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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 396 OF 2015
THE STATE
V
SOLOMON JACK GOIMAS
Lae: Numapo AJ
2018: 07, 13-18 June, 21 & 26 September
CRIMINAL LAW – Particular Offence – Wilful Murder – s. 299 of Criminal Code - Plea of Not Guilty - Offensive Weapons Used – Evidence on Identification Sufficiently Corroborated – Sorcery-Related Killing – Accused Guilty as Charged.
Held:
(i) The evidence on identification of the accused is further strengthened if the witness is closely related to the accused and resides in the same location as the accused.
(ii) The general rule for caution on identification still applies even if the accused is known to the witness personally.
(iii) It is not unusual for witnesses’ version of events to slightly differ from each other as it often depends on where they were positioned at the time and the angle from which they observed the incident.
(iv) The use of offensive weapons in an attack reveals the accused’s intention to inflict bodily injuries that could be fatal.
(v) Accused found guilty as charged and convicted.
Cases Cited:
Papua New Guinea Cases
Bate v The State (2012) PGSC 46, SC 1216
James Pari & Tine Kaupa Bomai v The State [1993] PNGLR 173.
State v Ankelman Keith (CR No. 785 of 2018) N7447.
State v Manasseh Voeto [1978] PNGLR 319
The State v Beng [1976] PNGLR 471; Beng v The State [1977] PNGLR 524
Overseas Cases
Browne v Dunn (1893) 6 R.67 (H.L)
Counsel:
J. Done, for the State
S. Katurowe, for the Defence
RULING ON VERDICT
26th September, 2018
1. NUMAPO AJ: This is a ruling on verdict. The accused SOLOMON JACK GOIMAS was indicted on one count of Wilful Murder contrary to Section 299 of the Criminal Code. He pleaded not guilty and the matter went to trial.
2. The facts on which the accused was arraigned were that; on the 24th of August 2014 between 8:00am and 9:00am at Biwat Compound, Bumbu in Lae, three persons namely, accused Solomon Jack Goimas and his two co-accuseds Gad Yakapus and Junior Koran wilfully murdered another person, Gerard Lopis. The accused was armed with a home-made staple gun and Gad Yakapus was armed with a grass knife. They suspected Gerard Lopis (deceased) of using sorcery to kill two of their relatives in Biwat, East Sepik Province. The accused got the butcher knife and struck the deceased on the head and he died instantly.
3. The State’s case comprised of documentary evidence and oral evidence. The documentary evidence consisted of:
(i) Police Record of Interview dated 27th August 2014 (‘Exhibit 1A & 1B’ – English and Pidgin versions).
(ii) Post Mortem Report dated 04th September 2014 (‘Exhibit 2A’).
(iii) Affidavit of Dr Sanoh Tahon dated 04th September 2014 – (‘Exhibit 2B’).
(iv) Medical Certificate of Death – (‘Exhibit 2C’).
(v) Statement of Sgt. Max Makeso dated 27th August 2014 – (‘Exhibit 3’).
(vi) Statement of PWC Lelang Biralla dated 27th August – (‘Exhibit 4’).
4. The oral evidence came from the following witnesses:
(i) Joyce Judah
(ii) John Atuali
(iii) Natasha Malagen
- (i) Witness No. 1 Joyce Judah
5. Joyce Judah comes from Tufi in the Oro Province and has resided in Biwat Compound in Lae for the last eleven (11) years. She is married to Judah Sakanda of Biwat, East Sepik Province. Her husband is related to both the deceased and the accused as they all come from the same area.
6. She recalled between 8:00am and 9:00am on August the 24th 2014 she was in her house at Biwat Compound. It was a Sunday morning. Gerard Lopis (deceased) came to visit her as he has just returned back from his village in Biwat in the East Sepik Province. She invited him to come in and have breakfast with her family in their house. The deceased told Joyce about how Gad Yakapus attacked his son and he tried to retaliate and take revenge on him but he escaped.
7. At the same time the accused Solomon Jack Goimas also came around to her house and she recognized him as he also lives at Biwat Compound. The accused called Joyce’s daughter, Jaydah. Gerard Lopis (deceased) showed the accused where Jaydah was. Suddenly Gad Yakapus appeared and stood next to the accused. She could tell that the deceased sensed trouble as he quickly pulled out a knife. Gad pushed the accused towards the deceased and walked away. The accused turned around and also left. It became obvious to her that Gad Yakapus and the accused had planned to attack the deceased. She told the deceased for them to move to the front verandah of the house as everybody has gone to church.
