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State v Balu [2011] PGNC 90; N4350 (15 June 2011)

N4350

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR. NO 661 OF 2008, NO.300 OF 2010 & 261OF 2011

THE STATE

V

MATTHEW BALU & 2 Ors

Kokopo: Maliku AJ
2011: .07th, 08th, 09th, 15th June

CRIMINAL LAW - Attempted murder- Section 304 of Criminal Code Act - Arson - Section 436 of Criminal Code Act - Wilful Damage of properties- Section 444 of Criminal Code Act.

CRIMINAL LAW – PLEA - Not Guilty – Trial – Accused denied presence at scene of crime - Evidence of wife and biological relative is tainted with very close and unique relationship – need to take heed of such evidence – discretion to accept and rely on it.

CRIMINAL LAW - Sentence – First offender – Appropriate Sentence for attempted murder – Appropriate Sentence for Wilful damage of properties.

Cases cited:
Papua New Guinea Cases

The State-v- John Beng [1976] PNGLR 471
The State –v- Paul Kundi Rape [1976] PNGLR
The State v Lase Bose (1981) N300
The State v Roka Pep [1983] PNGLR 287
The State-v- Robert Wer [1988-89] PNGLR 444

Overseas Cases

Browne-v- Dunn (1893) 6 R 67 (HL)
R-v- Birks [1999] NSWLR 677

Counsels:

Mr N. Miviri, for the State
Mr N. Motuwe, for the defendants

15th June, 2011

1. MALIKU, AJ: The defendants Matthew Balu and Bernard

Kavanamur Balu are each and severally indicted with seven counts each of various offences contravening various sections of the Criminal Code Act. I have set out each charge below:

(1) Charge One: State alleges that defendant Matthew Balu and Bernard Kavanamur Balu each and severally wilfully and unlawfully set fire to a dwelling house belonging to Peter Tanel on the 24th February 2007 at Palnakaur village, Kokopo District, East New Britain Province, thereby contravening Section 436(a) of the Criminal Code Act

(2) Charge Two: State alleges that defendant Matthew Balu and Bernard Kavanamur Balu each and severally wilfully and unlawfully damaged water drums, cups, pots, fruit plants, betel nuts, cocoa plants and a dwelling house belonging to Julius Anton, Thomas Tue and others on the 24th February 2007 at Palnakaur village, Kokopo District, East New Britain Province, thereby contravening Section 444 of the Criminal Code Act.

(3) Charge Three: State alleges that defendant Matthew Balu and Bernard Kavanamur Balu each and severally unlawfully assaulted Julie Kavanamur on the 24th February 2007 at Palnakaur village, Kokopo District, East New Britain Province, thereby contravening section 335 of the Criminal Code Act.

(4) Charge Four: State alleges that defendant Matthew Balu and Bernard Kavanamur Balu each and severally had unlawfully assaulted Martin Tiniu on the 24th February 2007 at Palnakaur village, Kokopo District, East New Britain Province, thereby contravening Section 335 of the Criminal Code Act.

(5) Charge Five: State alleges that defendant Matthew Balu and Bernard Kavanamur Balu each and severally attempted to unlawfully kill Collin Ilde on the 24th February 2007 at Palnakaur village, Kokopo District, East New Britain Province, there by contravening Section 304 of the Criminal Code Act.

(6) Charge Six: State alleges that defendant Matthew Balu and Bernard Kavanamur Balu each and severally attempted to unlawfully kill Rose Alir on the 24th February 2007 at Palnakaur village, Kokopo District, East New Britain Province, thereby contravening Section 304 of the Criminal Code Act.

(7) Charge Seven: State alleges that defendant Matthew Balu and Bernard Kavanamur Balu each and severally attempted to unlawfully kill Thelma Ansila Thomas Buluram on the 24th February 2007 at Palnakaur village, Kokopo District, East New Britain Province, thereby contravening Section 304 of the Criminal Code Act.

2. Prior to State calling oral evidence Counsel tendered documentary evidence with consent which were accepted and marked as follows:
   
   1. Record of Interview of defendant Matthew Balu conducted in Pidgin together with English translation dated 02nd of April 2007- marked Ex "A
      
   2. Record of interview of defendant Bernard Kavanamur Balu conducted in Pidgin together with English translation dated 18th of November 2009- marked Ex "B"
      
   3. Undated Statement of Police Investigating Officer, Senior Detective Sergeant Alphonse Vogone – marked Ex "C"
      
   4. Statement of Corroborating Officer, Joe Maru – marked Ex "D"
      
   5. Statement of Matthew Tande dated 19th of November 2009 – marked Ex "E"
      
   6. Medical Report of Thelma Ansila by Doctor Suzie Kiene dated 19th March 2007 – marked Ex "F"
      
   7. Medical Report of Rose Alir by Doctor Thomas Lelu dated 26th of March 2007 – marked Ex "G"
      
   8. Medical Report of Betina Balbal Hubetin by Doctor Nancy Kwara dated 13th of April 2007- marked Ex"H"
      
3. At the trial, during cross examination of State witnesses Mr Motuwe for the defendants tendered the following documents with no objection from the State.
   
