N11243

PAPU NEW GUNIEA
[NATIONAL COURT OF JUSTICE]

CR NO. 725; 726; 727; & 728 OF 2024

BETWEEN:
THE STATE

V

CHRIS KAZANG; AUGUSTINE PEI; NIGEL MINEMBO & DOUGLAS MUGARI

BOGIA AND MADANG: NAROKOBI J
12, 17, 18 FEBRUARY, 15TH APRIL 2025

CRIMINAL LAW– Wilful murder – whether the State proved the commission of the offence of wilful murder by each of the accused.

CRIMINAL LAW - Aiding and Abetting – Whether the State proved that the co-accused aided and abetted the principal offender. 

Facts

The accused were all charged with one count of wilful murder contrary to s 299(1) of the Criminal Code Act 1974, in that they aided and abetted each other to wilfully murder, one Mathew Ekalus, on 20 November 2023 at Kumnung Village, Ward 18, Yawar Local Level Government (LLG), Bogia District of Madang Province.

Held:

(1)	The question of who killed the deceased is answered by the evidence of two State witness, who gave direct, reliable evidence of the stabbing by the principal offender Nigel Minembo, of the deceased. There was no lawful justification for the killing. Consequently, the State has proven beyond reasonable doubt the elements of killing of a person, and the killing was unlawful.
 
(2)	As to the third element, that is whether Nigel Minembo intended to kill Mathew Ekalus, there is no direct evidence on this aspect. The evidence from the testimony of State witnesses was that the murder weapon was a hunting knife, 30cm to 50cm long. It was used to stab a vulnerable part of the body, the chest, close to the heart. Given this, the State has proven beyond reasonable doubt that Nigel Minembo intended to kill Mathew Ekalus from the type of weapon used and the nature of the injuries inflicted.

(3)	The State has therefore proven beyond reasonable doubt that Nigel Minembo committed the offence of wilful murder contrary to s 299(1) of the Criminal Code.

(4)	There is however a gap in the State’s case. While the state has proven beyond reasonable doubt that Nigel Minembo stabbed Matthew Ekalus, and this caused his death, there is no evidence of what Chris Kazan, Augustine Pei and Douglas Mugari did in relation to Mathew Ekalus. They may have aided and abetted each other to attack Gerald Tarva, but there is no evidence of Chris Kazan, Augustine Pei and Douglas Mugari aiding and abetting Nigel Minembo in the killing of Matthew Ekalus, especially on the element of intention to kill.

(5)	Consequently, the State has not proven beyond reasonable doubt that Chris Kazang, Augustine Pei and Douglas Mugari aided and abetted Nigel Minembo, and they should be acquitted of the charge of wilful murder.

Cases cited
Aieni v Tahain [1978] PNGLR 37
Biwa Geta v The State [1988-89] PNGLR 153
David v State (2006) SC881
Jimmy Ono v The State (2002) SC698
John Beng v The State [1977] PNGLR 115
Mako Ranjigi v The State [1994] PNGLR 44
Paulus Pawa v The State [1981] PNGLR 498
The State v Dippon (2014) N5705
Tawingo & Others v The State (2008) SC983

Counsel

Mr J Kasse for the State
Mr C Momoi for the accused

DECISION ON VERDICT

1.	NAROKOBI J:  Chris Kazang, Augustine Pei, Nigel Minembo, and Douglas Mugari were all charged with one count of willful murder contrary to section 299(1) and (2) of the Criminal Code Act 1974. The State also relied on s7(1) of the Criminal Code.

Background

2.	The accused all pleaded not guilty to the charge in the indictment and a trial commenced. The State tended documents by consent, and it also called three (3) witnesses who all gave sworn evidence. All the accused elected to give sworn testimony in their defence. They did not call any other witnesses.