8. Some 15 minutes later she saw the accused coming back and this time he was wearing a black coat with something hidden inside it. A few minutes later Gad Yakapus appeared again with a long grass knife and shouted at the deceased saying; “hey, yu sanguma man lo ples ah!?” (‘Hey, so you are the sorcerer at the village ah’?), and lifted the grass knife. The deceased stood up and jumped down to the ground and tackled Gad Yakapus and they both wrestled on the ground in front of her house.
9. She took her two little girls and moved some two or so metres away from the fight. Not long after that the accused appeared from behind her back with a home-made staple gun. She told the accused it was none of his business and he should stay away from it. The accused walked closer to where the deceased and Gad Yakapus were and tried to shoot the deceased on his leg but could not get a clear view of the deceased as he was hiding behind Gad. The deceased managed to push Gad towards the accused and the force knocked the staple gun off his hands. Gad then called out to the accused to remove the knife from the deceased. The accused got hold of the knife and when John Atuali saw that he ran towards the accused and removed the knife from him and hit Gad on his back with the flat side of the knife for him to let go the deceased. The deceased is John Atuali’s grandfather.
10. Gad then let go the deceased and they both stood up and were struggling over a grass knife. They both fell to the ground again the second time and Gad sat on top of the deceased and held him tightly. Gad then called out to the accused to cut the deceased. Accused stood in front of the deceased and lifted his hands up with the butcher knife and at that point she closed her eyes and did not see anything but heard a noise of something breaking. It sounded like an iron driven into the ground. She opened her eyes and ran to Chinatown Police Station. When she returned she realized that the deceased was already dead.
(ii) Witness No. 2 John Atuali
11. John Atuali has lived at Biwat Compound all his life since birth. On the 24th of August 2014 he was at home and can recalled a fight that took place between Gad Yakapus and his grandfather Gerard Lopis the deceased. He went to where they were fighting and saw Gad and the deceased wrestling on the ground and at one stage Gad was sitting on top of the deceased and grabbed him tightly. He also saw the accused putting his hands into his pocket and took out a butcher knife. He knew the accused very well as they are cousins. He then ran towards the accused and removed the knife from him and hit Gad on the back with the flat side of the knife to let go the deceased.
Junior Koran came with some stones and tried to shoot the deceased with it. He stopped Junior Koran and removed the stones from his hands. The accused was also holding some stones. Gad pulled the butcher knife from him so he ran into the house to get a piece of iron and when he came back out of the house he saw the deceased lying dead on the ground. He did not see who actually killed his grandfather but those involved in the fight were Gad Yakapus, Junior Koran and the accused.
(iii) Witness No. 3 Natasha Maladen
12. Witness Natasha Maladen is also from Biwat, East Sepik Province but born and raised at Biwat Compound in Lae. On the 24th of August 2014 between 8:00am and 9:00am she was in her house and heard some noise of people fighting. She came out and saw the accused, Gad Yakapus and Junior Koran fighting with the deceased. He knew them very well as they all live at Biwat Compound. She saw Junior Koran threw a stone at the deceased and he fell down. The accused also threw stones at the deceased and hit him on the back of his head. Gad Yakapus held the deceased head up and cut his neck using a butcher knife. After that the three men ran away. She observed the incident from a distance of about 11 metres.
13. The accused elected to give sworn evidence in his defence. His evidence was very brief.
He basically said he is from Branda village, Biwat, East Sepik Province. He currently resides at Biwat Compound in Lae. On the 24th of August 2014 he got up early and was getting ready to go to church as it was a Sunday. On his way to church he met some boys and they called him over and offered him a beer. He joined them and they were all drinking at Junior Koran’s house. Not long after Gad Yakapus arrived with a carton of beer and they drank that too. Gad told them that Gerard Lopis (deceased) killed his father and brother through sorcery back at their village at Akorang, Biwat, East Sepik Province. He told them that the deceased is a sorcerer. He (accused) then went to buy some cigarettes at the road side market. After that he went to his Aunt Joyce Judah’s house.
(a) Agreed Facts
14. The agreed facts were as follows:
(i) There was a drinking session at Junior Koran’s house involving a number of people including the accused.
(ii) All witnesses are related to each other and knew each other well. They are all from Biwat in the East Sepik Province and currently residing at Biwat Compound here in Lae.
(iii) The two State witnesses Joyce Judah and John Atuali are related to the accused.
(iv) The accused is one of the deceased’s grandson.
(v) The fight happened in a broad daylight witnessed by many people.
