National Court of Papua New Guinea

I stood by the car and watched helplessly as I was unarmed, I then saw Billy Pullian moved in and attacked Gabriel was still on the ground with his heavy duty axe by chopping Gabriel on his head a couple of times and one blow landed between his lips.

As if that wasn’t enough to kill late Gabriel Piakon, Leo Morris moved in again and landed two (2) more blows on the deceased’s head and one on his back with his axe.

It seems to me that, the attackers had been well prepared with their weapons and had planned the attack prior to executing their plan.

Nevertheless, I knew that Gabriel wasn’t going to make it, and I felt a bit dizzy after a close observation of the brutal killing.

It was then that 4th person, Leo Morris saw me watching them, and started running towards me with his axe full of blood - on an attempt to kill me too. This act was fom to stop mtop me from testifying - against them. Upon realisint I would be d be the next victim, I left the car with Gabriel’s camera and brief case and started running towards Wawhiles running down, nwn, numerous attempts were made by others also from Amala to kill me.

During the time of running down towards Wabag, my younger brother who was also there witnessing the killing joined me by my side and we both ran down. Luckir me, a Govt car pick picked us up, and dropped us at our village - Keas.

That is all I can re-call.

I Gabriel certhat this statement is true to the best of my knowledge and belief. I make it knowingowing that it is tendered in evidence, I will be liable to prosecutions if I have knowingly stated anything that is false or misleading in any particulars.

(signed

Gabriel Lombe

(Deponent).”

Gabriel riel is not sure as to when he signed this statement. The statement f is undateddated.

Gabriel further says that some 2 days after the incident, he was called into Wabag Police Station whergave his statement to the police informant who typed the statement in his presence. H60; He nowa copy of that that statement which he did not sign. That stateis the same as t as the oral evidence he gave in Court now. Aft gave his statemehe pole police used that information to carry out investigationstions and after completing the investigations, they produced the above statemench he signed. He said he did notion any any names ofes of suspects but the police gave him the three accused’s names and knowing that the police wee duty-bound to carry out investigations and come up with the names of those responsible for the killing, he just signed the statement on that understanding. After his oral evidence, I requested a copy of the original unsigned statement. That statement which is dated 27-07-90 was produced to the court and is in evidence. Icribes the incident in clin clear detail and in the sequence in which specific persons or group of persons attacked the deceased and later himself. The see of s described in d in this unsigned statement is substanbstantially similar to his certified statement except that the names of thackers or group of attackers are not mentioned.

This court is a people’s courtcourt. It is a court of justice. Ju must not only be done bone by the court but seen to be done by the people. On one hand, the thccused used remain inn untiven guilty by the State which represents the people. They are entitl a to a faia fair fair trial within reasonable time. he court mlso consider ther the interest of the people to s to see offenders investigated and prosecuted properly, promptly and dilig by tState institutionutions entrusted with these duties. The tradit role of a judgejudge udge in a criminal trial which is associated with the adversarial or accusatorial system of criminal justice based on the common law system which we have adopted has alwaen that the judge sits as a as a neutral referee, arbitrator or adjudicator. He does not play aive role role in the trial. Nevless, the common law haaw has developed principles for the judge or court to intervene in situations where the exercise of nvestve and prosecutorial discretion has been exercisercised improperly so as not to attain the the ends of justice. These principlve been deve developed since 1843 and refined over succeeding years in many cases. A summary ofe principles ales are found statement of the Lord Chief Justice Parker in the English Court of Appeals in the case of e of R v Oliva [1965] Cr App R 298 at p. 3310 where the Lord Chief Justice states:

“Acco;Accordingly, as it seems to this court, the principles are plain. Tosecution must of course urse have in court the witnesses whose names are on the back of the indictment, but there is a wide dison in the prosecution whether they should call them either calling and examining them, or c or calling and tendering them for cross-examination.

The prosecution do not, of course, put forward every witness as a witness of truth, but where the witness’s evidence is capable of belief, then it is their duty, well recognised, that he should be called, even though the evidence that he is going to give is inconsistent with the case sought to be proved. Their discretiot be exercixercised in a manner which is calculated to further the interest of justice, and at the same time be fair to the defence. If the prosecution apto be exercising that discretion improperly, it is open to n to the judge of trial to interfere and in his discretion in turn to invie prosecution to call a particular witness, and, if they refuse, there is the ultimate sanc sanction in the judge himself calling that witness.”

