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State v Yepei (No 1) [2004] PGNC 200; N2570 (17 March 2004)

N2570

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 97 of 1998

THE STATE

-V-

PAUL YEPEI
(NO.1)

VANIMO: KANDAKASI, J.
2004: 9th and 17th March

DECISION ON VERDICT

CRIMINAL LAW - PRACTICE & PROCEDURE - Accused failure to fully put defence case to prosecution’s witnesses – Effect of – Recent inventions and unreliable and has no weight.

CRIMINAL LAW- Particular offence – Wilful Murder – No direct evidence of accused causing deceased death – Strong and credible circumstantial evidence suggesting accused involvement and playing a significant role – Accused failing to rebut prima facie case against him – Guilty verdict returned - Criminal Code (Chp. 262) s.300.

EVIDENCE – Circumstantial evidence – Principles governing the acceptance of – Accused presence at scene of crime – Dealing with deceased body – Conduct consistent with guilty mind – Failure to rebut strong circumstantial evidence against him – Guilt only inference available.

Papua New Guinean Cases cited:
SCR No. 1 OF 1980; Re s. 22A (b) of the Police Offences Act (Papua) [1981] PNGLR 28.
The State v.Ben Noel & Ors (unreported judgment delivered on 31/05/02) N2253.
The State v Peter Malihombu (unreported judgment delivered on 29/04/03) N2365.
The State v Kevin Anis & Martin Ningigan (Unreported judgment 07/04/03) N2360.
The State v. Onjawe Tunamai (unreported judgment delivered on 15/02/00) N1989.
Jimmy Ono v The State (unreported judgment delivered on 04/10/02) SC698.
The State v Cosmos Kutau Kitawal & Anor (No 1) (Unreported judgment delivered on 15/05/02) N2266.
The State v. Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48.
Garitau Bonu & Rosanna Bonu v. The State (24/07/97) SC528.
Paulus Pawa v. The State [1981] PNGLR 498.
The State v. Tauvaru Avaka & Anor(Unreported judgment delivered on 2/11/00) N2024.
Gibson Gunure Ohizave v. The State (Unreported judgment delivered on 26/11/98) SC595.
The State v. Tom Morris [1981] PNGLR 493 at p 495.
State v. Tony Pandua Hahuahori (unreported judgment delivered 19/02/02) N2185.
John Jaminan v. The State (N0.2) [1983] PNGLR 318.
Tony Imunu Api v. The State (unreported judgment delivered on 29/08/01) SC684.

Overseas Cases cited:
Browne v Dunn (1893) 6 R 67 (HL).

Counsel:
F. K. Popeu for the State
D. Kari for the Accused

17th March, 2004

KANDAKASI J: On Tuesday last week (09/03/04), you pleaded not guilty to one count of wilfully murdering one Jack Mandari (deceased) on 2nd March 1997 here in Vanimo. You took that position because you claimed that you did not kill the deceased even though, you were at the scene with the deceased both prior to and after he met his death.

Issue

This necessitated a trial on the issue of, did you cause the death of the deceased? Alternatively, if you did not cause the death of the deceased, were you involved in his killing?

The Evidence

In a bid to establish the charge against you, the State called three witnesses one of which was an eyewitness. All of these witnesses gave oral evidence against you. Added to this was a copy of a medical report by Dr. Edwin A. Doliente dated 18th April 1997 by consent of the parties, which was marked as exhibit "A". You then took the stand and gave a sworn oral testimony in your defence.

(a) The State’s Case

(i) First Witness – Kellie Lyons

A Kellie Lyons was the first witness called by the State. She originally comes from Wutung and she has been living in this Province all her life. She recalls staying in the village when a Lucy went passed her in a vehicle with some iron roofing. On Lucy’s way back, the witness jumped in the vehicle. Lucy told her that, they were going to a sawmill to get some timber to build a house.

On the way, they stopped at Baro. This was around 12:00 noon. As they were getting down, uncle Jack (the deceased) and Paul (yourself) drove up. Lucy went with a bunch of betel nuts and stopped you and the deceased. When the vehicle came to a stop, Lucy asked her to get in the car with her and she did. At that time, you were driving the vehicle. As you were driving along, Lucy asked you to use a short cut road to Dawi and stopped the vehicle and you took over the driving.

Once the vehicle came to a stop, you, the deceased and Lucy went at the back of the vehicle and told stories. She refused to join in. After you three finished telling your stories, you all got back in the vehicle and drove to Wutung as you wanted to check uncle Mark Ando for a cheque.

After seeing Mark Ando, you drove to Otour Resort or Hotel. There, you stopped the vehicle and you all went down to the beach. By then, it was already dark and in the middle of the night. Whilst at the beach, the three of you, Lucy, the deceased and you drank some beer bought at the Resort. Then a Thomas Wara and Mark Ando asked the deceased for the vehicle key to take Thomas Wara’s wife home.

