exposed in photograph P6 (3) and P6(4). And why is Joel Yambe dead from a gun shot wound to the chest. And it is the only gun that is fired on the 3^rd July 2022 at 9.0’clock there that morning by Gee Mundi. It is not a battlefield in Israel, Afghanistan or Ukraine.
    
14. When these evidence in aggregate is viewed circumstantially it leaves no plausible and reasonable conclusion other than that the Accused Michael Wanpis Oguk instigated the attack upon Joel Yambe. He was stopped by Augustine Kongiye from assaulting further and so called out to Gee Mundi to use his gun to shoot them, to kill them, which was responded to by Gee Mundi. Because what the accused both asserts are self-serving and does not have common sense and logic backing them. What is reasonable and apparent is that there was no such act by the deceased against the accused. That is why both witnesses were injured. One surviving one dying. The only rational reasonable hypothesis is that provided by the State, which is the guilt of the Accused: Pawa v The State [1981] PNGLR 498, And this is so because the circumstances of death are played in all material particulars by all witnesses of the state. Both Accused have desperately tried to create a case where it is virtually non-existent in the first place. Both do not immediately after the shooting turn up at the nearest police Station, Banz, or Minz or Mt Hagen with complaint filed in the occurrence book to the effect that Augustine Kongiye together with Joel Yambe were prevented from stealing from them when Gee Mundi discharged the gun in his possession then. That it was fired into the air dispersing them. Police are not shown the items that were recovered in that foiled attempt to steal. Michael Wanpis Oguk does not show to Police the cut inflicted on him grievously disabling him inflicted by Augustine Kongiye. There is not even a medical report evidencing treatment of that grievous injury. If they have been assaulted no fault of theirs, no report is made there and then.
    
15. As if this observation is not enough in the records of Interview, Michael Wanpis Oguk Exhibit P2(a) pidgin original and P2(b) English translation, and Gee Mundi Exhibit P1(a) Pidgin original, and P1(b) English translation, there is no mention of what Augustine Kongiye and Joel Yambe does to attack them. In particular that Michael Wanpis Oguk is injured in the hand because he is cut with it by Augustine Kongiye. For two individuals who were together at that time at the same time in company they do not have coherent consistent account of that day. Michael Wanpis Oguk says he was hit with the door of the vehicle by Augustine Kongiye that is not seen by Gee Mundi. There is no mention that he was dazed as a result so did not see what Gee Mundi did. For two people who claim they were sober and simply waiting for the loading of their vehicle on transit to Goroka providing escort and security for it they parked next to a club where people were drinking beer and liquor. In my view they would not be escorting as they were not with the vehicle they were presumably escorting. It is not common to be sitting at a drinking venue, here Malalo Inn when one is escort duties of valuable company products. One would be alongside that vehicle. Better still to support the case tender copies of the orders made delivery to Goroka for which they were escorting. The place property to secure is not alongside Malolo Inn where there was bound to be alcohol drunk. And the vehicle was parked alongside there because both were drinking alcohol consistent with what is painted by the witnesses for the State.
    
16. At question 14 Gee Mundi does not say why he removed the pistol out and shot the victim and the deceased. If both he and Michael Wanpis Oguk were sober he would know what the latter was doing. He tries desperately to protect him denying that Michael Wanpis Oguk will tell what he did. He does not tell that he had picked up his sister Diane Mundi because there was a problem in that her husband Felix with the father-in-law Peter Molu were taking the infant of that union to Kundiawa. And that is the reason he was pulled over on the side of the road when the allegation arose. The sister Diane with husband Felix have not been called to prove that fact except for Peter Molu. He is a witness not mentioned in the record of interview conducted on 31^st August 2022. Which is just a month after the 03^rd July 2022. Events are fresh in his mind on that day, yet he does not disclose these witnesses at that first opportunity in law. He has awaited to 2^nd July 2024 two years later to come up with the witnesses all at one go.
    
