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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR.195, 196, 197, 198 & 199 OF 2008
THE STATE
V
GREGORY KIAPKOT
MARTIN BIGIT
TOBUNG PARAIDE
PETER TAUL
BOTHIA AGENA
Kokopo: Sawong J,
2010: 12, 13, 14, 15, 16 & 19 April
2011: 4 April
CRIMINAL LAW – verdict – wilful murder of passengers on outboard motor – whether the five accused individually or collectively involved in the crime – issue of identification discussed – late alibi raised by accused – two bodies found out of total of eight people murdered on outboard motor– inference to been drawn on the possibility that others are presumed to be murdered as well on circumstantial evidence – all evidence points to the accused persons committing the offence of wilful murder - proof beyond reasonable doubt – accused persons found guilty – s 299 Criminal Code Act,
Cases Cited
Papua New Guinea Cases
Biwa Geta v The State [1988-89] PNGLR 271
Eiserman v Nanatsi [1978] PNGLR 457
Garitau Bonu & Rossana Bonu v The State (1997) SC 528
John Beng v The State [1977] PNGLR 115
John Jaminan v The State [1983] PNGLR 318
Paulus Pawa v The State [1981] PNGLR 498
The State v Nataemo Wanu [1977] PNGLR 152
The State v Titerva Fineko [1978] PNGLR 262
R v Konea Menene (1969) No. 479.
R v Pari Parilla (1969) No. 522
R v Potosi (1973) No. 730.
State v Steven Tolira & Bernard Okole (1980) N 216
The State v Amoko Amoka [1981] PNGLR 373
Overseas Cases
Brown v Dunn [1893] 6 R 67 HL
Davies v DPP [1954] AC 378
Texts
Donald Chalmers, David Weisbrot and Andrew Warwick, Criminal Law and Practice in Papua New Guinea.
Counsel
Mr. N. Miviri, for the State
Mr. P. Kaluwin, for 1st, 2nd, 3rd & 4th Accused
Mr. T. Potoura, for the 5th Accused
4 April, 2011
1. SAWONG, J: INTRODUCTION: The five accused were jointly and separately indicted in the eight (8) counts of willful murder, contrary to s.299 of the Criminal Code Act. Upon arraignment, each of them pleaded not guilty to each count and a joint trial was conducted.
2. The State's allegations were that on the afternoon of 26 September 2007, an outboard motor dinghy called the "Palex", left Kokopo for West Coast Namatanai. On board the Palex were Ria Alphonse, Ismael Tibo, Anastasia Bolagas Maguri, her husband Eremas Bokot Maguri, Bustaman August, Reagan Kiapmur, the crew of the Palex, ToValaun Lauvo and Mathilda Maivon.
3. Whilst travelling in the sea between Kokopo and the West Coast of Namatanai, the five accused, who were armed with dangerous weapons, such as guns and bush knife held up the victims. The State alleged that the five accused have travelled to a spot earlier on, on two boats, one a 40 horse power boat and the other powered by a 75 horse power engine and waited for the passengers travelling on the Palex. The State says that when the accused saw the Palex with its passengers approaching them, the accused quickly surrounded the Palex and blocked them off from escaping.
4. Upon stopping the Palex, the State alleged one of the persons who was carrying a gun, shot the operator of the Palex, at the back killing him instantly. Thereafter the crew of the Palex, Reagan Kiapmur, then took custody of the boat Palex but he too was shot dead on the boat. This then rendered the boat immobile, where upon the accused and others then conveyed into the boat and looted it of its cargo and the accused also killed the remaining people on the boat Palex. Except for the bodies of Anastasia Bologos Maguri and Ismael Tibo, the bodies of the rest of the people who were travelling on the Palex that day have not been seen nor recovered, and all presumed to be dead.
5. The State says that at the time of offence, the Accused acted together and intended to kill each of the deceased. It is the State's allegation that each of the accused either individually or collectively aided abetted, counseled and procured each other and wilfully murdered each of the deceased. The State invoked Sections 7 and 8 of the Criminal Code.
MATTERS NOT IN DISPUTE
6. On 26 September 2007, eight people, namely Ria Alphonse, Ismael Tibo, Anastasia Bolagas Maguri, her husband Eremas Bokot Maguri, Bustaman August, Reagan Kiapmur, ToValaun Lauro and Mathilda Maivon left Kokopo on a speed boat known as Palex for the West Coast of Namatanai. At a point in the Duke of York Islands, they were held up and robbed and murdered. Only the bodies of Anastasia Bolagas Maguri and Ismael Tibo have been recovered. The six others have not been seen since the date of incident.
THE OFFENCE
7. Each of the accused have been charged with eight counts of wilful murder under Section 299 of the Criminal Code Act. It 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 persons, is guilty of wilful murder.
(2) A person who commits wilful murder shall be liable to be sentenced to death."
8. The State must prove three things beyond reasonable doubt in order to obtain a conviction. These are:
(a) The accused killed the deceased.
(b) The killing was unlawful.
(c) The accused intended to cause the death of the deceased.
9. At the outset, I think it is useful to set out some relevant legal principles in cases like the present case. The first of this is the law relating to the evidence of accomplices. The law in this country is that an accused person may be convicted on the evidence of the accomplice alone. However, it would be dangerous to do so: See The State – Titerva Fineko [1978] PNGLR 262. Therefore, the trial judge ought to caution or remind himself of this danger in relying on the accomplice's evidence: The State v Amoko Amoka [1981] PNGLR 373. I remind myself of this principle, in particular given the circumstances of this case, and in particular because of the evidence given by two accomplishes.
10. The next point is the law relating to circumstantial evidence. That point is also well settled in our jurisdiction. In summary, the principle is that where the evidence in a criminal case is wholly circumstantial, the Court must acquit unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than the guilt of the accused. Paulus Pawa v The State [1981] PNGLR 498, Garitau Bonu & Rossana Bonu v The State (1997) SC 528.
11. Another issue of law arising in this case is whether the five (5) accused, either individually or collectively were involved in the commission of this murder. The law on identification or more appropriately recognisation is also quite settled in Papua New Guinea. That law is set out in the seminal case of John Beng v The State [1977] PNGLR 115, Biwa Geta v The State [1988-89] PNGLR 271.
12. In a trial for wilful murder, the death of the victim is an essential fact to be proved, and it may be proved circumstantially provided the inference leaves no reasonable doubt: R v Pari Parilla (1969) No. 522.
13. If it is established beyond reasonable doubt that the accused was present at the scene with the intention of encouraging or assisting in the killing of the deceased, and thereby aiding in the commission of the offence, the accused would then be guilty of wilful murder: The State v Nataemo Wanu [1977] PNGLR 152.
14. There is ample authority for the proposition that mere presence at the scene of a crime is not sufficient to criminal liability, there must be participation in the act. However, if the physical presence of the accused at the scene be speaks of encouragement of, and support to, those engaged in the actual crime, the accused may be regarded as a principle: R v Potosi (1973) No. 730.