It seems you continued to remain at the Resort and the deceased gave the witness a K1.00 to pay the gate to the dance place, which she did and entered the dance place. Not long after, Lucy joined her and told her that the deceased broke a bottle. Therefore, she wanted her to come out of the dance place so they could leave the Resort and she did. This was sometime toward the morning of the next day (02/03/97).

Upon getting out, she got in the vehicle with the rest of you, the deceased, Lucy and you. You and the witness sat at the back seat, while Lucy and the deceased sat in the front. You then drove out of the Resort with the deceased driving the vehicle, following another vehicle, heading Vanimo town way. As you got to the gravel pit, Lucy asked the deceased to stop the vehicle, as she wanted to urinate. The witness asked the deceased to stop on the side of the road but Lucy wanted the deceased to drive off the road so she could use the bush. The deceased followed Lucy’s wish and he drove into the gravel pit area and stopped the vehicle.

Once the vehicle came to a stop, Lucy got out of the vehicle and so did the rest of you. Lucy then waited for the deceased to follow her and they went toward the beach. Before leaving, the deceased told the witness to go with you so you could give her some medicine. Whilst the deceased was talking to her, Lucy went and started playing up with the deceased private parts. The deceased felt ashamed, he left with Lucy, and Lucy made signs for the witness to go with you.

You talked to the witness and made some advances toward her without success. She told you, she was not your size. You therefore, left her and walked away from the side of the vehicle. This happened straight after a scream from the deceased. Before you left and the deceased’s scream, two other masked boys came and stayed watch over her near the vehicle. She could not tell who these boys were as they were in masks.

Soon she heard the deceased scream from the direction of the beach. She told the boys that was the deceased calling from the beach. They responded by saying, Lucy and the deceased are arguing and fighting. They then tried to go to Lucy and the deceased and as they got nearer, she saw the deceased, carried up by five other also masked men, with you assisting them and Lucy following.

They carried the deceased to the back of another vehicle, a double cabin utility. You then got into the driver’s seat of the deceased’s vehicle, drove it out of the gravel pit, and onto the main road with the other vehicle leading. Both vehicles drove to the mouth of the Dawi River and came to a stop. There, four men with you took the deceased out of the vehicle, took him to the river and had him washed. After washing the deceased, you and the other men brought him back into the same vehicle that carried him. At that stage, she asked Lucy and she told her to shut up and only watch.

The vehicles then drove out of the mouth of the river. This time, you with the witness, Lucy and two of the masked men drove the deceased vehicle in front while the one with the deceased following. As you drove on, you told the witness and the others, "we will stop the vehicle at a cliff and push the vehicle off the road." Eventually, you did as you indicated with the help of the other men.

After the deceased vehicle came to a stop at the foot of the cliff, you with the help of the other men carried the deceased out of the other vehicle and took him down the cliff to where his vehicle had come to a stop. There, you put him in front of the vehicle. At this stage, the witness asked Lucy and the masked boys more questions and they asked in return, "why are you asking too many questions? Do you want to go in the same coffin as the deceased?" She then realized that the deceased was dead and she cried. All along, she was frightened but could not run away or do anything because of the masked men watching over her.

After dealing with the deceased in the above manner, the other vehicle drove off, while you, Lucy and the witness walked to the Dawi Bridge. There, you went down to the river and washed of blood on your shirt. Thereafter, you continued to walk on and a police vehicle approached. The witness tried to stop it but before she could do that, you and Lucy punched her and so she did not succeed.

Then you all continued to walk toward Vanimo Town and eventually reached Dalung creek. There, you talked to some people in a vehicle and the witness stood around. Whilst there, she saw a Gilman coming and she asked, "Is that you Gilman" and further said to him, "I know you as I used to be at works." She then walked with Gilman into Dalung. By this time, you told the witness to go and see a Dr. Woibun for air tickets for you and them to go to Aitape. She however, refused to do that and said to you, "I can not go because, I have my own place to stay." Thereafter, you all parted with Lucy and the witness going to a Murray Darcy and you going another way.

Early the next morning, Lucy went and washed off blood that were on her skin. Lucy and she then went to Yako and she was going to tell the Yako councilor about the incident but Lucy stopped her. The next day after the incident, police went and picked her up and took her to the police station. There, she told the police about the incident. Following the report, police arrested and charged you.

Under cross-examination, your lawyer suggested to the witness that because, she did not know you well enough prior to the incident, she was blaming you for the death of the deceased. The witness maintained that, she was telling the Court the events she witnessed. She brushed aside suggestions that lighting and visibility were poor and as such, she could not clearly see what was happening. She maintained that, most of the things she witnessed were within close range and that there was some natural lighting as it was getting closer to the morning.

(ii) Second Witness – Timothy Agwi

The second witness for the State was Timothy Agwi. He learned of the incident as a motor vehicle accident. After inquiries with the deceased’s wife and children as well as the police at the police station, he decided to go and find out where the accident was. At the police station, he saw you and two other men and on seeing that he was going to try to locate the accident site and the deceased, you and the other two men got on the witness’ vehicle.