17. True the burden in law is on the State and not on the accused that he must prove his innocence. But common sense and logic demands that at the first given opportunity this is made known. After all he discharged the gun into the air to foil a stealing a criminal offence. He shot no one with the gun. He committed no offence. But he does not disclose that in the record of interview. In my view it makes the State’s assertion real that there was no defence hence it was not set out there and then. What has come is a desperate attempt to find evidence to impede and avoid guilt that is glaring and imminent against both here. If indeed Diana Mundi with husband Felix and Peter Molu were with the accused Gee Mundi, Michael Wanpis Oguk will mention that in his record of interview. He has not mentioned nor stated in anyway in that record of interview now before the court. It means there really is no consistency between the two accused. Each must be able to see what the other is doing because they are at the same place at the same time.
    
18. Gee Mundi does not state in the record of interview that Michael Wanpis Oguk has gone to the tables at the side of the road to chew betel nut. And that one of the persons he met whilst chewing betel nut is Julie Kambie. Common Sense and logic demand that reference is made immediately to witnesses that one was with to strengthen the case, as is the case here. He does not name the witness because she is not there in the first place ever. And which is very clear when this witness is cross examined by the State, who told you to come and tell this story. She does not reply with an answer. And she is not mentioned by name by Michael Wanpis Oguk. In fact, she admits that she came to help him. Again, when asked a very simple question, what date is it, she says No. Plainly deduced by this evidence this is a witness who was never there on that day. Because she simply cannot put the date on the day. And is not mentioned by Michael Wanpis Oguk in his sworn evidence and also the record of interview.
    
19. It is the same for the next defence witness Goi Karap he is talking about incident of the 05^th July 2022 and therefore has no relevance to 03^rd July 2022. He is a witness who does not get a mention in the record of interview of both accused. He is not mentioned in their respective evidence on oath in court. Clearly, he is someone who has been brought to make out what is not there in the first place. There is no continuity and relevance in his evidence it is not of 3^rd July 2022 but two days later on the 5^th July 2022. This means there is simply no evidence as to the prior conduct of the State witnesses principally Augustine Kongiye, Jimmy Pell and Sai Goi. There is nothing drawing against their credibility. They have told the truth as it has unfolded individually before them on the 03^rd July 2022.
    
20. And this is very plain that the Accused Gee Mundi and Michael Wanpis Oguk are intent all out to make out a defence case that is not there in the first place. This is evident by the exhibit D3 Unsworn s96 statement of the accused Gee Mundi in the committal. There is no evidence before this Court from either Diane Mundi, or the husband Felix. And the record of interview closer in time to the allegation does not contain the names of these witnesses. And there is no report to the police on the allegation against Augustine Kongiye that has sustained in the District Court in Minz. And if this is not enough exhibit D4 record of mediation from the Jiwaka Provincial Government Division of Law-and-Order North Waghi District Administration dated 07^th September 2022 for the compensation to be made for the death of late Joel Pel, presumably the deceased Joel Yambe. It is originating from the office of the Peace and good order committees. Signed respectively by Mr Michael Gilma North Waghi Chairman, Mr John Taime Banz district Chairman, Mr Lucas Guan Ward Peace Officer Nongugl LLG Jiwaka Province. That is a full compensation demand for K400, 000.00 plus 100 live pigs. Bel Kol paid K50, 000.00 plus 20 pigs. It is the evidence of the accused Gee Mundi that bel kol has been paid. And it is a lot of money for an accused who did nothing wrong. Criminal Compensation is only K5000: Aquila v Independent State of Papua New Guinea [2020] PGSC 113; SC2023 (29 October 2020) and made after a verdict has been pronounced, but the goodness of the heart of a defendant should not be discouraged. Here is real attempt to dissolve a trying situation. It is not an admission of guilt by itself. But must be looked at with all the evidence for and against to give what it is in the overall case. Here the totality of this conduct is clearly responsibility by the accused and their people for the death of Joel Yambe. It would not be right in law to ignore it. It is inconsistent when the aggregate of the defence case is weighed. There really is no defence at all in the hands of both accused when weighed alongside the State case. They do not par out because the State case outweighs and brings to light the allegations on the Indictment in favour of the State more.
    