15. To justify a conviction of wilful murder pursuant to s.8 of the Code, there must be proof beyond reasonable doubt that the intention to kill was the common purpose which was shared by all involved or that it was a probable consequence of their common purpose: R v Konea Menene (1969) No. 479.
16. I bear in mind and remind myself of these principles in deciding this case. I have considered carefully all the evidence and the submissions that have been made in this case.
Evidence
17. The State's evidence consisted of:
18. The defence evidence consisted of:
19. The accused Peter Taul, elected to remain silent.
20. Several pieces of documentary evidence were admitted into evidence by consent. The first was the affidavit of Dr. Alex Wangnapi dated 5 October 2007 exhibit. In his report, the Doctor states that he performed an autopsy on the body of Anastasia Bolagas Maguri on 3rd October, 2007. Upon examination he found that:
"Mrs. Anastasia Bolagas Maguri was alleged to have been drowned while travelling by boat from Kokopo to Namatanai by sea on the 26th September, 2007.
She was retrieved from the sea on the 1st October, 2007 and post mortem was performed on 3rd of October, 2007, after digging up her body from the grave.
On Examinations:-
Chest and Abdomen:-
Limbs:-
Incision were made through the left chest and left lung both upper and middle lobe were dissected and put into a bucket of water to determine if the lung was wet and chocked with water, from drowning.
However the lungs were filled with air, because as soon as the lung lobes were cut off there were air released from lung lobes and this was confirmed by the lung lobes floating in the water rather then any part of the lung showed sign of sinking.
Therefore, these signs suggested that the deceased did NOT die from drowning. She may have died of other cause, before her body was submerged in the sea."
21. The next piece of evidence is contain in exhibit S.2. This is a Medical Report, dated 5 October, 2007 jointly signed by Dr. Wangnapi and the Health Extension Officer John Maddack. That relevant part of the report is set out in page 2, which reads:-
"On the 4th of October, 2007, I was asked by the police and the coroner to identify a body of an out boat motor victim before burial at Ratubu Village, Namatanai.
A group of officers went with me to the site was a District Court Magistrate (Patricia), Sub District Administrator (Gabriel ToWaira), a Clerk of Court (Damaris Oliver) two (2) health officers (P. Ruasoi and P. Maravot) and myself.
The policeman was already on site carrying out their investigation.
History obtained from the relatives was after the boat disaster the deceased body was found off shore at Karawara village, Duke of York Island subsequently reporting it to the authorities thus arrangement was made for relatives to retrieve the body.
Permission was granted by the relatives for examination of the body. Therefore at about 4.50pm. In presence of the magistrate, sub district administrator, colleagues, officers, police and the relatives I started examination.
Findings on examination confirmed the deceased was Ismael Tibo, male 43 years old of Ratubu Village, West Coast, Namatanai.
It was also confirmed that he was the operator of the out boat motor on that day of boat tragic.
Proper systemic examination was not possible and a post mortem was also not possible due to the fact that parts of the body were in decomposing state.
Furthermore a post mortem was behind my capacity as a Health Extension Officer.
However, there was an evident of smashed scalp more prominent on the occipital extending to the right temporal region. Also noted a sharp penetrating wound on the left lateral aspect of the neck and the right lateral aspect chest below the exilla. The extent of the would could not be measured. The body was naked, obvious discoloration, swollen and beginning to smell, offensive.
The police also presented a fishing hook and a bend of string that was hooked to the right ear lobe and tied the string round the neck.
The real nature of the death could not be ascertained however, I presume the deceased may have sustained physical contact with an object causing death."
22. The next documentary evidence is the Record of Interview between the police investigating officers and the accused Martin Bigit, exhibit S.3 (a) & (b). In his record of interview, the accused denies being involved in the attacked on the deceased. However, he does admit that he is related to Gregory Kiapkot and knows him well. See Q & A 13 & 35. They both come from Lokon Village. In addition, he admits to knowing and meeting Allan David. This is borne out in Q & A 65-69.
23. The next piece of evidence is the Record of Interview between the Police investigation officers and Gregory Kiapkot. (Exhibit S.4(a)& 4(b)). He too denies any involvement in the incident. However, he confirms that he is related to Martin Bigit (see Q&A 25). Further he admits knowing the accused Peter Taul. (see Q&A 28). He also states in his Record of Interview that he knows the accused Bothia Agena (see Q&A 81). He also admits to knowing another man by the name Richard Batan (see Q&A 69 & 70)
24. The next piece of documentary evidence is the Record of Interview between Peter Taul and the Police Investigators. (exhibit S5 (a)&(b)). He too denies being involved in the incident. However, he admits owning a 12 gauge shotgun that was alleged to have been used in the incident.
25. In his record of interview (exhibit s.9(a) & (b) Tobung Mesulam Paraide admits in great detail his involvement and the others. I set out below the relevant parts:-
Q11: Would you recall the date that you met some men at Vuvumandarin beach in Tavui No.1 in Rabaul?
Ans: I cannot recall the date but it was in the afternoon of one Tuesday in the month of September, 2007.
Q12: I have information that it was on Tuesday, 25th day of September, 2007. What have you got to say?
Ans: I am not sure of the date.
Q13: What time did you meet them?
Ans: It was in the afternoon.
Q14. Who were those guys drinking?
Ans: I saw Anton Marko, Kenny Wesley, Peter Taul, Gregory Kiapkot, Alex from Sepik and other three guys whom I never knew them before.
Q15: What happened when you went to them?
Ans: They invited me and I drank with them.
Q16: What beer were you drinking?
Ans: Negrita Rum.
Q17: How much Negrita did you drink?
Ans: I don't know.
Q18: Did Gregory tell you his problems while you drinking?
Ans: I joined them late so I don't know, he must have told the others before I joined them.
Q19: I have information that Gregory and two others were going out living you and others still drinking. What have you got to say?
Ans: Yes, they left.
Q20: Who are those other two that Gregory went with?
Ans: Peter Taul and Marko.
Q21: How did you know those two?
Ans: Peter Taul and I are from Pilapila and Marko is from Malaguna No.2.
Q22: When did the trio return to where you were?
Ans: They return when the place was dark.
Q23: How did they return?
Ans: They came with two boats through the sea.
Q24: Who operate the boats?
Ans: Peter Taul operated the bigger boat that had a canopy and Marko was the skipper to the banana boat. Gregory was the passenger to the bigger boat.
Q25: Where did the two boats shore?
Ans: At the Vuvumandarin beach that we stayed.
Q26: Did you see them coming with some guns?
Ans: Yes, they did carry in the boats.
Q27: How many guns did they carry?
Ans: I saw Peter and Marko carry one each when they came to the beach.
Q28: Did you see Gregory carrying a gun?
Ans: I didn't see him carrying a gun.
Q29: Were you still drinking when they came?
Ans: The hard stuff was finished.
Q30: What did Gregory do when they met you again?
Ans: I sat a distance away and I couldn't hear what they say but only saw all of them getting together and joining their hands.
Q31: Did one of those guys left?
Ans: Yes.
Q32: Who is that guy?
Ans: He is one of those three new faces.
Q33: Where did he go?
Ans: I have no idea.
Q34: Where did you all sleep in the night?
Ans: At Vuvumandarin beach.
Q35: Where did you go on Wednesday, 26/9/07?
Ans: Gregory, Marko and Kenny went off with the banana boat when the place was still dark.
Q36: Who was their skipper?
Ans: Anton Marko.
Q37: How many of you were left?
Ans: Myself, Peter Taul, Alex and the two out of the three new faces.
Q38: How did you go?
Ans: We all took off on the big boat.
Q39: Who operated the big boat?
Ans: Peter Taul.
Q40: When did you takeoff?
Ans: Between 10.00am and 11.00am.
Q41: Which way did you go?
Ans: We went towards Duke of York.
Q42: Did you meet the banana boat somewhere in the sea?
Ans: Yes.
Q43: Where did you meet them?
Ans: We met Gregory and them at a place in Duke of York but I do not know the name of the place.
Q44: What did you do when you meet Gregory and them?
Ans: One of them got up and said that the boat that they were waiting for doesn't come so we all will wait for it there.
Q45: Did you use mobile phone that time?
Ans: Yes, I saw them using the mobile phone.
Q46: I have information that around 1.00pm, the guy at Kokopo beach rang and told you that the boat you are waiting for departed from Kokopo heading West Coast Namatanai. What have you got to say?
Ans: I only saw them communicating through the mobiles.
Q47: Who had the mobile phone on the boat that you were in?
Ans: Peter Taul.
Q48: How many guns were there in the boat that you were in?
Ans: Two guns.
Q49: Which two had had the guns?
Ans: Alex and Peter.
Q50: I have information that you were holding a gun too. What have you got from Sepik and other three guys whom I never knew them before.
Ans: No.
Q51: What did you do when the boat Palex came close to you?
Ans: We stopped it and Alex shot the operator at his back with his gun and the operator fell into the boat.
Q52: What happened next?
Ans: When the crew stepped in to hold the steer of the boat after the skipper fell, Marko shot him on his chest with his gun.
Q53: I have information that when the skipper and the crew died, Gregory got into the boat Palex with is pistol and a bush knife in his other hand. What have you got to say?
Ans: Yes.
Q54: What did Gregory do when he got into the boat?
Ans: He gave a warning shot into the air with his pistol and told everyone in the boat Palex to shut up their mouth.
Q55: What happened after that?
Ans: They got into the boat Palex and off loaded the passengers cargoes into the boat that I was in.
Q56: Did you see the two victims awake when the men went into the boat Palex and off loading the cargoes?
Ans: I didn't see them awake.
Q57: What happen after they off loaded everything into the boat that you were in?
Ans: After they off loading everything into the boat that I was in, we left Gregory and them with the boat Palex and we took off.
Q58: Where did you go?
Ans: We went and dropped off the two new faces (men) at the Matupit point.
Q59: Where did you go after that?
Ans: They left me at Toboi Shipping in Malaguna No.1.
Q60: Where did the boat go with the cargoes?
Ans: I don't know.
Q61: Where did you go?
Ans: I went to Rabaul, got onto a vehicle and went to Pilapila.
Q62: Did you get your share from what you stole?
Ans: No.
Q63: Were you paid for what you did?
Ans: No.
Q64: Is there any reasons for what you did?
Ans: I have no idea.
Q65: How many people did you see them on the boat Palex?
Ans: I didn't count but plenty of them.
Q66: I have information that there were eight of them on board the boat Palex. What have you got to say?
Ans: I didn't count them.
Q67: Since then we only found the dead body of a female passenger and the skipper that Alex killed and others were not found. Do you understand this?
Ans: Yes.
Q68: Do you have any idea of the whereabouts of the others?
Ans: I have no idea.
26. I should say, at this juncture that counsel for the accused made a belated attempt to stop the Record of Interview from being admitted into evidence but I over ruled him. I over ruled him, principally on the basis that no notice of voir dire had been given and that it was a belated attempt.
27. A voir dire was conducted in respect of the Record of Interview of Bothia Agena. Proper notice had been given to challenge the
admission of the Record of Interview. It was challenged on the basis that it was obtained unfairly as some of the answers were
fabricated and also the accuser's mind was over borne after being subjected to a very harsh treatment, swearing and intimidation.
28. I reserved a ruling on the voire and indicated that I would make a ruling on this aspect in the court of my decision on the verdict.
29. In order to disprove the allegations as contained in the Notice of Voir Dire, the State called the investigating officer Kubies Kibale and his corroborator Esther Butinga.
30. Kubies Kibale gave evidence on the investigation he carried in relation to this incident, the subsequent apprehension of several other accused. Not all of those parts of his evidence are relevant in relation to the Accused Bothia Agena. In relation the investigation and subsequent arrest of Bothia Agena, he stated that he started his investigation soon after the bodies of the deceased's were found. He said that in the initial stage of his investigation, he received information regarding Bothia Agena's brother Koni Oscar maybe a suspect. In any case, he gave evidence that he had travelled back and from Kokopo to the West Coast of Namatanai several times before the Record of Interview between him and the accused. He denied assaulting or threatening the accused during that time. He also denied assaulting or threatening the accused immediately before the day of the interview.
31. His evidence of the conduct of the Record of Interview was confirmed by the corroborator Esther Butinga.
32. It is clear from the evidence of the accused that the complaints by him over the conduct of the Police related to several weeks before the Record of Interview. In fact in he admitted that he was not over borne by the police and that he signed his Record of Interview of his own free will.
33. In the final analysis, and this aspect, I accept that there may have been some conduct by the policeman during the investigation, prior to the date of the Record of Interview, which may be treated as unfair. However, this was several weeks ago and not at the time of the conduct of the Record of Interview. Moreover, the accused himself says that he was not over borne by the actions of the policeman and that he took part in the Record of Interview of his own free will.
34. In the circumstances, I reject the challenge and admit the Record of Interview between the Accused and the police investigating officers.
35. In his Record of Interview, he stated that on Tuesday 25 of September 2007 and Wednesday 26 September 2007 he was at the village and that he did not go anywhere (see Q&A 16, 17, 18 & 19). He also denies being involved in the robbery and attacking of the passengers on the boat Palex on 26 September, 2007.
36. However, he does admit that he knows the accused Gregory Kiapkot and where he works and lives. See Q&A 36, 37 & 38. He also knows the deceased Ismael who was the operator of the boat Palex. See Q&A 51, 52, 53 & 54.
37. Further in Q & A 62, 63, 64 & 65, he admits to coming to Kokopo on 29 September, 2007 where he met Gregory Kiapkot and they got drunk.
38. The oral evidence for the State came from sworn evidence of several witnesses. The principal State witness was Allan David. He is an eye witness and he actively took part in the commission of these crimes. He is an accomplice.
39. He gave detailed evidence of the incident. He gave detailed evidence of what occurred on 25 September 2007. He said that on that day he went to the beach at Kokopo where he met Gregory Kiapkot and Richard Batan. He was trying to go to Kavieng. He knows both men well. Whilst there, he also met Martin Bigit and Peter Taul and Anton Marko, whom he also knows well. Thereafter, Gregory Kiapkot went and bought two negrita rum bottles and they all then went and caught a bus and went to Rabaul. At Rabaul they all then caught another bus and went to the beach at Tavui No.1 Village. Then they drank the run. As they were drinking, Tobung Paraide arrived and they also gave him some rum to drink. In the course of them drinking, Gregory Kiapkot, Peter Taul and Anton Marko left and went away. Some time later those three men then returned with two boats. One boat had a 75 horse power engine and the other had a 40 horse power engine. Peter Taul was operating the bigger boat and Marko was operating the smaller boat. He also said that these three men also carried with them guns. He said Peter Taul was carrying a long single barrel gun, Gregory Kiapkot had a pistol and Anton Marko was carrying a pump action gun. Thereafter, Gregory Kiapkot told the men that he had a problem with the owners of Palex and that he wanted the men to help him sort out the problem the next day. He then told them that the next day they would go and attack and kill the people travelling on the Palex.
40. Thereafter, they all slept at the beach till the next morning, 26th September 2007. Early that morning, Gregory Kiapkot, Wesley and Anton Marko left, leaving behind the witness, Peter Taul, Alex and Martin Bigit. At around 9 am that morning, this group of men then left on a boat for the Duke of York Islands. In the boat were several firearms and a knife. At around 1pm they received a telephone call from Gregory Kiapkot to go and find him and the others at Makada Point. They went there and met up with Gregory Kiapkot and the others. There a person called Bothia Agena came and joined them. Also at Makada Point, Gregory Kiapkot distributed the weapons to certain person. He gave the pump action gun to Marko, Gregory Kiapkot the pistol and Bothia Agena armed himself with an iron bar. He also gave evidence of how the weapons were distributed and named the persons. After that, they all waited for the Palex to arrive at the scene. Not long after the Palex went past the boat in which the witness was in. As it went past them, the boat carrying Gregory Kiapkot and others blocked it in the front and the other boat blocked it at the back. Then Alex took the rifle and shot the operator of the Palex on the back of the head, killing him instantly. The crew of the Palex then took control of the steer but Anton Marko then shot him with a gun and he too died instantly. Gregory Kiapkot then fired warning shots in the air and told the passengers to shut up. Thereafter, Gregory Kiapkot, Alex, Tobung, Martin Bigit and Wesley Kelly then got into the Palex. Then Gregory told the witness and others to leave and they left. Gregory then told Bothia Agena to take control of the Palex and leave.
41. This witness and the others then left the scene and he said that after some distance, he looked back and saw Gregory Kiapkot lifted a knife and cut some of the passengers. They continued to Rabaul. The boat was operated by Peter Taul and at Rabaul they went to Matupit. There the witness and Martin Bigit were left at Matupit and they were told to meet the others later. The witness and Martin Bigit then left Rabaul and went to Kokopo and they slept at Kokopo.
42. The next day, Thursday, they (the witness and Martin Bigit) each left separately for the West Coast of New Ireland. On Saturday, the witness went to Lokon village, and there he found Martin Bigit. Whilst at Lokon, he heard that dead bodies had been found on the boat Palex.
43. He also described in detail his knowledge of each of the accused. Except for Bothia Agena, he knows each of the accused well as they were not strangers or new faces. He has known them over the years and he was with each of them. He was with them from the start of this incident and during the incident in broad daylight. He also pointed out each of the accused in Court. He also described in detailed which of the accused held what type of a weapon on that fateful day.
44. In his evidence, he gave detailed evidence of the involvement of the accused Bothia Agena. He gave evidence that this accused armed himself with a flat piece of iron at Makada Point but he didn't see him use it on anyone of the people on the boat Palex. That was his first time to see him and he said he remembered his name because Gregory Kiapkot called his name at Makada Point. However, he did point him in Court.
45. This witness also gave evidence that he knows the accused Gregory Kiapkot well, because he has been selling drugs from him (Gregory Kiapkot). He said he had known him for about a year.
46. He also told that he also knows the accused Martin Bigit well. He has seen him before the incident, because he visits him at his village at Lokon. He firmly pointed him out in Court also. He told the Court that at the time of the incident, that on 26 September 2007, Martin Bigit was with him on the bigger boat and he was armed with a bush knife.
47. He also gave evidence of knowing the accused Tobing Paraide. They both come from Pilapila village. He has known him since childhood. He knows this accused very well.
48. He next identified the accused Peter Taul. He said he knows him very little as they both come from Pilapila village. He said that this accused carried a long barrel single shotgun and barrel is detachable.
49. In cross-examination, Mr. Kaluwin, attempted to destroy his testimony by alleging that he was a serial drug user and that his testimony was a fabricated one. However, the witness maintained his testimony. He admitted that he used drugs but insisted that he didn't fabricate his evidence.
50. Mr. Potoura, for the accused Bothia Agena also cross-examined him at length. But the main or crucial parts of his evidence were not really destroyed.
51. Although some parts of his evidence were discredited, the main and crucial parts of his evidence was not shaken or destroyed at all.
52. It was put to him in his cross-examination that he confessed to the Police to save himself. He said that he did not feel comfortable with what they did and he confessed. He said he did not fabricate his evidence at all.
53. The next piece of evidence for the State comes from Wama Tame. His evidence is set out in his written statement. This was tendered and accepted into evidence by consent. It is marked as exhibit "S5". His statement is fairly short and its reads:
"I used to operate the boat Atuai between West Coast Namatanai and Kokopo.
I can recall that on Monday, the 1st day of October, 2007 at about 7.00am, I took off from Saraha village to go to Kokopo. I followed the beach side of Matakan plantation and shoot out to Kokopo.
On my way, I saw a floater in the sea and I picked it. I took off again and saw a boat tank and I also picked it up. I turn the boat and saw another boat in a distance and I told the passengers.
We went straight to that boat and I sided my boat to the side of that boat and we saw a female dead body lying naked in the boat. There was some salt water in that boat too. I got a stick, stand it on the boat and tied a white plastic and a laplap on it and I went back to Ratubu village and informed some men there and I went all the way to Kokopo and reported to the police and also gave the tank and floater to the police.
The next day (Tuesday, 02/10/07), at about 7.30am, I took off to Kokopo. I went to Matakan plantation and shoot out to Kokopo again. I went few distance and sighted a dead body in the sea. I sided my boat close to it and I recognized it as Reagan (Kiapmur).
I kept a close look at it and saw that he had his belly being cut open and all his intestines came out. His hands were moving freely and it looks like the bones to his hands were smashed. I left it there and went all the way to Makada Island looking for any means of communication to call people at Namatanai but that doesn't work out so I went all the way to Kokopo and reported it to the police. That's all I can recall for the moment."
54. His evidence was not destroyed in any shape or form in cross-examination. However, in cross-examination, he did give some evidence about a flat piece of iron that he saw in the boat Palex. He said when he initially saw it, it was not rusted.
55. The next piece of sworn evidence came from Tolman Tilto. He was called to give evidence regarding a fight between Gregory Kiapkot's relatives and others in his village in which Gregory Kiapkot's relatives sustained severe injuries. He also gave evidence of animosity between the owner/operator of the boat Palex, Anastasia Maguri, Eremas Maguri and Gregory Kiapkot. His evidence relates to the issue of motive.
56. The next witness was Matruh Hosea. He is a relative of the couple who were killed in the boat. He gave evidence that the couple had fixed the engine of the boat and in order to recover their costs, they had taken possession of the boat and operated it. He stated that sometime before the incident Gregory Kiapkot with the assistance of the police had forcefully taken possession of the fuel line, fuel container and the key to the engine. This was still in relation to the injury of Gregory Kiapkot's nephew, Nates. However, sometimes later the couple took possession of those items and operated this boat.
57. The next piece of evidence came from Monica Tolman. Her evidence related to the actions of Gregory Kiapkot, some 3 days after the incident. In brief, her evidence is that on 29 September 2007, she came down to the Kokopo beach from Gaulim looking for a boat belonging to her uncle Eremas Maguri. She didn't see it and so she got her bags and put it on another boat call "Atuai". At the beach she met Gregory Kiapkot and Richard Batan who were both drunk and came to where she was. Gregory Kiapkot spoke to her and then left and went into the quarantine house and drank alcohol. Sometime later, he came out and again went and spoke to her. He asked her if she knows of the fight between the two villages. She told him, she knew nothing about the fight. He then told her that during the fight, the villagers had assaulted Nates and his leg was broken and he (Gregory) had spent a lot of money on getting him to several hospitals and that he had not been compensated or rewarded for his efforts.
58. He then told her his involvement with Eremas Maguri over the engine of the boat Palex on a previous occasion and told her that
he was sorry for Eremas Maguri and that if she wanted, he would tell her of his whereabouts. Then he left her and went to the beach
and drank alcohol. Subsequently, he told her to accompany him to Nonga and sleep there but she refused his offer. Then he told her
to take his bank card and go
and get some money from the ATM but she also refused his generosity. The witness and Gregory Kiapkot are related.
59. The next witness for the State was Maras Varwaula. He comes from Rababat village, North Coast Road, Rabaul. His evidence is fairly short. He says that sometime in October 2007, the accused Peter Taul went to his house in his village. Peter Taul spent two weeks with him and then left a firearm with him to hide it in the house. After a month, policemen from Rabaul went and picked up the gun. He also gave evidence identifying Peter Taul whom he knows well. He also recognized the gun as the one given to him by Peter Taul to hide in his house.
60. John Kapolis, a reserve policeman was the next State witness. He comes from Ratubu Village, West Coast Namatanai, New Ireland. He says that on 26 September 2007 at around lunch time, he took his son Bustaman August to the beach at Kokopo to put him on a boat to go to his village. At the beach, he saw the boat Palex there and enquired with the operator and crew who were both from his village to take his son with them on that boat. The name of the operator was Ismael Tibo and the crew's name was Rea Alphonse. He also said there were some other people on that boat also. These included, Eremas Maguri and his wife Anastasia Bolagas, Eremas Malibu, Tovalaun, a man from Gunanba village, Reagan Kiapmur and a young woman and the operator and crew of the Palex. He said they left around 1pm in the afternoon. After they left, he also left to go back to Rabaul, arriving there around 3 or 3.30pm.
61. Around 7 o'clock that evening, he and his wife rang their son on his mobile phone but the phone kept ringing without anyone answering it. He then rang again and somebody answered it but said it was a wrong number. Thereafter, he rang his brother in the village and enquired if the boat and his son had arrived. His brother told him that the boat and his son had not yet arrived at the village.
62. At around 10 o'clock in the night he rang his son again, but the phone kept ringing without anyone answering it. Again he rang his brother, who told him that the boat has not arrived. The next day (27/9/07) he rang his brother in the village and was told that the boat had not arrived. Thereafter, he didn't do anything. Then on Sunday, 1st October 2007, he and others started to conduct a search and on Monday, he received a message that the boat Palex had been found. He then went to where the Palex was and towed it to the village. In that boat was the body of Anastasia Maguri. She was lying face down on the boat. In the boat, he also found a flat piece of iron. He identified and took possession of it. He subsequently gave it to the police investigator Ubis Kibale at the Rabaul Police Station. He and others continue searching the seas thereafter and on 4 October, 2007, he recovered the body of Ismael Tibo in the seas in the Duke of York Islands. The body was subsequently handed over to the deceased's relatives. The witness stated that he had being searching for his son but he has not seen or heard from. He firmly believes that his son was murdered just like the others.
THE DEFENCE EVIDENCE
63. Except for Peter Taul, each of the accused gave sworn evidence. Peter Taul chose to remain silent. I set out in summary, the evidence of each of them.
64. Bothia Agena was the first to give evidence. He gave detailed evidence of police impropriety prior to his being formally arrested and interviewed. I have already ruled to admit his record of interview. In the final analysis, he denies being involved in this incident.
65. Koni Oscar was called to give evidence in support of Bothia Agena. His evidence is similar to that of Bothia Agena.
66. Another witness Simon John was also called on behalf of Bothia Agena. He also gave similar evidence to that of Bothia Agena.
67. Philip Elias also gave evidence on behalf of Bothia Agena. His evidence was that prior to the date of the incident, he used to travel many times on the boat Palex between Kokopo and Ratubu where he was building a church. He said that the piece of iron (Exhibit "S1") was on that boat and had been used as an anchor for the boat. He also gave evidence that the operator of the said boat was dead and that he did see two dead bodies, a male and a female, after the boat was recovered.
68. Gregory Kiapkot was the next accused to give sworn evidence. According to him on 25 September, 2007, between 8am and 9am, he and his fellow workers were preparing the blood bank vehicle to go on patrol to Tinganagalip village. They went there and worked there till 8pm. After that, he and others dropped off the OIC at Baliora and he and others then drove back to Nonga.
69. Gregory Kiapkot told the court that on the date of the incident (26 September 2007), he and his wife and child left his house and went to his place of work. There he told his co-workers that he was going to Kokopo and would return late. He and his family then left and came to Kokopo and upon arriving there, they went down to the beach. At the beach they met a relative who had brought some food, then went to Brian Bell Shop. From there they return to Rabaul and then onto Nonga where he works and resides. Thereafter he went to work at the blood bank. He was under the supervision of Apelis Ilai. In cross examination, he said that he did not know Allan David.
70. To support his evidence he called Apelis Ilai. He said that on the relevant date 26th September, 2007 they, including Gregory
Kiapkot, did not go out to collect book as claimed by Gregory Kiapkot. This was because, ash/dust was falling and they were only
transferring blood from Nonga to Vunapope. He said that he did not send anyone out to collect blood but just on standby to receive
blood. He said he was not Gregory Kiapkot's supervisor, who was a nursing officer or community health worker. He has
his own programes and had their own supervisor. This witness contradicts Gregory Kiapkot's version of what happened on 26 September
2007.
71. Tobung Paraide also gave sworn evidence. His evidence related to his being questioned by police during their investigations, before he was arrested and interviewed. He said that during that time the police assaulted him and he sustained injuries. He did not give any evidence relating to the allegations against him, that is the allegations of wilful murder.
72. Martin Bigit in his evidence stated that from 24 – 27 September 2007, he was at Lokon village taking part in a big crusade conducted by the Catholic Church. He said that in the month of September 2007, he did not leave Lokon village. He said that in November 2007, the police sent word for him to go to Namatanai and when he arrived he was arrested. He said that at Namatanai he told the police investigators that he knew nothing of the incident.
73. In cross-examination, he said he did not know Allan David. It was put to him that this part of his evidence conflicted with his version in his statement in question and answer 65 and 25 in the record of interview. He became evasive and said that he did not know Allan David. He and Gregory Kiapkot are related.
FINDINGS
74. From all the evidence, I find the following facts are not in dispute. On the afternoon of 26 September 2007, Ria Alphonse, Ismael Tibo, Anastasia Maguri, Eremas Maguri, Bustaman August, Reagan Kiapmur, Tovalaun Lauvo and Mathilda Maivon were travelling on the boat Palex from Kokopo towards the West Coast of Namatanai. Along the way something happened and they all disappeared. The bodies of Anastasia Maguri and Ismael Tibo were recovered. There were lots of blood found on and in the boat Palex. The evidence shows that these two people did not die from natural causes. None of the other six people have been or seen alive since 26 September 2007. From the evidence of the State witness, in particular the evidence of Allan David, the admission of Tobung Paraide, and the other pieces of evidence, I find that the other six people were also brutally murdered. There is no other hypothesis than that.
Death proved circumstantially
75. There is no other hypothesis that has been placed before the court other than the deaths of all the eight persons. There is undisputed evidence that all deceased were all on the Palex and that none of them has been seen alive since. In Paulus Pawa
v The State [1981] PNGLR 498, the prisoner was the clerk of the court at the Mt. Hagen District Court, the safe of the court was found locked with the money missing. It was found near his village. There was no eye witness to the break and enter and stealing. There were no other reasons or hypothesis advanced other than the guilt of Paulus Pawa, as he was in possession of the key and the safe were found locked near his village with the money missing. No one knows how to open the safe and steal the money that was inside. He was found guilty.
76. Here even the defendants have each accepted that the deceased are dead and no longer alive. Their deaths are not by natural causes but were killed whilst they were travelling as passengers on the boat "Palex" on the sea between West Coast Namatanai and Kokopo. Excerpt of this is record of interview, questions and answers of Martin Bigit, "Dispela ol lain I dai olsem wanem? Ol man ikilim", which is in response to the deaths of Ismael Tibo and Anastasia Bolagas Maguri.
77. Surviving relatives such as John Kapolis has not seen his son Bustaman August since the 26th September 2007 and he has been combining the seas to see a bag or piece of cloth that will give peace to his sorrow as the son was 20 years old. He was one of the original Policemen at the scene with the body when the boat was recovered with the body of Anastasia Bolagas Maguri.
78. Wama Tame whose statement was tendered into evidence and marked as Exhibit number "S5" sighted the body of Reagan Kiapmur in the sea, he described, "I kept a close look at it and saw that his belly being cut open and all his intestines came out. His hands were moving freely and it looks like the bones to his hands were smashed.", and he alerted help to get the "Palex" with dead body of Anastasia Bolagas Maguri.
79. Matruh Hosea has given evidence that they made custom for the deaths of Anastasia Bolagas Maguri and "tambu" Eremas Bokot Maguri as both are now dead and by killing pig they fulfilled customary obligations to depict that indeed they were dead. This is significant in many Papua New Guinea communities as a sign that people have died.
80. He went on to give evidence further that Ria Alphonse and Ismael Tibo together with Anastasia Bolagas Maguri and "tambu" Eremas Bokot Maguri died on the 26th September 2007 all on the same day. He explained that they all died in the boat Palex on that day so they have made customary obligations showing that they are now dead. He confirms this in respect of the others also on that boat.
81. He says that the boat Palex was coated with blood inside and there was a large pool of blood in the middle of the Palex which was thick and the boat was smeared all over with blood in the inside.
82. Alongside the body of Anastasia Bolagas Maguri was a piece of metal which he had identified as the state exhibit "S6" which he described as bearing two holes bored into each end of the iron and that it was lying next to the body including her trousers and watch.
83. The medical report does not say that the deceased had died from natural causes but other cause ruling out drowning. It therefore can be taken from the way that the blood was in the boat in a pool and smeared all around and within the Palex that the occupants of the Palex were subjected to brutal slaying.
84. It is clear to my mind that whoever intended their deaths was so intent that he made sure none of them lived to tell or witness that event to anyone. If all were on the boat and have not been seen since up to the date of the trial customary obligations of the death or rites relating have been discharged then death has been proved beyond all reasonable doubt of each and every one of the persons who died.
85. The stories of the bodies that have been recovered tell that the person who intended meant to kill and effected that intent by the gruesome display of the bodies there were recovered. Regan Kiapmur had his stomach cut spilling the contents and intestines of his lifeless body into the sea where he was found but not recovered. He has gone further to make sure that none or all were ever retrieved to a decent burial in the villages where they were from.
86. This is a case of a person with a motive intent on eliminating and ensuring that there are no witnesses to tell against him. It would be one who has either a long outstanding grievance or an axe to grind against the deceased enough to eliminate each one of them.
87. Motive should not be mistaken for intent, both are separate but material in their play to the death of the case here evidence has been led in this regard and will be the determining factor for the demise of an accused whose evidence will implicate and incriminate him.
88. From all the evidence, I am satisfied that the State has discharged its burden beyond all reasonable doubt that RIA ALPHONSE, ISMAEL TIBO, ANASTASIA BOLAGAS MAGURI and her husband EREMAS BOKOT MAGURI, BUSTAMAN AUGUST a passenger, REAGAN KIAPMUR the crew of the Palex, TOVALAUN LAUVO a passenger, and MATHILDA MAIVON also a passenger were all willfully murdered. The State has proved both directly and circumstantially, and I so find that all these eight people are indeed dead.
89. That is that it was intended that they should be killed and that pursuant to this intention it was carried out and they were killed with their bodies not being recovered as a result of that intention.
90. The next issue is, who has wilfully murdered them. This raises the issue of identification.
91. In John Beng v The State, the Supreme Court stated that:
"Matters to be taken into account in assessing the accuracy of the witness are: "what opportunities the person identifying had to form a judgment of the identity of the person who committed the crime....the position of the parties....the lighting, the opportunities to form a judgment, and generally the circumstances in which the identifying witness formed his judgment as to the identification".