He then drove up along the West Coast road without anyone informing him that the accident was alone that road save only to act on his intuition. As he drove up, just before Dawi, he caught up with a police vehicle, driven by the Provincial Police Commander (PPC) heading the same direction as he was and another yellow Hilux he had earlier seen at the police station heading the opposite direction. He stopped and asked the police officer in the yellow Hilux about the accident. The police officer told the witness that the deceased was already dead. He therefore, told him to return and get the ambulance to go and pick up the body. However, the witness decided not to do that. Thus, he continued in search of the actual scene as he was already there, and drove past the PPC.

He drove passed the Dawi River, then came to a stop on a hill, and asked you to indicate the exact whereabouts of the accident as you were talking about the accident at the police station. You said it was under the bamboo trees. Therefore, he stopped the vehicle, they searched for the deceased and his vehicle without success, and so the question and response from you and the search of the scene without success repeated three times. In the course of these, the PPC arrived and joined in the search. Still this did not result in a positive location of the deceased and the vehicle. During this time, he could see that you were frightened and scared at the same time.

The search continued further up the road without luck. On the way, he met a bus with the writing "Border Child", stopped it and asked whether they were able to sight a Health vehicle in an accident on the road. The response was negative. This caused the witness to continue a little and turn back. On the way return, he sighted the "Border Child" bus parked with its blinkers on at the first spot where he had stopped to search, which was just before the Dawi creek.

He stopped his vehicle close to the bus and its occupants pointed to where the Health vehicle was resting. He and the boys in the vehicle got out of the vehicle. He estimated the distance between the road and where the health vehicle was, was about 10 to 11 meters. He saw the vehicle faced down with the four wheels on the ground and the body of the deceased was on the side of the vehicle facing toward the vehicle about a meter away.

He noticed that, there was a sharp cut from the deceased’s eye to the forefront. He could not recall whether it was the left or the right side, given the long lapse of time.

On his instructions, the boys took the deceased body up onto the road. He then had the body put on his vehicle and drove back toward town. On the way, he met a police vehicle driving up and he told the police that the deceased body was with him and that he was taking that to the Vanimo General Hospital. When he did this, he thought he was doing nothing wrong. Unfortunately, the police later charged him for having interfered with the body.

(iii) Third Witness – Dr. Marcus Woibun

The third and final State witness was Dr. Marcus Woibun. He recalls that in the morning of 2nd March 1997, he drove out of his residence, when you stopped him in front of a John Kogas’ house. Once he stopped, you proceeded to tell him that there was a motor vehicle accident involving one of the Health vehicles.

He asked you to follow him to his house and you did. There, he made you a hot cup of coffee as you appeared drunk although the witness was not able to tell if you were in fact drunk as he was not close enough to detect any smell of alcohol. You also appeared shaky and traumatized as one who had a sleepless night. He noticed that you shook and or trembled evidenced by the spilling of coffee from your cup as you tried to drink it. You then proceeded to inform the witness and those who were there in his house, that the deceased was involved in an accident. The accident happened at a slope around 10:00pm while you were asleep so you did not know how it happened. You went on to say, you got out of your sleep about 3:00pm and looked for the deceased everywhere but were not able to locate him. You continued to inform the doctor that, you then decided to walk to toward town. A vehicle picked you up on the way and dropped you off in town.

The witness also observed that, your clothes seemed soaked in wet blood mixed with water, which ran in a diagonal direction from your left shoulder to the right leg. Therefore, he questioned you as to why you had so much blood. You showed a superficial scratch on your forehead and one on your finger. As an experienced medical doctor, he could not accept that all of the blood he saw could have come from these scratches.

When asked as to how many people were with you and the deceased, you said, it was only you and the deceased. Later, you changed that by saying there were many people at the back. During the conversation, you repeatedly interrupted and said an ambulance should go and pick the deceased.

The witness assumed that the deceased might have run away. Therefore, he made a number of telephone calls, one to the deceased house and another to his office. There was no response to both of these calls so he took you to the police station and asked the CID section to assist you to go and look for the deceased.

(iv) Medical Report

The medical reported (exhibit "A") admitted into evidence with your consent describes the kind of injuries that were found on the deceased upon a post mortem examination of the deceased’s body. The report than concluded in these terms:

"The most probable cause of death is shock from haemorrhaging (bleeding) gap wound of the head.

The nature of the injuries particularly the head, tends to suggest the probability and possibility of physical assault with the use of blunt object applied to the head. This renders the deceased concussed (unconscious) alive and bleeding.

The injuries to the body and right lower limb suggest contact or rubbed against hard irregular surface or surfaces.

Findings on the upper right limb suggest the possibility of the deceased being held by the arm, leaving nail marks and/or scratches."

(b) Defence Case

Your Evidence

In your evidence under oath, you say that the deceased was a very good friend of yours. He was such a friend from whom you could not resist any invitation to go with him. You say also that you were in Vanimo town on Saturday 1st March 1997 to arrange for a charter to airlift some diesel fuel to slash tall grass on the Lumi airstrip. That was in your capacity as District Administrator for the Aitape/Lumi District.

