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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR.NO.917, 934, 935, 936, 937, & 939 OF 2014
THE STATE
V
BENEDICT TETIK PIANA, TOGUNAN ALOIS,
NORBERT MAKILA, SIMEON PETERO, SIMEON TOVUE
&TOGUNANAUGUST
Kokopo: Lenalia, J
2016: 24th, 25th, 27thMay, 22nd June, 4th, 6th, 7th11th, 12th, 13th, 14th,
15th July, 2nd3rd, 4th& 5th& 19th August&7th October.
CRIMINAL LAW – Wilful murder – Pleas of not guilty – Trial
Criminal Code s.299.
CRIMINAL LAW –Charge of wilful murder – Evidence on trial – Burden of proof – State’s evidence on direct participation of the involvement of the six accused killing the victim – How credible is such evidence.
CRIMINAL LAW-PRACTICE & PROCEDURE – Identification – Three prosecution witnesses alleged they saw the six defendants attacked the deceased with bush-knives – Prosecution evidence establishes motives for blaming the six accused for killing the victim.
CRIMINAL LAW – Weighing of all evidence for the prosecution and defence – Defence Alibi evidence – Alibi evidence established a number of defence witnesses were not on the scene of the killing.
CRIMINAL LAW – Issues – Evidence by immediate family members of the deceased in a case where the defence evidence suggest such evidence may be biased – The issue depends entirely on the credibility of prosecution witnesses and the defence evidence – What inferences should the Court draw? – Where several inferences are drawn, verdict of guilty should be returned – Whose evidence should be believed – As found on the instant case, motive for State witnesses to accused defendants for k had killing the victim.
Cases cited.
Alois Erebe & Taros Togete v The State (2011) SC1135
Allan OaKoroka v The State and Mariano Wani Simon v The State [1988-89] PNGLR 131
Gari Bonu Garitau & Rossana Bonu (1977) SC528
John Beng v The State [1977] PNGLR 115
John Jaminan v The State (No.2) [1983] 318
Jimmy Ono v The State (2002) SC698
Paulus Pawa v The State [1981] PNGLR 498
R v Namiropa Kopinbodi [1969-1970] PNGLR 194 at 200
The State v Tom Morris [1981] PNGLR 493
The State v Marety Ame Gaidi (2002) N2256
The State v Okata Talagahin (No.1) (2004) N2581
The State v Eki Kondi (No.1) (2004) N2542
The State v John Bosco (2004) N2777
Valii Rocky Mauri v The State (2000) SC668
Counsel:
Mr. L. Rangan, for State
Mr. J. Gesling & Mr. M. Peter, for all Accused.
7th October, 2016
Prosecution Evidence
Ex. “1” &“1A” the postmortem report and an affidavit by Dr. Lisioth Wauleau of Nonga Base Hospital.
Ex. “2” & “2A”, record of interview with accused Benedict Tetik, Pidgin and English.
Ex. “3” & “3A”...Alois Togunan...
Ex. “4” & “4A”...Norbert Makila...
Ex. “5” & “5A” ...Simeon Petero...
Ex. “6” & “6A” ... Simeon Tovue ...
Ex. “7” & “7A” ... Togunan August...
Ex. “8” statement by corroborator, S/Constable Paul Bonnio.
Ex. “9”... PW/Constable Martha Manau.
Ex. “10”... PW Constable Helen Hambindua.
Ex. “11”... statement by Elipas Lane.
Ex. “12” ... Bernard Malir.
4. The court has read all documents tendered including record of interviews conducted by the interviewing officer Senior Police Constable Ukies Kibale. All records of interviews contain denial of allegations made against them. The postmortem report and the affidavit by Dr. Lisioth Wauleauin Ex. “1” & “1A”) confirm that the deceased died from severe blood loss from multiple bush knife and axe wounds caused cerebral hemorrhage and the victim died instantly.
5. Statements by police officers have been read. The records of interview were conducted fairly without force, intimidations or promise of any sort. The statements by Elipas Lane disassociated Isaac Makila from the killing as they were together Elipas Lane in Isaac’s house. This person was not committed for trial. (See Ex. “11” & “11A”). In case of the statement by Bernard Malir(“12 & “12A”) it shows that Norbert Makila was together with Bernard and his family in his house. Bernard’s wife cooked food for them and they ate together until 7pm and after eating, they slept.
6. The prosecution evidence established that, on 25th April 2014, there was a big customary celebration to celebrate the breaking and distribution of Tolai shell money. It started about 3pm and ended about 5 or 6pm. Between 5.30 and 6pm, the people started to leave for their villages. According to the two adult witnesses Henrica Boas and Henry Pitalur and an infant witness Ronald Henry Junior gave evidence that they each saw the six accused attacked the deceased Joseph Henry Junior. Henry Pitalur is the father of the deceased while Henrica Boas is the wife of late Henry Junior. Witness Ronald Henry Junior is the son of the deceased. He was 7years old at the time his father was killed.
7. The two adult witnesses Henrica Boas and Henry Pitalur both said, they were eye witnesses to this killing. The whole community had been to the custom ceremony that day and they returned home before dark. Their evidence is that between 6.30pm and 7pm they were in their houses with their families and they heard big noises outside their houses as people shouting in war cries and Tubuan calls and shouts all around their premises. While hearing these noises, they heard stones and sticks thrown on top the roof of the deceased’s house.
Witness Henrica Boas
8. Henrica Boas is the wife of the victim killed on the above date. She gave evidence about an incident before the killing of her husband took place, there was an incident where, the deceased had cut or destroyed a banana garden belonging to the first accused Benedict Tetik. This was due to a land dispute over that portion of land where bananas were planted. The land was referred to as ‘Vunavur’ located at Raburbur village. Henrica recalls that on the evening of 17th April 1014, the date, the banana garden was cut down, the accused Benedict Tetik and his wife Kumkubur came and got cross with Henrica asking her where her husband was. She answered them that the victim was away in Malaguna No.3 village to collect fish for the family. She revealed that accused Benedict threatened to attack the victim whenever he came home.
9. Then on the evening of 25th April 2014, after the custom ceremony was over, they returned to their house, Henrica recalls that many people came to the scene of the killing shouting and swearing and called out to the victim’s name. Henrica said, while having dinner in their kitchen, her husband walked out to pick their young baby crying in the main house. He walked out at the time there was this big commotion and went up into the house where the baby was sleeping and picked up the baby and walked back down and walked around with the child outside their yard.
10. While Henry Junior Pitalur was walking around outside, the people came and surrounded him and he called out to Henrica to pick up their baby. She came outside to where the victim was standing with their child and got the baby and went in back into the kitchen and put the baby to sleep. While still in the kitchen, she told her two other children not to go outside as people where getting cross with their father (the deceased).She said, while still in their kitchen, she heard noises of bush-knife swing and heard her husband called out in a distress or despair voice. She left her children in the house and said, when she came and stood on the door of the kitchen, she identified accused Benedict Tetik, Simenon Petero and others chopping up the body of late Henry Junior.
11. Asked in cross-examination if the six accused are related to the deceased. Henrica said, the first accused’s wife whom the witness as Kumkubur is the cousin sister of the deceased and the other co-accused are closely related to the deceased and his parents. Asked if she knew that, her husband was regarded as a criminal in their community. She confirmed that the deceased had been in and out of the police custody due to incidents where the deceased was merely a suspect of most allegations made up against her husband by their community.
