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State v Wani [2010] PGNC 253; N3968 (13 April 2010)

N3968

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 390 OF 2008

THE STATE

V.

ALWYN WANI
Accused

Wewak: Davani .J
2010: 12th, 13th April

CRIMINAL LAW – Wilful murder – s.299 - different weapons used – aiding and abetting – s.7 of Criminal Code.

CRIMINAL LAW – aiding and abetting – accused verbally encouraged others – accused involved in chase up to the killing.

CRIMINAL LAW – intention to kill – consideration of surrounding circumstances – wilful murder – killing in horrendous circumstances – mitigating factors rendered nugatory - life imprisonment.

Facts

Accused and three others chased deceased and one other, after a fight. Deceased ran to the river, where whilst in a canoe, he was speared, then axed in the head. A paddle was then used to repeatedly prod him in the head. He was pushed into the river and did not surface. He was found the next day, the spear tip still lodged in his left arm.

Issues

1. Did the accused aid and abet in the killing of the deceased?
   
2. Was there an intention to kill the deceased?
   

Reasons

1. Yes, the accused aided and abetted the deceased's killing.
   
2. Yes, there was intention to kill the deceased.
   

Case cited
Papua New Guinea Cases

Agiru Aieni v. Paul T. Tahain [1978] PNGLR 37
John Anis Pok v. The State (1983) SC 254
John Beng v. The State [1977] PNGLR 115
John Jaminan v. The State (No.2) [1983] PNGLR 318
Luingi Yandasingi v. The State [1995] PNGLR 2687
Manu Kovi v. The State (2005) SC 789
Porewa Wani v. The State [1979] PNGLR 593 (SC 170
State v. John Bill White (No. 1) [1996] PNGLR 262
The State v. Robert Wer [1988-89] PNGLR 444
The State v. Yapes Paege [1994] PNGLR 65 (N1234))
The State v. Godfrey Edwin Ahupa (1998) N1789
The State v. Stanis Gala (2005) N2846
Thomas Arthur McCallum v. Gregory Bubui [1975] PNGLR 439
Ure Hane vs. The State [1984] PNGLR 105
Willy Kelly Goiya v. The State [1987] PNGLR 51

Overseas Cases

Barrington v Austin and Others [1939] SAStRp 38; [1939] S.A S.R. 130
Browne v Dunne (1893) 6 ER 67:652
Dennis v Pight (1968) 11 F.L.R 485
George Donald Allan, James Joseph Boyle, Albert Ballantyne, Michael Mooney (1963) 47 Cr. App R.243
Fabinyi v. Anderson (1974) 9 S.A. S.R. 336
R v. Coney and Others [1882] UKLawRpKQB 30; (1881-1882) 8 QBD 534
R. v. Russell [1932] ArgusLawRp 98; (1933) V.L.R 59
United States v. Peonic (1938) 100 F. 2d 401
Rice v. Hudson [1940] SAStRp 37; [1940] S.A.S.R. 290
R. v. Clarkson and Others [1974] 3 All ER 344

Counsel

A. Kupmain, lawyer for the State
M. Yawip, lawyer for the Accused

13th April, 2010

VERDICT

1. DAVANI .J – On 12th April, 2010, the State presented on indictment against Alwyn Wani (the 'accused'), charging him with one count of wilful murder, charge laid pursuant to s.299 of the Criminal Code. The accused pleaded not guilty to this charge and the matter proceeded to trial. Section 299 of the Criminal Code reads;
   

"299. WILFUL MURDER.

(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death."

State's allegations

2. The State alleges that on 2nd November, 2007 at Mamare Village, Angoram, in the East Sepik Province, the accused together with several others, killed one Jilsco Huande (the 'deceased').
   
3. The State alleges that the accused aided and abetted in the killing when he urged others to perpetrate this crime where they used an axe, a spear, a paddle and later, drowned the deceased.
   

Accused's Defence

4. The accused denies he committed his offence. No formal Defence was raised by the accused before the trial, however, his lawyer made known to the Court during a brief status conference before commencement of trial, that the issue is one of identification.
   