3.	The brief facts that were put to the accused were as follows. All the accused were at Kumnung village, Giri, Yawar LLG, Bogia District, Madang province on Monday 20 November 2023 at 10am for a village mediation. The gathering for the mediation was to find out the cause of numerous deaths. Ground rules were read out at the mediation that there would be no alcohol, swearing words, offensive weapons and other disorder during the mediation. The mediation was conducted peacefully, and it was about to end, when the accused, armed with knives, attacked Gerard Tarva a person suspected of sorcery, stabbing him. While they were attacking Gerard Tarva, the deceased Matthew Ekalus intervened to stop them, when Nigel Minembo used a hunting knife to stab him below the chest on his left side. Matthew Ekalus fell on the ground and died instantly. Gerard Tarva, the first victim, was rushed to Bogia Health Center. He was admitted for three (3) weeks for treatment of the multiple knife wounds he received.

Overview of the Evidence Tendered

4.	The State relied on documentary evidence and testimony from three (3) witnesses:

•	Patrick Khum, 29 years old, from Kumnung Village, Bogia District, Madang Province.
•	Herman Yiyiri, a Health Extension Officer at Bogia Health Centre.
•	Willie Panti, 68 years old, from Kumnung Village, Bogia District, Madang Province.

5.	One of the State witnesses listed in the indictment, Gerard Tarva, recently passed on. He was to have been one of the three State witnesses who was to give evidence of what they saw on the day of the allegation before the court now.
 
6.	Documents tendered by the State with the consent of the accused include the record of interview of the accused conducted by the arresting officer, Seargeant Albert Saui, and his corroborator, Detective Senior Constable Aloysius Gabe, the medical death certificate of Mathew Ekalus, and Gerard Tarva’s medical report.

7.	Each of the accused elected to defend themselves by giving sworn testimony against the allegations brought by the State. 

Elements of the Offence

8.	It is trite law that the State must prove each element of wilful murder under s 299(1) of the Criminal Code beyond reasonable doubt. These elements are: 1) the accused killed a person; 2) the killing was unlawful; and 3) the accused intended to cause the death of the deceased.

9.	The element of intention to kill can be determined from the type of weapon used and the nature of the injuries (Mako Ranjigi v The State [1994] PNGLR 44).

10.	 This is a case that is based on identification evidence, and aiding and abetting. I therefore set out the principles I am required to consider in the facts of this case.

Law on Identification Evidence, and Aiding and Abetting

11.	The cases of John Beng v The State [1977] PNGLR 115, Biwa Geta v The State [1988-89] PNGLR 153 and Jimmy Ono v The State (2002) SC698 provide the accepted principles a Court must be alert to when it considers the evidence of a witness identifying an accused who denies involvement. These considerations are:

•	There must be issued an appropriate self-caution.
•	There must be a careful assessment of the identification evidence.
•	An honest witness may be a mistaken one.
•	An identification witness must be honest and accurate.
•	Whether the evidence is corroborated.
•	Whether the person to be identified is a stranger or is known to the witness.
•	The length of time the witness observed the accused.
•	The emotional state of the witness.
•	The prevailing conditions.
•	The line of sight.
•	An accused is presumed innocent and sufficient weight is given to the accused defence evidence.
•	Accused right to remain silent is enforced.
•	Elements of the offence are accurately set out and applied.

12.	I bear all these considerations on identification evidence in mind, when I am assessing the State’s evidence.

13.	I also apply the principles of aiding and abetting under s 7(1) of the Criminal Code. For derivative responsibility to be established i.e. aiding and abetting, there must be both an intention to encourage the commission of an offence, and an encouragement in fact to commit an offence (Aieni v Tahain [1978] PNGLR 37).

State’s Evidence

14.	The first State witness called was Patrick Khum. Patrick Khum is from Kumnung village, Giri, Bogia District, Madang Province. He is 29 years old and married. He says he witnessed the death of Matthew Ekalus. The deceased died when he was stabbed by the accused persons who also attended the mediation. He named each of the accused and identified them in court. He said after the mediation talks, a person, named “Felix Garu” said “kan,” that's when the accused persons rushed in, to attack. He said he was the first one they attempted to stab. The deceased intervened to save Gerard Tarva when he was attacked and killed. He saw Nigel Minembo, from a distance of one (1) meter. He used a knife 30cm to 50cm in length to stab the deceased around the chest area. He also said that the mediation commenced at 10.00am and the fight broke out around 3:00pm. When the deceased died, he held him in his arms and cried because they are blood brothers. He said all the accused attacked the deceased but it was Nigel Minembo who stabbed the deceased. He was able to identify all the accused standing in the dock.