On that day, you wanted to go and see the DCA aerodrome inspector here in Vanimo to give Garamut authority to fly into the Lumi airstrip. Before that, you and your brother-in-law, a Francis Masson who was helping you in his vehicle, parked at the old Steamships, now Rainbow supermarket to drop off Francis’s wife. You two then tried to go to where you wanted to go but had difficulty restarting the vehicle. You attempted unsuccessfully to get it restarted by push start.

At that stage, the deceased came to your help by agreeing to take you to your destination. At your destination, you spoke to the aerodrome inspector and found out that you could not get the authority you came for as that had to come from headquarters in Port Moresby, which could not come by until Monday. Then you say, the deceased invited you to join him and went along with him in his vehicle.

The rest of your evidence in material respects confirms most of the first witness’ account of the events particularly, up to the point where you all drove into the gravel pit, the deceased and Lucy asking the witness Kellie to go with you and you making unsuccessful advances on Kellie. However, you differ in a number of respects.

Firstly, you say you picked up three women at Baro, Lucy, Kellie and a Josepha, the wife of Thomas Andrew with her child. The deceased and Lucy sat in the front whilst you and the other women and child sat in the back seat. You then proceeded to the Otour Resort because Joseopha wanted to catch up with her husband who had gone there earlier to arrange a dance.

Secondly, you said on the way, you stopped about 3 kilometers away from the point of the women’s pick up to answer nature’s call. In the process of the deceased relieving himself, he sweated excessively. He then asked you to drive the vehicle, as he felt very weak. You therefore, took over the driving of the vehicle and eventually drove to the Otour Resort. You complied with orders, without specifying whose orders they were, for you to stop on the road when you reached the Resort. Once you stopped, the deceased and the women went into the club.

Thirdly, you say the deceased went to the bar and tried to cash his personal cheque but the bar attendant said the management directed him not to do that. At about this time, Thomas Andrew caught up with the women with his wife and child and was not happy with later twos presence. The deceased and the women returned to the vehicle and you all drove to Wutung to see the owner of the Resort so the deceased could cash his cheque. You succeeded in that mission, resulting in the deceased cashing his cheque. You then returned to the Resort. There the deceased bought two rounds of beer. In the first round, he bought 12 bottles of beer and you did not see the number of beer bottles the deceased bought in the second round, but he did buy some more beer and you all drank these outside the club at the beach.

Fourthly, whilst the deceased was drinking at the beach with Lucy and Kellie, you returned to the inside of the Resort and spoke to a cousin of yours, who worked there. As you were there, at about 3:30am some boys who you could not identify came and spoke to the deceased and the women. They then started to depart in the vehicle so you rushed out of the Resort. You managed to open the door as the vehicle was taking off and you hoped into the back seat.

The deceased drove and on the way, turned into the gravel pit and brought the vehicle to a stop on Lucy’s persuasion, by saying to him "yu save long dispela hap" (you know this area). All of you then got out of the vehicle. Then Lucy, the deceased and Kellie went in front of the vehicle as you went and urinated. After that, when you went and joined them, the deceased told you in pidgin "Barata yutupela yet. Mitupela go nau" (Brother yourselves only? We are going now) and they left. As far as you were concerned, Lucy and the deceased were going to have sexual intercourse, while you and Kellie were to do likewise. Therefore, you proceeded to make your advances on Kellie but she got angry with you and you gave up.

Fifthly, you say that, upon not succeeding in your attempts to get Kellie to agree to have sex with you, you got back in the vehicle, wound up the glass and went off to sleep. A few minutes later, you heard Kellie shout followed by another one. Then you heard Lucy talking with three other persons on her way back to the vehicle. Around this time, you also heard Lucy saying to Kellie "yu singaut long wanem, yu lik lik meri na poret? (Why are you shouting, are you a small girl and frightened?). Thereafter, you saw, Kellie returning to the vehicle also with another person.

Next, you say that the person that came with Kellie got into the drivers seat and drove the vehicle with the three of you, Lucy, Kellie and yourself inside. That person, later deliberately bumped the vehicle with the three of you trapped inside and he escaped. The three of you eventually managed to free yourselves and find out that you escaped serious injuries. You then travelled to a market and separated from there.

Further, you stated that, you had a distant relationship with the deceased through your wife. Because of this, you decided not to participate in or be involved in any discussion with the deceased and his relationship with Lucy.

Assessment of the Evidence and Findings of Fact

(i) Principles Applicable

The prosecution always has the burden to prove beyond any reasonable doubt every element of an offence in all cases that is prosecuted. The Supreme Court in SCR No. 1 OF 1980; Re s. 22A (b) of the Police Offences Act (Papua) [1981] PNGLR 28 at page 34, per Greville Smith J., confirmed this. I cited the relevant passage of that judgment and applied it in The State v. Ben Noel & Ors (Unreported judgment delivered on 31/05/02) N2253.

What this means in your case is that, the State had the burden to prove each of the elements of the offence of the charge of wilful murder or failing that, an alternative count beyond any reasonable doubt in order to secure a conviction against you. The question for this Court to resolve then is, has the prosecution proved all of the elements of the charge of wilful murder or an alternative charge against you beyond any reasonable doubt?

This calls for an assessment of the evidence now before the Court and a decision on the issue presented. A number of well-established principles govern the assessment of evidence and the acceptance or rejection of a witness’ testimony. One of these goes into the credibility or the reliability of witnesses and their evidence. This in turn depends on the witnesses’ evidence meeting a number of requirements, which need not exist all at the same time in any one case.

One of these requirements is the need for consistency in a witnesses own evidence and other evidence called by a party. In The State v Peter Malihombu (unreported judgment delivered on 29/04/03) N2365. I found amongst others that there were a number of inconsistencies in the prosecution’s evidence. I found these inconsistencies serious enough to cast a serious doubt on the case against the accused. Accordingly, I found that the prosecution did not establish its case beyond any reasonable doubt. Many other cases have considered and applied this test. Some of the examples are the judgments in The State v Kevin Anis & Martin Ningigan (unreported judgment 07/04/03) N2360; The State v. Onjawe Tunamai (unreported judgment delivered on 15/02/00) N1989 and Jimmy Ono v. The State (Unreported judgment delivered on 04/10/02) SC698.

These and other authorities make it clear that, where serious inconsistencies exist, there is the possibility of false testimony and therefore unsafe to act on.

Another requirement is that, the evidence given must be consistent with logic and commonsense. I restated the law in The State v Cosmos Kutau Kitawal & Anor (No. 1) (Unreported judgment delivered on 15/05/02) N2266 in these terms:

"Logic and commonsense does play an important part in either the rejection or otherwise of evidence before a court of law and whether or not an accused person should be found guilty."

This was a restatement of the law and its application in The State v. Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48 by the National Court and affirmed by the Supreme Court in Garitau Bonu & Rosanna Bonu v. The State (Unreported judgment delivered on 24/07/97) SC528. Early statement of and an application of this principle are in cases like that of Paulus Pawa v. The State [1981] PNGLR 498.

An additional requirement concerns the performance or the demeanour of witnesses in the witness box. An application of this principle decided many cases in the past. Examples of these are, cases like that of The State v. Tauvaru Avaka & Anor (Unreported judgment delivered on 2/11/00) N2024 and Gibson Gunure Ohizave v. The State (Unreported judgment delivered on 26/11/98) SC595.

(ii) Your Case

In your case, a few but critically important facts are not in issue. Firstly, you were there at the scene at the relevant time of the offence after being with the deceased and the two women, Lucy and Kellie from the afternoon of the 1st to the early morning of 2nd of March 1997. Secondly, the deceased died on 2nd March 1997. Thirdly, there was no enmity or any other reason between you and any of the State’s witnesses for them to give false evidence against you.

Additionally, there are clearly two versions of what may have happened to the deceased. One version is that, Lucy, Kellie and the unknown persons that joined you at the beach near the gravel pit on the West Coast road killed and disposed of the deceased body. The other is that Lucy, you and the other persons that joined you later, killed the deceased at the said place, and you tried to cover that up by making it look like a motor vehicle accident in the way Kellie has described in Court. This has provided the basis for the State to allege that, you were part of a plot to kill the deceased and had it executed. The Court now has the difficult task of assessing the evidence before it and decide which of these two versions is what happened, on the required standard of prove beyond any reasonable doubt.

The key witness and therefore the main evidence against you, is from Kellie Lyons, the first State witness. The second witness, Timothy Agwi and Dr. Marcus Woibun corroborate her evidence. I find no inconsistencies in anyone and all of these witnesses’ evidence when we view the whole of the State’s case together with the medical report admitted into evidence with your consent. Similarly, I find no part of these evidences illogical or not in keeping with commonsense.

There was no serious challenge on the credibility and reliability of the State’s witnesses and their evidence. There was no suggestion for example, put to any of these witnesses that they were lying under oath. Similarly, cross-examination failed to establish any possible reason for the witnesses taking the stand against you. Indeed, according to Kellie’s evidence, it seems, Dr. Woibun is a person you were prepared to turn to as you told her to go to him for airplane tickets to get away to Aitape. Hence, he would have been the last person to come and testify against you.

The only exception to this could be the suggestion put to Kellie Lyons. The suggestion was that, because you were a stranger to her, she could easily blame you for the death of the deceased. Her answer was in the negative and maintained importantly that, she was telling the Court what she witnessed.

I am of the view that, you cannot make anything out of this in your defence. People do not normally blame any stranger for anything that might happen, let alone the commission of an offence simply because of that fact. There is usually, always a reason for all that occurs in society. If in this case, the witnesses were giving false evidence against you, you did not make that clear in cross-examination and you certainly called no evidence to demonstrate that.

Further, I closely observed the witnesses demeanours. None of them gave me the impression that they were lying. Instead, they gave me the clear indication that they were telling the truth. They were not evasive, or were looking for words in there evidence.

(iii) Findings of Fact – State’s Case

In these circumstances, I find that the State’s witnesses were credible. They therefore gave credible evidence against you. From these evidence, I find that the relevant facts are as per Kellie Lyon’s evidence as supported by the evidence of Timothy Agwi and Dr. Marcus Woibun.

These evidence does not however, show exactly who killed the deceased and how. Hence, there is no direct evidence of you killing the deceased. Nevertheless, there is sufficient evidence placing you at the scene of the crime at the relevant time and your conduct after the commission of the offence. I find therefore that, you have reason to know who killed the deceased, why and how.

I also find that, you were part of five other masked men and therefore, unknown men that carried the deceased onto the back of a double cabin vehicle that had gone ahead of you and was stationary at the gravel pit area. Further, I find that, you then went into a cover up operation as described by Kellie Lyons in her evidence.

The operation was in terms of you placing the deceased on the other vehicle, getting into his vehicle, driving it onto the main road and following the other vehicle with the deceased in it. You and the others then drove the two vehicles into the mouth of the Dawi River. There, four men with you took the deceased out of the vehicle, into the river and washed him. Thereafter, you and the other masked men brought the deceased onto the other vehicle and drove him to an area where there was a cliff. At that place, you stopped and you and your passengers got out of the vehicle. You then pushed the vehicle empty off the road with the help of the other unknown men.

Once the vehicle came to a stop, you with the help of the other men carried the deceased out of the other vehicle and took him down the cliff to where his vehicle had come to a stop. There, you put him in front of the vehicle. At this stage, Kellie asked Lucy and the other men questions and they asked in return, why was she asking too many questions and asked her, if she wanted to go in one coffin with the deceased. This is when she realized fully that the deceased was dead. All along, she was frightened but could not run away or do anything because of the masked men watching over her.

After dealing with the deceased in the above manner, the other vehicle drove off, while you, Lucy, and Kellie walked to Dawi Bridge. There, you went to the river and washed of the blood on your shirt. From there, you continued to walk, a police vehicle approached and Kellie tried to stop it but before she could do that, you and Lucy punched her and so she did not succeed.

You all continued to walk toward Vanimo town and eventually reached Dalung creek. There, you talked to some people in a vehicle while Kellie and Lucy stood around. At that stage, Kellie saw Gilman coming and asked, is that you Gilman and further said to him, "I know you as I used to be at works". She then walked with him into Dalung. By this time, you told Kellie to go to Dr, Woibun for a ticket for you all to go to Aitape. She however, refused to do that, and said to you, "I cannot go because; I have my own place to stay". Thereafter, all of you departed and went your separate ways.

You continued to Dr. Woibun’s place and informed him that the deceased was involved in an accident in a Health Department vehicle. Dr. Woibon saw you with wet blood diagonally from your left shoulder toward the right side of your waist area. When asked about the presence of the blood, you attributed it to a superficial abrasion on your forehead and a finger. However, Dr. Woibun, based on his years of experience as a medical doctor said, he could not be satisfied that all of the blood on your shirt could be attributed to the sources you pointed to. You appeared traumatized, shaking, trembling and showed as if you had no sleep the night before and appeared as if drunk although, he was not close enough to smell your breath of any alcohol. Further, you kept on interrupting during your conversation with the doctor with a request for an ambulance to pick up the deceased.

Dr. Woibun took you to the police station for them to help you with your request. That is were Timothy Agwi said, you got onto his vehicle and went with him to go and look for the deceased at the scene. Once you got to the scene, you were not able to quickly identify and lead the witness and others to the final resting place of the deceased and the vehicle. You appeared frightened and or scared. The driver of a PMV identified the actual scene of the accident with the deceased placed next to the vehicle.

The deceased was near the vehicle in a sitting position as opposed to one being in the vehicle. Mr. Agwi saw that the deceased had a cut on his forehead. The vehicle appeared pushed off the road and not one driven off. The medical report confirms in its conclusion that:

"The nature of the injuries particularly the head, tends to suggest the probability and possibility of physical assault with the use of blunt object applied to the head. This renders the deceased concussed (unconscious) alive and bleeding.

The injuries to the body and right lower limb suggest contact or rubbed against hard irregular surface or surfaces.

Findings on the upper right limb suggest the possibility of the deceased being held by the arm, leaving nail marks and/or scratches."

This is consistent, in my view, with the rest of the prosecution evidence that, the deceased was assaulted at the gravel pit area beach, was put on a vehicle, driven around and then finally brought onto one of the vehicle and placed next to his vehicle.

Although it is not clear at what point the deceased died, it is clear that he died eventually from a blow he received from a blunt object to his head, which knocked him out unconscious and caused him to bleed. This explains the amount of blood on you.

On these facts, I am satisfied that the State has established a prima facie case against you. In arriving at that view, I do note that there is no direct evidence of you hitting the deceased and causing him to die or contributing to his death. It is clear law that the Court can still find you responsible for the death of the deceased if that is the only reasonable inference open to the Court from the other primary evidence before it beyond any reasonable doubt. This is particularly so in cases where the State relies on circumstantial evidence as is done here, given the facts outlined above.