12. Asked about whether there was light that evening. The witness said, it was already dark and was about 7 pm and there was a Chinese lamp light hanging on the door of their kitchen. Asked about the big commotion and objects thrown around everywhere and to the roof of their houses and asked if she was ever frightened at all. The witness answered that when the noises were going on, she put their young child away onto the bed and bade her two older children to remain in the house and not to come outside and when she came out she saw the first and second accused cutting her husband.
13. She was further asked if she ever called the Ward Member to tell him about the death of her husband. She answered, she only asked the police and not any of their local authorities. Asked, if she ever gave a list of the suspects to the Ward Member and the policemen who came to the scene that night.
14. She first responded by saying “yes a couple”. Further questions were put to her about two separate lists. The witness answered in the negative and said, she gave one list to the police only at Rabaul Police Station. She later clarified that she gave a list to police of those people who attacked her husband.
15. She was asked as to why it took the police 14 days to arrest the six co-accused if the six offenders had been clearly identified on the night of the killing. Henrica answered that, she gave the list to the investigating officer some three or so days after the killing. Asked, about the behavior of the deceased at the time before he was killed. She said, he was a hard working person and further asked if she knew her husband was involved in rape, robbery, stealing, break & enter and destruction of properties of other people and even the LLG and church properties in the community. Henrica said, she heard of a few minor allegations about the victim but, they should have been reported to appropriate authorities.
Henry Junior Ronald
16. The youngest witness ever called before this court was Henry Junior Ronald. He was 7 at the time he gave evidence. This witness was given the warning in terms of s.6 of the Oaths, Affirmation and Statutory Declaration Act Ch. No.317. He is the son of the deceased Henry Pitalur Junior. He told the court that, when he heard noises, he was in the house but, he came outside the house and stood at the door and recognized his granny Simeon, his uncle Tetik, his granny Togunan and others. He said after he saw his daddy fell to the ground he ran to him and lay on top his body and started to cry.
17. A part from those he named, he said, he also saw a large number of people around the scene. In cross-examination, he was asked a lot of questions. Asked if what he told the court is true. He said, it is true. Asked if he knows that if he told lies to court, Jesus would punish him in heaven. He said, he knows that if he tells lies he would be punished. Asked whether he was afraid of obstacles thrown around like stones and sticks. He said, he was frightened but he stood on bravely to see what the people came to do to his daddy.
18. It was put to this young witness if he was frightened because noises and stone, sticks and objects were thrown everywhere and to the roofs of their houses. In response, the witness said, he was frightened but he stood on to see what the people were to do with his father. Further asked if it was true that, he ran passed his mother standing on the door way to their kitchen. He answered that he ran passed her to where the deceased was lying.
19. Asked about the condition of lightings, the witness confirmed evidence of the earlier witness that there was a Chinese solar or battery light on the door of the kitchen. This witness statement dated 28th April 2014 was tendered as a prior inconsistent statement. No objection was taken and it tendered and was marked Ex. “A” for the defence case. I will return to this witness evidence later when discussing applicable law.
Senior Constable Ukies Kibale
20. Next witness was Senior Constable Ukies Kibale. He was the investigating officer of this crime. This witness confirmed in chief that, the killing of the victim on this case was reported to him at the Rabaul C. I. D. officer in Rabaul by the victim’s father Henry Pitalur. He was asked in chief as to who gave him the list of names of those involved in the killing of late Henry Junior. He answered that, the victim’s wife gave him the list. Asked about those whose names appeared on the list? He answered that all these six accused’s names appeared on the list together with accused Isaac Makila, but this person’s case was dismissed by District Court in the committal proceedings for lack of evidence.
21. After getting the list from Henrica, he sent a message to the Ward Member to bring those responsible to Rabaul police station. He also arranged for the postmortem examination which was conducted on 6th May 2014. The records of interviews were conducted on 9th June 2014.Asked if he received a letter from the Ward Member about the complaints made against the victim for being a criminal in the village. He confirmed receipt of the letter some days after the complaint had been laid with the police. The letter was tendered and marked for MFI purposes only as “MFI 1”.
22. He was asked about an amount of K700.00 that was given to him by the Ward Member to bribe him not to take action against those people whose names appeared on the list. He confirmed he received such amount and this money was marked for “MFI 3”. Another document tendered as “MFI 4” through this witness another letter, see also Ex.16, clinic book. A set of photos tendered see Exhibits “17”, “17(a)”, (17(b) & “17(a)-(c).
23. In cross-examination, the witness was asked about two separate lists containing names of those who attacked the victim and killed him that night. That list is supposed to have been given to the policemen who went to the scene of the crime on the 25th April 2014. Asked, if this list was given to him. He answered that it was never given to him. Asked how or where there any reasons why the list of the accused sitting in court now was given to him about almost four days after the killing. He said, he did not know why but the list was given to him on 28th April 2014 by the victim’s wife.
24. Asked about his earlier answer in chief that, he got the list of names of the offenders a day after the killing. He said, he did not work on Saturday 26th April that year but he got the list on 28th.Asked why not go through the Councilor where logistical support could come to him easily. He said, Henrica gave him the list.
Henry Pitalur.
25. The next witness, the deceased’s father Mr. Henry Pitalur gave evidence about what happened on that night. His evidence is similar to that of Henrica. He said because his house is next to that of his son (deceased) he stood and saw the six accused attacked the deceased by cutting him up with bush-knives.
26. When the Court party went to the crime scene, his house is about ten meters away from that of the victim. In cross-examination this witness confirmed that the deceased was a trouble maker and he had been in to police custody but usually absconded from police custody. Asked if he being the father of the victim, did he take the community’s concern seriously. He said, he was concerned and now and then would warn and talked to the victim to surrender himself to the law and order authorities in the District but the victim never listened.
27. This witness said when he returned from work on the evening of the killing, he was in his house when he heard the Tolai Tubuan shouts and calls “kwak, kwak”, “kwak, “kwak”. He was certain that something has happened or something was to happen. Because there were a lot of noises of people buzzing and running down shouting, swearing and calling out ‘fight him, fight him’. He stood up and walked down from his house. As he stood he saw people running and his evidence confirms the evidence of Henrica and her son that there were so many people. He however said, he saw the six co-accused ran into the premises of his son and attacked the victim with bush knives.
28. The witness said as he stood, he heard the victim’s wife called out in a loud voice saying, what the offenders were doing were being watched and she was calling the police to come and arrest them. When the people heard Henrica calling out, they ran toward Benedict Tetik’s house. The distance between the victim’s house to accused BenedictTetik’s house was estimated to be 100 or 200 meters apart.
29. In cross-examination, this witness was asked when he saw the people attacking his son why not do anything to assist Junior . The witness said, he did not think the mob would kill his son on that night, as they are closely related to his son. He just stood and saw what the crowd did to the deceased.
30. Asked as to who called the police, the witness said, he did not call them and he did not know who call the police. Asked, if he saw the Ward Member that night. He said, he was not normal as he was under pressure and he cannot recall if Mr. Stanley Bungtabu (W/Member) came around. He was asked if he spoke to the W/Member that evening and told him that, he (witness) came home late from work and he did not see what was being done to his son. He answered in the negative.
31. Asked about the lighting condition at the time the killing was executed. He said, there was light from the door way of the victim’s kitchen. He said, his house is not far from the victim’s house and though there are edges (flowers) between his house and that of his son (victim), he could look through the flowers and he saw people standing on dark places and came out because there were many people, he only saw some of them. By the time the court party went to the scene, flowers growing between the victim’s house and the house of this witness had been trimmed.
32. It was put to this witness that, the six accused were not on the scene that evening. The witness said, the six accused were on the scene. He was asked about the number of people or groups of people that were on the scene. He said, there were many people such that, he could not work out how many groups of people were on the scene.
