N11027
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1318 OF 2020

BETWEEN
THE STATE

AND
JAPHERTY RIMBOHO
Accused

Wewak: Makail, J
2024: 11th, 12th, 16th, 17th April, 2nd & 4th October

CRIMINAL LAW – VERDICT – Murder – Plea of not guilty – General denial – Identification of accused – Violent confrontation by two groups of men – Principal offender – Assault of deceased – Head wound – Cause of death – Proof of – Death of deceased not in issue – Criminal Code – Section 7 & Section 300(1)(a) 
Cases cited:
Nil

Counsel:
Ms D Ambuk, for State 
Mr A Kana with Mr A Koraino, for Accused 

VERDICT

4th October 2024
1.	MAKAIL, J: The State presented an indictment charging the accused with one count of murder of one George Wingu on the morning of 17 May 2020 contrary to Section 300(1)(a) of the Criminal Code.  

Brief Allegations of Fact 
2.	The State alleged between 6:30 am and 7:30 am on 17 May 2020 one Kamillus Pikiora (“Kamillus”) arrived home from receiving treatment for a knife wound that he sustained on the night of 16 May 2020 as a result of being attacked by one Moses Jiragori Jajaho (“Moses”).
3.	Kamillus, his brothers and uncles including the deceased George Wingu (“George”) decided to approach Moses to resolve the dispute.  From their homes, they proceeded to Moses’ block.  Before they arrived at Moses’ premises, Kamillus saw Stafford Wafi (“Stafford”), Moses and the accused were armed and standing on the road.  Stafford was armed with a bush knife, Moses was armed with two bush knives and some metres behind them, stood the accused.  He was armed with an iron rod.
4.	Kamillus called out to them that he and his family members had come not to fight but to settle the conflict.  Moses retorted in the Kubalia dialect and translated to Pidgin as follows “banisim ol na katim ol”.  When he heard this, Kamillus told Moses “Yu bikpela man ya, stopim pastaim”.   
5.	As Kamillus was talking to Moses, Stafford came up from behind Kamillus and blocked his way.  Moses confronted Kamillus from the front and attempted to cut him with the bush knife.  At that point, Kamillus heard the deceased called out to the parties not to fight.  
6.	When he turned towards the deceased, he saw the accused strike the deceased on his head with the iron rod.  The deceased fell to the ground and laid there motionless.  Stafford walked up to the deceased and stood over him and threatened the bystanders not to retrieve the deceased’s body because if they do, he would, chop it up.
7.	Despite Stafford’s threat, Beatrice Huarauru (“Beatrice”) and David Pikiora (“David”) ran to the deceased’s aid and the perpetrators fled. The deceased was taken to Boram General Hospital where he was admitted for treatment but died on 18 May 2020.
8.	The State invoked Section 7(1)(a), (b) & (c) of the Criminal Code and alleged that the accused aided and abetted Moses to confront Kamillus and brought about the assault on the deceased which caused the injury that led to his death, thus contravening Section 300(1)(a) of the Criminal Code.
State’s Evidence 
9.	The State’s evidence consists of documents and oral testimonies of three witnesses:
(a)	Statement of Corroborating Officer Senior Constable Jackson Wavien in English – Exhibit “P1”.
(b)	Statement of Arresting Officer Senior Constable Francis Waiu in English dated 11 August 2020– Exhibit “P2”.
(c)	Post-Mortem Report by Dr Jimmy Kambo – Exhibit “P3”.
(d)	A 2-page document consisting of photographs of deceased’s injury – Exhibit “P4”.
(e)	Record of Interview of the accused in Pidgin and English dated 10th August 2020 – Exhibit “P5”.
10.	The witnesses who gave oral testimonies and were cross-examined, are:
	(a)	Kamillus Pikiora.
	(b)	Beatrice Huarauru.
	(c)	David Pikiora.	
Defence Evidence
11.	The accused gave oral testimony and was cross-examined.  
12.	Two other witnesses gave oral testimonies and were cross-examined.  They are:
	(a)	Moses Jajaho, and
	(b)	Keith Jaromo.
13.	The defence tendered the following exhibits:
(a)	Medical report by Medical Officer Dr Steven Kauke dated 8 June 2002 for Moses Jajaho – Exhibit “D1”.
	(b)	Photograph of injury sustained by Moses Jajaho – Exhibit “D2”.
(c)	Court order dated 28 April 2023 for Stafford Wafi – Exhibit “D3”.		
The Prosecution’s Case
14.	The prosecution case is based on the eyewitness accounts of Kamillus, Beatrice and David.  According to these witnesses:
•	there was an altercation between Kamillus and Moses on the morning of Saturday 17 May 2020. 
•	during the altercation Moses wounded Kamillus on his hand.  Kamillus sought medical treatment.
•	After getting medical treatment, Kamillus returned and around 7 o’clock that same morning, mobilised his relatives and friends and confronted Moses at his premises to settle the conflict. 
•	Moses was armed with two bush knives and Stafford was armed with a bush knife and had a mask over his face.  The accused was holding an iron bar.
•	during the confrontation Moses was attacked and wounded on the left side of his face by a bush knife strike from Donald Yambole.
•	meanwhile the accused attacked the deceased by striking him on the head with the iron bar.
•	the deceased collapsed and passed out.  
•	despite Stafford’s threat to attack anyone to assist the deceased, Beatrice came to the deceased’s aid and was later joined by David. 
•	the deceased was rushed to the Boram General Hospital for medical treatment but died the next day.
The Defence Case
15.	Based on the account by the accused, Moses and Keith, the defence case is this:
•	there is no contest that there was an altercation between Kamillus and Moses on the morning of 17 May 2020.
•	Moses wounded Kamillus on his hand and Kamillus sought medical treatment.
•	later that morning Kamillus mobilised his relatives and friends and confronted Moses at his premises.
•	the accused was not one of the persons present during the confrontation.  He was still sleeping in his house nearby.
•	it was Stafford who struck the deceased on his head with a piece of timber.
•	the deceased later died.