Analysis of evidence and the law

5. The matter proceeded to trial with the State calling 2 witnesses to prove its case. It also tendered through these witnesses, several items which I marked as exhibits, including the purported murder weapons being a spear and a paddle.
   
6. Only the accused gave evidence. He elected to give sworn evidence after the Court explained to him the 3 alternatives available to him.
   

1. State's evidence
   

7. The 2 witnesses called by the State were Basil Singavi and Thomas Kam. Basil Singavi's evidence is in relation to what he saw and heard that night, more particularly, the events leading up to the killing, the killing itself and events after the killing.
   
8. Thomas Kam's evidence is in relation to the retrieval of the body from the river and a description of the murder weapons used.
   
   • (a) Scene of the crime; The offence occurred at about 3:00 am to 4:00 am on 2nd November, 2007, whilst the deceased was in a canoe, paddling away from the accused and others. The river on which the killing occurred is called the Kurasmeri, a tributary of the Sepik River.
     
   • (b) Events leading to the killing; On the evening of 1st November, 2007, there was a dance at Mamare Village, located on the Kurasmeri River. Villagers from the neighbouring village of Mindimbit, attended the dance as well. It was not until about 2:00 am on 2nd November, 2007, that a fight started at a hauswin at Mamare Village. It involved youths from the Mindimbit and Mamare Villages.
     
9. The deceased was one of 2 youths from Mamare Village, who were allegedly chased by the accused and others. The deceased then attempted to get away from the mob by getting into a canoe and paddling off. However, whilst paddling, the accused and others caught up with him and attacked him. I describe the attack further below.
   
   • (a) Weapons used in attack; The accused and accomplices allegedly used a spear, an axe and a paddle to kill the deceased. Firstly, the deceased was struck in the left arm by a spear, normally used to hunt crocodiles, large fish and pigs. He was later struck in the head by an axe wielded by one of his attackers. Then he was repeatedly struck in the head by the blade of a paddle.
     
10. The spear is about 3 to 6 metres in length. At the tip of the spear are 3 pronged steel/metal rods about a feet in length. Each are about a centimetre wide. These are held together by a very taut string or rope tied in such a way where the prongs will not be dislodged when used. About 6 inches of the base of the 3 pronged steel/metal rods are inserted into a hollow bamboo and again, tied up very tightly to the tip of the spear. The edges of the 3 pronged steel/metal rods are all sharpened with jagged edges, much like whaling harpoons, only smaller. These 3 pronged steel/metal rods when used, are intended to remain lodged in the animal or fish or crocodile until the hunters either track it down as in a crocodile or pig or until it stops its death throes and is dead. Or, as is the practice amongst a lot of rural Papua New Guineans, who are hunters or fishermen, to be sure that the animal or fish has succumbed, the hunters use an axe or knife or at least, a heavy object, to hit the animal on the head.
    
11. The blade of the paddle used to beat the victim on the head and to strike his body with, is a paddle used only on the Sepik River. It is about 2 ½ to 3 metres in length. The blade of the paddle used to stroke the water, is very unique in that instead of the traditional, flat semi-circle or oval or elongated shape, it has an upward curved centre, leaving 2 prongs on either side, shaped more like an oval shaped head with elongated ears or horns. That is the bit that is dipped into the water when paddling and which 'horns' were used to strike the deceased in the head, with 'prodding' actions.
    
    • (a) The scene of the crime; The eye witness to the crime, one Basil Singavi, said on the evening of 1st November, 2007, he was at a dance at Mamare Village. He said he went there with a couple of other young men, left them, then proceeded to Ricky's hauswin, which is not far from the dance venue. He said there were already people in the hauswin, people from Mindimbit Village. An argument started between him and young men from Mindimbit Village. This then led to or escalated into an all out battle between the Mindimbit and Mamare Villagers.
      