(vi) The fight started between Gad Yakapus and the deceased when Gad accused the deceased of causing the death of his father and brother through sorcery back in their village in Biwat, East Sepik Province.
(vii) Offensive weapons were used during the fight.
(b) Disputed Facts
15. The only disputed fact relates to the involvement of the accused in the fight that led to the demise of the deceased.
(i) Law
16. The accused was indicted on one count of Wilful Murder under section 299 of the Criminal Code.
Section 299. WILFUL MURDER
(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.
(2) A person who commits wilful murder shall be liable to be sentenced to death.
17. The offence of wilful murder is made up of three essential elements namely;
(i) The accused (identification of the accused)
(ii) Unlawfully killed the deceased
(iii) With the intention of killing the deceased.
18. The onus is on the State to prove each and every element of the offence to secure a conviction. In the present case the State also invoked section 7 of the Criminal Code in the charge against the accused and it must therefore, prove that the accused having had the intention to kill the deceased, did so unlawfully and did acts constituting section 7.
(ii) Issue
19. The main issue relates to the first element of the offence of wilful murder being; the identification of the accused: “Whether the accused was involved in the fight that led to the death of the deceased.”
The State’s case therefore, rest primarily on the positive identification of the accused as one of the attackers who killed the deceased.
20. It is important to analyze and assess the evidence of each witness carefully. The guidelines to be followed in assessing the witnesses and weighing up the evidence is set out in The State v Manasseh Voeto [1978] PNGLR 519. Things such as the demeanour of the witness, the manner in which he presented his evidence, his interest or lack of it, his accurate recollection of events, etc. are taken into account. The Court is not bound to accept the evidence of any witness, unless that evidence commends itself to the Court. This does not mean that all the evidence of a witness should be accepted without qualification. It is within the discretion of the Court to accept or not to accept any piece of evidence that does not stand up to scrutiny without having to reject the whole of the evidence. And in doing so the Court is also required to apply a bit of commonsense and logical reasoning.
21. In assessing the credibility and reliability of the witness, a number of factors are taken into account such as ; the impression left by the witness as to his reliability and accuracy; the existence of a motive for giving false evidence and any inconsistencies or contradictions made in his evidence to the Court. See: James Pari & Tine Kaupa Bomai v The State [1993] PNGLR 173.
22. I now turn to the present case and make the following assessment of the evidence:
(i) Prosecution’s Evidence on Identification
23. The prosecution’s evidence clearly established that the accused was present on the 24th of August 2014 when the fighting took place. The accused also admitted in his evidence that he was present on that day and was drinking with Gad Yakapus and the other boys. The fighting happened in a broad day light witnessed by many people including the witnesses who testified. There were no inconsistencies or discrepancies in their evidence on the identification of the accused. The witnesses corroborated each other in identifying the accused as one of the three people involved in the fight that resulted in the death of the deceased. Furthermore, all the State witnesses including the accused all knew each other as they are related to each other one way or another and all come from Biwat in the East Sepik Province and currently residing at Biwat Compound in Lae. The accused is not a stranger to any of them. They could not have possibly mistaken him for another person.
24. The first State witness Joyce Judah identified the accused as one of the three people who attacked the deceased. The incident happened in front of her house about two metres away. She saw the accused standing in front of the deceased and lifted his hands up with the knife and she momentarily closed her eyes as she didn’t want to see anyone getting killed. She was not able to say if it was the accused that delivered the fatal blow that killed the deceased or someone else.
25. The second witness John Atuali is also related to the accused and knew him for over 15 years. He identified the accused as one of the attackers who killed the deceased. He was not drunk at the time and clearly recalled everything that happened on that day. He saw the accused putting his hands into his pocket and took out a butcher knife. He then ran towards the accused and removed the knife from him and hit Gad Yakapus with the flat side of the knife to let go the deceased. Gad pulled the knife from him again and he ran into the house to get a piece of iron. When he came out of the house he saw his grandfather (deceased) lying on the ground. He was already dead. He did not see who killed the deceased.
26. The third State witness Natasha Maladen is also from Biwat but was born and raised at the Biwat Compound in Lae. She knew the accused very well as they both grew up together. She also identified the accused as one of the people who attacked the deceased. She saw Junior Koran hitting the deceased on the ribs with a stone and he fell to the ground. The accused also threw some stones at the deceased and hit him on the back of his head. Gad Yakapus held up the deceased’s head and cut his neck with a butcher knife. The three men then ran away. She observed the fight from a distance of about eleven (11) metres.