Henry William.
33. The last witness called was Henry William. He is the last born brother of the victim. He recalls that on the date the victim died, he was in his father’s village at Malaguna No.3 village in the Balanataman LLG Rabaul District. Asked in chief, how did he learn about the death of his brother? He said, on that night he was coming up to Raburbur village and he got there about 7pm and by which time, the deceased had been killed.
35. He said, on his way up, his auntie told him about the commotion that was around his father’s house. By the time he got to the crime scene, nobody was there and he was only told about what happened. On his arrival, he saw some trees had been cut down. He heard his father praying while one of his sisters was crying.
35. After being told of what happened during the killing, he walked down to accused Benedict Tetik’s house because there were noises from that house. He took his torch and walked down to accused Benedict Tetik’s house. There he met many youths whom he said, he did not recognize. He said, he saw, Benedict, Simeon and Tokunai. He said, he went to accused Benedict and shook hands with him. Asked why shake hand with him. He said, because he killed his brother. Then later on that evening the police arrived to pick up the body of the deceased.
36. The witness was vigorously cross-examined. Asked, in cross-examination if he saw the victim’s wife giving a list of names of suspects to police that night. He said, he did not see anything but he only heard news of those who saw the fight. He denied seeing Henrica giving any names to police. Asked to confirm that he did not see the fight. The witness said, he did not see the fight nor did he see those involved in killing of his brother. He said, it was true, he did not see those people responsible for killing his brother but he heard from those who saw the fight. It was put to the witness if accused, Benedict and those who are in court were not on the scene. The witness said, he was not on the scene but only heard the names of those people. After the court party visited the crime scene, Mr. Rangan closed the prosecution case.
Defence Evidence
First Accused Benedict Tetik
37. The defence case commenced on 7th July 2016. The defence evidence is that, the six co-accused were nowhere near the scene of the killing and it took police sometime to make arrests. The defence case raises the issue as to why, the six accused were not arrested next day. This question is not clear from both the prosecution and defence evidence. The first accused Benedict Tetik confirmed what he told the police during the record of interview that, he was not on the crime scene on 24th April 2014 as he was in his grandmother’s house. He named her as IaTatabar. Asked in chief if what story he gave to the interviewing officer Senior Constable Ukies Kibale was true. He confirmed that, what he told police was the true story because, he was not on the crime scene. He also revealed that he and his family did not attend the custom ceremony that day as his child was sick and they took him to Nonga General Hospital. (See Ex. “18”). A notice of alibi was filed by the first accused where he named two persons he was with on the night of the killing.
38. The witness also revealed that, the victim was his in-law because, he is married to the cousin sister of late Henry Pitalur Junior. In cross-examination this accused was asked about the victim cutting his banana trees before he was killed. Accused Benedict recalled that his banana trees were cut on 17th April 2014. Asked if he was really cross with the victim because, the late Junior cut or destroyed his banana trees. He said, he was cross and he and his wife went up to see the victim so they could amicably settle but the victim was not in his house. Due to the absence of the victim, he only spoke to the victim’s wife. Asked as to why the three witnesses, Henrica, Ronald and Henry make up false stories against him. He answered that he does not know why and it could be due to the grudges they had over the cutting of his banana garden.
39. Asked about how and why was it that, he and his family stayed at his grandmother’s house. The witness responded that it was because his child was very sick as well as his grandmother was also sick. The witness also said, they had been staying with his granny for over a month. Sometimes he would go to his auntie’s place and at time he would go back to his house but returns to where he and his family were sleeping. The witness was asked about the list or lists of names of the suspects. He said, the list was given to the W/Member by Henrica and the reason he went to Rabaul Police Station was to clear his name and give his statement to police. When he went to Rabaul police station to make his statement about the killing, he was arrested and locked up.
Doris Kumkubur
40. The second defence witness was the wife of the first accused. Her name is Doris Kumkubur. She also comes from Raburbur village in Reimber/Livuan LLG area. She said, on the night of the killing, she was with her husband, their children, Malana, Gorge and Mika in their grandmother’s house. She gave an account of the date on which the victim cut down banana trees from their banana patch. She recalled that the victim came to their banana garden and cut down banana trees. After seeing this, she went up together with accused Benedict and wanted to settle with the victim and his family. However, when they got to the victim’s house and asked where the victim was, they were informed by Henrica Boas (deceased wife) that the victim was out.
41. She confirmed that, the accused Benedict Tetik expressed his concern about cutting the banana trees, and they both suggested that, they should settle the matter quickly as they are related to each other. She revealed in chief that on the night of the killing, her husband was with them in the house where they were staying and they went to bed about 9pm. She woke up in the morning and went to the road where there is a trade store and the store/keeper told her the news that the victim had been killed.
42. In cross-examination, the witness was asked about the number of banana plants that were cut down by the victim if only five plants were chopped down. She said, there were many banana trees that were cut all those standing on the road side were all destroyed. Asked about ownership of the land where the dispute arose from. She confirmed that, the victim together with her own the land. An interesting question was asked to this witness by the State Prosecutor as to why would Henrica, Ronald and Henry Pitalur Senior make up false stories against her husband? In answer the witness said, it was because there were serious allegations about the victim who had destroyed properties not only their banana garden but vegetable gardens belonging to other people and had committed other offences in their community. She said, somehow, the police arrested and charged her husband.
43. At this stage, Mr. Rangan wanted to recall the first defence witness. The defence counsel objected to this but because there were a few essential questions to be asked, the court accepted the application. Questions asked mainly based on the clinic book that was tendered which the prosecution says, such piece of evidence was tempered with. (See Ex. “18”). There was no evidence to confirm such proposition.
TatabarTamti Margret
44. The next defence witness was TatabarTamti Margret. She also comes from Raburbur village and she is related to accused Benedict Tetik as he is her nephew. She clarified that, the mother of the accused Benedict is her sister. She gave evidence that, because she was prior to the time the crime was committed, she was sick and even one of Benedict child was sick so the accused Benedict and his family stayed with her in her house for over one month.
45. She was cross-examined about the statement tendered by the State, the statement of Elipas Lane. (See Ex. “11”). She was questioned about paragraph 3 of the statement where Elipas said, during the custom ceremony, he did not see Benedict Tetik but he only saw his wife Kumkubur. The witness answered that, what was recorded there was total lies. Asked if Benedict Tetik’s wife went anywhere during day time on 25.4.2014. The witness answered that, Kumkubur went together with her husband and their sick child to the hospital at Nonga and they returned in the afternoon and stayed in the house until they slept. This witness was the last alibi witness for the first accused.
Second Accused TogunanAlois.
46. The second accused Alois Togunanage 22 years is the son of the last accused on the indictment August Togunan. According to Alois evidence, he comes from Kavavar village next to Raburbur village. He confirmed other evidence that the crime was committed on 25th April 2014 but he was arrested on 7th May that year.
47. He confirmed what he told the interviewing team who conducted the record of interview with him that at the time the crime was committed, he was in his parents’ house with his father, mother and his grandfather Waravala. (See Ex. “3” & “3A” on Q.23 and its answer).
48. Like previous defence witnesses, Alois was vigorously cross-examined. It was put to the witness that the three eye witness saw him and his co-accused on the crime scene, what he would say. He answered that, what those prosecution witnesses told the court was not true.
49. Asked about the deceased’s father Henry Pitalur’s evidence that, he identified this accused on the spot where the deceased was killed. Alois said, he was never present on the crime scene as he was with his parents in their house. Asked about his s.96 of the District Courts Act statement as to why he did not tell the court about what evidence, he told the Court about.