•	Stafford was charged for the murder of the deceased, and pleaded guilty to a charge of manslaughter and was sentenced by the National Court on 28 April 2023 to a term of 13 years imprisonment with partial suspension.
Analysing evidence of parties
16.	Analysing the prosecution witnesses’ accounts, there is consistency and flow in their accounts.  Each witness’s account corroborated the other.  There is no contest that the lighting, visibility and line of sight between these witnesses and the accused was good.  
17.	In addition, while it was put in cross-examination by defence counsel to Beatrice and David that they were not present at the alleged scene of the offence and did not see the accused attack the deceased and further, there were inconsistencies in their accounts in relation to identification of persons who were present at the said location, these questions did not destroy the credibility of these witnesses. Thus, I prefer their accounts.  While I doubt the meeting at Moses’ premises was peaceful, what they saw and heard there on the morning of 17 May 2020 were intact.    
18.	They said that the accused is known to them because he lives in the same area as them at Yawasoro 4th Road.  Because of this, they recognised him as the person who was present with Moses and Stafford when the group of men led by Kamillus arrived.  The combine effect of their accounts placed the accused at the scene of the alleged offence, that is at the premises of Moses.
19.	The defence relied on the defence of general denial.  It did not rely on the defence of alibi although by the accused’s own account, he was not present at the time the deceased was attacked and wounded.  He was sleeping and was woken up by the cries of the wife and children of Moses.  He got out of his bed and by the time he arrived at the alleged scene of the offence, he saw Moses covered in blood from the wound on his face.  
20.	When it was put to the accused by prosecution counsel in cross-examination that he assaulted the deceased, he said that he did not see the person who assaulted the deceased because he arrived late at the alleged scene of the offence.  Despite the accused’s account, defence counsel did not press the point.  
21.	This was a proper move by defence counsel because there was no prior notice given to the prosecution that the defence will rely on defence of alibi.  The prosecution found out that the defence ‘might’ rely on defence of alibi when the accused testified at trial.  This has put the prosecution in an untenable position because the defence did not give it the opportunity to verify the credibility of the accused’s alibi prior to the trial.
22.	Secondly, the defence did not call any alibi witness to corroborate the accused’s account that he was sleeping when the deceased was attacked and wounded.  Moreover, Keith’s account falls short of an alibi witness account because he did not say that he was with the accused in his house at the time the deceased was attacked and wounded. 
23.	Keith’s account was that the accused was not present at the alleged scene of the offence, and it was the deceased who attempted to strike Moses with the bush knife.  This was when Stafford intervened and struck the deceased on the head with a piece of timber.
24.	Given the lack of prior alibi notice and alibi witness, it was proper for the defence counsel not to press the defence of alibi.  The converse of this is the prosecution witnesses’ account placed the accused at the scene of the alleged offence, that is at the premises of Moses.
25.	Moreover, Keith’s account is consistent with Moses’ account that both groups of men were armed with bush knives and other weapons and during the confrontation had strong words exchanged between them.  Moses was armed with two bush knives and Stafford was armed with a bush knife and had a mask over his face.  The accused was holding an iron rod.
26.	I find that the situation at the material time was tense.  While Kamillus called for calm and peace, he was shouted down and strong abusive words were exchanged between the two groups which turned into a violent confrontation.  Stafford closed in on Kamillus from behind and Moses confronted him from the front and Moses struck Kamillus with a bush knife.  At that moment, the deceased came to the aid of Kamillus and swung his bush knife at Moses.  The accused retaliated and struck the deceased at the back of his head with the iron rod.  
27.	The location where the iron rod landed on the deceased’s head causing the wound is corroborated by the post-mortem report by Dr Kambo dated 11 June 2020 which stated that “Blund (sic) scale laceration over posterior occipital region of skull” (back part of the human head) (exhibit “P3”) and further corroborated by the photographic x-ray of the deceased’s skull and photograph of the deceased head (exhibit “P4”).  
28.	While I accept Moses’ account that Donald Yambole struck him on his face with a bush knife and wounded him as corroborated by the medical report by Dr Kauke (exhibit D1”) and the photograph (exhibit “D2”) and that the deceased swung his bush knife at him, I doubt it was Stafford who was armed with a bush knife dropped it and picked up a piece of timber and struck the deceased with it.  
29.	I accept the prosecution counsel’s submission that this kind of assertion is against logic and common sense.  When Moses was in great danger of being attacked by the deceased at that moment, there would be no time for Stafford to replace the bush knife he was holding with a piece of timber to then strike the deceased with it.  This means that the possibility that the deceased was struck on his head by a piece of timber from Stafford’s blow is unsustainable and rejected.
30.	I also think the accused is not being truthful about his participation in commission of the offence.  When he was asked a simple question if he assaulted the deceased by the prosecution counsel, he avoided the answer by answering that he did not see the person who assaulted the deceased.