27. Although there were some minor inconsistencies in relation to what each witness did and saw at the time, their evidences in the main were consistent right throughout. It is not unusual for witnesses’ version of events to slightly differ from each other as it often depends on where they were positioned at the time and the angle from which they observed the incident. To my mind, what is important is that the witnesses were able to recall the main events that occurred on that day and gave evidence to that effect. It must also be noted that the incident took place some four years ago and it is difficult to recall every single details of what happened on that day in 2014.
28. I have no reason whatsoever to doubt the credibility and reliability of the State witnesses and also no reason to believe that they would be lying to the Court. All in all, their evidence stood up well to scrutiny.
(ii) Defence Evidence on Identification
29. The accused was very brief in his evidence. He stated that he was present on the day and was drinking with the other boys namely; Junior Koran, Gad Yakapus, John Atuali, Jeremiah Koran, Jeremiah Albert, Gamel John, Daniel Kerat and Mackenzie. Gad Yakapus told them that the deceased killed his father and brother through sorcery back at their village. The accused then went to buy cigarettes and after that he went to his Aunt Joyce Judah’s house. He said nothing about the fight and denied taking part in it. The fight happened in front of Joyce Judah’s house the very place he would have been in at the time. He told the Court that it was Gad Yakapus who murdered the deceased. So how would he know it was Gad Yakapus unless he was at the scene of the crime?
30. In his record of interview (ROI) the accused said he went to stop the fight between Gad Yakapus and the deceased but when he got there he realized that the deceased was already dead. He was afraid and both he and Junior Koran ran away. The reason they fled the scene was because they were scared the deceased’s relatives might retaliate and attack them. They were drinking with Gad Yakapus at the time when the incident happened. I find it rather difficult to comprehend this, firstly, why would he want to run away if he is not involved in the fight? and, secondly, if drinking with Gad Yakapus was the reason he and Junior Koran ran away then why didn’t the rest of the other boys do the same as they were also drinking with Gad Yakapus at the time? His story doesn’t add up.
31. In his evidence in chief the accused never mentioned anything about stopping the fight between Gad Yakapus and the deceased. He was not consistent with his evidence and has contradicted himself on several occasions. By inventing new stories every time he had a chance to speak does not reflect well on his credibility as a witness for himself. I observed the accused’s demeanour and found him to be calculatingly evasive in his evidence. I do not think he is telling the truth. I suspect his motive was to shift the blame to his co-accused Gad Yakapus who had since escaped from custody after he was arrested and charged for the same offence. Furthermore, the case against his other co-accused Junior Koran was thrown out for lack of evidence. He was hoping for the same outcome, I would think.
32. The general rule on identification is that when the evidence against the accused person depends wholly or substantially on identification there is a need for caution before convicting the accused in reliance on the correctness of the identification.
33. The Supreme Court in The State v Beng [1976] PNGLR 471, and Beng v The State [1977] PNGLR 115, (Prentice DCJ, Williams & Kearney JJ presiding) sets out the guidelines to be used when the issue of identification is challenged. In that case, the Supreme Court held that:
“In proceedings where evidence of identification is relevant, the court should be mindful of all inherent dangers, the need for caution before convicting in reliance on the correctness of identification...the court should examine closely all the circumstances in which identification by each witness came to be made bearing in mind the recognition may be more reliable than identification of a stranger, but that even where the witness is purporting to recognize someone he knows, mistakes can be made. When the quality of the identification is good the matter should proceed to a verdict, when the quality of identification evidence is poor, unless there is other evidence which goes to support the correctness of the identification, an acquittal should be entered.”
34. The rationale was later applied in the Supreme Court decision of Bate v The State (2012) PGSC 46, SC 1216 (20th December 2012) (Injia CJ, Cannings & Gabi JJ presiding). In applying the view held in John Beng (supra), the Supreme Court held that:
“In assessing identification evidence, relevant consideration include, that an honest witness can be mistaken and still be convincing that an identification witness must both be honest and accurate; whether the evidence is corroborated, whether the witness is purporting to identify a person who was a stranger or someone he recognized, the length of time the witness observed the accused (prolonged or fleeting glance), the emotional state of the witness at the time of the incident, the prevailing conditions, the line of sight (did the witness have a clear view of the front or the line of sight interrupted, did the witness just see the accused from the side)”.
35. Based on the two Supreme Court’s decision above, in summary the Court would be expected to do the following when the issue of identification is raised as the main defence:
(i) If the evidence against the accused is based wholly or substantially on identification there is a need for caution before convicting the accused in reliance on the correctness of the identification.
(ii) The Court should examine closely the circumstances in which the identification by each witness came to be made and whether such evidence is sufficiently corroborated to establish the correctness of the identification.
(iii) Any prior knowledge of the accused, that includes the length of time the witness knew the accused, the location where the accused lives, do they have any special relationship the frequency of their meetings etc. are also taken into consideration.
H. FINDINGS
36. I make the following findings:
(i) Evidence on Identification
The evidence from the State witnesses on the identification of the accused were sufficiently corroborated. They all saw and witnessed the accused taking part in the fight that led to the demise of the deceased. The State witnesses knew the accused well and have correctly identified him. The evidence on identification is further strengthened by the fact that the accused is a familiar face to the witnesses and they had sufficient prior knowledge of him through the various relationships they had with him. They are all related and come from Biwat, East Sepik Province and currently residing together at Biwat Compound, Lae. They could not have possibly mistaken him for another person: See; State v. Ankelman Keith (CR No. 785 of 2018) N7447.
37. The State has proven beyond doubt the first essential element of the offence of wilful murder being; the positive identification of the accused and the correctness of that identification. The accused was one of the assailants who attacked the deceased on the 24th of August, 2014 at Biwat Compound, Lae that led to his death.
(ii) Offensive Weapons
38. I am satisfied that the accused at various times during the course of the fight had in his possession several offensive weapons; firstly, the home-made staple gun then a butcher knife and finally, some stones in his hands. Except for the staple gun theory, the prosecution’s evidence in relation to the other offensive weapons was never challenged hence it remains intact.
39. Defence attempted to raise the issue relating to the failure of the prosecution to produce the murder weapon in Court in their closing submission but State objected to it under the rule on Browne v Dunn as it was never raised and put to the witnesses during cross-examination. The objection was upheld.
(iii) Medical Examination - Post Mortem Report
40. The most incriminating evidence against the accused is found in the post mortem report compiled by Dr Sanoh Tahon (‘Exhibit 2 A’). Witness Joyce Judah said that it was the accused who delivered the fatal blow when he struck the deceased on the head with a knife whilst witness Natasha Maladen said it was Gad Yakapus who killed the deceased by cutting his throat.
41. The post mortem report showed that the deceased died from cardiorespiratory arrest as a direct result of an “open skull fracture with contused brain matters caused by a knife wound”. The injury is consistent with the evidence of Joyce Judah when she said she saw the accused standing in front of the deceased (who was lying on the ground at the time) and lifted his hands up with a butcher knife. She closed her eyes momentarily and few seconds later heard a thudding sound of something breaking or sounded like an iron driven into the ground. This would most likely be the sound of the knife coming into contact with the skull. According to Dr Tahon the neck area was normal and there was no sign of any cuts or bruises on it. The deceased did not die from a neck injury. Based on the post mortem report it could not have been Gad Yakapus who killed the deceased.
42. I am satisfied therefore, that the accused was the person who delivered the fatal blow that killed the deceased. Accordingly, the State has proven beyond doubt the second element of the charge of wilful murder in that the accused without any lawful cause killed the deceased by stabbing him on the head with a butcher knife.
43. Finally, the motive was clear, it was a payback killing. The accused and his co-accuseds suspected the deceased of being a sorcerer who was responsible for the deaths of Gad Yakapus’s (co-accused) father and brother. They were determined to take revenge and they did exactly that. They attacked the deceased with an intention to kill him. The State has therefore, proven the third element of wilful murder in that the accused attacked the deceased with an offensive weapon namely, a butcher knife with an intention to cause his death. The use of offensive weapons in an attack reveals the accused’s intention to inflict bodily injuries that could be fatal.
44. All in all, I am satisfied that the State has proven each and every element required of the charge of wilful murder and I am convinced beyond doubt that the accused has unlawfully killed the deceased on the 24th of August 2014 at Biwat Compound in Lae by stabbing him on the head with a butcher knife with an intention to cause his death.
45. In conclusion, an observation I wish to make in passing is that, sorcery -related killing is becoming a new phenomenon in the country in recent years that has raised concerns at all levels of society. Deaths under similar circumstances are becoming too common where members of the community take part in a mob attack on suspected sorcerers accused of killing their relatives through sorcery. This has prompted Parliament to pass the Sorcery (Repeal) Act 2013 on sorcery related killings so that those involved in such killings are severely punished.
VERDICT
46. I find the accused guilty of Wilful Murder as charged and convict him accordingly.
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Defence
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