50. The witness denied being asked any questions about what the charge is about while in the Committal Court and said, it was his first time to come to court. He was asked about the lists of suspects. He said, there was a list which the Ward Member had and when they were called to go to the police station, he thought of clearing his name and those of his co-accused. He denied knowing anything about the K700.00 given to Senior Constable Ukies Kibale by the W/Member.
Gulua Gunan.
51. The alibi evidence called by accused Alois Togunan and his father the last accused August Togunan came from Gulua Gunan. This is the wife of the last accused. They have 9 children and the two have been married for a long time. She gave evidence that, her family attended the custom ceremony that was conducted at Kavavar village on 25th April 2014. The ceremony commenced at 3pm and finished about between 5.30 and 6pm. She named the children they were together with during the ceremony.
52. After the ceremony finished at about 6pm, her family stayed back to arrange for their youth group to attend youth activities at Bitawawar village. The agenda on discussion was about, the youths from Kavavar and their parents’ contribution to a project at Bitawawar village.
53. They returned home about 8.30pm. After they returned, they all went to sleep. When they woke up in the morning, one of her grandchild went to a nearby trade-store. When he was out at the store, he was told about the news that, the deceased had been cut up at Raburbur village. The grandson returned, he told the family members the news about Henry Junior Pitalur had been killed.
54. In cross-examination, the witness was asked about the evidence of Alois Togunan where he said that, he was not present at the custom ceremony. The witness said, those she named in her evidence were with her at the ceremony. Asked about the timing as to when they left the custom area. She said, they left about 8and arrived home about 9.30pm.
55. Asked what the youth discussion was about. She replied that, it was about contribution that was to be collected from the youth members from Raburbur and Kavavar villages with their parents assisting. She was asked about the distance from the place where the custom ceremony was held to her village. She said, it could be from the court premises to Vunapope Hospital, about 1 kilo meter apart. She was asked if accused Alois and August Togunan did not go home with them and the other family members. The witness said, they were together that night and they left and walked home together.
Patricia Gunan
56. Patricia Gunan was the next witness. She is the sister of accused Alois Togunan and daughter of the last accused August Togunan. She gave an account of the custom ceremony conducted that day at Kavavar village. She named those members of the Togunan’s family that attended the ceremony that day.
57. She named them as her parents, Alois Togunan, Lucas Gunan and another two or so members of that family. She said, after the custom ended, they stayed back for the youth meeting and left for their home about 9pm. When she got home she went to bed. Next day, she heard the news that the victim of this case had been killed.
58. She confirmed other evidence both by the prosecution and the defence that, the six accused were arrested some two weeks after the killing that took place on 25.4.2014. In cross examination various questions were asked to this witness about the two accused members of her family left early on the afternoon of the custom ceremony. She said, they were together in the meeting on discussion about their contribution to the village they proposed to visit and so all family members were present during the meeting until they returned home. She was asked about the record of interview conducted with the last accused where August Togunan did not name her as one of those family members present with August that night. The witness said, she was there. Questions 24 and 25 were read and the answers given and asked if she was not with her parents and her brothers. The witnesses said, she was there with them during the custom where Tolai shell money was distributed.
Sixth Accused Togunan August
59. The defence counsel jumped the queue and called the last accused August Togunan to give his evidence first. His evidence is similar to that of his son Alois Togunan. The witness confirmed he is married to Gulua. He comes from Kuraip village also in the Gazelle District. He confirmed there was a custom ceremony held for distribution of shell money on 25.4.2014. He attended the ceremony that day at about 3pm and lasted until about 6pm. After the custom finished, he and his family stayed back for a church meeting. Asked in chief to name those he was with. He said, his wife, the accused Alois Gunan, Lucas, Melchior and Patricia.
60. He said after they went home they slept and in the morning, his in-law went looking for lime and when he returned, he told them about the news that Joseph Henry Junior had been killed. He denied being or going to the deceased’s home after the ceremony.
61. In cross-examination, the witness was asked about the 7 years old boy who gave evidence for the State, Ronald Henry. He said, he heard his evidence but he is not so familiar with him as they live far apart from each other. Asked, if he is related to that young witness. The witness said, Ronald’s grandfather is from his (this witness) clan. It was put to this witness that, the small boy and her mother recognized this accused on the scene of the killing. The witness said, he was not on the scene that night. Asked as to why Henrica and Ronald make up false allegations against him. He said, he did not know of any reasons.
62. After few seconds, the witness said, it could be because of the allegations about the victim cutting banana trees. Asked about the evidence of accused Alois Gunan who said, he went to sleep at 7pm. The witness denied this and said, they went home about 9.30pm. Asked about the date when the victim cut banana tress of accused Benedict Tetik, was it the same date, the victim damaged this witness garden. The witness said, it was on the same date.
63. The accused was asked if he and his wife went to the victim’s home and got angry with the victim’s wife about the victim damaging their vegetable garden and said, Junior would die. The witness responded that it was not true. He said, he himself and his wife never went to the victim’s home but they only met Henrica on the road and asked her where the victim was. It was put to this witness that, because of the victim damaged their gardens, he and accused Benedict Tetik planned to kill the victim. He was asked about who gave the list of suspects to the W/Member. He responded that the wife of the victim gave the list to the councilor on the same night the crime was committed.
Third Accused Norbert Makila
64. The next witness called was the third accused, Norbert Makila. He comes from the same village as that of the victim. He confirmed the prosecution version about the custom ceremony and said, the ceremony was for his grandfather’s distribution of shell money. After the gathering, they finished around 6pm and went home arriving home by 7pm. After eating, he went to sleep in his other father’s (Bernard) house. He said, the house of the victim is far from where his parents’ house is. The distance was estimated to be about from the Court premises to Color Bond Field, roughly 1kilometer. He said, he recall the killing took place on 25.4.2014 but he was arrested on 7th May 2014.
65. This witness was asked a series of questions in cross-examination. He was asked as to when he went home to his house. He said after the ceremony ended, he left for home. He gave an estimated time of his arrival at home could have been about 7pm and where he slept on the night of the killing. He said, he was at his aunt’s house. Asked, about who were with him that evening. He named those who were together with him that night as his auntie Varwagai, John Yane, Francis Kabian and another. Asked if the record of interview is correct in question 28 where he told police that, he left the place where the custom was being held between 8 and 9pm. He responded it could be around bout there.
66. Asked if after going home to his auntie’s house, did he go anywhere between 7 and 9pm. He answered that when he went home he slept. He was asked if before sleeping, he had any tea for dinner. He said when his auntie went first to the house, she cooked rice and when he got home, he had tea with rice. He was asked if after leaving the place where the ceremony was conducted, he went together with those who took part in the killing of late Henry Pitalu Junior. The witness responded that, he never went to the house of the victim.
John Yane
67. The next defence witness was John Yane. This witness comes from Raburbur but he lives at nearby Kavavar village. This witness was the person with whom the accused Norbert Makila was with after the custom ceremony. His mother is the sister of the accused Norbert Makila. The witness said, he recalls the date on which the victim was killed. He confirmed the evidence of Norbert that after the custom ceremony ended, him and the accused Norbert Makila walked down to his parents’ house about 6pm. When they got home, his mother cooked food and they had dinner. After eating, they went to bed. When he woke up in the morning, he heard the news that the victim had been killed by a mob.
68. In cross-examination, the witness was asked about differences about the timing given by him and the accused Norbert. He said, they all left the place together where the custom was held about 6 or 7pm. Asked about what they ate when they got home. He said, they ate rice and tinned fish. Asked why, the accused Norbert said, they ate rice and tea. The witness was firm on his answer that, they ate rice and fish.