12. The witness said he was then chased by the accused and others so he ran down to the river's edge and started releasing canoes owned by the Mindimbit villagers, which had been left at the river's edge. He set two canoes adrift when the Mindimbit villagers came upon him.
    
    • (a) Identification; The witness said when he ran from the scene of the fight to the river's edge, the deceased accompanied him, running behind him. Running behind them in pursuit were Kelvin Wani, Cliveson Ban, Wain Gai and the accused. The deceased had a torch which the witness Basil took from him and which he used when releasing the canoes.
      
13. He said when the Mindimbit villagers came or set upon the deceased and him, he turned the torch on them. He said in the torchlight, he saw Wain Gai holding a 1 metre long bush knife, which he used to attack both the deceased and him. He swung the bush knife at them. At that instant, the witness dove into the river and the deceased jumped into a canoe and pushed off, drifting downstream. To escape, the witness also, allowed himself to be carried downstream by the river.
    
14. He said as he was taken downstream by the tide, the Mindimbit villagers followed in canoes. He then heard the accused say "that's him, kill him, shoot him". He saw Cliveson Ban, Kelvin Wani, Wain Gai and the accused in one canoe. He said they followed them downstream using torches to search for them. The witness said on seeing that, he dove into the water and swam to the other bank where he surfaced and hid amongst pitpit bushes.
    
15. He saw the accused and others search for them using the torch, when suddenly, he saw the deceased in the glare of the torch light, still seated in the canoe. Then, he heard the accused say, 'sutim em' in pidgin or 'shoot him'. He then saw Cliveson Wani pick up a hunting spear, and hurl it at the deceased. The spear plunged into the deceased's left arm protruding to the other side where it embedded itself, the tips of the metal prongs just touching the deceased's left side.
    
16. The witness said he was about 7 metres away from the accused and others when they came upon the deceased and attacked him. He said after the spear struck the deceased, the deceased fell into the water. Whilst they were still in the canoe, the witness saw the accused and others, grab the spear, then drag the deceased in the water using the long spear handle, to the river bank.
    
17. At the river bank, and whilst the deceased was still 'attached' to the spear, Wain Gai used an axe to strike the deceased on the back of his head. They then used the paddle blade or the 'horns' to strike or prod the deceased several times on his head. This paddle was tendered into evidence as exhibit "1" for the State.
    
18. The spear was tendered into evidence as exhibit "2" for the State.
    
19. A sketch of the setting of Mamare Village is exhibit "3" for the State.
    
20. The witness said the accused and others then tried to remove the spear from the deceased's body, but could not because the three prongs were firmly embedded in the deceased's arm. He said he then saw them remove or pull the long spear handle leaving the pronged barbs in the deceased's body. They then pushed the deceased into the river water. He said he did not see the deceased resurface.
    
21. He remained hidden in the pitpit until about 5:00 am when people from his village came looking for him in their canoes. A Dennis Napi called his name, that's when he emerged from his hiding place.
    
22. Defence Counsel submits that the witness could not have clearly or properly identified his attackers and those who attacked the deceased because it was too dark. However, the witness' response to this is that he has known his attackers from the neighbouring village "for a long time" so he could not have mistaken who they were. He said from his hiding place in the pitpit bushes, he saw what the accused and others did to the deceased.
    
23. The principles of identification are well established and held in the case John Beng v. The State [1977] PNGLR 115. In that case, Kearney .J said;
    

"What opportunities the person identifying had to form a judgment of the identity of the person who committed the crime ... position of the parties, the lighting, the opportunities to form a judgment and generally the circumstances in which the identifying witness formed the judgment as to identification."

24. This was further held in the Supreme Court case of Liungi Yandasingi v. The State [1995] PNGLR 2687; SC 474, where Amet CJ, Kapi DCJ and Los .J, on 5th December, 1994, said that the quality of identification is established by the following;
    

"a. whether the witness knew the accused before the event in question;

2. the lighting conditions at the time;
   

100. the distance between the witness and the accused at the time of event in question;
     

4. was there any object which may have obstructed the view of the accused.:"
   

25. I also warn myself of the dangers inherent in identification evidence and remind myself that recognition is more reliable than the identification of a stranger but mistakes in recognition of even close relatives and friends can be made. (see John Beng v. The State (supra)).
    