The relevant law on point is very clear. The Supreme Court in Pawa v. The State, [1981] PNGLR 498 at p.501 in the words of Andrew J stated the relevant principles quoting with agreement the words of Miles J in The State v. Tom Morris [1981] PNGLR 493 at p.495 in these terms:

"I take the law as to circumstantial evidence in Papua New Guinea to coincide with what was said in the High Court of Australia in Barca v The Queen [1975] HCA 42; (1975) 50 ALJR 108 at p 117):

‘When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than guilt of the accused’; Peacock v The King [1911] HCA 66; (1911), 13 CLR 619 at p 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’: Plomp v The Queen [1963] HCA 44; (1963), 110 CLR 234, at p 252; see also Thomas v The Queen [1960] HCA 2; (1960), 102 CLR 584, at pp 605-606.

However, ‘an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence’: Peacock v The Queen at p 661. These principles are well settled in Australia. It was recently held by the House of Lords in McGreevy v Director of Public Prosecutions, [1973] 1 WLR 276, that there is no duty on a trial judge to direct the jury in express terms that before they could find the accused guilty they should be satisfied that the facts proved were inconsistent with any other reasonable conclusion than that the accused had committed the crime. That decision goes only to the form of direction necessary to be given to the jury, and although its effect may be that the practice in this respect is less rigid in England than in Australia, it does not reflect upon the correctness of the principles stated, which are really principles of logic and common sense’."

There has been a consistent adoption and application of these principles in a large number of subsequent judgments, by both the Supreme and the National Courts. An example of this is Garitau & Rosanna Tau v. The State (supra). I have applied those principles in a number of my own judgments as in The State v. Tony Pandua Hahuahori (unreported judgment delivered 19/02/02) N2185 and The State v. Cosmos Kutau Kitawal & Christopher Kutau (supra).

What these principles say in simple terms is this, where a case against an accused person is only circumstantial, he must be acquitted unless, such a person’s guilt is the only rational and reasonable inference dictated by the circumstantial evidence beyond any reasonable doubt. In your case therefore, I need to be satisfied beyond any reasonable doubt that the evidence produced by the State points only to you being involved in the killing of the deceased and I have so found, subject to a consideration of your evidence in your defence.

(iv) Your Evidence In Rebuttal

Turning then to your evidence in rebuttal, I note that one of the strongest arguments the State has put forward is the fact that, you did not put the whole of your case to its witnesses, during your cross-examination of them. It is trite law that, in order for a party’s claim to be credible, he must in fairness put his case or claims to the others’ witnesses by way of cross-examination so that they can have the opportunity to either maintain or retract their evidence. This is in effect what is meant by a "fair hearing in s. 37 (3) of the Constitution, which is in turn, in my view, is a codification of the rule in Browne v. Dunn (1893) 6 R 67 (HL). Where a party fails to do that, his or her subsequent claim losses credibility and is therefore, not reliable.

The Supreme Court in John Jaminan v. The State (N0.2) [1983] PNGLR 318 at pp. 332-333 per Bredmeyer J. stated that position in these terms in the context of a belated claim of alibi:

"Firstly, the alibi was never put to the key State witnesses, particularly the prosecutrix and Maria who gave evidence ... The importance of putting one’s case to the opposing party’s witnesses has repeatedly been emphasized in Papua New Guinea: see The State v. Saka Varimo [1978] PNGLR 62 (Prentice J) and The State v. Manasseh Voeto [1978] PNGLR 119 (Wilson J). If it is not done, the weight of the evidence given by the party in this case the accused is reduced."

In your case, you did not put to the State’s witnesses the entirety of your case. In particular, you did not put your claim that one of the unknown persons that joined you at the gravel pit area drove the deceased vehicle with you, Lucy and Kellie on board and deliberately bumped it. Then after the bumping, you, Lucy and Kellie managed to escape without any serious injuries. You did not tell this to the police or anybody else and said it for the first time in Court, well after the State witnesses had come and gone. This obviously casts serious doubts over your credibility, both as a person, a witness and hence your evidence.

In addition, you did not answer in any way the prima facie evidence against you. This is particularly, in relation to the evidence of Timothy Agwi and Dr. Woibun. Mr. Agwi stated that you went to the scene with him and others. Whilst there, you were not able to precisely point out where what you claimed was an accident that took place and showed signs of being frightened. You did not deny or refute going with Mr. Agwi as he described and giving misleading indications as to where the accident occurred.

With regard to Dr. Woibun’s evidence, you did not deny or refute the witness saying you appeared drunk, trembling and looked as if you had not slept the night before and that there was much more blood on you, which could not have come from the superficial abrasions you received from your claimed accident. Alternatively, you did not explain what caused you to be in that condition.

Further, you did not provide any clear evidence as to what happened to the deceased on returning to the beach at the gravel pit area. You were not clear and specific as to which vehicle he went to and how. In addition, you did not state what happened to him or his body. Yet you were able to tell Dr. Woibun and Mr. Agwi that the deceased was involved in a motor vehicle accident and accompanied Mr. Agwi to the scene.