15.	In cross-examination he said during the mediation more than 300 people attended. It was an important community event, so all the villagers attended. When the fight broke out everyone fled, but he remained to protect his brother. When the deceased was stabbed, he fell and Patrick Khum said he ran over to assist the deceased’s father put Mathew Ekalus on a bed. He says he is in court to give evidence against Nigel Minembo, Douglas Mugari, Chris Kazang and Augustine Pei, to defend his brother. He said he was one (1) meter away, and clearly saw everything that happened. The deceased was stabbed on the left side of his chest. He said he was telling the truth, and he is not lying to the court.

16.	At re-examination, Patrick Khum stated that he could not say precisely how many people attended the mediation, but that there was a lot of people. He then reiterated what he said during cross-examination that the deceased was stabbed on the left side of his chest.

17.	The next State witness was Matthew Yiyiri. He looks after the Bogia Health Center and has been the officer in charge for the last 10 years. He is a Health Extension Officer with 26 years’ experience. He has a diploma in Allied Health Sciences and is a field epidemiologist. He explains the deceased cause of death, which was caused by internal hemorrhage or severe internal bleeding. This was what happened to the deceased from a knife wound to the left side of his chest.

18.	Willy Panti was then called after Mathew Yiyiri. He said he was in court to give evidence concerning Matthew Ekalus’ death. He said at the mediation, people were blaming Gerard Tarva as a sorcerer, so the community gathered to resolve this issue through mediation. Towards the end of the mediation a fight broke out and Chris Kazan, Nigel Minembo, Augustine Pei and Douglas Mugari collectively tried to attack Gerard Tarva. However, instead Nigel Minembo, who was part of the group, stabbed Matthew Ekalus. He said the deceased intervened to protect Gerard Tarva when he was stabbed. The deceased fell to his father’s feet when he was stabbed. Willie Panti said he saw everything, in broad daylight, with no obstruction to his sight, at a distance of one (1) meter from where he was. The attack happened around 3:00pm, and Nigel Minembo used a 30cm to 50 cm knife to stab the deceased in his chest. All the accused were identified in court.

19.	In cross-examination he said there were a lot of people. He was asked if he knows a Joe Mangira, but he said it was Felix Garum who said “kai kan,” and the fight broke out and the first accused person came in to attack. He said it was Felix Garum’s group who started the fight. He said everyone ran away but he was there and saw Nigel Minembo stab Matthew Ekalus.

20.	In re-examination he said it was Felix Garum side who started the fight. 

Defence Evidence

21.	Nigel Minembo gave evidence for himself. He is 25 years old from Kumnung village of Bogia District. He admitted to stabbing Gerard Tarva but not Matthew Ekalus. He also said he didn't attempt to stab Patrick Khum. He said the incident happened on 20 November 2023 where all the community gathered to witness the sorcery related mediation. When Joe Mangira shouted and said, “fuck I will kill someone,” Felix replied and said, “kaikai kan you will compensate the head of my father,” and the fight erupted. That day people from 13 communities gathered for mediation when the fight happened. There were lots of people who rushed to attack Gerard Tarva. He said he was in the group and went straight and attacked Gerard Tarva. When Gerard tried to escape, he said he cut him. That day he said he did not see any of the accused persons. At that time he did not see the deceased too. He said people ran away and when they returned, they saw the deceased body. He also ran away and stayed home. Sometime at about 5:00pm he was told that the deceased died. He said there were about 300 to 400 people there.

22.	In cross-examination he said he was literate, having completed grade 11. He admitted to cutting Gerard Tarva. He said he used a bush knife to cut him. He said he's not related to John Mangira but related to Felix Garum who is his uncle. He said Felix said, “kaikai kan,” and he was in the group that attacked Gerard Tarva, however he could not recall the names of those people who collectively attacked Gerard Tarva after the mediation. He said he was 50m away, hiding in his house when he saw Matthew and Gerard’s family returning to retrieve the deceased body.