26. In cross-examination, Defence Counsel did not show that the witness could have been mistaken or the witness was lying. Defence Counsel also did not show that the witness' recollections of the fateful day were inacurrate or that the witness was never there. To the contrary, Defence Counsel's questioning only reasserted the witness' stance as regards his evidence, which were that;
    
    • (i) The accused was in the canoe with 3 others;
      
    • (ii) Both the deceased and the witness were "chased" by that canoe;
      
    • (iii) The witness dove under and swam to the other bank where he witnessed the attack on the deceased by the accused and others;
      
    • (iv) That he witnessed the whole attack from the beginning till the end.

(my emphasis)

27. This is not a case of identification but rather, a case of recognition. The witness, in this case, first met his attackers in a house or shelter. That same group came upon him about an hour later. They were the ones who chased the deceased and him and who later rushed upon them when they met them at the river bank. The same group, including the accused, were at the crime scene from about 1:30 am to 4:30 am, a period of about 3 hours. The witness could not be mistaken. Apart from that, the accused and his companions are known to the witness because they come from a neighbouring village.
    
28. I find there was no break in the chain of events. The same people who chased the witness, were the ones who attacked the deceased and him. The same people killed the deceased. The witness saw them enter the crime scene and leave. I find there could not have been a possibility of wrongly identifying the perpetrators, including the accused.
    

(a) Other evidence;

1. Accused – The accused has his own version of what happened. In evidence, the accused said that on 2nd November, 2007, he went to Mamare Village to buy sago. He said he arrived at Mamare Village about 7:00 pm that day. He said whilst at Mamare Village, about 8:00 pm to 8:30 pm that evening, there was a fight. He called it the 'first fight'. He said the fight was between Calvin Wani and Jude Sumbuk. He said both him and Ben Sumbuk, Jude Sumbuk's father, stopped the fight. He said after that fight, he left Mamare Village for his village.
   

29. Counsel for the State put to him questions in relation to the fight, chase and the eventual death of the deceased to which the accused said he did not know, that he was never there or that he was somewhere else.
    
30. Two major legal hurdles or obstacles have arisen as a result of the accused's evidence. These are;
    
    • (i) His evidence on picking up sago, stopping a 'first fight' and leaving for his village about 8:00 pm on 2nd November, 2007, are all new evidence.
      
    • (i) This evidence was not put to the State witness Basil, by Defence Counsel, a breach of the rule in Browne v. Dunne (1893) 6 ER 67:652.
      
    • (ii) The witnesses' claims of being somewhere else is new evidence and is not properly before the Court. I say this because it could be Alibi evidence but which has never been raised, even before the Committal, when interviewed by the Police, after committal and during the pre-trial stages. In my view, it is a recent invention by the accused. Apart from that, he did not produce any evidence to substantiate these claims.
      
31. I find that the accused is raising new evidence at trial which he has never raised. His claims of buying sago are all recent and concocted for this trial only. He never told the Police this when arrested, nor did he tell his previous lawyers who earlier had carriage of this matter. I say this because trials are all about fairness. All parties must be aware of each other's case and to properly prepare for it by the calling of evidence. A party in a criminal trial, and if I may say, a civil trial as well, cannot come to trial with material/evidence that the other side knows nothing about, and expect to win the case. That will not happen. The information or evidence about the purchasing of sago should have been contained in Police statements and/or the filing of alibi notices.
    
    2. Thomas Kam - Thomas Kam is a subsistence farmer from Mamare Village, Angoram in the East Sepik Province. He told the Court that on Friday, 2nd November, 2007, about 3 pm, witness Basil Singavi showed him and other villagers from Mamare, the place or spot in the river, where the deceased was pushed under. He said the villagers searched the river bed for a long time for the deceased's body, using bamboo poles. They were able to locate the deceased's body when the bamboos touched the deceased's body. He said his brother Hendrick Kam and him, dove into the river and brought up the deceased's body. He said the river was about 10m deep.
       