Fourth Accused Simeon Petero
69. The fourth accused Simeon Petero gave evidence. He comes from Raburbur village. His wife is deceased. He has 4 children. He named them as Simeon Petero who is a co-accused on this trial. Two of his children are already married with their own families now. He gave the estimated distance from his house to the house of the victim as from Court Room 1 to Vunapope hospital. That distance was estimated to be about 1 kilometer. He attended the custom ceremony during day time of the date of the killing. He said, what the victim’s wife told the court about seeing him on the scene of the killing at Henry Junior’s premises is totally false as he was not on the scene of the killing.
70. In his evidence, he told the court that when they got home, he sat at the boy-house with the others and later he took his medication tablets and sat with those in the boy house watched NRL rugby game on TV at Ms. Lukara’s house. After watching TV, he then went to sleep at about 10pm. Asked in chief if he heard anything about the killing of late Joseph Henry Junior. He said, he did not hear any news that night but in the morning, one of his children came and told him about the news.
71. Asked in relations to question 38 and 39 of the record of interview. In response, the witness said, after the custom ceremony, he went to the house of Mr. Lukara’s house. In relation to question 39, he responded that, he was together with accused Tovue Simeon, John Tomika, Togogo and Dorcas Wartabar. Further, asked about question 41 in the record of interview about the allegations made against, this accused and his co-accused. He said, he was not on the scene of the killing. He also revealed in chief that, the victim was a notorious criminal in their LLG and he committed many crimes and police never caught him. Asked, about his relationship with Kumkubur, the wife of the first accused. He said, she is his second born daughter and the first born is Simeon Tovue. Asked to confirm if prior to the killing the victim was a notorious criminal in their area. The witness said, he was a criminal and the community did not like him.
Fifth Accused Simeon Tovue
72. Next defence witness called was accused Simeon Tovue. He is the son of the fourth accused Simeon Petero. This witness confirmed what other witness both for the prosecution and defence told the court in their evidence. He recalls that on the 25th April 2014, there was a customary celebration during which shell money was distributed. The ceremony began about 3pm and continued until about 6pm. Then after the ceremony was completed, he went home together with Joseph, John, Henry Gerard, Kolis Babatai, those were the ones he could recall. After they arrived home, they watched the NRL game on the TV.
73. This accused was asked a long series of questions on cross-examination about his involvement of killing the victim. The witness answered that, straight after the ceremony, he departed to their house where they watch the rugby game on the TV. He said, due to the fact that, the bottom of the permanent building was packed with many people, he sat outside the boy house and watched. He was asked that because the victim was not a good person, accused Benedict Tetik mobilized the gang that killed him that night.
74. The witness said, he did not know anything about any plans. Asked as to where he slept, he said, he slept in the kitchen. It was put to this witness that what he told the police during the record of interview in questions 41, 42, & 44 is not true because, he was not in the house where the rugby games were watched. In response, the witness said, he was in the group watching TV after which he went to sleep. Asked about question 57 in the record of interview where the interviewing officer him if he saw Kumkubur during the custom ceremony. His response was, yes she was there. But when question during cross-examination, he said, he did not see her at the custom.
NirukTetengi
75. The next witness NirukTetengi. This witness comes from Ngatur village, Raluana LLG in Kokopo District. He said in chief that all accused are his in-laws because he is married to a woman from Raburbur village. He referred to her as Patricia Gunan. Asked as to which of the accused in particular is his in-law.
76. He said, accused Augustine Guan is his father-in-law while co-accused Simeon Petero is like his father in-law. Accused Simeon
Tovue and Norbert Makila are his brothers-in-law. He also calls the first accused as his brother.
This witness also confirmed in evidence that, he did not attended the ceremony conducted on the above date as he was on night duty
from 4pm to 2am with PNG Balsa at Takubar.
77. He recalls that on 18th May of that year, he travelled to Raburbur village to take his wife and their child to go to town at Rabaul. They got on a bus and when they got to Rabaul, they got off the bus near Zero Supper Market shop. They entered the shop and bought food. He did not know that, the first State witness Henrica Boas was in the shop. After buying food, they were about to come out when Henrica told a security officer from that shop to arrest him for the offence of murder that took place at Raburbur village.
78. Police was immediately called and this witness, his wife and their child and Henrica were taken in the police vehicle to Check-Point that is the Rabaul police station. At the police station duty county, the policemen who arrested this witness were informed that, Senior Constable Ukies Kibale was not available. Henrica told police then that, this witness was one of those who murdered her husband. He was looked up for three days. When S/C Kibale came back on duty, he questioned Niruk as to where he was on 25th April that year. The witness gave an account of him being on duty with the PNG Balsa Company during the night on which the deceased was killed. Then S/C Kibale gave instructions to officers of the holding cells to release him from custody.
79. In cross-examination, the witness was asked about his illegal detention if he made any complaint against the police for unlawfully detaining him. Asked if he reported to the Ombudsman Commission office in Kokopo. He said, he did not do anything. Asked, if he knew about the killing that took place at Raburbur village. He responded that he heard about it. Asked as to why he was not charged. He said, that was because, he was not on the scene of the killing.
Stanley Bungtabu
80. The next witness was the Ward Member Mr. Stanley Bungtabu. He is the Ward/Councilor for Raburbur Ward of the Reiber/Livuan LLG. He identified the six accused in court and named each one of them. In chief this witness revealed that he attended the custom ceremony on the above date at Raburbur village. The custom began about 3pm and the people started leaving the place where they had gathered for the ceremony about 6pm. He went to the house of Lukara where porridge was being fried and they sat down together and were served with hot tea and they had dinner. He was together with two of the accused persons. He named them as Simeon Petero and Tovue Simeon. He recalled that while they were eating, the T/V was put on and they watched games. While they were watching games, he received a mobile phone call from Henrica Boas (the first State witness) advising him that her husband, Henry Pitalur Junior had been killed.
81. According to this witness, the time was about been between 8 or 9pm that he got the message. He then took one of his sons to accompany him. They followed a short cut road from where they were to Isaac Makila’s house. There he found Isaac and told him the news that the victim had been killed. The two of them walked down together to the scene of the killing. He proceeded direct to the victim’s father’s house (Henry Pitalur) and asked him why and who killed his son. They stood talking around the scene and while they were talking and still around the crime scene, the police vehicle arrived on the next village.
82. He walked up to where the police stopped and found the personals and lead them down to where the killing had taken place. When the policemen came, they asked few questions to those on the scene. They spoke to the victim’s wife then to the father of the deceased. After asking few questions to them, the first State witness Henrica Boas, gave a list of suspects to police and a copy to this witness. They then lifted up the body of the deceased into the police vehicle and left.
83. This witness recalled the names of those suspects in that list and may I refer to that list as the first list. The witness named those whose names were on the first list as, Vincent Malana, Tobil Tomika, Boas Baka, Babat Raymond, Alois Banagunan, and Benedict Piana. Asked in chief where are these people now and the witness said, they are in the village.
84. In the morning of the next day, he went through the list and as the Ward/Councilor, he summoned those people whose names were on the first list together with their fathers and informed them to keep out of trouble because, those persons whose names were contained in the list were only suspects. He asked them to be at peace and wait patiently for the police. The witness was asked if he spoke to Henrica that night. The witness responded that, of course he talked to her and asked if she saw what the suspects did to her husband. In response, Henrica told this witness that, he got the list of names because, she only heard the voices of those who were killing her husband as she did not see them as she was so frightened. He said, after the list was given to the policeman, the body was taken away to the hospital.