   9. Statement of Rose Alir dated 03rd December 2009 – marked Ex "I"
      
   10. Statement of Julius Anton dated 27th of February 2007 – marked Ex "J"
       
   11. Statement of Collin Jerry dated 15thof March 2007 – marked Ex "K"
       
4. At the close of the State's case defence made a No Case Submission. Mr Motuwe commenced by stating the criteria that a No Case Submission is made upon. The first is the Law. Mr Motuwe qualified this by submitting that where the elements of the charges are not proved, this automatically stops the trial from going ahead.
   
5. The second is the Fact. Mr Motuwe again qualified this by submitting that where the court finds the evidence before it is so confusing, tainted and incoherent, the court has discretion to stop the matter from going further.
   
6. Mr Motuwe submits that the defence submission or argument will be on the first criteria, where the element of the charge is not proved it automatically prevents the matter from going further.
   

No Case Submission on Charge One

7. Mr Motuwe submits two witnesses have given evidence on this charge. They are Peter Tanel and Julius Anton. He submits Peter Tanel has given inconsistent evidence to that of the State in its opening remarks of how the events took place on the 24th of February 2007 at Palnakaur village by saying the last event that took place was the burning down of his house, whereas the State' in its opening remarks said the chain of events started with the burning down of Peter Tanel's house and ended with attempted unlawful killing of Ansila Thomas and Ilda Jerry.
   
8. Mr Motuwe further submits that the 02nd witness Julius Anton had given contradictory evidence also. On his statement to the Police dated 27th of February 2007, marked Ex "J" he said "They also burnt my in-law's (Peter Tanel) house but I did not actually see who set fire to the house." In his sworn evidence to the court today he said he saw defendant Bernard Kavanamur Balu burnt down his in-law's (Peter Tanel) house. This is total contradictory evidence.
   
9. Mr Motuwe submits that it can be concluded that witness Julius Anton was told what to say in court. Mr Motuwe also submits that there is contradictory evidence on what was used to light Peter Tanel's house. There is evidence that dry grass was used after being lit to torch the house and the other is that defendant Bernard Kavanamur Balu directly lit the house with a match.
   

No Case Submission on Charge Two

10. Mr Motuwe submits that there is no evidence that such properties as water drums, cups, pots, fruit plants, betel nuts plants, cocoa plants a dwelling house were damaged and destroyed. Nothing was tendered in court as exhibits in a form of photographs. In the event that no exhibits were tendered in the form of photographs showing properties alleged to have been destroyed by the defendants the allegation is inventory and a mere allegation.
    

No Case Submission on Charge Three

11. Mr Motuwe submits the key witness Julie Kavanamur was not called by the State to give evidence on the allegation of her being unlawfully assaulted, who unlawfully assaulted her, where she was unlawful assaulted, what was used to unlawfully assault her on the 24th of February 2007. No other witnesses were called to give evidence on this charge. Mr Motuwe submits that the charge should be dismissed.
    

No Case Submission on Charge Four

12. Mr Motuwe submits there is no evidence adduced by the State. The key witness Martin Tiniu was not called to testify of being unlawful assaulted, who unlawfully assaulted him, where the unlawful assaulted took place, what was used to unlawfully assault him. Mr Motuwe submits the charge should be dismissed.
    
13. Mr Motuwe submits the evidence of Collin Ilde who was called by the State given now to the court is inconsistent to her statement marked Ex "K" to the Police dated 15th of March 2007. On that statement she did not say the defendants were present at the scene of the crime nor did she name them as the persons that attempted to unlawfully kill her.
    
14. That statement was made to the police about a month after the offence was committed which was as fresh as ever in the mind of the witness and that she could not have forgotten the events that took place at the scene of the crime even to name the defendants and were at the scene of the crime.
    
15. This morning the witness is now able to name the defendants to the court and has given evidence saying the defendants were at the scene of the crime some five years ago. Mr Motuwe submits that the witness's evidence is inconsistent and should not be believed by the court.
    

No Case Submission on Charge Five

16. The key witness to this charge is Collin Ilde Jerry. Mr Motuwe further submits that in her evidence in chief the witness says that she was hit once on the head and on her left finger by Raymond. The defendants were there but did not approach her because they were like fathers to her (meaning her uncle).
    

No Case Submission on Charge Six

17. Mr Motuwe submits the evidence by the witness Rose Alir is inconsistent because in her statement at the police station she said she was hit by Martin. In Court this morning the witness now says she was hit by Raymond. Also in her statement at the police station she said the defendants were armed, however the witness now says in Court the defendants were armed but were not aggressive towards her. Her statement at the police station is marked Ex "I". Mr Motuwe submits the witness was obviously trying to recall the events of the last five years and appeared to have invented her story from the one she gave to the police.
    

No Case Submission on Charge Seven

18. Mr Motuwe submits the evidence of Thelma Ansila says that she was attacked by Raymond while the defendants were outside. She says that the defendants were throwing sticks onto the roof. In short, the defendants were not the ones that attacked the witness.
    

Response from the State on No Case Submission

19. In response to No Case Submission, Mr Miviri for the State submits that I am only to consider the evidence before me on whether the defendants each and severally have a case to answer only, a prima facie case has been made against each of them. Mr Miviri further submits further that at the end of all evidence, the standard of proof is always 'proof beyond all reasonable doubt'. Mr Miviri agrees that the principle on this is clearly set out in the case of Paul Kundi Rape and the case of Roka Pep [1983] PNGLR 87.
    

