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Yala, Ralawe, Sumuli, The State v [1995] PGNC 162; [1995] PNGLR 431 (6 July 1995)

PNG Law Reports 1995

[1995] PNGLR 431 - The State v Otoma Onisa Yala, Simon Kaita Ralawe, Mulu Sumuli�

[1995] PNGLR 431

N1347

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

OTOMA ONISA YALA,

SIMON KAITA RALAWE,

MULU SUMULI

Mendi

Woods J

6 July 1995

CRIMINAL LAW - Sentence - Wilful murder - Village dispute over compensation - Whether worst type of killing - Death penalty or term of years - Aiding in the killing, s 7 Criminal Code.

Facts

The three accused were charged with wilful murder: the first two for shooting the deceased, the third for aiding in the commission of the offence as a result of a village dispute over compensation.

Held

N1>1.������ All three accused were present at the scene and all were armed with guns.

N1>2.������ Otoma Onisa Yala and Simon Kaita Ralawe both fired shots at the deceased. One of the shots hit and killed the deceased.

N1>3.������ There was intention not just to injure but also to kill. That is wilful murder.

N1>4.������ However, this was not a worst type case. Yala and Ralawe are sentenced to life imprisonment.

N1>5.������ Mulu Sumuli is also guilty, in accordance with s 7 Criminal Code.

Counsel

J Kesan, for the State.

O Oiveka, for the defendant.

6 July 1995

WOODS J: The three accused, Otoma Onisa Yala, Simon Kaita Ralawe, and Mulu Sumuli, are each charged with the wilful murder of Ruma Ruli on 7 January 1994 at Wakipanda village in the Kagua District of the Southern Highlands.

The State evidence is from four witnesses, who gave evidence of an incident at Wakipanda village when there was some argument about compensation, and the accused Otoma and Simon shot the deceased. First witness was Manda Ruma, who is a daughter of the deceased. She told of the accused, with others, coming to the house late in the morning of 7 January, and of Simon and Otoma shooting at her father. What happened was she and her father were in the house, and they heard a shot. She followed her father out of the house and saw the shooting. There was first of all a shot into her father�s hand, and then a second shot into his body, which killed him. She clearly identified the three accused in court and clearly knew them, as they all come from the same village area. There were no discrepancies or contradictions in her evidence, and her evidence held up under cross-examination. She gave some background which provides a possible motive for the incident. Apparently there was some dispute at a basketball match a couple of weeks before, when someone was assaulted and injured, and there was a matter of compensation to be paid between the different family groups. Apparently these people came to see the deceased about the compensation.

Another State witness was a woman called Mineadame Wienbi, who said she was in the garden when she heard some shots. She came towards where the shots came from, towards the deceased�s house, and she saw the accused shoot the deceased. She indicated that the garden she was in was not very far away from the scene of the shooting. She clearly identified Simon and Otoma as shooting at the deceased. After they had shot the deceased, she challenged them to kill her, but Mulu Sumuli said, �You are an old woman. We will not kill you.� She said they were yelling and shouting, and she clearly identified all three accused in the dock as being at the scene at the time. There are no discrepancies or inconsistencies following the cross-examination. She clearly knew all accused, as they come from the same village area and there was apparently some relationship between them.

The next State witness was a man called Yoka Koke, who said he was in his garden when he heard some shots. Whilst he didn�t come to the scene at the time of the shots, he said he saw the accused and others coming up from that direction, and he challenged the accused, who said, �We made him shocked�. He confirmed that the accused were carrying guns, and he clearly identified the accused in court, as he knew them well. When the accused left, he then went up to the house and saw the dead body of the deceased.

The next witness for the State was Sipi Yapa, who said he was in his house in the same area and he heard some shots. He came out and saw the accused persons near the deceased�s house. He clearly identified the accused, and he said they all had guns. He said that after the shooting they ran away, and then he saw the body of the deceased. His sighting and identification of the accused was not really challenged or contradicted in the cross-examination.