32. He said after the body was retrieved from the river, they saw that the 3 steel rods were still embedded in the deceased's left arm. They also noticed that the deceased's head was very soft "like a ripe pawpaw" as he said, and that there was an axe wound at the back of his head.
    
33. They took the deceased's body to Mamare Village, then to Kamigara, where the Police wrote a report. They then took the body back to Mamare Village and had to bury the deceased because the body was beginning to decompose. Prior to burying the deceased, the deceased's mother gave them permission to pull out the steels rods. They did this by cutting through the arm, allowing the prongs to be released from the flesh. He said their job was made easier because the deceased's flesh was very soft by then as it was already in a decomposed state.
    
34. Alibi evidence – the law; An "alibi" under O.4 r.8 of the Criminal Practise Rules ('CPR') means evidence tending to show that by reason of the presence of the accused person at a particular place or in a particular area at a particular time, that he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged omission.
    
35. The position at law in relation to the Defence of Alibi is that proper notice must be given. Our system of criminal justice is one in which fairness to both sides of a case must prevail. There is no room for surprises. As Brunton .J said in The State v. Robert Wer [1988-89] PNGLR 444 at 447;
    

"But against the rights of the accused, there are the Criminal Practise Rules 1987. They make it very clear that when an accused person relies on a Defence by alibi, then proper notice must be given. That is the law. O.4 r.4 and r.5. These rules ensure that the State is not caught by surprise and that the public interest in seeing a criminal case fairly and properly prosecuted, does not suffer."

36. The case John Jaminan v. The State (No.2) [1983] PNGLR 318, is a demonstration of what can happen to a defendant who does not comply with these rules. Mr Jaminan failed to give early notice to the State as a result of which the Court refused to accept the raised explanation.
    
37. And Bredmeyer and Amet .JJ said in John Jaminan (supra);
    

"..the alibi was delayed or belated and that reduces the weight that should be given to it..".

Other cases supporting the principle that only the best evidence will be considered by the Court, was held in the following cases;

• Thomas Arthur McCallum v. Gregory Bubui [1975] PNGLR 439
  

Judgment by Frost CJ of 5th December, 1975, when he said; "if there are significant discrepancies in.case of this kind, before going or to find an innocent explanation for them, a judicial officer would need to be convinced of its truth..".

• State v. John Bill White (No. 1) [1996] PNGLR 262
  

Judgment by Doherty .J of 23rd January, 1996, when she said that the State has a duty to prove every element against an accused and "...in order to adduce proof of each element, the maxim the best evidence must be given of which the nature of the Court case permits" is considered a fundamental principle of the law of evidence (see Phipson on Evidence 13th ed. Pars. 5.10 "the best evidence rule").

38. For the reasons raised above, I will not attach any weight to the accused's evidence, and will disregard it.
    
    • (a) Aiding and abetting and the element of intention; The State invokes s.7 of the Criminal Code. S.7(1)(a) to (d) reads;
      

"7. PRINCIPAL OFFENDERS.

(1) When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:–

(a) every person who actually does the act or makes the omission that constitutes the offence;

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c) every person who aids another person in committing the offence;

(d) any person who counsels or procures any other person to commit the offence.

..."

39. The evidence is that witness Basil Singavi said that the accused and others from Mindimbit fought against people from Mamare Village at the hauswin at Mamare Village. He also said that after he had run down to the river, a group of men ran up to him. At the river bank, Wain Gai held a 1 metre long bush knife which he swung at the deceased and the witness. He dove into the river when he heard the accused say 'that's him, kill him, shoot him'. The deceased pushed off in a canoe.
    