21. What has happened on the 3^rd of July 2022 is clearly within the knowledge of the accused a crime. They do not admit it, but their actions and conduct speak otherwise. It is personally known to them. They alone will answer for it Bonu and Bonu v The State [1997] PGSC 11; SC528 (24 July 1997). Because ultimately the only question for the court is whether the guilt of the accused is the only rational inference that all the circumstances would enable it to draw, Morris, The State v [1981] PNGLR 493. Which approved and endorsed Barca v. The Queen [1975] HCA 42; (1975) 133 C.L.R. 82. That is our law and when viewed in this principle of law, only one hypothesis is the only rational hypothesis open on all frontiers, it is the guilt of both Accused on the indictment.
    
22. What has happened here is that both accused have deliberately told lies out of a conscious sense of guilt. That sense of guilt is demonstrated in the attempt both have tried to bring evidence to support their cause. This is with the knowledge that they do not have a foothold to step out of the fire they have lit. It has grown to such an extent where they have blood on their hands for the attempted murder of Augustine Kongiye and the intent to kill and the killing of Joel Yambe. They have not set in place boulders to cross the running river of guilt against themselves. And both know very well they have no defence at all. These are deliberate and calculated lies concocted out of that conscious sense of guilt which corroborates in all material particulars the version of the prosecution affirming the contentions of the state: John Jaminan v The State [1983] PNGLR 318. It means it is safe to find that the Accused Michael Wanpis Oguk had started the assault in the way that the witnesses have described. That he urged Gee Mundi by the accused against the deceased. Common sense denotes that there will be injuries because of the attack upon the accused by the deceased. It is logically that the accused must have some injuries consistent with the fact that he was defending himself from the deceased. This itself is a very serious unexplained inconsistency in the evidence. Because it does not accord with logic and common sense. And as such they will be rejected: Kandakason v The State [1998] PGSC 20; SC558 (7 July 1998); and also, Waranaka v Dusava [2009] PGSC 11; SC980 (8 July 2009). Their defence therefore falls by the wayside. What remains is now the evidence that the State has led.
    
23. Gee Mundi has never ever produced the gun that he held on to that day 03^rd July 2022 ever. Together with his licence with the licence number, name of the licence holder and address of the holder. It will contain a photograph of the licence holder. Further the licence will detail out the make of the weapon. The type of the weapon. The calibre of the weapon. And the purpose of the weapon. When the licence will expire. It is usually for a year pursuant to section 9 (5) of the Firearms Act. By section 7, 20, 21 of the Firearms Act (As Amended) Gee Mundi has not in his evidence produced the permit that entails him to carry that subject firearm on this day 3^rd of July 2022. But reliance on the details of the weapon produced by the State through the Crime Scene Officer Chief Sergeant Joseph Numbos does not assist Gee Mundi. He has not brought the subject weapon that was in his possession on 3^rd July 2022.
    
24. Joel Yambe was shot with a gun, a firearm on the 03^rd July 2022 in the left chest at 9.00am at Waghi Valley Village, Banz. Medical Evidence exhibit P4 by Doctor Kelvin Kalate, Examining Medical Officer of the Mt Hagen General hospital concludes, “In my opinion, he died from a massive left haemothorax due to a penetrating chest injury from a firearm as a result of homicide.” The history set out in that medical report was “the deceased was said to have been shot on his chest on the 03^rd July 2022. He was brought to Kunjip Hospital, however succumbed to his injuries and died the next day on 04^th July 2022 at 11.30am. General Physical Examination was that...He had wound dressings applied and intact on the left anterior and lateral chest, left upper limb and left inguinal area. The external examination, “Chest- (1) There was an oval shaped bullet entry wound on the left mid clavicular area. There was blackening of the surrounding skin edges of the wound with an abrasion ring seen. Also, stippling was noted in the surrounding area. (2) There was a superficial incisional wound over the left anterior chest. (3) There was a thoracostomy wound seen within the left safe triangle. Abdomen- There was stitched up incisional wound on the left inguinal area....Limbs- There was an incisional wound extending from the distal left forearm to the distal arm with its depth reaching the muscle compartments.”
    
