National Court of Papua New Guinea

The following cases are cited in the judgement:

The State v John Badi Woli & Pengas Rakam [1978] PNGLR 51

tate v Anguan Kakas & 3 Ors [1994] PNGLR 20

Omow>Omowe Yirihim v The State [1976] PNGLR 188

The State v Laura (No 2) [1988-89] PNGLR 98

Lawrance Simb v The State [1992] SCA No 48

Counsel:

S Carter for the State

A Yerr for the Accused

SENTENCE

23 December 1996

LENALIA AJ: The Prisoner was found guilty of murder under S. 300 within the definition of S. 7 (1) (c) of the Criminal Code. The Statablished beyond rend reasonable doubt that you aided and acted in concert with 7-8 other policemen in the brutal killing of the sed Jerry Yakamp Puk on the 16 of May 1995. I do not wish to re what Ihat I said in m in my judgement suffice if to say that the offence that you had committed is very serious for which you could be imprisoned for life. Th gives this Court poweimoweimpose a lesser term than whan what is prescribed in S. 300 by virtue of S. 19 of the Code.

The evidence of your case shows th the date of this offence, you aided, abetted or acted in c in concert in the beating of a group of 30-40 Kindeng villagers that resulted in 24 of them receiving injuries of various magnitude with the deceased receiving severe brain injuries that resulted in his death. The evidence of yase showsshows that, you were one of 7-8 possibly more policemen who were engaged in this offence. I found from both the State and Defence evidence that the prisoner was present at the scene of the crime. He was not only pt but aidt aided, abetted and participated in the bashing up of that crowd. From the attack tha and otnd other policemen cted on these people resulted in the deceased’s death. I found the evidencedence ence that you yourself held a stick and yurself beat that group of people.

I discussed in my n my judgement the concept of parties to offences and the current positionhe law in relation to S. 7 S. 7 (1) (c) of the Code. It is wellblished that whet where two or more persons being present together attack another at the same time using similar weapons and direct similar blows with common intention to injure and that persos as the result of injuriesuries so inflicted each of those attackers may be guilty of wilful murder, murder or manslaughter because each of those several persons aided or acted in concert with the other at the same time, each action constituted the offence of aiding under S. 7 (1) (c) of the Code: The State v John Bali and and Pengas Rakam [1978] PNGLR 51, see also The State v Anguan Kakas & 3 Ors [1994] PNGLR 20.

What is obvious is that you are a policeman. Th allows a policemen tout toute uties fairlyairly and in a in accordance with law. It is commonown that it isit is part of the obligation and duties policis to take all necessary steps appearing to him thim to be reasonable and to keep the peacepeace and prevent crime. It is their to pt life ande and properroperty and to bring offenders to justice. Where a situation calls for the use of force to present tmmission of a crime, the force used must be reasonable in the circumstances that he or she she is faced with.

There was evideefore the Court that a Simbu Provincial Government vehicle icle was stolen by some people in the Kindeng village. The offence which you are are charged was committed at Papene Community School a distance away from Kindeng village although their generallyrred to as Kindeng. There was ndence to suggesuggest to me that the group of men were were violent. They were not aggressive. Police were not even threatened with any actual violence. Therno evidence to suggestggest if the group of men even red arrest. In fact there is not a slightest indication as to whether any of the groupgroup of men that you and your colleagues beat s responsible for stealing ling the vehicle prior to the commission of this crime. The action taken lice that that time was irresponsible and cannot be excused and anyone found committing similar offences cannot seek refuge under S. 32 of the Code.

The d factor established by the evidence is that, you committeditted this offence while acting in concert with another 7 or 8 policemen. You aided those other to beat the deceased. Your lawyer sted that how how can you be alone responsible for this offence when the evidence is abundantly clear that there were other policemen involved. My view is thatState has ahas a discretionnstigate proceedings againsgainst those responsible if not yet tried. In other words, he says that you alone cannot be made a soat of the action done by a group of 7-8 policemen of whichwhich you were one. I have cited sufficiese lase law on parties to oes which say that where two or more persons acted in conceroncert of participated or aided in a crime each is responsible for the acthe other: Omowo Yirihim v The State [1976] PNGLR 188.

It was submitted on your behalf that you have been a policeman for the last nine (9) years two of which you have been an instructor with the Kerowagi Mobile Squad. It was also submitted tha you have maintained a clean record with police. The Commanderhe Highlands ands Mobile Unit is said to have spoken highlyt you and your previous performances. I accept all that has been said about you in miin mitigation.

The sentences that heen imposed in murder casescases have fluctuated considerably depending on the circumstances of each case. In the case of Lawreimberev The State [1992] SC2] SC N. 48 it was stated that murder cases should not be decided on the basis of the tariff principle but each case must be decided upon its own facts. It was stated inState v La v Laura (Noa (No 2) PNGLR 98 that a murder charge with no specific mitigating factors and where an accused pleads guilty should attract a sentence of less than 6 years imprisonment.; Youthfulness and advancedanced age have been suggested to be some of those factors. It was sued there that in t in contested cases the sentence should be 12 to 15 years or more where aggravating factors are shown by the evidence in each case.

Thee of murder is one of the most serous crime defined by our our penalty Code. The maximum penal life impe imprisonment subject to S. 19 of the Code. The maxim life imprisonmenonment shows how serious this crime is regarded by legislature and the peof Papua New Guinea. I have carefullyred all thll the the evidence of your case in my judgement read on the 13th of this month. Agging factors in this incs includes the fact that, the killing was unprovoked and carried out in the name of the law. There evidwhatsoever to s to show that the victims did anything to provoke the policemen non then the scene. The action was a recklesregard to the inherent dignity of the human person and quite inconsistent with the right tght to life guaranteed by the Constitution0; The deceased was a completely innocent person. He was unarme he did not rnot resisresist in anyway. There is no slightest ece ence that this group of people were responsible for stealing the vehicle that police was trying to retrieve.

Whatpolic was you came upoe upon this group of people who were gathering for the purpose of finding ding out amongst themselves who was responsible for stealing the vehicle then you beat them. This waiolation of the Cone Constitutional right to life itself and the protection of law provided for under SS. 35 & 37 of the Constitution. I have considered alt was was said in mitigati favour of you and the aggr aggravating factors I have alluded to. Iider that an appropriate iate sentence is 7 years imprisonmn hard labour. To be deducted from t term term of onef one week spent in custody awaiting sentence. The sentence be serveBarawagi Corrective Institustitution, Simbu Province.

Lawyer for the State: The Public Prosecutor

Lawyer for the Accused: Mr Alphonse Yerr