Charge One

20. Mr Miviri submits that on the face of the evidence of Peter Tanel's house was wilfully and unlawfully set on fire by Bernard Kavanamur Balu the defendant now in court on the 24th of February 2007 at Palnakaur village. This is supported by the evidence of Mary Tiniu. There is evidence that defendant Matthew Balu was also present at Peter Tanel's house at the time Bernard Kavanamur Balu set fire to it. This evidence is from Mary Tiniu and Julius Anton and Peter Tanel.
    

Charge Two

21. Mr Miviri submitted that on the face of the evidence of Julius Anton his property was destroyed. This is supported by the evidence of Collin Jerry who took refuge at Julius Anton's house because of fear. There is evidence by all witnesses that defendants Matthew Balu and Bernard Kavanamur Balu took part in the fight between Peter Tanel, Martin, Raymond and others who are still at large, in which the property of Julius Anton was destroyed.
    

Charge Three

22. State conceded to no evidence to support this charge.
    

Charge Four

23. State conceded to no evidence to support this charge.
    

Charge Five:

24. Mr Miviri submits the defendants each and severally have a case to answer. There is evidence by witness Collin Ilde Jerry that both defendants were present. They were part of the group that attacked them. They had sticks in their hands which were used to destroy the property of Julius Anton.
    
25. Mr Miviri submits that on the face of this their intention can be inferred by the shouting of words "kilim ol" and "paitim ol" as they were running towards the house where Collin Ilde Jerry was taking refuge in fear. Mr Miviri submits that the defendants Matthew Balu and Bernard Kavanamur Balu now in court made no attempts to disassociate themselves with the others, and therefore their presence was not innocent.
    

Charge Six:

26. Mr Miviri submits that State makes similar submission as in count five in relation to Count Six.
    

Charge Seven:

27. Mr Miviri submits that State makes similar submission as in count six in relation to Count Seven.
    

Response by Defence to Submission by State

28. Mr Motuwe concedes that this is not the time to weigh the evidence in totality, but submits that this does not mean the State should not make out its case against each defendant, which he submits the State has failed to do in order to call upon the defendants to testify.
    
29. Mr Motuwe relies on Lase Bose Kuridaw-v- State (1981) N300 and quoted from it the following: "the State must make out its case by the evidence it adduces. State cannot rely on making good its case, or any defects in the State's case by cross examining the accused."
    

Ruling on No Case Submission

30. The Law: The law applicable in considering the evidence at the close of the State's case and whether to call upon the defendant is well settled in the Criminal Jurisdiction in Papua New Guinea in the case of Paul Kundi Rape [1976]PNGLR 96. Numerous cases have been decided in our jurisdiction where the principles in Paul Kundi Rape have been re stated and followed: "At the close of the case for the prosecution, and when there is a submission of no case to answer the question to be decided is whether the evidence as it stands the defendant could be lawfully convicted, - whether that is to say, that there is with respect to every element of the charge some evidence which, if accepted, would either prove the element directly or enable its existence to be inferred."
    
31. I also read the case of R-v- Dodd [1971-72] PNGLR 255. This case was decided in July 1970 some six years before the case of Paul Kundi Rape. It is this case where the question of law and fact were first discussed in a no case submission. It was precisely stated by his honour that on a submission of no case to answer in a criminal trail the test is whether on the evidence as it stands the accused could be lawfully convicted. That is to say whether there is with respect to every element of the charge some evidence which, if accepted, would either prove the element directly or enable its existence to be inferred.
    
32. Having considered the evidence in respect to each charge against each defendant I make the following rulings:
    

(1) Charge One:

• (i) I am satisfied on the evidence before me that even if Julius Anton did not see who burnt his in law's (Peter Tanel) house on the 24th of February 2007, the witness Peter Tanel saw the person that burnt his house. He was in his house at the time his house was set on fire. He identified the defendant Bernard Kavanamur Balu to be the person that set fire to his house with a match on the 24th of February 2007. He heard defendant Bernard Kavanamur asked for a matches to light his house with. He, Bernard Kavanamur Balu was seen to be present with others that are still at large. Peter Tanel could not have possible made a mistake in identifying the defendant Bernard Balu as the person that set fire to his house destroying it completely. The evidence of Peter Tanel is supported by the evidence of Mary Tiniu.
  
• (ii) The event which his house was set on fire took place between 6am and 7am. There was day light. The chain of events referred to by counsel for the defendants is, in my view immaterial. What is material is that Peter Tanel knows who burnt his dwelling house. Whether it was first or last of the event, Peter Tanel saw and recognized the defendant Bernard Kavanamur Balu to be the person that set fire to his house.
  

Defendants each and severally have a case to answer.

(2) Charge Two:

• (i) Is it mandatory upon the State to tender exhibits of properties destroyed such as in this case in the form of photographs? I do not think so. I am satisfied that the evidence before me is sufficient. Properties were destroyed and witnesses have testified to that. They have testified of the type of properties destroyed, and who owned them.
  