40. He said he then saw the accused and the named 3 others get into a canoe and follow him. He said they followed him in the canoe but when they saw the deceased in the torch light, sitting in the canoe, the accused said 'sutim em, sutim em' in pidgin or 'shoot him, shoot him'. That was when Cliveson Ban grabbed the spear and hurl it at the deceased. The witness was hiding in the pitpit bushes on the river bank about 7 metres away, when he saw that happen.
    
41. The evidence is that the accused was in the canoe when the deceased's body was dragged in the water by somebody, using the long spear handle because the tip of the spear was still embedded in the deceased's body.
    
42. The accused was still in the canoe, when at the river bank, whilst the deceased's body was still affixed to the spear, Wain Gai struck the deceased's head with an axe.
    
43. The witness then heard choruses of 'sutim em wantaim pul' meaning 'hit him with the paddle'. The accused was still in the canoe with the deceased when the group went about hitting the deceased with the blade of the paddle.
    
44. The accused was still with the group on the river's edge when they attempted to remove the tip of the spear from the deceased's body. The witness saw them remove the bamboo holding the metal prongs then push the deceased's body in the river. The accused was there the whole time.
    
45. The accused was not there as a bystander. His conduct from the evidence, is seen as promoting the commission of the killing (see Agiru Aieni v. Paul T. Tahain [1978] PNGLR 37).
    
46. Wilson .J relied on R v. Coney and Others [1882] UKLawRpKQB 30; (1881-1882) 8 QBD 534 in Agiru Aieni v. Tahain (supra) where Hawkins .J said;
    

"In my opinion, to constitute an aider or abettor, some active steps must be taken by word or action, with the intent to instigate the principal or principals. Encouragement does not of necessity amount to aiding and abetting, it may be intentional or unintentional, a man may unwittingly encourage another in fact by his presence, by misinterpreted words, or gestures, or by his silence, or non-interference, or he may encourage intentionally by expressions, gestures, or actions intended to signify approval. In the latter case, he aids or abets, in the former he does not. It is no criminal offence to stand by, a mere passive spectator is not a crime, even of a murder. Non-interference to prevent a crime is not itself a crime. But the fact that a person was voluntarily and purposely present, witnessing the commission of a crime and offered no opposition of it, though he might reasonably be expected to prevent and had the power so to do, or at least to express his dissent, might under some circumstances, afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided abetted."

47. It is useful that I quote from pp.42 to 43 of his Honour's decision because it contains a discussion of the law on aiding and abetting and what must be established before an accused can be found to be aiding and abetting.
    
48. The dictum in R. v. Coney and Others (supra) was applied by the Courts-Martial Appeal Court in R. v. Clarkson and Others [1974] 3 All ER 344 at pg.347 where the Court said;
    

"It is not enough then, that the presence of the accused has, in fact, given encouragement. It must be proved that the accused intended to give encouragement; that he wilfully encouraged."

(my emphasis)

49. The Court added that there must be both an intention to encourage and an encouragement in fact.
    
50. Both of the abovementioned dicta was applied by Mitchel J. in Fabinyi v. Anderson (1974) 9 S.A. S.R. 336 at pg.339.
    
51. In Barrington v. Austin and Others [1939] SAStRp 38; [1939] S.A S.R. 130, approved in Rice v. Hudson[1940] SAStRp 37; [1940] S.A.S.R. 290, it was held that, besides mere presence, there needs to be some proof of encouragement of the principle offenders.
    
52. In an American case United States v. Peonic (1938) 100 F. 2d 401, approved by Smithers J. in Dennis v. Pight (1968) 11 F.L.R 485 at pg.461, Hand J. said;
    

"The words aiding, abetting, counselling and procuring all demand that he (the accessory) in short, associate himself with the venture, that he participate in it as something he wishes to bring about, and that he seek by his action to make it succeed. All the words used, including the most colourless "abet", carry an application of a purposive attitude towards it."