In a situation where the prosecution is desirous of calling a particular witness but is prevented from doing so by circumstances beyond its control, different considerations apply. I would adop principles caes canvassed by Brightman J in the Court of Appeal in R v Cavanagh, R v Shaw [1972] 1 WLR 676 at p. 679:

“The prosecution must take aasonable steps to secure the attendance of any of their witr witnesses who are not the subject of a conditional witness order or whom the defence might reasonably expect to be present. The refor that is obvious ious and was expressed in Reg v Woodhead [1847] EngR 1017; [1847] 2 C & K 520, a case at Liverpool Assizes, where Alderson B said at p. 520:

‘You are aware, I presume, of the which the judges have late lately laid down, that a prosecutor is not bound to call witnesses merely because their names are on the back of the indictment. Ttnesses, however, should ould be here, because the prisoner might otherwise be misled; he might, from their names being on the bill, have relied on your bringing them here, and have neglected to bring them himself. You ougherefore, to have tave them in court, but they are to be called by the party who wants their evidence. That is the only sen rule1’

If, however, it proves impossible, despite such steps, to have the wite witnesses present, the court may in its etion permit the trial to proceed provided that no injustice will be done thereby. Wh0; What corations will aill affect the exercise of the court’s discretion will vary infinitely from case to case. Would the defence to call call the witness i prosecution did not? What are the cs of securincurincuring the witness’s attendance within a reasonable time? Are rosecutionared to proc proceed in his absence? If so,f so, to what extent would the evidence of the absent witness can be procured, other witnesses by then have become unavailable? There will be many matteratters whis which may have to be considered.”

The situation in the inst instant case is that the prosecution has been for one reason or another unable to call most of its witnesven though they seem to be o be around in Enga Province or in the country. In the end the prosen has has ended up calling only Gabriel who turned out hostile and gave evidence which did not assist the prosecution case. Hidence is so vague, disd,disd, contradictory, inconsistent and inherently suspicious thus that no reasonable tribunal could convict on the evidence even if the taccused were called upon to answer the charge. 160; The l of time lapse bpse between the date of the offence, the date on which the three accused were arrested and charged and the date of this trial may have contributed to the poor standard of invesion aosecution in this this case case. It may also be due to the events which occurred subsequent to the killing. There is evidence Gabriel riel that tensions were high and a fight broke out between the deceased’s clan and the accused’s clan.; There appears to havo have been a series of threats issued against potential State witnesses ises including Gabriel himself and perhaps even defence witnesses. Ga now complains of havingaving lived under pressure from both sides all these years. A lot of ret circumstancesances which existed at the time of the killing no doubt would have changed by now which in turn influenced the ate of these witnesses to this case. For instance, Gabriel says the three accused were were arrested after the problem was settled in the village in the traditional way. No doubt the truth of this brutal murder in broad daylight is now obscured than it was e time of the killing or thor thereabouts. That is why there ised ford for the community to respect the law by not taking the law into their own hands and let the police investigate the crime promptly and properly and bring those responsible to court.&#16ey should not frustrate thee the efforts of the police. Likewisn a matter is reporreported to police promptly, as was the situation in the case, the police must take prompt action to secure these witnesses, obtain their evidence and preserve the evidence nsure that the suspects ares are promptly arrested, charged and prosecuted. They should not deleir invr investigations. They s not succumb to pres pressure from the relations of the victim or the accused to solve it their own way, because their way nishirious offenders is not recognised or approved by d by the laws of this country.

If I>If I were of the firm view that the prosecution appeared to be not exercising its discretion properly, I could have required the State to call all the other important witnesses listed on the indictment, in particular, Thomas Lombe, Tepe Nakau and Anthony Manjin. If the prosecution still failed to do this, I would have them called myself. However, givenlengthy time time lapse between the date of the offence anddate of the three accused’s arrest, which is almost 3 years and the lengthy time laps lapse between the date of their arrest an date of trial, which is sois some 15 months, the subsequent events which occurred at the village level which appeared to have frustrated police investigation and the lack of co-operation by witnesses generally and in particular the State’s principal and only witness in this trial, I am unable to safely conclude that the prosecution has exercised its discretion improperly.

The upshot of the foregoing discussions is that I will rule in favour of the no case submission and discharge the three accused forthwith.

Lawyer for the State: Public Prosecutor

Lawyerawyer for the Accused: c Solicitor

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