• (ii) Failure to produce exhibits of the properties alleged to have been destroyed by the defendants in the form of photographs does not mean properties were not destroyed. Direct evidence by eye witnesses in respect to properties destroyed such as in this case in my view is sufficient. Defendants each and severally have a case to answer.
  

(3) Charge Three:

• (i) State concedes to the charge dismissed. No evidence to substantiate the charge. No other witnesses were called to give evidence .The Court agrees that there is no evidence. Defendants each and severally have no case to answer.
  

(4) Charge Four:

• (i) State concedes to the charge dismissed. No evidence to substantiate the charge. The Court agrees that there is no evidence. Defendants each and severally have no case to answer.
  

(5) Charge Five:

• (i) There is no doubt that Collin Ilde was attacked and cut on her left hand. There is evidence from Collin Ilde herself on how she was attacked and cut with a bush knife. There is evidence from Collin Ilde that both defendants were present with Martin, Raymond and others that are still at large. There is also evidence from Rose Alir that the defendants were with the group that attacked them whereby the victim Collin Ilde received deep cuts on the left arm. Defendants each and severally have a case to answer.
  

(6) Charge Six:

• (i) There is no doubt that Rose Alir was attacked and received injuries on her face and head. There is evidence that Rose Alir identified the defendants who were with the group of people that attacked her. Even if the defendants were not the actual perpetrators of the crime against her the defendants were there when she was attacked with the group of people that attacked her.
  
• (ii) She was able to identify the defendants Matthew Balu, Bernard Kavanamur Balu, Martin and Raymond before she was attacked. The defendants did take part in the fight on the morning of 24th February 2007. This fight had erupted after Peter Tanel had cut Martin with a bush knife on the morning of the same day.
  
• (iii) Martin is related to the defendants. While it may be true that the defendants did not approach her because they were like fathers to her, it is also true according to her evidence that the defendants did take part in the fight which she was attacked by Martin or Raymond. Their presence was not innocent. Defendants each and severally have a case to answer.
  

(7) Charge Seven:

• (i) There is no doubt that Thelma Ansila was attacked and received injuries to the back of her neck, right forehead and right thumb. The defendants were identified by the witness before she was attacked. The defendants were with the group of people which included Albert, Martin, and Raymond who were armed. The defendants were also armed with sticks.
  
• (ii) There was loud and aggressive shouting "kilim ol, paitim ol" towards the victim's house by the group of men that the defendants were with. Even if they were not the actual perpetrators of the crime they were amongst the group of people that attacked the victim at her house armed. They took part in the fight on the morning of the 24th of February 2007 which erupted after Peter Tanel had cut Martin with a bush knife on the morning of the same day. Defendants each and severally have a case to answer.
  

33. In short there is some evidence which I accept that directly prove the existence of the elements of charges 1, 2, 5, 6 and 7 or enables the existence of the elements of charges 1, 2, 5, 6, and 7to be inferred.
    

Defendants each and severally have a case to answer on charges 1, 2, 5, 6 and 7and are called upon to present their case.

34. Immediately after the Court announced its decision Mr Motuwe informed the court that both defendants would each and severally give unsworn statements and will be calling two witnesses. I then proceeded to hear and obtained unsworn statements of the defendants which I set out below, and then heard the oral evidence from Lydia Marang and Martina Balu which I also set out below.
    

Unsworn Statement of Defendant Matthew Balu

35. The un-sworn statement of defendant Matthew Balu reads: "Your honour I was there but during the fight I was not there. I was asleep due to being drunk. I was surprised when my wife woke me up from the house. I was awoken. I got up but the fight had finished even though I tried to stop the fight. That's all."

Unsworn Statement of Defendant Bernard Kavanamur Balu

36. The unsworn statement of defendant Bernard Kavanamur Balu reads: "I was there, but when the fight started I was asleep. My sister woke me up. I was surprised. I went down to stop the fight. It was coming to the end."

37. The Unsworn statements of the defendants Matthew Balu and Bernard Kavanamur Balu can be summarized as follows:

(i) We were not in the fight because we were asleep but were there after it was over.

Evidence of Lydia Marang (1st witness for Defence)

(i) My full names are Lydia Marang
(ii) I come from Bitagalip village
(iii) I know the defendants in Court.
(iv) They are Matthew Balu and Bernard Kavanamur Balu.
(v) I am related to both of them.
(vi) I am the wife of Matthew Balu and in-law to Bernard Kavanamur Balu.
(vii) I know why they are in court.
(viii) They were arrested
(ix) I cannot recall the date this happened.
(x) At night we were asleep, at about 6am a child was killed.
(xi) We woke up, the fight had finished. We woke both of them.
(xii) We were at our area. I did not see the fight because we were at our area.
(xiii) We were at our area when we heard shouting that a child was killed.
(xiv) It was a baby girl. She was Hubetin.
(xv) I never went to where the noise was coming from.
(xvi) I was always at our house when the fight broke out and finished.
(xvii) I woke the defendant, they were in our premises.
(xviii) The distance from our house to where the fight was, is about 50 meters.
(xix) I did not see the defendants go over to where the fight was.

38. In cross examination the witness was asked the following questions which she answered as follows:

(i) Q. Is Matthew is your husband?