The witnesses all refer to other persons being in the area at the time with the accused, and there was reference to another person being involved, namely a Paka Dubu, who is apparently already convicted of the murder by an earlier court. The medical evidence was tendered into court. It was clear evidence of the post mortem on the deceased, which indicates that there were pellet wounds on the right arm and hand and also there were pellet wounds in the chest, which damaged both lungs and were the cause of death. The medical evidence was quite consistent with the evidence of the State witnesses as to what happened at the scene.

The defendants each gave sworn evidence. The accused Otoma Yala talked of an incident in a basketball game, which led to some compensation claim following a fight. He said they came to see Ruma Ruli for payment of the compensation, and that Ruma took a gun and shot at them, so they ran away. He said that there were plenty of people with them. He said that he learnt later that Paka Dubu had shot the deceased, and he said that village leaders had handed Paka Dubu over to the police, and he is now in jail for this offence. He agreed that Simon was also with him at the time, but he denied that Mulu was with him. He denied that they were carrying weapons. He gave no explanation why Paka should have shot at Ruma, or even why Paka was carrying a gun. However, he agreed that Paka was carrying a gun at the time.

The defendant Simon Kaita Ralawe, who appears to be partly disabled on his left side, said he went with the others for the compensation payment. He said that when they came to see Ruma Ruli, he fired at them, so they went away. He said that he then heard later that Paka Dubu had shot the deceased. Simon said that he was on his own most of the time. There were other people in front of him and other people behind, but because he was disabled, he walked separately from the others. I note that, while he claims to be disabled, he travelled several kilometres from his home to the scene of the compensation demand. He also made reference to about 100 people who went with him to demand compensation, but he agreed that Mulu Sumuli was not there. Again, he provided no explanation why Paka Dubu would shoot the deceased, or why he even had a gun. Neither Simon nor Otoma made reference to the fact that earlier that morning other members from their line had already approached Ruma for the compensation.

The accused Mulu Sumuli gave evidence that he was not there at the time, that he was out at his own garden with his dogs, and this was some kilometres away from the scene. He denied any involvement in the incident.

The State witnesses have clearly identified the three accused as being present, and that Otoma and Simon shot the deceased. There are no discrepancies or hesitancies or conflicts within their evidence. State witnesses also agree that Paka Dubu was there with the accused. State witnesses are definite about the accused carrying guns. All the State witnesses saw the incident at different times, but all are part of a consistent sequence, as one witness was there at the scene and the other witnesses were either in the house or garden and came along and saw parts of the incident. It has been submitted that the State witnesses have just made up their story. However, there is too much consistency in their story, and there is no explanation as to why they would make the story up and tell lies against the accused, especially as the accused come from the same village area and are, in some way, related to some of the witnesses. Also, the detail of the comments made by the accused to Mineadame Wienbi and Sipi Yapa are too unusual to be invented.

There seems to be no difficulty about the motive for the incident. There was apparently some grievance going back a couple of weeks to a sports incident, when someone was injured, and there was a demand for compensation.

The three accused all give denials. They agree that they went to Ruma Ruli�s house for compensation, although they give minor variations of what happened and where they were, as to whether the two were together or whether they were actually slightly separate. Simon says that he was, in effect, not with the others, but on his own; whereas Otoma suggests he was with them at the same time. Whilst Simon suggests he was separate from Otoma and the others, and was away from the main group, yet he clearly claims he saw the deceased coming out of the house and shooting a gun. None of the accused make any reference to the earlier demands by people called Rumbu, Thomas, and Kono for compensation that morning. So what was their status in the group with the demands for compensation? There is no explanation given for their demands after the earlier demands that day. No one gives any explanation for Paka Dubu�s action, as to why he alone was carrying a gun and why he would have shot the deceased. One can only wonder that if Paka did that alone, why didn�t he give evidence, particularly as it is suggested that he has already been convicted and, therefore, is in custody. Mulu Sumuli denies being there at all, but his is only a bare denial, and it must be weighed against the clear evidence from the State witnesses.