Principal Offender
31.	This leaves the accused as the last man standing.  As it was a group of men attacking another group of men, the prosecution alleged that the accused is caught by Section 7 of the Criminal Code as a principal offender because he participated in the commission of the alleged offence.  
32.	One of the other men who participated in the commission of the alleged offence was charged and prosecuted.  According to the order of the National Court dated 28 April 2023 Stafford pleaded guilty to manslaughter and was sentenced to a term of 13 years imprisonment with partial suspension.
33.	As I have accepted the prosecution witnesses’ account that the accused was present at the scene of the alleged offence with the group of men led by Kamillus, I am satisfied that he participated in the commission of the alleged offence.  
34.	As to the accused’s degree of participation, I am satisfied that he played a major role in the commission of the alleged offence.  He was the person who struck the deceased on the back of his head with the iron rod. I am further satisfied that the element of the offence as to who caused grievous bodily harm to the deceased thus causing the death of the deceased is proved.   
35.	As to the element of intention, given that there was a violent confrontation between two groups of men over a conflict in relation to altercation between Kamillus and Moses where Kamillus was wounded, there is no doubt in my mind that the accused intended to cause grievous bodily harm to the deceased.  This element of the offence is also proved.
36.	Finally, as there is no issue as to the element of the death of deceased it is also proved.
Order 
37.	I return a verdict of guilty for the offence of murder under Section 300(1)(a) of the Criminal Code.
________________________________________________________________
Acting Public Prosecutor:	Lawyers for the State 
Public Solicitor:			Lawyers for the Accused