A. Yes, we have six (6) children

(ii) Q. He always sleeps at your house?

1. Yes.
   

(iii) Q. You feel sorry for him?

A. Yes

(iv) Q. Matthew speaks good pidgin?

A. Yes

(v) Q. Do you know that Matthew spoke to the police?

A. Yes, 02nd /04/2008

(vi) Q. In his story at the police station, Matthew never said he was sleeping with you?

A. We slept together that night.

(vii) Q. You agree that a man who is asleep does not know what is happening outside?

A. Yes, it was 6am.

(viii) Q. When Matthew was asleep he would not know what was happening outside?

A. Yes I agree

(ix) Q. You too were asleep so you did not know what was happening outside?

A. Yes I agree

(x) Q. You would not know that your husband had walked out?

A. He never left us

(xi) Q. In the Record of Interview in Q 26 between Matthew Balu and the Arresting Officer, Matthew Balu was asked this question: Inap long you tingim bek long taem ol dispela laen Raymond Lui ToUgia, Martin ToUgia, Albert Girar, Matthew na ol narapela laen ibin go antap long peles long mekim wanem? Your husband said: Ol igo paitim Peter Tanel. Do you agree that is not an answer from a person who was asleep on that date?

A. I informed him

(xii) Q. In question 27 of Record of Interview (ROI) your husband was asked: "Taem oli bin igo long paitim Peter Tanel oli bin mekim women? Your husband replied; Peter ibin ronawe nau, na ol igo na bagarapim haus bilong Thomas Tue, Collin Jerry no ol narapela man. This is not an answer from a man you say was asleep, what do you say?

A. I informed him about the matter.

(xiii) Q. Your husband does not reply in the Record Interview as you told him, what do you say?

A. At 6am I woke him up and I informed him about people looking for Peter Tanel.

(xiv) Q. You said your husband is fluent in pidgin. He is not using the words you told him. He is telling what he knows. What do you say?

A. No answer by the witness to this question.

(xv) Q. I take you to question 34 in the Record of Interview Your husband was asked this question: Yu yet yu save yu bin stap long dispel grup wantaem Raymond na Martin na ol narapela na kamapim dispela hevi? Your husband said Yes. What do you say?

A. No, I have nothing to say.

(xvi) Q. In question 35 of the Record of Interview your husband was asked: Em itru olsem yu tu ibin bel hevi na katim na bagarapim ol samting bilong ol laen belong Peter Tanel? Your husband replied: Em itru mi stap long dispela hevi, tasol mi no go long katim man or kilim man. Your husband was not asleep but was presence at the fight. What do you say?

A. He was asleep. I woke him up at 6am and told him about the child killed and property destroyed.

(xvii) Q. The truth is that your husband was part of the group that was involved in the fight. What do you say?

A. At 6am I woke him up. He did not do anything.

(xviii) Q. Do you have a watch?

A. No

(xix) Q. Did you ever own one?

A. No

(xx) Q. When you do work, do you see the time?

A. No

(xxi) Q. This occasion was not important, so you did not have a wrist watch to see the time?

A. No. I did not have a wrist watch.

Evidence of Martina Balu (2nd witness for Defence)

(i) My full names are Martina Balu
(ii) I come from Bitagalip village
(iii) I know the defendants in Court.
(iv) They are Matthew Balu and Bernard Kavanamur Balu.
(v) They are related to me. They are my brothers.
(vi) I know why they are in court. They are suspected of killing a child, Hubetin Balbal

(vii) I do not know about the arson on Peter Tanel's house because I was in the house and did not follow them to where the child was murdered.

(1) Q. Did the defendants go to Peter Tanel's house?

A. The fight was finished when we woke both of them up

(2) Q. What fight?

A. The fight where the child was killed and then wounded

(3) Q. Did you see the fight?

A. No I did not see the fight.

(4) Q. You woke the defendants up. Did they go to the fight?

A. I woke them up. I do not know what happened because we were in a rush to run away.

(5) Q. You did not see them go to the fight or they went to the fight?

A. Yes I did not see them go to the fight.

(6) Q. Were Lydia Morang with you?

A. Yes we live together

(7) Q. What is Lydia to you?

A. My sister in law

(8) Q. Do you have anything else to tell the court?

A. No I do not have anything else to say.

39. During Cross Examination the witness Martina Balu was asked the following questions:

(i) Q. Do you feel sorry for your brothers?

A. Yes

(ii) Q. You are sorry for your in law Lydia, she has six children?

A. Yes I am sorry for them.

(iii) Q. Do you live in the same house?

A. Yes

(iv) Q. Do you help each other?

A. Yes we help each other

(v) Q. In such allegation you would help yourself?

A. Yes

(vi) Q. So you made the story that your brothers were asleep, Is that correct?

A. No

(vii) Q. Do you know that two people living at the same place would tell the same story like you and Lydia? Is it correct?

A. Yes it's correct

(viii) Q. You were never with your brothers. Their story is not the same?

A. Yes it's true. They were asleep both of them

(ix) Q. Your brother Bernard spoke to the police?

A. Yes on 18th December 2008. It was in pidgin. "Itru olsem yu tu ibin stap insait long dispel grup bilong pait? Your brother replied saying: Mi pela ibin silip na taem oli go nap ait, mipela iwok long stopim ol. This means Bernard was not asleep, what do you say?