25. And the internal findings......“Chest- (1) There was subcutaneous collection below the bullet entry wound. (2) The left clavicle and 1^st rib were fractured at the area where the left subclavian vessels pass out of the thoracic outlet. (3) The left Lung was collapsed with a massive blood collection seen within the left thoracic cavity. (4) A bullet fragment Exhibit P5 was found within the blood collection in the left thoracic cavity.”
    
26. These medical findings and conclusions independently confirm and corroborate materially what Augustine Kongiye on oath has stated. They firm out his statement tendered by defence Exhibit D1 his statement tendered by the defence, together with that of Jimmy Pel including his statement Exhibit D2 tendered by the Defence, and Sai Goi saw on that day 03^rd July 2022. All three give a consistent and credible account of what they saw and did on that day. I am satisfied that beyond all reasonable doubt that a revolver was fired by Gee Mundi at Augustine Kongiye exiting his right shoulder and entering the left shoulder of Joel Yambe and injuring him fatally as set out by the medical reports details of which I have set out above. The evidence is very clear that no other person fired a gun at Augustine Kongiye and Joel Yambe. The evidence is that Gee Mundi fired that gun at both Augustine Kongiye and Joel Yambe. He said he fired to scare them because they had stolen from his vehicle parked there. And they had stolen from the vehicle a phone charger and a black laptop bag. So, he fired into the air to stop them from taking and running away those items.
    
27. Augustine Kongiye was shot at very close quarters four (4) meters directly in front of him. In that position the shooter will not miss. And the velocity of the discharge of the projectile would where the layer it was passing through thin would pass through it and exit. That is what happened here viewed with the wound of Augustine Kongiye viewed in photograph P6 (3) and P6(4). And which is very well illustrated by Photograph P6(2). It shows Augustine in front with the deceased at angle to his right depicted out by Jeffery Yambe. But if the gun shot entered his right chest it would in that path go into the left chest of the deceased depicted in the photograph by Jeffrey Yambe. And he would fall as demonstrated by Sergeant Bill Kundala in that photograph.
    
28. They are self-explained which is what Exhibit P6 statement of Joesph Numbos Chief Sergeant of Police National Forensic Science Centre Varahe Road, Gordon, National Capital District, attached with the Firearms and Toolmark section is. He has sound qualification and basis having served the police force for 37 years. And the skills acquired training conducted for a year at the State Forensic Science Laboratory in Melbourne Australia on Specialized Crime Scene Techniques is sound basis to accept and to rely on his evidence to demarcate the truth from that which is not. Particularly having regard to the fact that he is a very experienced firearms expert having seen many scenes of crime where firearms were used in the offences. And here it is relevant to lay out that the bullet fragment Exhibit P5 obtained after postmortem from the body of Joel Yambe “was deformed but had clear striation lines of the rifling of the barrel of a gun. From my opinion, this projectile was fired from a revolver and not a pistol.”
    