53. In R. v. Russell [1932] ArgusLawRp 98; (1933) V.L.R 59, Cussen A.C.J. in his judgment (at pg.66) said;
    

"Various words, such as "aiding", "abetting", "comforting", "concurring", "approaching", "encouraging", "consenting", "assenting", "countenancing", are to be found in authorities. A principal in the second degree is sometimes defined as a person present aiding or abetting, but in this context each of these words has, as I have indicated, a wide meaning. A common dictionary meaning of "abetting" is "encouraging" or "countenance"; and this is to be remembered when the "aiding" or "abetting" alone are used. All the words abovementioned are, I think, instances of one general idea, that the person charged as a principal in the second degree is in some way linked in purpose with the person actually committing the crime, and is by his words or conduct doing something to bring about, or rendering more likely such commission."

54. In George Donald Allan, James Joseph Boyle, Albert Ballantyne, Michael Mooney (1963) 47 Cr. App R.243, it was held by the Court of Criminal Appeal in England that, in the case of an accused being charged with being a principal in the second degree to affray, there must be proof of some encouragement as well as proof of presence. At pg.249, their Lordships said:
    

"Indeed, in our judgment, encouragement in one form or another is a minimal requirement before an accused person may properly be regarded as a principal in the second degree to any crime."

55. This is not a situation where the State's case rests purely on circumstantial evidence. There is direct evidence of the killing. The evidence is that the accused coaxed, urged, participated and was at the scene of the crime for about 3 to 4 hours, until his counterparts and him pushed the deceased's body into the depths of the river. No doubt, he aided and abetted in the killing.
    
56. In relation to intention, the gravest kind of homicide is where there is the intention to kill. It is the most hideous crime known to mankind. Therefore, Parliament set the maximum penalty as death.
    
57. Wilful murder is the intention to kill (mens rea) and the carrying out of that intention (actus reus), the end result of which, regardless of the amount of violence used, is the extinction of human life. (The State v. Yapes Paege [1994] PNGLR 65 (N1234)). The killing was a cold-blooded attack, the kind of attack akin to that of a hunter stalking, then killing his prey. Imagine the deceased as a crocodile, which had just been speared, and is now being dragged, still affixed to the spear, to the river bank, where the final death blow will be delivered, as was done in this case, when Wain Gai struck the deceased on the head with an axe. And then, to be sure that he was actually dead, the attackers used the blade of the paddle to repeatedly strike the deceased in the head, by forceful 'prodding' actions.
    
58. Intention, a state of mind, cannot be proven by direct evidence. The element of the intention to kill is proven and drawn from all the evidence (see The State v. Godfrey Edwin Ahupa (1998) N1789) and The State v. Yapes Paege and Relya Tanda (supra)). Woods .J in the latter case, eloquently describes wilful murder and the intention to kill, irrespective of the degree of violence exhibited to the victim or the barbaric nature of the killing or a "text-book" killing, done after much planning and minimal spilling of blood and gore but, the end result being, the carrying out of that intention.
    
59. The evidence that I covered in great detail, demonstrates the desire to kill, the determination to kill, the drive to kill, all amounting to the final ingredient being the intention to kill. The deceased's attackers were out to kill, and commenced it firstly by the chase to the river, the chase down river and finally, the spearing of the deceased.
    
60. The evidence is that this boy, aged 17 at the time of death, was very innocent in that he was not involved in the fight at the hauswin. His spearing and axing was indiscriminate and cold-blooded and as I said above, he was hunted and then killed, in a manner more akin to that of a hunter killing his prey.
    
61. It is not alleged that the accused wielded the spear or axe and struck the blows to the deceased's body that fatally injured him. It is not alleged that it was the accused who actually pushed the deceased down into the river, where he remained until his body was recovered the next day. But relying on the evidence that the accused was with the deceased's attackers throughout the chase, he encouraged and coaxed them, leading to the eventual killing, the State invoked s.7 of the CCA. Based on s.7, the principal offenders are;
    
    • (i) Those who actually do the act or make the omission that constitute the offence; and
      
    • (ii) Those who do or omit to do any act to enable or aid another person commit the offence; and
      
    • (iii) Those who aid another person in committing the offence; and
      
    • (iv) Those who counsel or procure any others to commit the offence.
      