85. In his evidence, the witness described the condition of lightings on the scene and said, there was a lamp hanging on the door to the victim’s kitchen. To lift the body of the deceased onto the vehicle, police had put on the headlight of the police vehicle to lighten the place and there were torch lights and lights of mobiles shone around the crime scene as there was a poor lighting condition.
86. Asked in chief about the victim’s behavior in the village. The witness said, Henry Junior was a trouble maker. He would cut people, steal properties, he committed arsons, raped girls and women, committed a number of incest, break and enter houses. He broke into church buildings belonging to the Catholic Church and nearby United Church. Asked if being the Ward Member he did anything to alleviate or assist the offender. He said, he often reported the crimes to police but each time, after the victim had been locked up in police cells, the victim absconded from police custody. He recalls that on arson cases, the deceased burnt many houses down into ashes and he cut or caused grievous bodily harm to a number of people.
87. The witness also revealed that, when he went to Rabaul Police station on 7th May 2014, with the first list given to him by State witness Henrica, the police refused it on the grounds that, the police was then investigating the killing further, the policeman Ukies Kibale gave this witness a new list which contained the names of the six accused persons now in court. He took the list up to the village and called on the six accused and when they came to him, he told them to come with him to the Rabaul police station. In fact all the six accused said in evidence that, they went to the Check Point to clear their names.
88. He was asked about the K700.00 that he gave to S/C Ukies Kibale if he gave it to bribe the policeman. He said, as that policeman and him were talking about arrests of suspects, that policeman asked him for money to assist him to buy flex and printing of papers. He admitted, he gave the money to S/C Kibale to assist on bailing the six accused. (See MFI “3”).
89. The witness was asked, if he ever wrote any letters to S/C Kibale before the incidence. In response, the witness said, he wrote a letter to the police about his concern about his community. He was shown a copy of that letter (see MFI 4). This witness was vigorously cross-examined. He was firmed in his answers that, the killing was a mob killing and it was most likely that, those who committed the crime were people whom the deceased had offended against. Asked if accused Simeon Petero and Tovue Simeon were not with him that night. The witness confirmed that, they were altogether at the house where they watched TV games until he received notice that the victim had been killed.
Nicholas Taolo
90. The next witness was a policeman Senior Sergeant Nicolas Taolo. He was the O.I.C of the Criminal Investigation Division in Rabaul Police Station. He recalled 25th April 2014 while being with 4 other policemen on a motorist patrol, he received a call on his mobile phone about the murder on North Coast and he told his colleagues to attend to the complaint. They drove up toward Raburbur and Kavavar villages and stopped on the road and asked a man on the road about where the killing was. They were told where to go and as they were talking, the councilor came.
91. That place was a little distance away from the crime scene. They took off with the councilor and when they arrived on the scene, he asked people standing around the scene if there was any light. As soon as he came out from the police vehicle, the Ward Member showed him the victim’s house. They spoke and because there was no light, he put on the spot-light of the vehicle because, there was not much light around the scene. The witness confirmed in evidence that, there were many people standing around and he walked into the victim’s premises. He was shown the victim’s body and he noticed that, part of the victim’s leg was missing. One of his hand and a leg had been chopped off. He got his men to look for the parts of the body that were missing. They could not find them.
92. He informed the four policemen to lift the body into the police vehicle. Before they lift, this witness spoke to the decease’s wife (Henrica Boas) and asked her if she saw any of those people who attacked the deceased. According to this witness, Henrica responded by saying that, she was busy with their children in the kitchen and she did not see what happened but only heard noises and voices of the attackers and she was in fear and sat down.
93. Sergeant Nicholas Taolo asked the victim’s wife to accompany them to the hospital but she said, she could not but she said, she was to give the list of suspects to him. Asked in chief about the condition of light that night. The witness said, it was quite dark and that is why he put on the spot-light of the police vehicle.
94. He said there was a battery operated light but it could not produce sufficient light. This witness also comes from North Coast but his village is far away from Raburbur village. He gave an estimated distance as from Kokopo town to Tokarongon/ Malabonga/ Kerevat junction. That would be many kilometers away.
95. In cross-examination, the witness was asked about what time he and the four policemen arrived at the scene. He responded that it could have been between 7.30 or 8pm. Asked if this witness found out from the W/M if he had been to the crime scene that night. He responded that, when the police vehicle came and stopped on the village before coming down to the village where the crime was committed, they stopped and the W/M ran up to them and he led them down to where the deceased premises where he was attacked.
96. Asked if there were any people around at the time the police arrived. He said, when they drove down to the victim’s place, he saw a large crowd of people standing around the scene. He confirmed too that, the light he saw hanging on the door way to the kitchen of the deceased house was a battery operated light hanging on the door, separate from the main house.
97. The witness also confirmed in answer to questions asked in cross-examination, that when he asked the victim’s wife if she saw those people who attacked the victim, Henrica Boas (victim’s wife) told him that, when she heard noises, and heard their voices and recognized the voices of the attackers only because she was frightened and she was in the house with her children. Asked if S/C Kibale ever went up to Raburbur village. He responded that he did not know. Asked as to anyone else gave him a list of the suspects. He said, no except the one by the victim’s wife which he gave to S/C Ukies Kibale. Asked if the list was the one that contained the names of the six co-accused now sitting in court. The witness responded by saying that, S/C Kibale told him that he was to investigate the killing according to information he received as he was the investigating officer of that killing. This was the end of the defence case.
98. After Mr. Peter closed the defence case, Mr. Rangan made an application to re-open the prosecution case to cross-examine one of the lead witnesses the W/Member Mr. Stanley Bungtabu more questions. The defence counsel objected to the application. No authorities were cited to the court and the court allowed the application since the member represents community’s interest.
99. A series of questions were asked about where accused Simeon Petero and Simeon Tovue were that evening. The witness confirmed what he said in chief that, they ate porridge and had tea together at Mrs. Lukara’s house until Simeon Petero slept in the kitchen then later that evening this witness received the call form Henrica Boas telling him that, the victim had been killed.
Defence Submission on Verdict
100. Due to a large number of witnesses called on this trial, Mr. Peter applied for the matter to be adjourned for the defence to assess the evidence both for the prosecution and defence. The trial was adjourned to 19th August 2016 for submission on verdict. Mr. Peter spoke to his five pages written submission. The gist of the defence argument in their submission is that, on this trial, it presents two separate scenarios.
101. The following is the findings of this Court on all evidence for the prosecution and defence. The first scenario or perspective is the one by the prosecution about the identity of the six defendants while the defence case consists of alibi defence. Counsel’s argument is that, what weight this court should place on the prosecution case and that of the defence of alibi. He referred to the evidence of the key eye witnesses and said, had the six co-accused been correctly or properly identified, they could have immediately given the names of the suspects to the police on the night of the killing.
102. He referred to cases like that of Alois Erebebe & Taros Togete v The State (2011) SC1135, The State v Joseph Fron (2011) N4552 and other cases, which the court will refer to a little later. On the earlier case, the Supreme Court dealt with a number of issues including identification and defence of alibi. In the later on the National Court decision on the issue of alibi defence and onus of proof.
Prosecution Submission on Verdict
103. For the prosecution, Mr. Rangan submitted that the State has proven their case beyond reasonable doubt and the Court should find the six accused guilty on the charge of willful murder. Counsel cited cases on the issue of identification such as John Beng v The State [1977] PNGLR 115 and other cases, then circumstantial evidence cases such as Valii Rocky Maury v The State (2000) SC 668 and on alibi evidence, cases such as John Jaminan v The State (No.2) [1983] PNGLR 318 or that of The State v Okata Talagahin (N0.1) 2004 N2581.