A. I would not know. We woke them up and we fled.

(x) Q. Again in Q.22 of the Record of Interview your brother was asked: Ol witness bilong polis itok olsem yu tui bin stap insait long dispel pait, bai yu tok women? You brother replied: I tru olsem me bin stap wantaim ol tasol mi no mekim wanpela samting. Do you agree that your brother was not asleep but was with the group that were in the fight? What do you say?

A. We woke him up and we fled.

(xi) Q. You are making up a story. What do you say?

A. No he was asleep. We woke him up and he go up. We got ready from the fight.

(xii) Q. In Q26 of the Record of Interview your brother Matthew was: Yu save olsem wanpela liklik pikinini mere em ibin dai long dispel pait tu? Your brother replied saying: Yes mi save. This does not show that your brother Matthew was not asleep. What do you say?

A. No he was asleep

(xiii) Q. In Q27 of the Record of Interview your brother Matthew Balu was asked: "Taem oli ibin igo long paitim Peter Tanel, ol ibin mekim wanem? Your brother Bernard replied saying: "Peter Tanel ibin ronowei, nau oli go na bagarapim haus bilong ThomasTue, Collin Jerry na ol narapela man." Do you agree that your brother Matthew Balu was not asleep but was with those people? What do you say?

A. No he was asleep

(xiv) Q. The truth is that you are sorry for your brother and you made up this story. What do you say?

A. No.

40. In Re Examination the witness was asked the following questions.

(i) Q. You told the Court of what you saw?

A. Yes

(ii) Q. Did you make up the story?

1. No
   

(iii) Q. Is it true that you are sorry for your brothers?

A. Yes but I did not make up the story

41. The evidence of witnesses Lydia Marang and Martina Balu can be summed up in the following:

"The defendant Matthew Balu and Bernard Kavanamur Balu did not take part in the fight nor were they with the group of people that were involved in the fight. They were asleep the whole night."

Submission on Verdict by defence

42. In his submission on the verdict to be decided by the Court Mr Motuwe for the defendants reiterated his submission on No case to answer submission at the end of the Prosecution's case but made a short submission in addition to the No case submission. The following then is the additional submission:

1. The overall evidence by the State does not disclose that the defendant Matthew Balu and Bernard Kavanamur Balu were directly involved in the commission of the charges Counts 1, 2, 5, 6, and 7.
   
2. The evidence of Rose Alir given to the Court is inconsistent with her statement made and given to the police in respect of the person that attempted to unlawfully kill her. In her statement made and given at the police she said she was attacked by Raymond and on her sworn evidence in Court she says she was attacked by Martin. Mr Motuwe submits the evidence of Rose Alir shows the defendants did not do anything to her because they are like fathers to her. There is no evidence they aided or abetted Martin or Raymond attempted to unlawfully kill of Rose Alir. Mr Motuwe submits that the law is clear, that a mere presence is not sufficient.
   
3. Mr Motuwe also submits the evidence of Collin Ilde should not be believed. It is also inconsistent evidence. Mr Motuwe submits the person that attempted to unlawfully kill Collin Ilde was another person and not the defendants now in Court. There is no evidence showing defendants had aided and abetted to attempt to unlawfully kill Collin Ilde.
   
4. In respect to the attempted to unlawful killing of Thelma Thomas, Mr Motuwe also submits that there is no evidence that the defendants had aided and abetted to the attempted to unlawfully kill Thelma Thomas.
   
5. In respect to the charge of arson on Peter Tanel's house, Mr Motuwe submits that Peter Tanel is the cause of the trouble. He cut Martin with a bush knife which caused the trouble.
   
6. In respect of the charges of destruction of other properties and the house of Thomas Tue and Julius Anton, Mr Motuwe submits that these are mere allegation. There is no evidence that these properties were indeed destroyed by the defendants. Such evidence should have been by photographs. The Court is left to infer the destruction of the properties.
   
7. Mr Motuwe submits that the issue here is whether or not the defendants were the actual perpetrators to the crimes alleged against them alternatively even if they were there no evidence to suggest that they had aided and abetted the actual perpetrators of the crimes.
   
8. Mr Motuwe submits that there is no doubt the defendants are related to the perpetrators of the crimes, and in so they have been simply blamed for what their relatives did.
   
9. Mr Motuwe submits the State had invoked section 7 and 8 of the Criminal Code Act. He submits a mere presence of the defendants at the scene is not enough. It must accompany some acts which are unlawful in nature. For these reasons the defendants each and severally should be not guilty of charges 1, 2, 5, 6 and 7.
   

Response by State on Verdict Submission

43. In respect of the charge number one (1) (arson) the State and defence do not contest that the house belonging to Peter Tanel was burnt and completely destroyed with everything that was inside.

44. In respect to the charge number two (2) (wilfully and unlawfully damage of dwelling house and properties of Julius Anton, the State and the defence do not contest the house and properties belonging to Julius Anton were destroyed.

45. In respect to count number five (5) the State and defence do not contest that Collin Ilde Jerry received deep cut on her left hand from a bush knife.