62. To satisfy s.7, I have seen in the evidence that;
    
    • (i) The accused called "shoot him, shoot him" on the two occasions when they saw the deceased in the torchlight. This was immediately followed by the accused aiding Kelvin Wani, Cliveson Ban and Wain Gai commit this hideous act which was followed firstly, by the chase on land, then the chase in the canoe on the river, then urging the others to kill.
      
    • (ii) The accused was in the canoe when after sighting the deceased, Cliveson Ban then hurled the spear that struck the deceased in his left arm, protruding right through his arm, the metal prongs of the spear just touching his left side, and which spear fastened and "locked" itself in the deceased's left arm.
      
    • (iii) The accused was still in the canoe, when after 'dragging' the deceased to the river bank, Wain Gai struck the back of the deceased's head with an axe whilst he was still stuck or embedded to the spear.
      
    • (iv) The accused was still there in the canoe when those in the canoe used the paddle blade 'horns' to forcefully prod the deceased's head.
      
    • (v) The accused was there in the canoe when these same people then pushed the deceased into the depths of the river. At that time, the deceased could have still been alive. We do not know.
      
63. The accused does not raise any Defence, only relying on the fact that he was not there. But as I stated above, this was raised very late, at the trial when he was giving evidence. I found that not to be a Defence, rather, a recent invention as it was unsubstantiated by evidence.
    
64. The accused was not just a bystander. From 1:30 am to about 4 am, the accused was a willing participant.
    
65. This case can be distinguished from The State v. Stanis Gala (2005) N2846 where Cannings .J found a co-accused not guilty of wilful murder, but guilty of murder, where ss.7 and 8 were invoked by the State and where the accused only sat idle in the driver's seat of the vehicle. His Honour said;
    

"If he had shouted instructions or encouragement to the gunmen or if he allowed them to get into the vehicle and then driven it in such a way that they could get a better shot at the deceased, he might have been regarded as aiding them. However, that was not what happened."

Another case this can be distinguished with is Willy Kelly Goiya v. The State [1987] PNGLR 51. The Court said there;

"Whether or not he should have been convicted of wilful murder, will depend on whether the intention to kill was the common purpose which he shared with the others or whether it was a probable consequence of their common purpose. If the purpose which they share was to attack with the intention merely to cause grievous bodily harm, then the appellant should have been convicted of murder even though one of the other assailants formed the intention to go further and to actually kill the deceased, we find no sufficient evidence, which would have justified the trial Judge in being satisfied beyond reasonable doubt that the appellant himself formed the intention to kill and that his blows caused death. Nor is there sufficient evidence to show that the group formed a common purpose ...which the appellant shared...to actually kill the deceased. Nor was the offence of wilful murder a probable consequence of their unlawful common purpose.".

66. One can argue that all the 4 men who participated in the events leading up to the killing, did not specifically have in mind a desire or plan to kill the deceased but that the deceased "happened" to be there for them to carry out their evil deed. But that is dispelled by what we have seen in evidence as demonstrated by their actions. Whether it was the deceased or the witness Basil or somebody else, their intention that night was to kill. And the witness Basil could have been a second victim but fortunately for him, the accused and his accomplices did not find him. Was their intention merely to cause grievous bodily harm? I think not. If that had been their intention, then they would not have speared the victim, then dragged him to the river bank whilst still embedded to the spear then cut him on the head, in the same manner a hunter would do to a crocodile or a fish, and then just to be sure that the animal is dead, to then 'prod' the body with the paddle blade. Obviously, these actions demonstrate that all accused persons did not just want to do grievous bodily harm, but they wanted to kill.
    
67. I find the accused and his accomplices participated in a common unlawful purpose, which was to kill the deceased. They assisted each other in carrying out this unlawful purpose. The other 3 must be arrested, if not already done and dealt with immediately.
    
68. I find the accused guilty of wilful murder.
    

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Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused