Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Tomong [2011] PGNC 339; N5140 (17 June 2011)

N5140

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1305 OF 2010

THE STATE

V

TONY TOMONG

Bialla: Kawi, J
2011: 16th – 17th June

JUDGMENT ON VERDICT

CRIMINAL LAW- Practice- Criminal Code section 299- Accused indicted with one count of wilful murder- Accused raised the defence of self Defence- section 269 of Criminal Code- Defence case riddled with a lot of Inconsistencies- Principle of Inconsistency and Logic and Common Sense also applied to test evidence of defence witnesses- demeanor of witnesses- Evidence of defence witnesses unreliable- No prior assault – evidence of accused concocted and coached – cannot rely on evidence of accused- medical evidence very consistent with State evidence- Self defence fails – Accused guilty of wilful murder as charged.

Facts

The accused was indicted with one count of wilful murder. In his defence, he raised the defence of self defence. Medical evidence showed that the deceased died of massive parietal skull fracture. This is very consistent with the evidence as given by the State witness namely that the accused was standing upright when he hit the deceased straight on the head with a heavy piece of timber. In those circumstances applying the principles of inconsistency and principles of logic and common sense to test the evidence of both prosecution and defence witnesses:

HELD:

(1) The evidence of the single State witness when properly assessed is more logical and consistent with the medical evidence. Medical evidence corroborated the evidence of the single State witness.

(2) The defence evidence on the other hand is riddled with inconsistencies. Major aspects of the defence evidence defies logic and common sense and is therefore totally unreliable.

(3) Medical evidence that the cause of the death is due to massive parietal skull fracture is consistent with the State evidence of a person standing upright and using a blunt object to hit a person on the head. It is very and illogical with the defence theory of a person lying on the ground so exhausted and out of breath and lifting a small piece of stick and unintentionally and wildly throwing at a person running towards the person on the ground.

(4) Such evidence is concocted and is highly speculative. It is simply manufactured and designed to exculpate criminal responsibility.

The accused is therefore found guilty and convicted as charged.

Case cited:

R-v- Nikola Kristoff [1967] No. 445
Mecklina Kar Poning v The State [2005] SC 814
The State v Lenny Banabu [2005] N2871,
The State v Takip Palne [1976] PNGLR 90,
Tapea Kwapena v The State [1978] PNGLR 316,
The State v Leonard Masiap[1997] PNGLR 610,
R v Korongin [1961] N204.
R v Muratovic [1967] Qd R 15
Mecklina Kar Poning v The State [2005] SC 814
The State v Cosmos Kutau Kitawal (No. 1) [2002] N2245 in these terms
Jimmy Ono vThe State [2002] SC 698
The State v Peter Malihombu [2003] N2365
The State v Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48.
Gari Bonu and Rossana Bonu –v– The State [1997] SC 528.
Paulus Pawa –v–The State [1981] PNGLR 498.
The State –v- Angela Colis Tovavik [1981] PNGLR 140.

Counsel:

Mr Anthony Kupmain, for the State
Mr Trevor Potoura, for the accused

17th June, 2011

1. KAWI, J: INTRODUCTION: Tony Tomong pleaded not guilty on arraignment to one count of willful murder contrary to Section 299(1) of the Criminal Code. He raised the defence of self-defence to the charge.

THE STATE ALLEGATIONS

2. To sustain the charge, the state called only one witness, one Alik Kuri who gave sworn evidence. His evidence was that that night just before 9:00 pm, a fight broke out in the middle of the village. The fight was between the Lomnge and Kondorou villages, all of the Kabwum District in the Morobe Province. The fight started over argument concerning a young Kondorou woman who had befriended the accused Tony Tomong. There were a lot of men fighting each other.

3. When Alik Kuri came out of his house, he saw Tony Tomong's father, Tomong Wamoke and Tony's elder brother, Posin, fighting the deceased Sevic Nis (also known as Wando Nis).

4. As the father and elder brother continued to fight the deceased, the accused Tony Tomong having armed himself with a piece of sawn timber came to the aid of his elder brother and father who were still fighting the deceased. Alik Kuri stated that he saw Tony Tomong lifted up the timber and hit the deceased Sevic Nis right on the head causing the deceased to fall down immediately "half dead". He was taken away and washed and cleaned up by his wife and other women in the village. He was taken to the Bialla Health Center that night and died the next morning on Sunday 16th May 2010.

5. Witness Alik Kuri who watch the fighting and the killing also saw the weapon used by the accused Tony Tomong to hit the deceased right in the middle of the head. After hitting the deceased on his head, the accused left the timber where the deceased fell. The witness picked up the timber that same night and took it to his own house for safe keeping.

6. On Sunday he heard that the deceased had died. Than on Monday morning he took the piece of timber to the CID Police in Bialla. In his evidence in chief, he clearly stated that he identified the timber as the same one used by the accused Tony Tomong to hit the deceased on his head. After the timber was identified by the deceased, I had absolutely no hesitation at all in admitting the timber into evidence.

7. In cross-examination, this witness confirmed that although it was dark, where he stood and watched Tomong Wamoke and Posin fought the deceased, there was enough light. First there was a kerosene lantern hanging in Harry's house which was some 7-8 meters away giving enough light for everyone to see clearly what was going on. Then there were many people who also flashed their lights from their mobile phones. Alik Kuri himself had his torch flashed on and from all three sources there was sufficient lighting for everyone to see just what was happening.

8. This witness also said in cross-examination that the deceased Wando Nis was doing his best to stop the fight, as he (deceased) was married to a woman from Kondorou village. He denied a suggestion that the deceased was himself heavily involved in the fight and was on the side of his in-laws fighting his own Lomnge people. The State closed its case after this witness.

9. The accused Tony Tomong gave sworn evidence in his own defence. The trust of his evidence is that he was assaulted by the deceased who assaulted him first by kicking him with a black company issued safety boots, which has a metal cap on its tip. When the deceased assaulted the accused, he (accused) ran away and as he was running away from the grasp of the deceased, he was very exhausted and was falling very short of breath. In that state he fell to the ground.

10. When he fell to the ground, he described himself as "my arms and legs were dying." He fell near a small piece of wood, which was left behind by people who were building a new house. In that half conscious state, he picked up the wood, which he described as a one meter long light piece of wood, threw it at the deceased as he (the deceased) was running full steam towards him and shouting "I will kill you." He stated that he did not know where the stick hit and landed on the body of the deceased.

11. After hitting the deceased, he got up and ran away to safety. He maintained that it was pitch dark and people could not see what was happening. There were no form of light whatsoever. Missiles, sticks and stones were flying everywhere. He denied seeing the witness Alik Kuri anywhere near at the scene of the fight.

12. During cross-examination he was asked as to whether, anyone saw the deceased assaulted him. He mentioned the name of Tien Woso, as being the person who was by him when the deceased assaulted him by kicking him.

13. Tien Woso was then called as the second witness for the defence. He confirmed being involved in the fight. He said that it was a big fight in the dark. During the fight people were throwing missiles everywhere. This included missiles such as sticks, bottles and stones. He stated that the fight claimed the life of one man, Sevic Nis and other man whom he identified as Eric Sam was injured. Eric sustained a broken jaw. He further stated that mobile phone torches were switch on and also people flashed on torches for lighting. He was specifically asked:

Q: Did you see how the deceased died?

A: No, I did not see how he died.

14. He denied being with the accused when he was assaulted by the deceased who kicked him with his metal cap safety boots.

The last defence witness was Tomong Wamoke, the father of the accused. He denied fighting with the deceased together with his elder son Posin Tomong. He mentioned that being an old man it was in his interests to remain in his house, lest he might be injured in the event that he ventures out of the security and confines of his house to see what was happening.

15. He did however, say that it was a big fight between his Lomnge people and the nearby Kondorou village people. He stated that it was very dark when the people were fighting. He said that from his house he could hear missiles, like sticks, stones and bottles being thrown around by the fighters.

16. He also said that the deceased Sevic Nis was not stopping the fight. Rather he was helping his in-laws, the people from Kondorou, fight his own people of Lomnge village. He claimed that the deceased was not a neutral person who was stopping the two tribal groups.

MEDICAL EVIDENCE

17. The medical evidence in this case consisted of the following documents:

(a) The Post Mortem Report dated 9th June 2010. This was marked as State Exhibit No.3.

(b) The Medical Certificate of Death also dated 9th June 2010. This was marked as State Exhibit No. 3.

18. Defence Counsel, Mr Potoura in his final submission attacked the credibility of the State's single witness. He argued that the witness, Alik Kuri was not an independent neutral person. His son together with the accused Tony Tomong were the main cause of this fight by befriending a lady from Kondorou village.

19. The witness together with the deceased were not stopping the fight, rather they were helping the Kondorou people to fight their own Lomnge people.

The Post mortem Report records that there was "massive Parietal skull fracture". Furthermore the Medical Certificate of Death records the cause of death to be "severe Head Injury Due to Trauma to the Head". The Third Edition of the Macquarie Dictionary at page 1562 defines "Parietal Bone" as " a pair of bones of the cranium right and left developed in membrane, forming most of the top and sides of the skull vault, between the occipital and frontal bones."

20. Alik Kuri, it was submitted had a fishy motive to give evidence. He was not a neutral and independent Witness as he claimed to be. His evidence must therefore viewed with suspicions and caution, especially when so many people took part in the fight, yet this witness saw it fit to give evidence of his own involvement and not others who were also involved.

21. It was submitted that the young girl who befriended the accused was the niece of the deceased. Therefore Alik Kuri gave false evidence under oath.

22. In respect of the killing of the deceased, Defence Counsel submitted that his client acted in self-defence and on the basis of self-defence, the accused should be acquitted and discharged from the indictment charging him. It was further submitted that the State has failed to prove the element of intent to kill. The State have also failed to negative the defence of self-defence.

23. Mr Potoura argued that there are grave doubts in the State's case and the accused is entitled to benefit from the doubts. It was finally submitted that police fabricated the evidence in the Record of Interview and the Confessional Statement. The court was asked not to rely on fabricated evidence, but on the sworn evidence given in court.

24. Mr Kupmain, learned Counsel for the State submitted that the accused is the cause of the problem. Earlier in the week he was assaulted by the Kondorou people over an argument over his girlfriend who is a Kondorou woman. The Kondorou people then demanded a further monetary compensation payment to be paid over and on top of compensation payment already paid by the Lomnge people. For the accused to just stay in the house and not to take part in the fight defies logic and common sense, and is therefore a very unreliable evidence.

25. Similarly, the evidence of the accused's father, Tomong Wamoke is evidence that cannot be believed nor relied upon. Tomong Wamoke, whose son, Tony is the accused. was therefore over protective of his son and would do anything to protect, hide and exculpate his own biological son from any criminal responsibility.

26. In relation to fabrication, the State submitted that there was no evidence adduced to show that Police fabricated the evidence. He referred to Questions 23 and 24 in the Record of Interview to show that no evidence was fabricated.

27. Finally, Mr Kupmain referred to the credibility of witnesses and submitted the sole state witnesses gave a very honest account of what had happened that night. He is a very reliable witness. The sole state witness is a witness of truth and honesty.

28. In respect of defence witnesses, it was submitted that they were unreliable and had many inconsistencies in their stories. Because of the very many inconsistencies in their evidence, the defence evidence is totally unreliable and the witnesses, including the accused lied under oath.

ASSESSMENT OF EVIDENCE

(1) Killing of the deceased

29. There is absolutely no doubt in my mind that the deceased one Sevic Nis, who is also known as Wando Nis, was killed by the accused Tony Tomong on the night of the 15th May 2009. He was killed by Tony Tomong hitting him with a piece of wood on his head.

The legal question that arises for consideration is whether the accused Tony Tomong acted in self-defence when he hit the deceased on the head with a stick.

30. Self-defence is a complete defence which is provided for under Section 269 of the Criminal Code and when it is successfully pleaded, it results in the acquittal and discharge of an accused person. The principles of law relating to self-defence is discussed in the Supreme Court case of Mecklina Kar Poning –v- The State [2005] SC 814; wherein the Supreme Court adopted and applied the principles of law laid down in the Queensland case of R –v- Muratovic [1967] Qd R 15.

31. The decision in Muratovic was followed and applied in an earlier Supreme Court decision in Tapea Kwapena –v- The State [1978] PNGLR 316. In Kwapena's case the Supreme Court re-iterated these principles:

"where a defence of self-defence is raised the questions to be determined beyond reasonable doubt are:

(a) the assault on the accused by the deceased are such as to cause reasonable apprehension of death or grievous bodily harm,

(b) whether the accused believed that he could not preserved himself from death or grievous bodily harm otherwise then by using the force that he in fact used; and

(c) whether the accused's belief was based on reasonable grounds; or rather whether the State had negatived beyond reasonable doubt the possibility that the accused so believed on reasonable grounds,"

11. ELEMENTS OF SELF-DEFENCE

32. In order for an accused person to successfully raise the plea of self defence under Section 269, the court needs to be satisfied that the following elements of the defence has been established;

(a) the accused was unlawfully assaulted, and

(b) The accused did not provoke the assault; and

(c) the nature of the assault was such as to cause reasonable apprehension on the part of the accused that he would die or suffer grievous bodily harm, and;

(d) the accused believed on reasonable grounds that he could not otherwise preserve himself from being killed or suffering grievous bodily harm; and

(e) the accused used such force as was necessary for his defence.

The National Court has held in many cases that if all these elements exist, the force used by the accused is lawful, even if it causes the death of the assailant.

See The State –v- Lenny Banabu [2005] N2871, The State –v- Takip Palne [1976] PNGLR 90, Tapea Kwapena –v- The State [1978] PNGLR 316, The State –v- Leonard Masiap[1997] PNGLR 610, R –v- Nikola Kristoff [1967] Unreported No. 445. R –v- Korongin [1961] N204.

The National Court has held in many cases, that if all these elements exists, the force used by the accused is lawful, even if it causes death.

Once the accused raises self-defence as a defence, the onus rests on the prosecution to negative all the elements of that defence. What is important to note is that the defence bears the burden of establishing this defence on a balance of probabilities. The burden then shifts to the prosecution who must then negative the elements of this defence beyond reasonable doubt. See R-v- Nikola Kristoff [1967] No. 445.

2. Was there a prior assault?

33. The essence of self-defence is that violence is being offered. An actual assault in terms of s.243 is required. There must be a prior assault by the victim for the defence of self-defence to be available; see The State –v- Angela Colis Tovavik [1981] PNGLR 140.

34. Did the deceased assault the accused first and thereby inducing the assault upon him? The accused says that he was initially assaulted by the deceased who kicked him with a metal cap boot and was chasing him when the accused fell to the ground. The accused was in a state which he described as "lek na han blong mi idai," before he swung a small and light piece of wood at the deceased which hit him. He does not identify the spot on the body where the piece of wood landed on the body of the deceased.

35. Having listened to the evidence of the prosecution and state witnesses, I do not find that the deceased assaulted the accused by kicking him with his metal cap safety boots. The evidence of the deceased assaulting the accused, is a blatant lie concocted by the accused to exonerate himself from criminal responsibility.

36. I accept the state witness account, that the father of the accused Tomong Wamoke and his elder son Posin Tomong were fighting the deceased. The accused Tony Tomong saw the fight and came to the aid of his father and brother. He lifted the piece of wood and hit the deceased on the parietal bone of the skull killing him instantly. The medical evidence that the deceased died as a result of being hit on the parietal bone causing fractures to the skull is consistent with state evidence.

37. I find that medical evidence in fact corroborates the state evidence. The medical evidence is very consistent with someone standing straight up right and then using the two hands, lifts up a heavy object and then hitting the deceased right on the head.

38. On the other hand if, I were to accept the evidence of the accused whose evidence is that the accused had his legs and hand very tired and he was very exhausted and out of breath when he fell down onto the ground and without looking, throws a light piece of wood and does not even know which part of the deceased's body, the wood landed, in my view as the deceased was running after the accused, the likely spot where the wood would have landed would have been either the frontal bone or the nasal bone, or even the eyes.

39. Viewed from a sleeping angle, the stick thrown by the deceased would have hit and landed on the temporal bone, or the zygomatic bone. Accepting the evidence of the accused, would be very inconsistent with the medical evidence.

40. I will therefore reject the evidence of the accused on this aspect of evidence. In my view, the evidence of a prior assault by the deceased is a recent concoction by the accused. It is a blatant lie. The accused gave false and misleading evidence under oath. Tony Tomong's evidence is intentionally calculated to mislead the court. His father Tomong Wamoke who gave evidence also gave false and misleading evidence. Tomong Wamoke and his elder son Posin Tomong in fact fought the deceased. They fought the deceased because they alleged that he was the one who brought in the Kondorou people to fight the Lomnge. The accused came to their aid and intentionally hit the deceased on the parietal bone of the skull, killing him instantly.

41. This court therefore finds Tomong Wamoke to have lied, and in that regard, the court strongly recommends that Tomong Wamoke and Posin Tomong be investigated by Police with a view to having both charged with being an accessory to and aiding and abetting the commission of this offence.

3. Did the accused not provoked the assault?

42. Accepting the state's evidence, as it is, I find that the deceased one Sevic Nis never at any one time provoke a fight with the deceased.

43. The court finds that the deceased was simply hit on the head by the accused and he died. He did not ever induce the assault upon him.

44. As the deceased never provoked the assault upon himself, the accused on his part was never under any apprehension of death or even grievous bodily harm.

45. The defence of self-defence raised by the accused has not been established from the outset. It is therefore negated out right.

4. What is the murder weapon?

46. The State tendered a piece of timber as being the murder weapon. The accused disputes this and says that it is a small round wood and light piece of wood, which was left behind by people building a new house.

47. Medical evidence records the injuries on the head of the deceased as being a "Massive Parietal Skull fracture." In my view a light one meter long stick such as that described by the accused, who threw it wildly at a figure running towards him in a half conscious state "when my legs and arms were half dead" cannot cause a parietal skull fracture. I find that a parietal skull fracture can be caused by a blunt object thrown with a massive force to intentionally cause injury to someone. And it cannot be caused by a person who is sleeping on the ground. I find that the theory of how the deceased died as advocated by the accused does not make any sense at all. It is against logic and common sense. It is contradicted by medical evidence. I therefore find the theory of the State that the accused used a heavy piece of timber to hit the deceased on the head thereby causing "Massive Parietal Skull fracture" is very consistent with this medical evidence. Alik Kuri's evidence is more plausible and is to be believed and relied upon.

48. I will reject outright the accused's evidence of using a small round piece of wood to throw it wildly and unintentionally at the deceased. The murder weapon used by the accused Tony Tomong is the piece of timber, tendered into evidence by Alik Kuri. It cannot be any other weapon.

49. The evidence of Alik Kuri of seeing Tony Tomong hit the deceased on his head with a piece of timber is accepted. It is very consistent with and is corroborated by medical evidence. After hitting the deceased on his head with the piece of timber, Tony Tomong then left the timber there and Alik Kuri picked up the piece of timber and kept it at his house. This is the murder weapon, which he brought to the Bialla Police Station on a Monday morning.

CREDIBILITY OF WITNESSES

50. I will apply a number of legal principles which have been applied in many decisions of both the National and Supreme Courts to test the evidence of both the State and defence witnesses.

PRINCIPLE OF CONSISTENCY

51. In so far as is relevant here, the first test or principle applicable here is the principle of Inconsistencies in a witness own evidence and other witnesses called by a party. Many cases have applied this principle, for example, Jimmy Ono –v–The State [2002] SC 698.

52. In The State –v– Peter Malihombu [2003] N2365 His Honour, Kandakasi J found that there were a number of inconsistencies in the prosecution evidence. His Honour found that those inconsistencies were serious enough to casts serious doubts on the case against the accused.

53. Accordingly His Honour held that the State could not prove all elements of the offence beyond reasonable doubt and acquitted the accused.

54. The clear import of this case and other authorities is that, where serious inconsistencies exists, there is the possibility of false evidence being given and therefore it would be unsafe to act and rely upon it.

55. In the present case there is no doubt that there were quite a number of inconsistencies from the defence witnesses. For instance the accused was asked in cross-examination to name a person who was with him and who saw the deceased assault the accused by kicking him with his metal cap shoe. He named the witness Tien Woso. Tien Woso who gave evidence for the defence denied being with the accused when he was assaulted by the deceased. Another clear inconsistency relates to lighting that night. The accused says that the whole place was pitch black and very dark. There was no form of lighting at all.

56. Tien Woso on the other hand says that there was some form of lighting. Many people had their mobile phone torches switched on while many others had their hand held torches switched on. In this regard he (Tien Woso) corroborates the evidence of Alik Kuri who stated that many people had switched on their mobile phones torches on and others including himself had their hand held torches swished on as well. There were indeed rocks, missiles and bottles thrown around contrary to what Alik Kuri said. But these missiles did not hit the deceased on his head and caused his death.

2. Principle of Logic and Commons Sense

57. The second principle or test is similar to the inconsistency principle, but more focussed on testing the evidence given in court against logic and common sense. This principle was stated in this way by Kandakasi J in the case of The State –v–Cosmos Kutau Kitawal (No. 1) [2002] N2245 in these terms;

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

58. The National Court formally stated and applied this test in The State –v– Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48. The Supreme Court affirmed this test in Gari Bonu and Rossana Bonu –v– The State [1997] SC 528.

59. An earlier statement and an application of this principle is represented by the case of Paulus Pawa –v–The State [1981] PNGLR 498.

60. There are several examples of this in the defence case.
The evidence of the accused on how the deceased died when he threw a small one meter long stick while he was sleeping on the ground in a half conscious state with his "hands and legs nearly dying" and he was very exhausted and short of breath in my view defies human logic and common sense.

61. It is against medical logic as well. The other evidence which I find to be against logic and common sense is the evidence of Tomong Wamoke. Tomong Wamoke who gave evidence that he was in the house all this time and had never ventured out at all that night defies logic and common sense in that his son Tony Tomong was the cause of this fight. The Kondorou people had come to fight Tony Tomong. As the biological father it would be in his interests to come out and take measures including fighting Tony's attackers to protect his son. For him to stay mum all night in the confines of his house defies logic and common sense.

In summary then I find that there are many aspects of the defence evidence which
I find to be inconsistent and against human logic and common sense.

Demeanour of witnesses

62. The third test or principle is the demeanour of a witness in the witness box. The courts have decided many cases in the past on an application of this principle or test, examples of cases were these principles were discussed and applied are The State –v– Tauvar Avaka [2000] SC 595.

63. There were a number of very minor inconsistencies in the evidence of the sole state witnesses as I have found earlier. But such inconsistency alone does not render his evidence false. Similarly, I had the opportunity to observe and assess the demeanour of this State witnesses as he gave evidence in the witness box.

64. I assess his demeanour to be quite frank and satisfactory. Defence Counsel submits that he was shifty and evasive and therefore not truthful in his evidence. On the contrary, I find this State witnesses to be very honest in his evidence given in court. Any inconsistency arising in his evidence does not cast any grave doubts or aspersions in his evidence.

65. The accused appeared a very confident young man. He portrayed himself as a witness of truth and spoke very confidently. When answering questions either in cross-examination or in evidence in chief, the accused gave a very clear and lasting impression that he was well coached and had his evidence rehearsed before he gave that evidence in court.

66. This showed that despite giving the impression and appearance of a very confident young man, the accused was quite shaky and therefore unconvincing in his evidence. In addition the key aspects of his evidence were against logic and common sense and is simply not worthy of belief. His father Tomong Wamoke's evidence gain defies human logic. He was simply over protective of his son and would go to any lengths to protect him including lying under oath. Tien Woso was the only defence witness whose evidence appear to be truthful, but he too was doing his best to protect Tony Tomong.

67. The sole state witness, one Alik Kuri is a witness who gave very credible evidence. He never faulted, and neither was his credibility impeached nor contradicted in cross-examination.

68. I find him to be a very honest and witness of truth. Even without the evidence of Alik Kuri, I would have relied solely on medical evidence alone to convict the accused. I can't make the same assessment of defence witnesses, Tony Tomong, Tomong Wamoke and Tien Woso. Their evidence was inundated with inconsistencies, and defied human logic and common sense. In fact I find some aspects of their evidence to be blatant lies, especially that of Tony Tomomg and his father Tomong Wamoke. Applying these tests or principles to the facts and circumstances of this case, I will have no hesitation at all in accepting the State's case as it is.

INTENTION TO MURDER

69. In submissions the defence submitted that the State had failed to prove that the accused intended to murder the deceased. On the strength of Alik Kuri's evidence supported by the medical evidence, I find that when Tony Tomong lifted the piece of timber and hit the deceased right on the Parietal bone of his skull, he had the intention to kill him.

70. He had come to the aid of his father Tomong Wamoke and Posin Tomong who were fighting the deceased. The hit on the head caused a "Massive Parietal Skull fracture." This proves Tony Tomong's intention to kill the deceased beyond any traces of reasonable doubt. Thus the State has discharged the burden of proving the element of intention.

71. For one thing too, Tony Tomong had a motive to hit the deceased. He was the boyfriend of the niece of the deceased and blamed the deceased who had brought his in-laws to come and fight Tony Tomong's people. Tony Tomong therefore had a score to settle with the deceased which he in fact did when he killed him.

72. There are many inconsistencies and lies in the defence evidence. Their evidence is therefore simply unreliable. I would therefore go to the extent of branding all three as blatant liars who lied under oath.

FABRICATION OF EVIDENCE BY POLICE

73. There is nothing in evidence to show that the Police fabricated the evidence especially in the Record of Interview and the Confessional Statement. Even leaving aside the Record of Interview, I would have convicted the accused solely on the strength of the evidence of Alik Kuri supported by the medical evidence.

74. I further find that the entire evidence, which include the evidence of Alik Kuri and the medical evidence were never fabricated at all. Defence counsel's submission on this aspect is rejected outright as being without legal basis.

VERDICT

75. On the strength of the state's evidence as it is, I find that the accused Tony Tomong is guilty as charged. The State has onerously discharged the burden of proving his guilt beyond any trace of doubts.

76. He is therefore found guilty as charged and convicted for the willful murder of one Sevic Nis also known as Wando Nis, on the 15th May 2010. He is accordingly convicted of willful murder pursuant to Section 299(1) of the Criminal Code.
_______________________________________________________________
Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Accused