23.	Chris Kazang said he was not there during mediation, and he was not there with the group who killed the deceased. He said he heard about the news of the deceased around 6.00pm. During cross examination he said he and Douglas Mugari and Augustine Pei went to the bush to beat sago. He said he met Michael and Juanita Kazang. When it was put to him that Patrick Khum really saw him, he denied being present at the mediation. When the court asked why he was there beating sago when everyone in the village was at the mediation, he said he was making sago to sell to get school-fee money for his children.

24.	Augustine Pei said he was not at the mediation. He was with Chris Kazan and Douglas Mugari. Michael and Juanita also came and saw them beating sago. He said it was 10km from the village to go to the place where they were beating sago. Michael and Juanita saw them around 9:00am in the morning, beating sago and went to attend mediation. They then came back and told them about the death of the deceased. They were basically helping their uncle make sago to raise funds for Chris Kazan's grade 7 child studying in Lae. When it was put to him that he was lying he denied being present at the mediation or attacking the deceased.

25.	Douglas Mugari gave the same evidence as the other two co-accused, Chris Kazang, Augustine Pei and Douglas Mugari. Additionally, he said that it is 10km from the village to the place of beating the sago, and another 10km from village to the mediation area. Desmond Kazan is the name of the grade 7 students studying at Bugandi Primary School. He also said Michael and Juanita never told them about the accusations after they returned from the mediation.

State’s Submissions

26.	The State submits that the court must not believe the testimonies of the accused because their story sounds as if they have planned what to say in court. There is collusion in their testimonies, which contain many inconsistencies. For example, the three co-accused Chris Kazang, Augustine Pei, and Douglas Mugari claimed to be beating sago 10km away during the mediation for children’s school fees. They all named the same alibi witnesses Michael and Juanita Kazan. The uniformity of their account raises serious doubts about their version of events and the real possibility of collusion, because the two State witnesses (Patrick Khum and Willie Panti) identified them as participants in the killing of the deceased. Douglas Mugari added that Michael and Juanita never told them about accusations of their involvement after returning from the mediation. This undermines their own alibi's credibility. Douglas Mugari claimed the sago site was 10km from the village. That would mean Michael and Juanita Kazan had to walk 10km to see them at the sago beating site, walk back to the village another 10km, and then walk to the mediation site for another 10km, walk back from the mediation area to the village to another 10km, and then walk from the village to the sago site which is another 10km a total of 50km to inform them about what happened at the mediation. Although the names of Michael and Juanita Kazan were mentioned in court by Chris Augustine and Douglas, alibi witnesses were not called to test the credibility of the suggestion they made about not being present at the mediation.

Defence Submissions

27.	The Defence submits that the State had failed to prove beyond reasonable doubt that Nigel Minembo willfully killed the deceased and Chris Kazan, Augustine Pei and Douglas Mugari were aiding and abetting Nigel Minembo.

28.	The State witness, Patrick Khum said he was one (1) meter away when the deceased was stabbed by Nigel Minembo, however, Patrick Khum contradicted himself on which side of the chest the deceased was stabbed. In the examination in chief, he said right chest was stabbed and in cross-examination he said left chest. Patrick's evidence that he was attacked first by Nigel Minembo is not corroborated by Willie Panti.

29.	The two State witnesses gave evidence that they were both one (1) meter away when the deceased was stabbed. They say the four accused were involved, however they do not say how Chris Kazan, Augustine Pei and Douglas Mugari were attacking Gerard. They do not say if they used their hands or weapons to attack. The evidence before the court is that only Nigel Minembo had a knife. The defense submits it is unclear how Chris Kazan, Augustine Pei, and Douglas Mugari were actively aiding and abetting Nigel Minembo. Under the circumstances, the version of events stated by Nigel Minembo is more consistent. Everyone was afraid and ran away when the fight broke out. The Defence submits the court should therefore find accused not guilty of willful murder and acquit them.

Findings of Facts

30.	Both the State witnesses and the Defense evidence before the court have been considered. In my view the State witnesses’ version of events is to be believed over that of the accused. In my view Patrick Khum was there and he saw Nigel Minembo stab Matthew Ekalus on the chest. Due to the rush of events, it would have been difficult for the witness to remember precisely whether it was the left side or the right side that Nigel Minembo stabbed Mathew Ekalus. It is not disputed that Nigel Minembo had a knife at that time. He said he used that knife to attack Gerald Tarva. He, however, said he had no knowledge about who stabbed Matthew Ekalus.

31.	Given that there is direct eyewitness of his presence at the crime scene, and he does not deny that he had a knife, and he used that knife to attack Gerard Tarva, common sense and logic suggests that if anyone came to stop Nigel Minembo attacking Gerard Tarva, he would turn on them. Patrick Khum’s evidence on this aspect is corroborated by the evidence of Willie Panti. 

32.	Based on the above discussions, I find that Nigel Minembo stabbed Mathew Ekalus on his chest. The wounds from the chest, led to internal bleeding, and this caused his death. The explanation on the cause of death is from the evidence of Herman Yiyiri.

33.	There is no evidence that the Nigel Minembo acted in self-defence or that it was an accidental killing. His defence is one of general denial.

34.	I therefore find that the first two elements of the offence of wilful murder have been proven beyond reasonable doubt, that Nigel Minembo killed a person, Mathew Ekalus, and there was no lawful justification for the killing, thereby, an unlawful killing.

35.	The issue now is whether Nigel Minembo intended to kill Mathew Ekalus. There is no direct evidence on this aspect. In the case of Mako Ranjigi v The State it was held that intention to kill can be attributed to the weapon used and the nature of the injuries. The evidence I have accept from the testimony of Patrick Khum and Willie Panti was that the murder weapon was a hunting knife, 30cm to 50cm long. It was used to stab a vulnerable part of the body, in the chest, close to the heart. Given this, I find that the State has proven beyond reasonable doubt that Nigel Minembo intended to kill Mathew Ekalus.

36.	I also find that Chris Kazan, Augustine Pei, and Douglas Mugari, lied about being away at that time making sago. Their story is incredible and is hard to believe and defies common sense and logic. When the whole village is at an occasion that is very important to them, there is no reason for them to be away from that place making sago. The State has also submitted that the court should take judicial notice that there is no such school as a Bugandi primary school. They have come up with a convenient story to remove themselves from the scene of the crime. Given their incredible story, and that they have not called alibi evidence, I find that they have given false testimony.

37.	There is however a gap in the State’s case. While the State has proven beyond reasonable doubt that Nigel Minembo stabbed Matthew Ekalus, and this caused his death (from the evidence of Herman Yiyiri) there is no evidence of what Chris Kazan, Augustine Pei and Douglas Mugari did in relation Mathew Ekalus. They may have aided and abetted each other to attack Gerald Tarva, but there is no evidence of Chris Kazan, Augustine Pei and Douglas Mugari aiding and abetting Nigel Minembo in the killing of Matthew Ekalus, especially on the element of intention to kill.

38.	Mathew Ekalus came in to help Gerard Tarva, and it appears that Nigel Minembo acted spontaneously to attack Mathew Ekalus, and in the absence of any evidence of pre-planning, and that the only evidence of intention to kill was from the weapon used and the nature of injuries sustained by the deceased, it would not be safe for me to attribute to Chris Kazang, Augustine Pei and Douglas Mugari the element of intention to kill.

39.	From the testimony of Patrick Khum and Willy Panty, the evidence of active involvement of Chris Kazang, Augustine Pei, and Douglas Mugari in the killing of Mathew Ekalus is not strong enough for me to establish their active encouragement in the commission of the offence, beyond their mere presence in the location of the place where the offence was committed.   

Verdict

40.	Based on my findings of facts, I will return a verdict of guilty of willful murder of Nigel Minembo, and not guilty for Chris Kazan Augustine Pei and Douglas Mugari.

41.	I will now proceed to hear submissions on sentence of administering of the allocutus and consideration of any pre-sentence report, on application by the offender.

42.	Judgment and verdict accordingly.

Lawyer for the State: Acting Public Prosecutor
Lawyer for the accused: Public Solicitor