104. Mr. Rangan argued that here was the case where the six co-accused where clearly identified by the three eye witnesses. He referred to the evidence of the key witness like that of Henrica Boas, Ronald Henry, Henry Pitalur and William Henry. Counsel submitted that, here was the case where the six co-accused are well known to the three eye witnesses and identification is not the issue. Counsel submitted that the issue on this trial is whose evidence should the court as credible and whose is not believable. Counsel submitted that, the State has proven their case beyond the criminal standard of proof and the court should convict the six offenders.
Standard of “Proof”
105. The six accused were fairly dealt with and their case heard within a reasonable time. They are all innocent until they are proven guilty as required by ss.37 (3) (4) &42 of the Constitution. The standard of proof in criminal cases is one of “proof beyond reasonable doubt”. On this trial, the court heard evidence from both the prosecution and defence. As both counsels rightly submitted in their addresses on verdict, the issue is whose evidence is credible and whose is not.
106. The practice in law in criminal cases is the prosecution bears the burden of proving the guilt of the six accused persons beyond reasonable doubt. According to a pre-independence case of R v Namiropa Kopinbodi [1969-1970] PNGLR 194 a court of law must feel and infer actual persuasion about the occurrence of what is alleged against an accused person. (See also The State v Tom Morris [1981] PNGLR 493).
Application of Law
107. A number of issues arise from the evidence on this trial. First on the issue of identification, the prosecution evidence alleges that, the six co-accused were on the scene of the killing on the night of 25th April 2014. It is established law that there are dangers inherent in the eye witnesses’ identification evidence. I warn myself about the principles of identification evidence stated in cases such as John Beng v The State [1077] PNGLR 115 or that of Jimmy Ono v The State (2002) SC 698 and a great volume of cases which say that a convincing witness or a number of them may be mistaken as to the identity of an accused person.
108. In the case of The State v Marety Ame Gaidi (2002) N2256, one of the cases referred to this court by Mr. Rangan, His Honor Justice Kandakasi outline the principles stated in the above Supreme Court cases where the Court said:
“The correct principles governing how to treat identification evidence is set out in the Supreme Court judgment in John Beng v. The State [1977] PNGLR 115, at pp. 122 –123. I set out the relevant part of that judgment in my judgment in The State v. Raphael Kimba Aki (unreported judgment delivered on 26/01/01) N2039, at p.6. In summary the principles are these:
1. It has been long recognized that, there are dangers inherent in eye-witness identification evidence;
2. A trial judge should warn the jury in the case of a jury trial system or himself as in our case, of the special need for caution before convicting in reliance on the correctness of the identification because for example:
(a). a convincing witness may be mistaken; or
(b). a number of witnesses could be mistaken;
3. Provided such a warning is given, no particular form of word need be used;
4. There should be a specific direction to closely examine the circumstances in which the identification was made;
5. Identification by recognition may be reliable but one need to be cautious because there can be mistakes in trying to identify close relatives and friends;
6. All these go to the quality of evidence – if the quality of evidence is good the identification may be reliable. If however, the quality of evidence is bad, the identification will be bad;
7. The quality of the evidence may be poor if there is a fleeting glance or a longer observation made in poor conditions; and
8. There should be an acquittal if the quality of the evidence is bad.
109. I adopt the above principles and apply them to the trial before this court. The court will return to this issue later.
110. The next issue is that of the alibi evidence by the defence. Any defence of alibi can only arise if there is some evidence (not speculations) in support of such evidence and places all matters raised in the trial, and if such evidence creates doubts in the mind of a trial judge, an accused should be acquitted: John Jaminan v The State [1983] PNGLR 318.
111. In the recent Supreme Court case of Alois Erebe& Taros Togote v The State (2011) SC1135 where the Court there said:
“As to the third submission it is true that his Honor did not expressly refer to John Jaminan’s case, which is properly regarded as the leading case on alibi evidence in Papua New Guinea. But his Honor was not obliged to cite the case specifically. What is important is whether he considered and assessed the alibi evidence in a manner consonant with the principles in Jaminan. Mr. Siminji in his submission succinctly summarized key features of the Jaminan principles in the following way:
· If an alibi is raised the burden of proof does not shift from the prosecution. The onus is never on the accused to prove an alibi or prove innocence. However, in practical terms, the accused must lead some evidence of an alibi and it must be sufficiently convincing to create a reasonable doubt in the mind of the judge.
· How strong or convincing the alibi evidence must be, depends on the strength of the evidence of the prosecution witnesses. If their evidence is very strong, the alibi evidence needs to be reasonably strong to raise a reasonable doubt in the mind of the judge as to the guilt of the accused.
· An alibi is properly regarded as a defence but before it can be said to fairly arise there must be some evidence in support of it, and not mere speculation.
· If an alibi is rejected it does not necessarily follow that the court should enter a conviction. The court must still be satisfied that the prosecution has proven its case beyond reasonable doubt”.
112. On the instant trial, the court granted leave to the defence to call their alibi evidence. According to case law authorities, where the prosecution evidence is strong, the alibi evidence need to be reasonably strong to raise a reasonable doubt in the mind of a tribunal of fact and law as to the guilt of an accused. (See The State v Eki Kondi (N0.1) (2004) N2542, The State v John Bosco (2004) N2777 or that of John Jaminan v The State (supra).
Discussion on Over-all Evidence
113. The murder on this case was a mob killing. The reasons for the killing, is obvious from the evidence of both the prosecution and the defence. The deceased was a notorious criminal. He had been in and out of the police custody many times. However, this did not mean that the accused who have been charged and those accomplices could take the law onto their hands.
114. A number of issues arise on this trial. The prosecution evidence presents a number of scenarios. Except for accused Benedict Tetik, the other five co-accused attended the custom ceremony that day at Kavavar village about a half a kilometer away from the place where the victim was killed. Their presence at Kavavar village for participating in the custom ceremony for that matter, ought not to be considered as circumstantial in nature in terms of the principles of law as stated in the Supreme Court cases of Vaii Rocky Maury v The State (2000) SC 668, Gari Bonu Garitau & Rossana Bonu v The State (1997) SC528 or the earlier case of Paulus Pawa v The State [1981] PNGLR 498. The reason is because, the timings of completion of the custom was about 5 and 6pm. The crime was committed between 6.30 and 7pm. Obviously, the six accused are human beings and not in spirit forms to be everywhere at once.
115. The second point is there is evidence by the prosecution that, at the time of the killing, there was great commotion. People were shouting and running down towards the premises of the victim and his father and there were shouts and Tubuan calls called out as “kuak kuak” “kuak kuak”. At the same time according to the evidence by Henrica, Ronald and Henry Pitalur, stones, pieces of wood and bottles were thrown on the houses of the victim and all around the premises of the deceased. The issue is could the three witness, Henrica, Ronald and Henry not be frightened of objects thrown around while it was dark already? Are the three prosecution witnesses credible in saying that, they each identified the six accused on the scene?
116. Thirdly, the defence evidence by the Ward/Member Mr. Henry Bungtabu and Sergeant Nicholas Taolo established that when they questioned the witness Henrica that evening, about where she was when at the time her husband was attacked, she answered that, she was inside the kitchen trying to settle her children as well as she was frightened when objects were thrown at their house. In her evidence, she said, she stood on the door of the kitchen and saw the attackers cut her husband up.
117. Fourthly, part of the defence evidence shows that, it took almost two weeks for the police to arrest the seven accused including Isaac Makila whose case was dismissed by the District Court for lack of evidence to commit him to stand trial in the National Court. The charge with which the six accused were charged is the highest homicide crime and logic and common sense would dictate common sense and concern citizens, that under such circumstances, immediate report could have been made to police so offenders could have been immediately arrested. Why wait for long.
118. Fourthly, the crime was committed on Friday 25th April 2014. The seven accused were arrested on 7th May 2014. Supposing, Henrica had given a correct list to Senior Sgt. Nicholas Taolo on the night the crime was committed, to protect life and safeguard properties, the arresting officers could have come to the scene either on Saturday or on Sunday (26th, or 27th) that was the week-end and arrest those responsible. This did not happen as the evidence shows, the victim’s wife and his father went to the Rabaul Police Station on Monday, 28th April 2014.
119. Fifthly, there is the very serious issue of two separate lists of suspects. The first one, a copy of it was given to the Sgt. Nicholas Taolo and a copy given to the W/Member, Mr. Stanley Bungtabu. In cross-examination, this witness (W/Member) was asked if it was not true that, Henrica gave him a list. He answered attentively and said, Henrica told the court lies because, she in fact gave him a copy of the list that was given to Sergeant Nicholas Taolo. The witness also revealed that, the list that was given to him that night, he gave it to the investigating officer S/Constable Ukies Kibale.
120. Senior Sergeant Nicholas Taolo confirmed in his evidence that, when he gave the list to S/C. Kibale, the later told him that, he is investigating the case and he was to wait and see. Even Senior Constable Kibale denied receiving two separate lists. The question is why the W/Member would or a senior police officer, Senior Sergeant Nicholas Taolo tells lies to this court. The prosecution case does not answer this question.
121. In all, the Court finds that, there were two separate lists of suspects. The W/Member revealed the names of those persons whose names were on the first list that was given to him on the night the offence was committed. There was no evidence forthcoming from the investigator or even the arresting officer as to the reasons why the six accused were arrested late. The inference the court must draw from late arrest of the six accused would be that, due to the fact that the suspects were not immediately known, it gave time for the complainants to make up a list of the suspects now in court. If a correct list had been given to the investigator, immediate arrest could have been effected.
122. The seventh issue I raise is a number of these co-accused had been involved on land issues like accused Benedict Tetik where it is alleged that the victim had destroyed his banana garden. According to the evidence of both parties, no settlement had been reached because, the victim usually escape from police custody. This is evident from the record of interview had with accused Simeon Petero. (See Q.27 and its Ans., Ex. “5” & “5A”).
123. What inferences should the court draw from the fact that, because, Kumkubur is the wife of accused Benedict Tetik and the daughter of accused Simeon Petero and Simeon Tovue, being her brother, the complaint had grudges against them and she named them as suspects on this case?
129. The final issue but not the least, is according to the evidence of both parties, the victim was known to be a trouble maker. Some witnesses referred to him as a notorious criminal. According to the evidence of the mother and father of the deceased and that of the Ward/Member and of course those of the six co-accused, and their witnesses, the victim was not a good person in his community. And according to the State witnesses’ evidence, before the deceased met his fate, he had committed crimes like robberies, rapes, break and enter, assaults, arsons and even murder.
130. Before the killing took place on the eve of 25th April 2014, there was great commotion and noises with war cries and Tubuan shouts. Should I refer to that as great turbulence? The reason for this was due to the fact that, there were many people and there was a big crowd around the scene of killing the victim that evening.
131. The point I raise here is that, the custom ceremony had gathered so many people from the Ward that day. It is possible people from nearby Wards were there too. If the people whom the victim had offended against prior to destruction of the banana patch belonging to the first accused were there, the court may infer that, they could have been involved in the killing as well. There were more serious allegations alleged against the victim than what was alleged against the first accused and his in-laws and it is most likely that, the complainants in those serious allegations may have been on the scene as well who stormed the victim’s house that night and killed him.
132. This is a criminal trial, the question I raise is, what inference the court would draw from all evidence adduced on this trial? Is there any reasonable hypothesis other than the guilt of the six accused on the current trial. In other words, are there any ideas or explanations as to why the six co-accused should not be found responsible for the alleged crime?: Allan Oa Koroka& Mariano Wani Simon v The State[1988-89] PNGLR 131, Paulus Pawa v The State [1981]PNGLR 498. The principle stated in the above cases go on to say that for an inference to be reasonable, it must rest upon something more than an idea that is not based on any definite knowledge.
133. This court is reminded of the above warnings and say, that because, the trial on the instant case is a criminal case, it requires a very high standard of proof which is “proof beyond reasonable doubt”. The court has discussed certain inconsistencies exhibited in the prosecution evidence. Due to the inconsistencies in the prosecution case, the court asks the essential questions raised in the above cases as to what would be the inferences drawn from all the evidence that have been called by the prosecution and defence.
134. The court finds that, there are no reasons why, the evidence of the W/Member Mr. Stanley Bungtabu and that of Sergeant Nicholas Taolo should not be believed. I find no reasons why the W/Member giving evidence about what was happening in his community would tell lies about the first State witness Henrica Boas, who told these two defence witnesses that, when the victim was attacked, she was inside the house frightened of objects thrown around and she only heard and recognised voices of those who attacked her husband. Then there is the issue of two separate lists of suspects.
135. After assessment of the alibi evidence by the co-accused in the manner in terms of the Supreme Court case of the principles stated in Alois Erebe & Taros Togete v The State (supra), obviously the burden of proof does not shift from the prosecution. The onus is never on the accused to prove an alibi or prove his innocence. As stated in the above case. “However, in practical terms, the accused must lead some evidence of alibi and it must be sufficiently convincing to create a reasonable doubt.”
136. I find there are no reasonable explanations as to why there were two separate lists of suspects given to the police. The evidence of Senior Sergeant Nicholas Taolo and that of the W/Member Mr. Stanley Bungtabu show that, the list produced to them by Henrica Boas immediately after the victim was killed contained different names altogether from the current six co-accused. I totally agree with what the Supreme Court said in Alois Erebe & Taros Togote v The State (2011) SC1135,that where an alibi defence is raised, the burden of proof does not shift from the prosecution because, the onus is never on the accused to prove an alibi or prove innocence. In practice like on the instant trial, the six co-accused must lead some evidence of an alibi and it must be sufficiently convincing to create a reasonable doubt in the mind of the trial Judge.
137. What inferences would this court draw from the above perspectives of all evidence? In my view, it would make sense from the evidence of prosecution witnesses Henrica Boas and Henry Pitalur that when Henrica called out with a loud voice when she came outside the kitchen door and said: “You people never did things hide, I identified some of you and I will report you to the police for attacking my husband.” Inferences drawn from this piece of evidence is that, the persons she said, she identified were those people whose names were on the first list that she gave to the Ward Member and S/Sgt. Nicholas Taolo on the evening of the killing. According to S/Sgt Nicholas Taolo, when he reported the case to the investigating officer S/Const. Ukies Kibale, he gave him the first list.
138. Due to various inferences referred to above, I am not satisfied beyond reasonable doubt about the six co- accused guilt is the only rational inference that, the primary evidence would enable this Court to draw. Therefore, the court is not satisfied about the guilt of these six accused. The Court returns verdicts of not guilty to each and severally. Their case is dismissed and they are discharged from custody if there are no other cases against them.
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The Public Prosecutor : Lawyer for the State,
P. I. C. Legal Services Ltd : Lawyer for the Accused.
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