29. On the 03^rd July 2022, immediately after the allegation of the shooting the firearm BKTT-917 with its licence number Firearm Licence number 108273 in the name of the Company Waghi Food Processor Limited, together with Gee Mundi’s, Permit to Carry Licence Number 112915, licence expired on 16/09/2022, was not surrendered to Police there and then. That is the evidence of Detective Sergeant Bill Kundala who asked for the subject firearm immediately after the incident on the 03^rd July 2022, upon the Managing Director Robert Mundi. That one of his firearms was used in the shooting incident. And that Gee Mundi had used it. Even when it was requested for surrender next day 04^th July 2022, it was not surrendered to Police. Even if the accused was taken into custody for that allegation on the 04^th July 2022, he did not volunteer its surrender. Alternatively take the police to the factory and give the weapon to Police. It remains as it is not surrendered to police. What is before the court did not emanate from his hands. It remained outstanding until July last year 2023, when Robert Mundi surrendered it. He is the Managing Director of Waghi Food Processor Limited. He is not accused of the wilful murder of Joel Yambe. But if his evidence is looked at with the evidence of Augustine Kongiye for the offer, he made through his PRO to take K10, 000.00 and the job at carwash it can be inferred as an attempt to conceal and to distort the evidence. This intent becomes very clear upon the accused Gee Mundi who is the son of Robert Mundi. There is no surrender of the firearm that was in the possession of accused Gee Mundi on that day ever. Reliance on the Glock pistol serial number BKTT-917, Exhibit P3 is very clear intent to conceal the evidence by the father to clear the son. Because that is not the murder weapon. It is a revolver from the evidence of the firearms Examiner Chief Sergeant Joseph Numbos. It now confirms that Glock pistol serial number BKTT-917, Exhibit P3 was not at the scene of the shooting on that day 3^rd July 2022. It was not in the possession of Gee Mundi on that day. He had a revolver that has been outstanding and not disclosed to police.
    
30. There is a very serious and lingering break in the chain of evidence from him to the deceased. What is recovered out of the body of the deceased is from a separate weapon, a revolver. That means a revolver was fired on that day 03^rd July 2022 at Augustine Kongiye who was positioned as seen in the reconstruction photograph P6(2). It is not immediate and has been tampered with, or exchanged because it was a revolver that was fired not a pistol. Only one gun was fired at on the 03^rd July 2022 at 9.00am at Waghi Valley Village, Banz, Jiwaka. That gun was fired at that location by Gee Mundi whose assertion is that it was into the air not at the victims, one deceased, Joel Yambe. That places the man at centre stage who must cooperate with Police and surrender what weapon he had in his possession to police on the 03^rd July 2022. Gee Mundi has not done despite the fact undisputed that he fired a gun on the 03^rd July 2022 into the air to distract and recover his phone charger and black laptop bag that was stolen by Augustine Kongiye assisted by Joel Yambe.
    
31. On Thursday 14^th July 2022, Chief Sergeant Joesph Numbos Police National Forensic Science Centre Varahe Road attended the scene of the shooting and murder along the Waghi Valley road at Banz, Jiwaka Province of the deceased Joel Yambe. Where he took Exhibit P6 (1), to P6(8) photographs after his examination of it. His attendance was some (11) eleven days after the shooting. Which in my view is good evidence because it is bound to be fresher than giving evidence after lapse of two years on this matter. It would be preferable to go for the evidence (11) eleven days later. Logic and common-sense dictate that what is seen 11 days ago is fresher than what has been outstanding two years or more.
    
32. Photograph P6(1) is the straight stretch of the road going to Banz Township and the stones placed on the side of the road is where the deceased fell down. Photograph P6(2) is reconstruction of what happened on the 03^rd July 2022 as witnessed by Augustine Kongiye. He alleged that the deceased was standing behind him when they were confronted by the shooter who was facing them and discharged a firearm. It depicts case officer Detective Sergeant Bill Kundala standing where the deceased fell after he was shot. The line of fire is from the front immediately drawing straight from Jimmy Yambe as the shooter to Augustine Kongiye. And right behind him depicting the deceased is Jeffery Yambe slightly with his left chest in the line of fire from the right shoulder of Augustine Kongiye. Because he was standing behind him when they were confronted by the shooter who was facing them and discharged the firearm.
    
33. Photograph P6 (3) and P6 (4) show the surviving victim with his right shoulder just at the base of the neck bandaged the injury where the bullet went through injuring him exiting and fatally injuring the deceased killing him. The firearm was fired at very close quarters so that its force out from the gun a revolver in the hands of Gee Mundi was at extreme acceleration exiting to take the life of Joel Yambe. It is the reason why it went through the right shoulder of Augustine Kongiye exiting him, entering Joel Yambe on his left shoulder because he was immediately behind him. It is common sense from the way the reconstruction is set out in Photograph P6(2). The Shooter is directly diagonal straight ahead from to the victim and the deceased. In that distance there is almost zero chance of missing the target from the evidence of Augustine Kongiye on oath 4 meters. That is consistent with the distance set out in the photograph P6(2). And it draws consistent with the medical evidence corroborating that the injuries to both the surviving victim, Augustine Kongiye and the deceased bear out what is set out in P6(2) by the injuries depicted.
    
34. It is clear because it is a straight line of fire exiting out of the firearm held by the shooter directly into Augustine Kongiye who is Infront facing the barrel of the firearm from the shooter. It is no wonder it exited out of his right shoulder into the left mid clavicular area of Joel Yambe. Because that is what it is from the reconstruction. There is direct path of the travelling projectile from the gun, first lodging into the right shoulder of Augustine Kongiye exiting and entering into the left chest of Joel Yambe as set out by the medical report above. And it is consistent in all material particulars with the injuries that are painted out by the medical report. The reconstruction is just eleven (11) days after the shooting. Which is on Thursday 14^th July 2022 counted backwards to Sunday 03^rd July 2022. It is therefore fresh in the mind of Augustine Kongiye. He is not coming back as he does in the trial now, which is two years after the shooting, his injuries are still fresh and covered in the bandage plaster that he is carrying depicted out by the photograph P6(2). And that of the deceased Joel Yambe laid out in Photograph P6(5) on the mortuary table for Postmortem. And Photograph P6(6) depicting the removal of the projectile dislodged in him. The surrounding skin edges blacken consequently. And it is consistent that the left clavicle and the 1^st rib were fractured at the area where the left subclavian vessels pass out of the thoracic outlet. The left lung was collapsed with a massive blood collection seen within the left thoracic cavity.
    
35. This is postmortem by a doctor who is trained in his field of medicine. He was not present at the scene of the allegation on that day 3^rd July 2022. Nor was he part of the reconstruction team that visited the scene. He does not know how the gun was fired but his evidence pars out with that of the reconstruction that is led by Police Investigating. He is not interested in the outcome of the proceedings. His evidence is from what he has been trained as a doctor, no more no less. He is not a relative or immediate friend of Augustine Kongiye, or the deceased. What his independent evidence has done has corroborated in very material and fundamental particulars the evidence of the reconstruction. It is not tainted so that a verdict favourable to Augustine Kongiye and Joel Yambe is attained or secured. When it is viewed with the scene of the shooting, there is no obstacle to the views of the victim and the deceased. They are looking straight on into the barrel of the firearm as it is held by the shooter who is 4 meters or so from them. He is posed with it on a public road level out for the use of road traffic. That gives credit to the way that the vehicle of Gee Mundi was parked alongside.
    
36. I am satisfied beyond all reasonable doubt that Gee Mundi was armed with a revolver which he loaded and fired at the urging of Michael Wanpis Oguk who shouted out to him, shoot them shoot them, kill them directed to the victim Augustine Kongiye and Joel Yambe. Gee Mundi responded and discharged the revolver directly pointed at both of them. He fired and the bullet went through the right shoulder of Augustine Kongiye into the left Chest of Joel Yambe killing him because of the injuries he received.
    
37. I return a guilty verdict of wilful murder against Gee Mundi of Kandal and Michael Wanpis Oguk of Waghi Village, both of Banz Anglimp South Wagi, Jiwaka Province on the Indictment dated 02^nd of July 2024.
    
38. I order refund of their bail moneys forthwith and remand warrants be issued for their remand to await sentence.
    

Orders Accordingly,
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Office of the Public Prosecutor : Lawyer for the State
Office of the Public Solicitor : Lawyer for the Defendant