46. In respect to count number six (6), the State and defence do not contest that Rose Alir received cuts on her face and around her ear from being hit with a piece of plank.

47. In respect to count number seven (7) the State and defence do not contest that Thelma Ansila received severe cut on the back of her neck, right forehead and right thumb.

The Verdicts – Guilty (Each and severally)

48. Having considered the evidence I am satisfied that Matthew Balu and Bernard Kavanamur Balu were at the scene of the crime alleged against them by the State. I also conclude that each defendant had committed the offences charged with pursuant to Sections 7 and 8 of the Criminal Code Act and upon that finding I find each defendant as follows:

(i) Charge One: Guilty (each and severally)
(ii) Charge Two: Guilty (each and severally)
(iii) Charge Five: Guilty (each and severally)
(iv) Charge Six: Guilty (each and severally)
(v) Charge Seven: Guilty (each and severally)

Reason for the Guilty Verdicts

49. Evidence shows the fight which led to these charges was had after a retaliatory fight by Peter Tanel with Martin in the early morning of the Saturday 24th of February 2007and those he says had assaulted him on the night of Friday 23rd February 2007.

50. To put it precisely, there were three fights. The first was fought on the night of Friday the 23rd of February where Peter Tanel was assaulted by Martin, Raymond and others. Evidence shows that defendant Matthew Balu and Bernard Kavanamur Balu were present during that fight.

51. The second fight was fought in the early morning of Saturday the 24th of February which led to Peter Tanel cutting Martin with a bush knife. Evidence shows that both defendants were present during that fight. The third fight was then fought which led to the defendants being charged for the offences alleged. Evidence shows that both defendants were present during that fight.

52. It appears the third fight was also a retaliatory for the injuries inflicted on Martin by Peter Tanel with a bush knife. Evidence also shows that Martin is a relative of the defendants Matthew Balu and Bernard Kavanamur Balu.

53. While it may be true as submitted by Mr Motuwe that because the defendants are relatives of Martin and Raymond and have been blamed, it is safe to infer from the evidence that it was not unusual but usual on the defendants Matthew Balu and Bernard Kavanamur Balu and others who are still at large to react in the way they did after Martin who is related to them as cut by Peter Tanel with a knife.

54. I conclude upon the evidence that the presence of defendant Matthew Balu and Bernard Kavanamur Balu at the scene of the crime with the other perpetrators of the crime of attempted to unlawfully kill Collin Ilde Jerry, Rose Alir, and Thelma Ansila was not innocent but was of inciting toward the commission of crimes on the above persons. I therefore conclude that the defendants fall under Sections 7and 8 of the Criminal Code Act.

55. I also conclude upon the evidence that the presence of Matthew Balu and Bernard Kavanamur Balu at the scene of the crime with the other perpetrators committed on the properties of Julius Anton and Thomas Tue was not innocent but was inciting toward the commission of the crimes on the properties. I therefore conclude that the defendants fall under Sections 7 and 8 of the Criminal Code Act.

56. I am satisfied the Bernard Kavanamur Balu is the person that set fire to the dwelling house of Peter Tanel on the 24th of February 2009 at Palnakaur village. There is evidence by Mary Tue Tiniu that he asked for matches from his nephew ToVue at their house to set fire to Peter Tanel's house. Mary Tue Tiniu says she saw Bernard Kavanamur Balu got the matches and used that to set fire to Peter Tanel's house. This shows that he was in the fight.

57. The defendants each and severally elected to give unsworn evidence. They told the court that they were never at the scene of the crime during the fight because they were asleep. This is a defence of alibi by the defendants.

58. The law on this defence is well settled in our criminal jurisdiction in the famous case of R-v- Browne Dunn (1893) 6 R67 (HL), which was adopted in an Australian case of R-v- Birks [1999] NSWLR 677. In our jurisdiction the principle was adopted in the case of The State –v- Robert Wer [1988-89] PNGLR 444. A notice of alibi as a defence must be filed.

59. I do not base on my findings above and the authorities set out above accept the defendant's unsworn statements. Even if I do accept them I would not place much weight on them.

60. I have already said that I am satisfied from the evidence that the defendants were present throughout at the scene of the crime whether as actual perpetrators or not but fall under Section 7 and 8 of the Criminal Code Act invoked by the State.

61. I do not accept the evidence of the two witnesses called by the defence in support of the unsworn statements of the two defendants. This evidence has the same taste of alibi. Furthermore it is suspicious in my view especially of the close relationship the witnesses have with the defendants. The witness Lydia Marang is the wife of defendant Matthew Balu and Martina Balu is the biological sister of both defendants.

62. I read the Record of Interview of each defendant and have paid attention to Questions 26, 27, 34 and 35 of the Record of Interview of Matthew Balu put to witness Lydia Marang during cross examination by State prosecutor and Questions 21, 22, 26 and 27 of the Record of Interview of Bernard Kavanamur Balu put to witness Martina Balu during the cross examination by State prosecutor.

63. I conclude the answers by the defence witnesses are not convincing because the answers in response to these questions by each defendant in their Record of Interviews show that the defendants were not asleep at the time the fight was on in which the defendant committed the offences charged with.