Ruma Ruli was clearly killed by some shotgun wounds. The State witnesses have given consistent and perfectly clear explanations and descriptions of what happened. The accused deny being involved in the killing but give vague evasions, and while they suggest who really did it, they give no real explanation of how one of their line came with a gun to do this. I am, therefore, satisfied that the State evidence is overwhelming, and on the basis of the evidence before me, I find the following:

N2>1.������ The deceased was shot two times and died from the shot and injuries to the chest.

N2>2.������ The three accused were there with the others, and were armed.

N2>3.������ Otoma and Simon shot at the deceased, and it was one of these shots that caused the death of the deceased.

N2>4.������ All the accused carried guns, and it must now be common knowledge that carrying of guns like this is illegal unless you have a special licence. And it must be accepted that by carrying guns, they do so for a reason, and the reason must be to use it.

N2>5.������ By shooting at the deceased with guns, they intended more than just to injure. They must have intended to kill. Anyone who carries guns and shoots a person must be presumed to intend to kill. I am satisfied, and there is no suggestion of any self defence.

N2>6.������ Mulu Sumuli may not have shot at the deceased, but he was there armed, and he was with the others to obviously support them with any problem or demands. So, once there is a shooting, he is a party to the offence by virtue of s 7 of the Criminal Code.

I, therefore, find Otoma Onisa Yala, Simon Kaita Ralawe, and Mulu Sumuli each guilty of the wilful murder of Ruma Ruli, contrary to s 299 of the Criminal Code.

JUDGMENT ON SENTENCE

You have each been found guilty of the wilful murder of Ruma Ruli, which happened on 7 January 1994. The penalty laid down in the Criminal Code for wilful murder is death; however, the law also says that a person liable to death may be sentenced to imprisonment for life or for any shorter term.

There is too much disrespect for human life, especially in these areas of the Highlands, and of continual stories of killings. Many, many cases have been coming into the courts for a number of years for such deliberate killings. It must be common knowledge, whether at your village level or in the general area, that it is an offence to kill someone. The people of Papua New Guinea and the courts are getting tired with all this killing. It is because the people were getting so upset about all this killing that the law was changed a few years ago to create a heavier penalty of death for such killings.

Also there is too much of carrying guns around. What often happens is the carrying of guns leads people to do such killings. Anyone who is involved in a killing like this should be seriously considered for the death penalty, as provided for under the Criminal Code. However, Parliament seems to have accepted that there may be some killings worse than others. It is hard to distinguish between wilful murders, as they all involve the same background, namely a deliberate intention to kill and the subsequent loss of a life, whether by shooting or axing or other means, and there can be no real consideration that one killing is any different to another. But occasionally one can accept that there are killings that appear more vicious, or terrible, or more cold blooded or involve completely innocent lives, for example, a cold-blooded ambush killing on the highway of innocent people who have nothing to do with the perpetrators. And it is, therefore, accepted that sometimes there are customary pressures and situations which get out of control and which, while still wilful murder under the law, are not, perhaps, as vicious, or don�t horrify society as much.

I am satisfied that the situation before me appears to be a situation where there was an argument over compensation, and it appeared to get out of control, and people, because they were carrying guns, shot people and killed them. I am not suggesting it could be accidental. If you carry guns and shoot at people, there is nothing accidental about that. But it was a situation that appears to have got out of control. I will consider that, perhaps, the extreme punishment of the death penalty is not necessarily warranted in such a situation. So I will follow s 19(1)(aa) of the Criminal Code and not impose the death penalty. Further, as one of the accused, Mulu Sumuli, did not actually fire a gun at the deceased and really was only involved through being with the other people, thereby giving them the moral support and the strength of numbers in their confrontation, I will consider an even lesser penalty for him, even though, under the law, he is still guilty of wilful murder.

Otoma Onisa Yala and Simon Kaita Ralawe, I sentence you each to life imprisonment. Mulu Sumuli, I sentence you to 20 years imprisonment. And you must remember that anyone who joins people with guns, and people are killed, must be punished equally heavily as the people who actually pulled the trigger.

Lawyer for State: Public Prosecutor.

Lawyer for the defendant: Public Solicitor.