PacLII Home | Databases | WorldLII | Search | Feedback

National Court of Papua New Guinea
You are here:  PacLII >> Databases >> National Court of Papua New Guinea >> 2018 >> [2018] PGNC 621

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

State v Levi [2018] PGNC 621; N7585 (8 October 2018)


N7585


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR No. 321 - 328 OF 2015


THE STATE
v
IVANGA LEVI
TIMOTHY MOSES
MICHAEL ABRAHAM
JAMES BENSON


Lae: Numapo AJ
2018: 02nd, 19th & 13rd March, 06th – 11th April, 08th October.


CRIMINAL LAW – Particular Offence – Wilful Murder – s. 299 & 7 of Criminal Code - Plea of Not Guilty - Offensive Weapons Used – Evidence on Identification Sufficiently Corroborated – Accuseds Guilty as Charged.


Held:


(i) The evidence of identification is further strengthened by the fact that the witnesses have sufficient prior knowledge of the accused persons and could not have mistaken them for other people.

(ii) For the defence of belated alibi to succeed the accused must produce evidence that is credible and sufficiently convincing to create doubts in the mind of the Court.

(iii) The accused persons acted in concert in carrying out the unlawful killing and in so doing, aided, counselled and procured each other and therefore are equally guilty of the offence.

(iv) The manner in which the attack was carried out indicated that the murder was pre-planned, intentional and deliberate on the part of the accuseds.

(v) Objections to defective witnesses ‘statements under ss 94 (1A) and 94C (2) of the District Courts Act should have been raised at the very outset of the trial and not after, which may also include objecting to tendering of such defective statements into Court.

(vi) Accuseds each and severally found guilty as charged.

Cases Cited:


Bate v The State (2012) PGSC 46, SC 1216
Beng v The State [1977] PNGLR 115
John Jaminan v The State [1983] PNGLR 318
Koroka v The State [1988-89] PNGLR 131
Maury v The State (2001) SC 668.
Paulus Pawa v The State [1981] PNGLR 498.
State v. Ankelman Keith (CR No. 785 of 2018) N7447
State v Kewangu [2002] PGNC 138; N2189
State v Solomon Jack Goimas (CR No. 396 of 2015) N7485
State v Wabu [1994] PGNC 146; [1994] PNGLR 498; N1227
The State v Beng [1976] PNGLR 471
The State v Morris [1981] PNGLR 493


Counsel:


J. Done, for the State
S. Katurowe, for the Defence


RULING ON VERDICT

8th October, 2018


  1. NUMAPO AJ: This is a ruling on verdict. The accused persons; Timothy Moses, Ivanga Levi, Michael Abraham and James Benson were each and severally charged with two (2) counts of Wilful Murder pursuant to section 299 of the Criminal Code. The accused persons all pleaded Not Guilty and the matter resulted in a trial.
    1. BRIEF FACTS
  2. The facts to which the Accuseds were arraigned were that; on the 09th of July 2014 between 9pm and 10pm at Wara Wau in Wau, the accused persons ambushed and attacked a group of people resulting in the deaths of Chris Rawai and Tesi Melam.
    1. THE LAW

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.
  1. The offence of wilful murder is made up of three essential elements namely;
  2. State further invoked section 7 of the Criminal Code and it must therefore, prove that the accused persons each and severally having had the intention to kill the deceased, did so unlawfully and did acts constituting section 7, in that they aided, counselled and procured each other to kill the two (2) deceased persons namely, Chris Rawai and Tesi Melam.
    1. DEFENCE TO THE CHARGE
  3. Defence raised was one of identification and general denial.
    1. ISSUES
  4. The first issue is: “Whether the accused persons; Timothy Moses, Ivanga Levi, James Benson and Michael Abraham each and severally having the intention to kill the deceased’s Chris Rawai and Tesi Melam did kill them.”
  5. The second issue is; “Whether the accused persons each and severally killed the two (2) deceased persons Chris Rawai and Tesi Melam and in doing so, aided, counselled and procured each other to commit murder.”
    1. STATE’S CASE
  6. The State’s case is made up of documentary evidence and sworn oral evidence of five (5) witnesses.
(b) Oral Evidence

Witness No. 1 - Ronald Ilavong


  1. Ronald Ilavong told the Court that he remembered very well the incident that took place on the 09th of July 2014. He was with Chris Rawai, Emmanuel Ilavong and Moroi Samson to watch the State of Origin game but there was no power at their house as the generator could not start so they decided to go and watch the game at the CRA Compound. They walked onto the road around 9:00pm and there were loud music and people were singing on the side of the road. They saw some people armed with bush knives. Not long these people came out and started attacking them with bush knives. It was dark and there was no light around that area. His younger brother Emmanuel Ilavong who was walking some distance behind them saw what happened and ran back to the house. The attackers slashed him and Chris Rawai with bush knives. Moroi Samson was also slashed on the head and he escaped into the coffee garden. He and Chris Rawai received serious injuries to their bodies and were lying down on the ground. At that point his sister and mother arrived after they heard the news about the attack. His mother cried and told the attackers to stop attacking us as we were innocent.
  2. The attackers then picked him and Chris Rawai and put them both onto the back of the Hyundai truck. There was another person already lying at the back of the vehicle with blood all over his body. Later he found out that the injured person was Tesi Melam. They took them all to Wara Wau and met some people there with a Toyota land cruiser. A person got a bushknife and jumped onto the back of the vehicle and asked him who his father is. He told him he is the son of Boreng Ilavong and that he is innocent. The man told him he is an “unwanted weed” and cut him on his head. He later recognized him as Edwin Moses the owner of the Toyota land cruiser and the Hyundai truck.
  3. They then took them to the hospital. The vehicle was filled with blood from their injuries. At the hospital, Tesi Melam succumbed to his injuries and died and was put on the stretcher and taken to the morgue. He and Chris Rawai were given Intravenous Therapy (IV) fluids by the nurses on duty. Some 30-40 minutes later Chris Rawai took his last deep breath and died. Before he died he uttered these words; “Father God, I am innocent. Take my blood and put it on Your table”.
  4. The witness recognized two of the attackers and identified them as Timothy Moses and Ivanga Levi. He clearly recognized them as there were lights shining onto the road from the Baptist Church Compound and also the lights from the Hyundai truck. Both were standing at the back of the Hyundai truck. He knew both accused persons well as they all lived together in Wau for many years. He also saw and recognized Edwin Moses. All of them were close friends of his family. He could not have mistaken them for any other people.
  5. He didn’t know the reason why they were attacked but later learned that some rascals (criminals) held up a vehicle belonging to Edwin Moses and stole some money and vehicle parts and Edwin retaliated by organizing his boys to look for the people who held up his vehicle and attack them.
  6. He sustained serious injuries on both legs. The main vein on his left leg was severed and the bones on his right leg were smashed. They slashed him on the head, cheek and right side of his neck.

Witness No. 2 - Olivia Ilavong


  1. The witness told the Court that on the 09th of July 2014 her brothers Ronald Ilavong, Emmanuel Ilavong, Chris Rawai and Moroi Samson left the house and went to watch the State of Origin game at the CRA Compound. Not long after she heard a loud noise and she and her mother Joylyn ran down to the road to find out what was happening. She saw the accuseds Ivanga Levi and Timothy Moses holding bush knives and standing close to the Hyundai truck. A deaf person by the name of James Benson also known as ‘Maus Pas’ was also standing there. She saw her brothers lying on the ground with blood all over their bodies. She cried and wanted to cover her brothers from been slashed further but the Accused Ivanga Levi pushed her away and told her that her brothers are rascals and she is harbouring them in her family’s house. She left and ran to get help.
  2. She followed the main road and saw Edwin Moses in his Toyota land cruiser parked on the road. She asked him for help but he ignored her and asked her where her father was. She told him that her father went to Port Moresby. Whilst they were talking his phone rang and she overheard him saying “did you bring them all?” She realized that Edwin Moses was also involved in attacking her brothers. She then left.
  3. She recognized Ivanga Levi as the one who slashed her brothers Ronald Ilavong and Chris Rawai as they were lying on the ground. Timothy Moses was also involved in attacking the boys. She recognized their faces clearly as there were sufficient lights coming from the Baptist Church Compound and also the vehicle’s parking lights. Accused James Benson (Maus Pas) was also there but did not do anything. She knew all the accuseds as they all lived in Wau together for many years and they are good friends to her family.

Witness No. 3 - Yaom Boreng


  1. The witness resides at Wara Wau. On the 09th of July 2014 her children Ronald Ilavong, Emmanuel Ilavong, Chris Rawai and Moroi Samson decided to go and watch the State of Origin game at the CRA Compound and left the house. Not long after they left she heard some noise and could hear Ronald and Chris shouting and also heard the clinking sound of the bush knives. Emmanuel Ilavong ran to the house and told them that they were attacked by some people and told them to go quickly and check Ronald and Chris out.
  2. They ran to the road junction and saw Chris and Ronald lying on the ground covered with blood. They both were seriously injured. There was a white Hyundai truck belonging to Edwin Moses parked there as well. She saw accused Ivanga Levi cutting Ronald on his shoulder from a distance of less than a metre away. She told them to stop and Ivanga Levi left and walked over to the vehicle. He told her to repay the K17, 000.00 and the car parts her children stole from them. She also recognized James Benson and Timothy Moses. Timothy had his shirt wrapped around his neck and was also involved in attacking her children. James Benson was standing there observing what was going on but was not involved. She recognized them clearly as there were lights coming from the Baptist Church Compound and also from the parking lights of the Hyundai truck.
  3. The attackers then put Ronald and Chris onto the back of the Hyundai truck and took them to the hospital. She knew the attackers very well as they all lived together in Wau for many years and were good family friends to her family. She did not know why her children were attacked.

Witness No. 4 Paria Kuskom


  1. The witness told the Court that on the night of the 09th of July 2014, he walked to Wara Wau after watching the State of Origin game on TV. He saw a white Hyundai Truck parked close to the river and a man in the truck called out to him. He went closer and saw Edwin Moses sitting on the driver’s side. Edwin told him to look at the bodies lying at the back of his truck. Two of the bodies were motionless whilst one was still alive and moving and was crying out in pain. Edwin told him that they stole his K15, 000.00 cash and some car parts belonging to his vehicle so he killed them. There were three bodies at the back of the truck. He recognized them all. They were; Ronald Ilavong, Tesi Melam and Chris Rawai. Ronald was still alive but the other two appeared to be dead. There were also some youths standing on the truck armed with bush knives. It was dark and he could not recognize their faces but could see the bush knives they were holding. After seeing all these he left and went to the compound.

Witness No. 5 Kopsi Bawai


  1. The witness is a security guard employed by Wau Micro Bank. He told the Court that on the 09th of July 2014 he was on night duty with another security guard Michael Abraham (accused). At around 9:00pm Michael left him and went away but he did not know where he went. At around 11:00pm Michael returned and was sweating heavily and looking very tired. Michael told him that some boys were attacked at Wara Wau and they will be bringing their bodies to the hospital soon.
    1. DEFENCE CASE
  2. Accuseds Timothy Moses and Ivanga Levi elected to give sworn evidence in their defence. Accuseds Michael Abraham and James Benson elected to remain silent. Edwin Moses the owner of the two vehicles (Hyundai truck and the Toyota land cruiser) also gave evidence.

Accused No. 1 – Timothy Moses


  1. Accused Timothy Moses is Edwin Moses’s cousin brother. On the evening of the 09th of July 2014, he drove to Wara Wau to pick up a person who hired one of Edwin’s vehicle by the name of Senny. He lives around the area next to Boreng Ilavong’s place near the Baptist Compound at Wara Wau. He drove the Toyota land cruiser across the river and one of the back wheels came off. He told his off-sider Stanley Solo to go to Edwin Moses’s house and bring a jerk in the Hyundai truck. Whilst he was waiting a group of men armed with guns and bush knives came and held him up. He ran away and left the land cruiser there. He went to Edwin Moses and told him what had happened and they both returned to Wara Wau with the Hyundai truck but there was no one there. They both fixed the back wheel of the land cruiser and this was between 7:30pm to 10:30pm. Edwin then told him that Boreng’s son (Ronald Ilavong) was injured and he gave him the keys to the Hyundai truck and a Reserve Policeman hoped on and they drove to the Baptist Compound. On the way he saw three bodies lying on the road at the junction. He picked them up and drove back to Wara Wau. There were some Policemen there when he arrived.

Accused No. 2 Ivanga Levi


  1. Accused Ivanga Levi is Edwin’s brother in-law. Edwin Moses is married to his sister. On the 09th of July 2014 he finished work late and got dropped off at his house. He heard from his wife that Edwin’s vehicle broke down at Wara Wau. He walked to Wara Wau after watching the State of Origin game. At Wara Wau he saw three vehicles there; a police vehicle, a Hyundai truck and a Toyota land cruiser. He saw some policemen talking to Edwin Moses. He walked over and asked what happened. Edwin told him about the armed robbery and the K17, 000.00 that was stolen from Timothy Moses. He then got into the police vehicle and went to police station and laid a complaint regarding the armed robbery. After that the policemen dropped him off at his house. He slept and went to work in the morning. When he arrived at Wara Wau, Timothy had already fixed the vehicle and was ready to leave. The Policemen who were there at the time were Theo (surname not known) and Komeng Toung. There were other policemen as well.

Defence Witness No. 3 – Edwin Moses


  1. Edwin Moses is a businessman and the owner of the two vehicles (Toyota land cruiser and the Hyundai truck) that were involved in the incident. He recalled on the 09th of July 2014 he was watching the State of Origin game at home. Timothy Moses and Senny hired his Toyota land cruiser registration number LBA 512 and left for Lae around 6:00pm. At around 7:00pm he went to look for betelnut and on his way he met Stanley who told him to take the car jerk to Timothy as the vehicle broke down at Wara Wau. He drove down to Wara Wau and along the way he met Timothy Moses. Timothy told Edwin that the rascals held him up at Wara Wau and stole his money. They both drove down to Wara Wau but nobody was there except the Toyota land cruiser was still parked there. He inspected the vehicle and noticed that the spare tyre, the chain and some other things in the vehicle were missing. Also missing was some money he gave to Timothy to buy cartons of beer and new stock for his trade store. The amount was K15, 000.00 belonging to him and K2, 000.00 belonged to Timothy, a total of K17, 000.00 was stolen. They fixed the car and this was around 10:30pm.
  2. Whilst there Olivia Boreng arrived and told him that some people attacked her brothers Ronald Ilavong and Chris Rawai. He then gave the keys to the Hyundai truck to Timothy to go and assist them. He stayed behind with some Policemen who also arrived. One of them as Senior Sgt. Tom. They were still there when Timothy brought the three injured people in the truck. He told Timothy to drive the Toyota land cruiser and he drove the Hyundai truck with the injured people to the hospital. He did not see who were injured as it was already dark at the time.
    1. EVIDENCE ON IDENTIFICATION
  3. The defence raised was one of identification and general denial. The main issue therefore, is identification of the accused persons. The State’s case rests primarily on the positive identification of the attackers who were responsible for the deaths of Chris Rawai and Tesi Melam on the 09th of July 2014 at Wara Wau in Wau.
  4. The general rule on the evidence on identification is well stated in the case of The State v Beng [1976] PNGLR 471, and Beng v The State [1977] PNGLR 115. It sets out the guidelines to be used when the issue of identification is challenged.
  5. 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.”


  1. The rationale was later applied in the Supreme Court decision of Bate v The State (2012) PGSC 46, SC 1216 (20th December 2012).
  2. The Supreme Court in these two cases provided the following guidelines:
  1. PRESENT CASE
  1. The State’s witnesses Ronald Ilavong, Olivia Ilavong and Yaom Boreng were consistent in their evidence right throughout and also corroborated each other in identifying the accused persons. They identified them as Timothy Moses, Ivanga Levi and James Benson (Maus Pas) who were present at Wara Wau on the evening of the 09th of July, 2014 when Ronald Ilavong and Chris Rawai were attacked. Ronald Ilavong positively identified his attackers as Timothy Moses and Ivanga Levi. According to Ronald, after they were attacked the perpetrators put them onto the back of the Hyundai truck and took them to the hospital. Olivia Ilavong identified Ivanga Levi and Timothy Moses as the two people holding bush knives and standing close to the truck when she arrived at the scene. She identified Ivanga Levi as the person who slashed both Ronald and Chris as they were lying on the ground covered with blood. Ivanga Levi pushed her away after she tried to cover her brothers from being attacked. Ivanga told her that her brothers were rascals (criminals) and she is harbouring them. Yaom Boreng identified Ivanga Levi as the person who chopped Ronald on his shoulder. She was at the distance of less than a metre away when she saw him attacked Ronald. She told the accused Ivanga Levi to stop and not to cause any further harm to Ronald. Ivanga Levi then told her to re-pay the K17,000.00 and the car parts stolen from Edwin’s vehicle.
  2. All three witnesses positively identified the accused persons as there were lights coming from the Baptist Church Compound and also the Hyundai truck’s parking lights. Furthermore, the witnesses knew the accused persons very well as they all lived together in Wau for many years and were good family friends. They could not have mistaken them for other people.
  3. The witnesses also identified Edwin Moses whom they believed to be the ‘ring leader’ of the attackers. Edwin is the owner of the Toyota land cruiser that was held up. He lost K15, 000.00 through the robbery, money he gave to his cousin Timothy Moses (accused) to purchase stocks for his trade store in Wau. Naturally, he would have been upset that his money and car parts from his vehicle were stolen. Witness Paria Kuskom who arrived later at the scene also identified Edwin Moses as the person who told him to look at the bodies lying at the back of his Hyundai truck. The victims received serious injuries to their bodies. Chris Rawai succumbed to the injuries and died a few hours later along with Tesi Melam who was attacked separately presumably by the accuseds. Ronald Ilavong survived to tell the story.
  4. In assessing their evidence, I am convinced that the identification of each of the accused persons has been made out and the circumstances under which the identification was made by each of the witnesses is sufficiently corroborated and the correctness of that identification is established beyond doubt. Furthermore, the accused persons are known to the witnesses as they all lived together in Wau for many years. I have no reason whatsoever to think that the State witnesses would be lying to the Court. And there is no evidence to suggest any ulterior motive(s) on their part to do so. They are very close family friends to the accused persons and would have no reason to lie. There is nothing for them to gain by lying. I do not doubt their credibility and reliability as witnesses either. They were firm and steadfast in their evidence.
  5. They were trustworthy witnesses. They told the truth.

38. Defence basically denied that the accuseds Ivanga Levi, Timothy Moses and James Benson (Maus Pas) were present at the time Ronald Ilavong and Chris Rawai were attacked. They also denied attacking the two victims. However, they have not produced any evidence to support their assertion that they were not present at the time the victims were attacked. The accuseds admitted they were present at the crime scene (Wara Wau) at the time the incident happened.


39. Accused Timothy Moses was held up and monies and car parts stolen from him at Wara Wau. He told Edwin Moses about the hold up and they both returned to Wara Wau but there was no one there. Edwin then told Timothy that Boreng’s son (Ronald Ilavong) was injured and gave him the keys to the Hyundai truck to go and check. On the way he saw three bodies lying on the road at the junction. He picked them up and returned to Wara Wau where Edwin was with some Policemen. Later they took them to the hospital. The accused confirmed his presence at Wara Wau on the evening of the 09th of July 2014. This is consistent with the evidence given by the three State’s witnesses who identified him as one of the attackers that attacked Ronald Ilavong and Chris Rawai.


40. The accuseds’ version of events on the 09th of July 2014 is disjointed. For instance, he did not mention anything about the victims other than to say that he found them lying on the side of the road and picked them up. There is nothing about their injuries or who attacked them and why. I find this rather strange. In circumstances such as this, it is quite normal for a person to inquire about what had happened and how the injured people came to be on the road side. It is a normal human reaction compelled by both curiosity and commonsense. His story is incomplete for what it’s worth. On the whole, I find the accused’s evidence less impressive and not persuasive. His evidence is tainted with lies so much so that it leaves a lot to be desired.


41. As for the accused Ivanga Levi, I find his evidence quite bizarre to say the least. He went to Wara Wau after hearing from his wife that one of Edwin’s vehicle broke down there. When he arrived there he saw some policemen talking to Edwin Moses and enquired what happened. Edwin told him about the armed robbery that took place. The accused then got on the police vehicle and went all the way to the police station and laid a complaint regarding the robbery. After that he got dropped off at his house. In his evidence he confirmed that he was at Wara Wau on the evening of the 09th of July 2014. This is consistent with the evidence given by the State’s witnesses that they saw him there and identified him as one of the attackers.


42. The accused contradicted himself when he said he went to the police station to report the robbery whilst in the same breath he also said there were some policemen already at the crime scene when he arrived. If there is any truth about going to the police station which I very much doubt, I find this aspect of his evidence rather absurd. Firstly, why going all the way to the police station to report the matter when the police were already present at the crime scene, and secondly, the accused is not the victim of the robbery so obviously, he cannot be the complainant. The whole story just doesn’t stack up. It does not make any logical sense at all. The accused’s evidence no doubt, is tainted with lies and I find it hard to believe him. He mentioned the name of two policemen, Theo (surname not known) and Komeng Toung who were present at the crime scene along with the other policemen however, he has not called them to give evidence in his defence. His evidence regarding the police is a recent invention. I am not convinced he is telling the truth.


43. The accused tried to raise a defence of belated alibi that he was not there when Ronald Ilavong and Chris Rawai were attacked and that he arrived at the crime scene late. However, the accused did not lead any evidence relating to the defence of belated alibi that is credible and sufficiently convincing to create a reasonable doubt in the mind of the Court. The evidence of a belated alibi needs to be reasonably strong to raise a reasonable doubt. See: John Jaminan v The State [1983] PNGLR 318. In the present case, there is no such credible evidence to suggest that the accused was not present at the time the offence was committed. I am satisfied therefore, that the accused was at all material times present at the crime scene when the attack took place. Furthermore, he has not led evidence to rebut the allegation made against him by the State witnesses Ronald Ilavong, Olivia Ilavong and Yaom Boreng that he was one of the perpetrators who attacked Ronald Ilavong and Chris Rawai on the evening of the 09th of July 2014 at Wara Wau that resulted in the death of Chris Rawai.


44. Edwin Moses is the only witness for the defence. He is related to both accuseds Timothy Moses and Ivanga Levi as described above. He told the Court that he was at Wara Wau on the evening of the 09th of July 2014 when one of his vehicles, a Toyota land cruiser broke down. This is consistent with the evidence given by Ronald Ilavong, Olivia Ilavong, Yaom Boreng and Paria Kuskom that they saw him there. He confirmed that a total of K17,000.00 was stolen during the robbery. K15, 000.00 belongs to him and K2, 000.00 belongs to Timothy Moses. 45. This is also consistent with what Yaom Boreng said about Ivanga Levi telling her to re-pay the K17, 000.00 her children stole from them.


46. Edwin Moses told Paria Kuskom that the bodies lying at the back of his Hyundai truck were those of the rascals who held up his vehicle. Edwin said that he killed them because they stole his money. Although, this was a hearsay, there appears to be some merits in it given the fact that an attack has just taken place and some people were seriously wounded following an armed robbery from which he lost a substantial amount of money. I have no doubt in my mind that the attack was directly related to the robbery. Edwin Moses, in my observation, is not a credible witness and is unreliable and most untrustworthy to say the least. I am not convinced that he is telling the truth. I accept that he was the ring leader that planned the whole attack that resulted in the death of Chris Rawai. All evidence are pointing to him as the instigator. He should have been arrested and charged as well but for reasons only known to the police they decided not to lay any charges against him. I recommend that he be arrested and charged without delay.


47. All in all, I am not convinced with the evidence of the defence witnesses that the accused persons Ivanga Levi and Timothy Moses were not responsible for the death of Chris Rawai. Their evidence were riddled with lies, inconsistencies, contradictions and recent inventions so much so that it is difficult to believe any of them. Defence did not discredit the incriminating evidence against the accused persons linking them to the murder of Chris Rawai. Defence through its witnesses has not presented any credible evidence to find in their favour. Their demeanour in Court as witness leaves a lot to be desired. I found them less credible and unreliable witnesses. They were making up stories as they go on. They tried to leave an impression that they were innocent and not responsible for the death of Chris Rawai. I find otherwise.


(iii) Witnesses ‘Statements – Section 94 District Courts Act

48. Defence also challenged the State witnesses’ and police statements tendered into Court particularly that of Ronald Ilavong (‘Exhibit RBI (W) (1)), Olivia Ilavong (‘Exhibit OI (W) (1)’) and Paria Kuskom (‘Exhibit PK (W) (1)’) and their oral evidence and demeanour during cross examination. Defence argued that most of what the State’s witnesses told the Court in their oral evidence were recent inventions and contradicted what they said earlier in their police statements during the initial investigation. Defence argued that what the witnesses told the Court is totally different to what is contained in the hand-up briefs compiled by the arresting officer that makes up the charges of which the State relies on to prosecute the case.


49. Defence Counsel Ms Katurowe referred to sections 94 and 94 (1A) of the District Courts Act and argued that certain statements by the witnesses were not signed and the certification required of each statement was not made out in accordance with the procedural requirements on committal proceedings of indictable offences hence the net effect of such non-compliance voids the whole proceedings. It referred to the case of State v Wabu [1994] PGNC 146; [1994] PNGLR 498; N1227 (25 May 1994). In this case the Court held: inter alia, “that the combined effect of ss 94 (1A) and 94C (2) of the District Courts Act made it mandatory on the committal court to conduct an enquiry to ensure that the makers of statements had full knowledge of the contents, correctness, and truth of written statements they are responsible for signing. The requirement is mandatory and requires strict compliance. And having conducted the enquiry the Court has a discretion to admit or reject the written statement. The Court must then record the nature and extent of the enquiry conducted and record its findings. And finally, failure to conduct such enquiry and record its finding may result in voiding the committal.”


50. She submitted that since the mandatory requirements under ss 94 (1A) and 94C (2) of the District Courts Act have not been adhered to, the Court should disregard the respective statements made by the witnesses as they are illegally before the Court.


51. The other two State witnesses Yaom Boreng’s and Kopsi Bawai’s evidence were also challenged. However, I found nothing wrong with Yaom’s evidence and considered it to be intact and flawless. As for Kopsi Bawai, his evidence is largely hearsay and therefore, it is rejected.


  1. RULING

52. With respect to the procedural requirements of ss 94 (1A) and 94C (2) of the District Courts Act on committal proceedings, it would have been proper, in my view, that such objection is raised at the outset of the trial which may also include objecting to the tendering into Court those witnesses’ statements that are deemed to be defective. Defence argued that the State’s witness’s statements were not signed and certifications required of the statements were not made out. This in itself is a good enough ground to object to the tendering of those defective statements however, Defence did not do that and fully consented to the tendering of all the witnesses ‘statements into Court knowing full well of the defects contained therein. It is mischievous on the part of the defence, I would think, to now turn around and want to challenge what it has already consented to at the outset. This is also unfair to the prosecution. To my mind this is a pointless exercise to challenge what has already been tendered and accepted as evidence when the opportunity to raise such objections is always available to the defence at the beginning of the trial.


53. Secondly, as it is a mandatory requirement on the part of the Court, one would have assumed that the Committal Court may have done the due diligence and has conducted the necessary enquiries to comply with the procedural requirements of sections 94 (1A) and 94C (2). And unless the issue is raised, the Committal Court has the tendency of accepting on face value all statements filed that makes up the prosecution’s case. And furthermore, even if there were defects in the statements it is still within the discretion of the Committal Court to admit or reject such statements. In the present case, none of the statements were rejected by the Committal Court that formed part of the committal depositions upon which the prosecution case is mounted on. As such, I do not see any breach of the mandatory requirements of ss 94 (1A) and 94C (2) of the District Courts Act and would therefore, accept all the witnesses statements that were part and parcel of the committal depositions tendered by the State with consent.


54. Thirdly, with respect to the oral evidence, although there were some minor inconsistencies and contradictions in the witnesses’ answers especially to the questions raised during cross examinations, all in all, I am satisfied the prosecution’s evidence remains intact. There were no substantial defects or discrepancies in the overall evidence to raise any doubts in the mind of the Court or put any dent in the State’s case. The State’s witnesses corroborated each other well and were consistent in their evidence right throughout. They were resolute and unwavering in their evidence. They stayed focused to the events of the 09th of July 2014. And given the fact that the offence took place in 2014, some four (4) years ago, they did well under the circumstances to stay the course in their testimonies. Their evidence has not been discredited nor was it destroyed during cross examination. Overall, the prosecution’s evidence stood up well to scrutiny.


55. Defence also raised objections to certain parts of the prosecution’s evidence as recent inventions as they were not part of the original statements. Recent invention applies in situations where a witness makes a new statement or said something not consistent with what he deposed in his earlier statement that form part of the original committal depositions than such evidence is considered as a recent invention and cannot be accepted by the Court. In State v Kewangu [2002] PGNC 138; N2189 (12 March 2002) the Court held that:


“Evidence not forming part of the earlier State case or hand up brief but called in an attempt to build a case against the accused when the earlier evidence failed to do so, amount to recent inventions and therefore unreliable in much the same way a belated raising of the defence of alibi by an accused is.”


56. I cannot find anything said that is new or additional in the prosecution’s evidence that could be regarded as recent invention. I am satisfied that the prosecution’s case was based entirely on the hand up briefs that the State relied on to prosecute the case.


(2) Elements of Wilful Murder Proven

(a) Count One – Wilful Murder of Deceased Chris Rawai

57. I am satisfied that the State witnesses have correctly and positively identified the accused persons Timothy Moses, Ivanga Levi and James Benson (Maus Pas) at Wara Wau on the evening of the 09th of July 2014 when Ronald Ilavong and Chris Rawai were attacked. Except for James Benson who did not testify, accuseds Timothy Moses and Ivanga Levi admitted in their evidence that they were present at Wara Wau on that evening which is consistent with the evidence given by the State’s witnesses. Their evidence on identification is further strengthened by the fact that the accused persons are well known to the witnesses as they all lived together in Wau as neighbours and family friends for many years and the witnesses had sufficient prior knowledge of each of them. They could not have possibly mistaken them for some other people: See; State v. Ankelman Keith (CR No. 785 of 2018) N7447 and State v Solomon Jack Goimas (CR No. 396 of 2015) N7485.


58. I am therefore, satisfied that the prosecution has proven beyond doubt the first essential element of the offence of wilful murder being; the positive identification of the accused persons; Timothy Moses, James Benson and Ivanga Levi. There is not a shadow of doubt in my mind that the accuseds were each and severally present at the crime scene at Wara Wau on the evening of the 09th of July 2014 when Ronald Ilavong and Chris Rawai were attacked that resulted in the demise of Chris Rawai.


59. As for the accused Michael Abraham, none of the State’s or Defence witnesses mentioned him in their evidence. I find no incriminating evidence against him and the evidence as it stands does not linked him to the crime nor does it place him at or near the crime scene. Accordingly, I find the accused Michael Abraham not guilty and therefore, acquit him accordingly.


(ii) Unlawful Killing

60. I am satisfied beyond doubt that the Accuseds Timothy Moses and Ivanga Levi attacked Ronald Ilavong and Chris Rawai at Wara Wau on the evening of the 09th of July 2014 that resulted in the death of Chris Rawai. The Accuseds were armed with bushknives at the time and attacked the victims. Ronald Ilavong sustained injuries to both legs and also cuts to his heads and body. Chris Rawai died from the bushknife wounds he received on his body. I am convinced that the accuseds Ivanga Levi and Timothy Moses were responsible for the death of the deceased Chris Rawai. The attack followed a robbery that took place earlier in the day in which a substantial amount of money totalling K17, 000.00 was stolen from the accused Timothy Moses. The money belonged to Timothy and Edwin Moses. Some car parts of the Toyota land cruiser owned by Edwin Moses were also stolen. I have no doubt in my mind that this was a payback attack. The accuseds were angry of been robbed and retaliated aggressively resulting in a death of the deceased. They acted in concert in carrying out this unlawfully killing and in so doing, they aided, counselled and procured each other. Their acts constituted section 7 of the Criminal Code and therefore each and every one of them are equally guilty of the offence of Wilful Murder.


61. I am therefore, satisfied that the State has proven beyond doubt the second element of the charge of Wilful Murder in that the accused persons Ivanga Levi and Timothy Moses without any lawful cause killed the deceased Chris Rawai by cutting him with bushknives.


62. It is clear from the evidence that the accused James Benson (Maus Pas) although he was present at the time with the other co-accuseds Timothy Moses and Ivanga Levi he did not play any role or take part in the attack and there is no evidence to suggest that he did. He was merely a by-stander. There is no incriminating evidence against him. He has no blood on his hands. I therefore, found him not guilty and acquit him accordingly.


(iii) With an Intention of Causing Death of Chris Rawai

63. The Post Mortem Report revealed that the deceased Chris Rawai died from a skull fracture with cervical dislocation from multiple bushknife wounds to his body. The use of offensive or dangerous weapons in an attack reveals the accused’s intention to inflict serious bodily injuries that could lead to death. See: State v. Goimas (supra).


64. The motive was revenge attack. The manner in which the deceased Chris Rawai was killed suggested that this is was a pre-meditated killing, carefully planned and well executed. Had Ronald Ilavong not telling Edwin Moses that he was Boreng’s son he would probably have suffered the same fate. His father Boreng is Edwin’s good friend and this is probably why his life was spared. The robbery occurred around 6:00pm in the afternoon and the attack was carried out between 9:00pm and 10:00pm in the night. I have no doubt in my mind that some serious planning went into this before the attack was carried out. The killing was intentional and deliberate on the part of the accuseds. They set up an ambush and carried out a surprise attack that resulted in the death of Chris Rawai. The victims had no chance to escape.


65. The State has therefore, proven the third element of wilful murder in that the accuseds Ivanga Levi and Timothy Moses attacked the deceased Chris Rawai with the offensive weapons namely, bushknives with an intention to cause his death. I found both accuseds Ivanga Levi and Timothy Moses guilty of Wilful Murder and convicted them both accordingly.


(b) Count Two – Wilful Murder of Deceased Tesi Melam

66. State has not adduced any evidence relating to the wilful murder of Tesi Melam. There is nothing in the State’s evidence that makes any direct or indirect reference to the killing of this deceased nor is there any evidence that linked the accused persons to the death of Tesi Melam. The only evidence was from Ronald Ilavong who told the Court that when he and Chris Rawai were put on to the back of the Hyundai truck there was already an injured person lying there. He later found that it was Tesi Melam. Paria Kuskom also told the Court that he saw three bodies lying on the back of the truck and identified one of them as Tesi Melam. State assumed that Tesi Melam may have been murdered for the same reason as Chris Rawai. However, there is nothing in their evidence to suggest that. State admitted that their evidence is entirely circumstantial and asked the Court to draw an inference based on the prevailing circumstances at the time and assumed therefore, that Tesi Melam may have been killed for the same reasons following the robbery. The State relied on the case of Paulus Pawa v The State [1981] PNGLR 498 and asked the Court to make a finding of guilt by way of inferences based on the circumstantial evidence. However, the Court is required to exercise great care when the case against the accused is based substantially on circumstantial evidence and such evidence must be tested against the exclusion of any reasonable hypothesis that would indicate innocence.


67. There is no evidence suggesting that the deceased Tesi Melam was part of the group comprising Ronald Ilavong, Chris Rawai, Emmanuel Ilavong and Moroi Samson who were attacked by the accused persons on the evening of the 09th of July 2014 at Wara Wau. So where did Tesi Melam come from and who attacked him and why? His death remains a mystery. I find that the case against the accused persons in relation to the death of Tesi Melam is entirely circumstantial based on speculations and assumptions. In a criminal trial where the standard of proof is high in establishing guilt it leaves no room for speculations and assumptions.


68. The evidence relating to the death of Tesi Melam is wholly circumstantial and therefore, unsafe for the Court to rely on it. When a case against the accused rests substantially upon circumstantial evidence there should be an acquittal unless all the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused. See: The State v Morris [1981] PNGLR 493; Koroka v The State [1988-89] PNGLR 131 and Maury v The State (2001) SC 668.


69. Accordingly, I find accuseds Ivanga Levi and Timothy Moses Not Guilty and I acquit both of them on this count.


(3) VERDICT

(1) I find the accused persons Ivanga Levi and Timothy Moses Guilty on one (1) count of Wilfully Murdering another person namely; Chris Rawai. Accordingly, I convict the two (2) accused persons on this count.

(2) I find the accused persons Ivanga Levi and Timothy Moses Not Guilty of wilfully murdering another person namely; Tesi Melam. I acquit both accuseds on this count accordingly.

(3) Accuseds James Benson and Michael Abraham are acquitted on both counts and discharged.

Orders Accordingly.
___________________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor : Lawyer for the Defense

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2018/621.html