92. The principle identifying witness David Allan is an accomplice as he was involved in the crime itself and can be charged as part of the group because he aided and abetted the commission of the crime.
93. Just because he is an accomplice his evidence cannot be ignored. It must be corroborated in material particulars that there is a ring of truth in the evidence that he is giving. That he is not there to save his skin or sway the guilt away from him and point another accused but he is there as a witness of the truth.
94. In Criminal Law and Practice in Papua New Guinea, the learned authors discuss briefly about who is an accomplice. And they say at p.143:
"There is no definition of accomplice and person akin to accomplice in the code, but Davies v DPP provides the common law test of who is an accomplice. The House of Lords held that persons who participate in the actual crime charged, whether as principals or accessories before or after the fact, are to be treated as accomplices within the rule in Davies v DPP [1954] AC 378: The State v Nataemo Wani [1977] PNGLR 152."
95. Allan David was one of the accomplices in the crime that was committed. He aided and abetted in the commission of the offence but has turned witness for the State identifying Gregory Kiapkot, Martin Bigit, Paraide Tobung Mesulam, Peter Taul and Bothia Agena, what transpired before and leading to the offence as it occurred.
96. There are parts in the evidence of Allan David that rhyme and are consistent with those of the defendants and the State witnesses which add to the ring of truth to his evidence in the court.
97. He has not only identified each of the accused but also tells in great details the roles that each played in the commission of the crime. Gregory Kiapkot and Richard Batan were the ones for whom he would sell their marijuana and they would pay him commission. Both, he said were from Lokon in West Coast Namatanai. He said that Gregory was the uncle of Martin Bigit and he knew both very well.
98. It is accepted principle of law that an alibi given in evidence and found to be false may, depending on the circumstances, amount to corroboration of the State's case. See John Jaminan v The State (supra). Further, a belated alibi may be given little weight to it. Thus in my view the false denials of each of the accused evidence support the evidence of the accomplice. For instance Martin Bigit gave false evidence or denials which were inconsistent with his evidence in his record of interview. For instance in "Q35. Gregory Kiapkot em husait bilong yu? Ans. Em liklik brata bilong mama bilong mi." the admission in his record of interview of where he admitted.
99. Yet Martin Bigit tried desperately in defence to disassociate himself from ever knowing Allan David in his life time. But in the record of interview that was tended by consent he admitted at questions 25, "Dispela mangi Allan David em bilong we? Ans. Em bilong Kabil ples long Central New Ireland. And also at question 65, "Igat wanpela taim yutupela Allan David isilip long Kokopo nambis" Ans. Yes".
100. Martin Bigit has placed a late alibi stating that he was at a Catholic Church rally and that he was with a witness BLAISE LOILA also from Lokon. Despite the importance of this evidence he never told the Police in the record of interview. Therefore I give little weight to this aspect of his evidence. The credibility become questionable and seriously lacking in weight when he did not state it in his record of interview. During cross examination of Allan David, it was not put to him that Martin Bigit was at a rally somewhere else and therefore was not involved as alleged. Even if it was put no notice of that fact was ever given. It is a very late alibi as it is not disclosed in the record of interview at all even though it is very important evidence for the accused. I therefore do not accept any of his evidence at all.
101. Gregory Kiapkot whose record of interview was tended by consent also drew similar answers that he was from Lokon Village, Namatanai, New Ireland Province. He knew Peter Taul who was from Pilapila. See Q & A 28. He also knew Bothia Agena, who was from Duke of Yorks Island. See Q & A 81. He also knew Mathilda Maivon who was a niece. See Q & A 87. He has no grudges or ill will against Allan David. Yet in his record of interview at question 40, "Yu save long dispel mangi nem blong em Allan David? Ans. Yes, em bilong Kabil ples". Gregory Kiapkot has knowledge of Allan David and knows him as from Kabil village.
102. Gregory Kiapkot has never disclosed an alibi to the Police when the matter was initially taken up against him and he was taken
into custody and a record of interview
conducted. He does not state that he was on patrol with other workers of the hospital on the relevant and crucial dates and that they
were sent out to collect blood.
103. In a desperate and late attempt to create an alibi, he called one Apelis Ilai. Apelis Ilai's evidence does not support in any way Gregory Kiapkot's alibi evidence.
104. Even then Apelis Ilai on oath stated that they were not out to collect blood as claimed by Gregory Kiapkot because dust was falling and they were shifting blood from Nonga to Vunapope on 26 September 2007. In his sworn evidence, Gregory Kiapkot said that he does not know Allan David. He has never met him before and that the first time he saw him was when the trial started.
105. He denied that he was the supervisor of Gregory Kiapkot stating that he himself had a supervisor, like wise Gregory Kiapkot, who was a nursing or community health worker who had a program of theirs and had his own supervisor and not him.
106. Going out to wait for and to collect blood was an everyday occurrence for Gregory Kiapkot and therefore was not extraordinary in nature or specific so that an alibi was created. He could simply and easily put the date of the offence to it and then create an alibi that he was elsewhere and not as contended by the Prosecution.
107. Similarly his coming to Kokopo with his wife and baby was what he enjoyed doing like any other father and it was not the first of its kind so that special resemblance or monument erected to set it out as an alibi. It too was everyday occurrence which he conveniently put the date of the allegation so as to create an alibi without any difficulty.
108. During cross-examination of Allan David, the alleged alibi defence was not put to that witness at all. This is contrary to the rule in Brown v Dunn (supra).
109. Furthermore, Tobung Paraide's evidence places him (Gregory Kiapkot) as being the mastermind behind the crimes. According to Tobung Paraide, whose evidences is not contested, Gregory Kiapkot took a leading role and was actively involved in the commission of this crimes. I conclude that the alibi evidence is false evidence, created at the 11th hour to distance himself. I do not accept his evidence at all. For those reasons, I give no weight at all to his alibi evidence and I reject it outright.
110. I accept that Tobung Paraide's admissions in his record of interview ought to be treated with caution, because "A person can confess to his own acts, knowledge or intention but cannot "confess" as to the acts of other persons which he has not seen and of which he can only have knowledge by hearsay. A failure by the prosecution to prove an essential element of the offence cannot be cured by an "admission" of this nature. Eiserman v Nanatsi [1978] PNGLR 457.
111. However, here is a person who has confessed to actions that are personal to him and of which he has personal knowledge of and was part of and which he has recounted in his own way and words to the court as he saw. This is first hand account and not hearsay or a recital or a fabrication without any motive or malice established. It ought to be taken as credible and worthy of belief and to be acted on by the court as its veracity has been independently corroborated. State v Steven Tolira & Bernard Okole (1980) N No. 216.
112. In this regard defence has called the father to support the son of the injury that was evidence in the son both are related and have an interest in the outcome of the proceedings and are not independently verified as with David Allan. Passing a defence of alibi at the last minute is not credible and may amount to corroboration of the State case: John Jaminan v The State (supra).
113. No notice of a voir dire had been filed challenging the admission of the record of interview. It has been admitted into evidence by consent. The relevant State witness Ukis Kibale, Esther Butinga and John Kapolis were not given an opportunity to refute the allegations of assaults leading to injuries on his head. This is against the principle in Brown v Dunn.
114. Thus I conclude that these factors affect the credibility of the defence evidence. I reject it as false. This therefore corroborates
the State account of events and strengthens the admissions in the record of interview which are unchallenged and is in evidence.
See John Jaminan v The State (supra).
115. They are not alone but are independently verified by the shotgun, State exhibit "S7" which has been confirmed by Allan David as the gun that he saw in the possession of Peter Taul. He is now confirmed by Tobung Paraide. Both cannot be speaking of the same thing unless both were at the same place at the same time.
116. At questions 14 to 17, in his record of interview Tobung Paraide admits to being called to drink Negrita rum with Kenny Wesley, Peter Taul, Gregory Kiapkot, Alex of Sepik and two others that he did not know.
117. At questions 19-24 he admits that Gregory Kiapkot left with Marko and Peter Taul and that they later returned when it was getting dark with two outboard motors, one with a canopy on it which was operated by Peter Taul and Marko with the small one with Gregory Kiapkot on it.
118. In questions 25 to 32, he admits that both boats came to the shore at Vuvumadiring, that there were guns on the boat, that Peter Taul had one and Marko the other but did not see anything in Gregory's hands. The negrita rum was by then already finished. One of the persons they were with, left them and went away but he did not know his name.
119. His account in the record of interview is consistent in all particulars with the account that David Allan has given to every detail. Both are stating that they were at the same place at the same time and witnessed the same chain of events. Unless both were coached to give the same evidence, there is no basis to reject his evidence.
120. The account of Tobung Paraide cannot be used to incriminate the other defendants or anyone else but he is independently verified by the other independent evidence that have corroborated David Allan.
121. These are persons who are not related in any way at all to David Allan and who have in the time and place where they were given accounts supporting what David Allan has put. The same evidence now corroborates the record of interview of Tobung Paraide.
122. It in effect means that he has told the truth and that the fibre of truth that runs from the other independent evidence confirms his evidence as credible and worthy of belief by the Court.
123. There is no mention by Tobung that Bothia Agena had an iron and was loaded at Makada point so as to show that there was no cohesion by police to make evidence same in all material particulars. It is as if this defendant told what he knew, saw and did. That there was nothing more added on top and deducted to make the story convincing or more powerful.
124. Peter Taul admits that the shotgun that the police seized is his and that it was given to Maras at North Coast since July and that it was with that person at the time the Police went and recovered it. He has elected in defence to remain silent and not say anything but the evidence that is uncontested is that the gun is his and that it was used. That it could not have come to light without him telling of its significance and where it was for the Police to go and get it.
125. It has been identified by David Allan as the gun (State exhibit "S7") that was used in the commission of the crimes and that Peter Taul held it. Peter Taul has stated that he bought it from a Buka man but he has produced neither receipt nor a license that he is the owner of the gun by law. Nevertheless, Peter Taul admits that the gun was his.
126. David Allan has been supported by Tobung Paraide that the gun was the same gun that was used by Peter Taul in the allegation and it could not have been recovered without the express cooperation of Peter Taul to show where it was. Police will not pursue evidence that is not related to the allegation without any basis. There is connection to the allegation by the gun and the person who held the gun is a participant of the allegation.
127. His silence does not deviate from that fact or make insignificant the gun. It is a factor known personally to him and without him opening the other evidence must be looked at to determine what is reasonable and the only rational hypothesis open on the evidence.
128. Here it is clearly more than ownership of the gun. The gun did not develop legs to go to the scene of the crime and was used by one of the persons in the allegation namely Peter Taul.
129. The existence of the three cartridges (State evidence exhibit "S10") even strengths further the allegation of it being used in the crime more probable than not. How could the Police have known it existed if the defendant had not told them and its significance relating to the commission of the crimes.
130. I summarize what I have said so far in this way. The State carried the onus of proving, beyond reasonable doubt each of the elements of wilful murder. The elements are:
131. As to the first element, the evidence of the killing of the several deceaseds came from several witnesses, the medical reports and the accused. These evidence included the oral evidence of, amongst others, Allan David, Tobung Mesulam Paraide, John Kapolis and the medical reports. Several of the deceased's bodies were found with serious injuries. The people who boarded the Palex have not been seen alive since the 26 September. There is therefore direct and circumstantial evidence, which to my mind establish beyond reasonable doubt as to the death of the deceaseds. From the same evidence, there is direct evidence linking their deaths to these five accused. Moreover, the accuseds' false alibis, strengthens the State's case. In the end I am satisfied beyond reasonable doubt that these five accuseds killed all the deceaseds. These men were involved in the planning, preparation and ultimately taking active part in the killing of the deceased. They were not mere bystanders. They actively took part in the killing of the deceased passengers. They are therefore caught as principle offenders under s.7 and 8 of the Criminal Code.
132. As to the second element there is no doubt in my mind that the killings was unlawful. From all the evidence, from the State witnesses and the accuseds versions, the killing of the eight people was not justified in any shape, form or manner. It is clear, and I so find that on the evidence I have referred to in this trial, establishes beyond a reasonable doubt that all the deceaseds were unlawfully killed.
133. Finally, again looking at all the evidence, there is evidence that the five accuseds together with others carefully planned and carried out this crime. This is demonstrated from the gathering they had at the beach at Tavui, where they prepared two boats and gathered arms. The next day they all departed on the two boats, armed to the teeth and travelled all the way to Makada Point in the Duke of York Islands where they waited in ambush for the deceased people. When the deceased arrived, they were blocked off and they could not escape. When the skipper of the Palex attempted to escape, he was shot dead with a gun. The crew tried to take control of the boat but he too was slain with a gun. There after the others were attacked. I have raised these matters to demonstrate that this was a well planned and executed crime. All these pieces of evidence together with other evidence, point to the conclusion that these five men intended to cause the death of the eight people.
134. Finally, having considered all the evidence, from the beginning to the end and putting together all the bits and pieces, it is clear to my mind that Gregory Kiapkot was the leader of the group which ambushed and attacked all the deceased on the 26 September 2007. The eight deceased persons were wilfully murdered by the five accused. There are no doubts in my mind that the eight persons were wilfully murdered by the five accused. I reject the evidence by each of the accused as recent fabrications. Their alibis have been proven to be false, thus strengthening the State's case. There are no doubts in my mind that each of the accused either individually or collectively aided, abetted, counseled and procured each other in the commission of the crime. In my opinion the crime could not have been committed without each accused playing an active role. I find that none of the accused was innocent by standers.
135. It follows from what I have said so far that I am satisfied beyond reasonable doubt that each of the accused person was involved in the wilful murder of the eight deceased persons. Accordingly, I find each of them guilty on each count and convict each of them accordingly.
________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the 1st, 2nd, 3rd & 4th Accused
Paraka Lawyers: Lawyer for the 5th Accused
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