64. I listened to Lydia Marang and Martina Balu gave their evidence which I have set out above. I have considered their evidence and have decided not to accept it. I am of the view that what they told me is not of what actually happened. It is a story I thing they manufactured in support of a husband in the case of Lydia Marang to defendant Matthew Balu and a biological sister in the case of Martina Balu to both defendants.

65. It is not unusual but usual for a wife to stand by her husband and a biological sister by her brothers. It is not independent evidence but tainted with close and unique relationships. Lydia Marang says she is sorry for her husband while Martina Balu says she is sorry for her brothers. I do not accept this evidence.

66. In regard to the inconsistency on the evidence of Rose Alir as submitted by Mr Motuwe, referring to Ex "I" I conclude this inconsistency is relevant and significant only to the identification of the person who actually hit Rose Alir with a piece of plank on her head and around the ear. It however, does not remove the evidence by Rose Alir that she had identified the defendants Matthew Balu and Bernard Kavanamur with the group of people that were taking part in the fight where she was seriously injured, a child was killed, house was set on fire, a house owned by Julius Anton and other properties were destroyed. According to Rose Alir's evidence she says that Matthew Balu was standing outside shouting "Kilim ol".

67. Rose Alir is a niece of the defendant Matthew Balu and Bernard Kavanamur Balu. She in my view has no reasons to lie about her uncle taking part in the fight, except where she says the defendants did not do anything when she gave her evidence about being attacked, which I conclude to mean she was not attacked by the defendants but the defendants took part in the fight which she was attacked and received injuries.

68. The evidence of Rose Alir is corroborated by the evidence of Thelma Ansila who says she saw Albert Girar, Matthew Balu and Bernard Kavanamur Balu and Raymond shouting very loud, swearing and running towards their house. She says she heard them shouting "kilim ol". She also says she observed them as very angry and aggressive while running towards her house.

69. The shouting of "kilim ol na paitim ol" is further corroborated by witness Mary Tue Tiniu who says that she heard drunk men whom she identified as Martin, Raymond, Albert Girar, Matthew Balu and Bernard Kavanamur Balu shouting "kilim ol na paitim ol" She says she was standing on the veranda of her house and was able to identify the defendants as well as seeing Julius Anton' house and other properties destroyed by the defendants and the others she say are still at large.

70. Finally Mr Motuwe submits that there is inconsistency on the evidence of Collin Ilde Jerry. That she did not identify the defendants in her statement made, signed and given to the police as opposed to her sworn evidence in court, she is able to identify and named the defendants to be the persons that attempted to unlawfully kill her. I accept the inconsistency even though it is more of an omission on the part of the witness. It does raise some concerns of why she did not identify the defendants in her statement given to the police. It however still does not remove evidence from other witnesses I have alluded to above that the defendants took part in the fight in which she received injuries on her left hand which leaves the court to conclude that the defendants fall under Sections 7 and 8 of the Criminal Code Act.

71. Beside the documentary evidence tendered by the State with consent were Medical Reports. I will set out the Medical Report tendered by the State:

1. Medical Report by Doctor Thomas Lelu dated 26th of March 2007 on Rose Alir marked Ex "G". This Medical Report reveals there was:
   
   1. Active bleeding from a punctured hole through the frontal bone (skull) with multiple bony fragments.
      
   2. Meaning (covering of the brain tissue) was ruptured and protruding out of the punctured hole with leaking cerebra- spinal fluid.
      
   3. There was hematoma and bleeding under
      
   4. There were injuries on the skin, muscles blood vessels, fractured frontal bone
      
   5. Meanings ruptured with leaking cerebrum spinal fluid.
      
   6. Haemorrhage and swelling of left eye which was not able to open due to fractured upper left eye bone and injured muscles. The report concludes the above has been suffered from a server head injury with fractured skull. She may suffer from some neurological deficits as a result of server head injuries.
      
2. Medical Report by Doctor Suzie dated 19th of March 2007 on Thelma Ansila marked Ex. "F". This Medical Report reveals there was:
   
   1. A posterior neck knife wound of 15cms long x 5cms deep.
      
   2. Active bleeding
      
   3. Muscles but no bony involvement
      
   4. A superficial laceration at the right frontal region of the scalp
      
   5. An amputated left thumb.
      
3. Medical Report by Doctor Nancy Kwara dated 14th of March 2007 on Betina (also known as Hubetin Balbal) marked Ex. "H". This Medical Report reveals there was:
   
   1. Deep scalp laceration along the forehead from left to right.
      
   2. Deep scalp laceration running transversally from left parietal to right parietal just above the ears.
      
   3. Skull bone was fractured in a clear liner fashion at sites of both lacerations exposing brain matters
      
   4. No signs of life detected.
      
   5. Cause of death was most likely haemorrhagic in origin, both internally and externally.
      

72. It is obvious from the Medical Reports that Rose Alir, Collin Ilder Jerry and Thelma Ansila received server injuries from being attacked on the 24th of February 2007 during a fight with the defendants, Martin, Raymond and Albert Girar and others still at large. Although no medical report was available and tendered for victim Collin Ilde Jerry, it was observed by the court that she received bush knife cut on her left hand (victim showed to the court the left hand where the cut was and it was observed that there is a big scar on the victim's left hand).

73. The defendants are found guilty as charged

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