I note your argument that, this does not necessarily mean that, you were responsible for the accident or the death of the deceased. That could be right on its own, but when viewed in the context of the whole of the evidence before the Court, it points to your guilt more than not. Indeed, I note that the Supreme Court in Tony Imunu Api v. The State (unreported judgment delivered on 29/08/01) SC684, affirmed a conviction purely on circumstantial evidence. In that case, the prisoner led the police to the seriously wounded body of the deceased in a case of wilful murder. The Court found that his leading the police to the deceased body was indicative of killing the deceased, as he alone knew where to locate the body.

Furthermore, even though it may not be important and serious on its own, you speak of coming into Vanimo to arrange for an authority to airlift diesel drums to slash grass at the Lumi airstrip. This was on a Saturday when all government and some businesses are usually closed. You being a District Manager or Administrator should have been well aware of this but on this occasion; it appears you forgot about it. Certainly, this is inconsistent with the usual position in the absence of any evidence showing that the DCA here in Vanimo is usually open on the weekends and in particular Saturdays.

Still further, there is no explanation for the sudden turning up of the masked men in the other vehicle at the gravel pit area at such a time in the morning. It is not clear what made these unknown men to turn up as they did and then suddenly attack the deceased. If they were strangers, they would have also attacked you and that, they or you would not have acted in concert with each other from the gravel pit area to where you pushed the vehicle off the road and finally placed the deceased. The evidence, in my view, suggests a joint effort as opposed to you and or them acting alone, or you acting under force by the unknown persons to do what you did by the unknown persons.

Finally, if indeed the deceased was your best friend, you could have gone in his aid including a rushing of him to the hospital. However, your evidence does not indicate this. There is for example, no evidence of you even attempting to do that and one of the unknown masked men attacked or threatened you. It seems rather strange that, you were allowed to go, notwithstanding the fact that, you were a potential witness.

Overall, you were in a better position to explain what happened to the deceased but you did not. Instead, you gave evidence that has traces of inconsistencies, fresh claims not put to the prosecution witnesses and a complete lack of denial or evidence rebutting strong circumstantial evidence against you. In these circumstances, I note that the State’s case against you is much better then was the situation in The State v. Gari Bonu Garitau and Rossana Bonu, [1996] PNGLR 48, subsequently affirmed on appeal in Garitau Bonu & Rosanna Bonu v. The State (supra) as well as the Tony Imunu Api v. The State (supra) case.

In the first case, the prisoners had in their house, the badly wounded body of the deceased. They chose not to give any evidence explaining how it got there and how he sustained the wounds. The National Court found that, there was no reasonable explanation provided as to how the body and how the injuries got there. In the circumstances, the Court found the prisoners were responsible for the death of the deceased without more. The prisoners then appealed to the Supreme Court against that finding. On appeal, the Supreme Court found that the finding was open to the trial judge and that there was nothing wrong with his finding.

In the second case, the appellant was seen by two witnesses pulling the deceased by his collar from a bus about 4 or 5pm on the day of the offence. The deceased went missing since that sighting until found dead, two days later. A witness saw the appellant walk passed the witness’s house in a frightened state between 6-7pm on the day when the deceased went missing. Then when police got involved, the appellant led them to the location of the deceased’s body.

In your case, there is direct evidence of you being one of those who carried the deceased body to the parked motor vehicles at the gravel pit area, and the subsequent dealing with the deceased body. This includes your part in the cover up attempt of trying to make it look like an accident. There is direct evidence of you having blood on your clothes. Further, the evidence directly describes your conduct immediately after the death of the deceased and the cover up operation. You appeared as if drunk and not having slept the previous night. Furthermore, you were traumatized and trembling and could not hold a cup of coffee well.

(v) Decision

The explanation you provided is incomplete and not convincing for the reasons already given. In the circumstances, I have no difficulty in finding that you were responsible, if not solely; you did significantly contributed to the death of the deceased. Going by the medical report, I find that the deceased did not die instantly at the gravel pit area. Instead, he was only knocked out unconscious but was still alive. If indeed you were a very good friend of the deceased, as you stated in your evidence, you could have done something about taking the deceased to the hospital or at the least, help him. In your evidence, you do not explain what, who and how you were or might have been prevented from going to your best friend’s aid at a time when he needed the most. The evidence directly against you however, is that, you drove the deceased to a creek and had him washed then had him placed beside his vehicle after having pushed the vehicle off the road. Herein, in my view, is an execution of your intention to kill the deceased as opposed to an accident.

I find this is the only inference that is open on the primary evidence that is available before this Court. I cannot see how any other inference is available other than your involvement and guilt. Accordingly, I have no difficulty in finding you guilty beyond any reasonable doubt on the charge of wilfully murdering Jack Mandari on 2nd March 1997 along the West Coast Road here in Vanimo, Sandaun Province. Accordingly, I return a verdict of guilty against you. Consequently, I order that you be remand in custody awaiting your sentence.
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Lawyers for the State: The Public Prosecutor
Lawyers for the Accused: The Public Solicitor