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State v Simai [2019] PGNC 157; N7877 (17 May 2019)

N7877

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1394, 1396, 1397 & 1398 of 2016

STATE

V
MAX SIMAI, LINUS KAKLEP, JORDAN KAKLEP AND HARRY KAKLEP

Angoram: Gora AJ
2018: 03^rd, 04^th, 09^th October
2019: 08^th, 17^th May

CRIMINAL LAW- Plea of not guilty- Charge of wilful murder Section 299 of Criminal Code- Killing Deceased- Group fight- No direct evidence of who killed deceased.

CRIMINAL LAW- Plea of not guilty- Application of Section 7 of Criminal Code- Principal Offender rule- Accused persons participated in group fight- Accused persons aided and abetted each other- Acted in concert with others - All are Principal Offenders and are liable- Guilty as charged.

Cases Cited:
R v Hamme Manga (1970) No. 596
R v Tovarula [1973] PNGLR140
State v John Badi and Pengas Rakam [1978] PNGLR 51
Tawingo & others v The State [2008] SC 983

Counsels:
Mr. Berry, for the State
Mr. Parehau, for the Prisoner

JUDGMENT ON VERDICT

17^th May, 2019

1. ANGORAM: GORA AJ, INTRODUCTION: All the accused persons namely MAX SIMAI, LINUS KAKLEP, JORDAN KAKLEP and HARRY KAKLEP were charged and indicted with one count of wilful murder pursuant to Section 299 (1) of the Criminal Code.
   
2. The Indictment is in the following terms:

‘’MAX SIMAI, LINUS KAKLEP, JORDAN KAKLEP and HARRY KAKLEP all of KANDUANUM village, ANGORAM, East Sepik Province stands charged that they on the 16^th day of January 2013 at KANDUANUM village, Angoram in Papua New Guinea wilfully murdered CHRIS KAMBIAR.’’

3. They all pleaded NOT GUILTY to the charge and consequently a trial was conducted.
   

BRIEF FACTS

4. All the accused persons are from Kanduanum village, Angoram, East Sepik Province. The deceased CHRIS KAMBIAR is also from the same village. It is alleged that on the 16^th day of January 2013 at about 3.00pm, police from Angoram arrived at Kanduanum village to apprehend the accused persons upon complaints of unlawful activities conducted by the said accused persons in the village. Complaints were basically that the Kaklep family members were engaged in illegal activities like brewing and consuming illicit liquor and causing nuisance in the village and engaging also in cult-like activities and harassing people. It is alleged the complaints were lodged with the police in Angoram by members of the Kambiar family.
   
5. Upon arrival of the police at Kanduanum village the accused persons ran into the bushes and hid. So the police had to return back to Angoram. Soon after the police had left, the accused persons came out of their hiding and with the support of other members of the Kaklep family attacked the Kambiar family members. In the process the Kambiars were chased and deceased CHRIS KAMBIAR was trapped, attacked and killed allegedly by the accused persons. It is alleged they used knives, iron rod spears and wire catapults to kill the deceased.
   
6. It is further alleged that the accused persons were all involved. Therefore the state invoked Section 7 of the Criminal Code in that they all acted in concert and aided and abetted each other in causing the death of the deceased CHRIS KAMBIAR.
   

ISSUES

1. Who killed Chris Kambiar?
   
2. Whether Section 7 of the Criminal Code is applicable to the circumstances of this case.
   

100. Whether the accused persons aided or abetted another person to kill Chris Kambiar?
     

THE LAW

Section 299 - Wilful Murder

7. The law on the offence of wilful murder is stipulated under Section 299 of the Criminal Code. It reads:

“(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.’’

8. The onus of proof which is proof beyond reasonable doubt which rests with the State Prosecutions. It follows therefore that State must show in its evidence and to the satisfaction of the court that all elements of the offence of wilful murder are established.

Elements of the offence of wilful murder

9. Elements of the offence of wilful murder are well stated in the Supreme Court case of Tawingo &Others v The State [2008] SC 983. In this case the court held that the state has the onus of proving four (4) essential elements of wilful murder. These are:
   
   1. A person who;
   2. Unlawfully kills;
   3. Another person; and
   4. With intent to cause his death or that of some other person.
      
10. In the Towingo case(supra)the court made the following observations:
    
    1. The first and third elements require an identification of both the offender and the person against whom the offender committed the offence.
       
    2. The second and fourth elements concerns a person’s reason or the motivation for the commission of the offence and how that motivation is carried out or translated into action.
       

Section 7 – Principal Offenders

11. Section 7 (1) of the Criminal Code reads:
    
    1. When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:-
       
       • (a) Every person who actually does the act or makes the omission that constitutes the offence;
         
       • (b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
         
       • (c) Every person who aids another person in committing the offence;
         
       • (d) Any person who counsels or procures any other person to commit the offence.
         

EVIDENCE FOR THE STATE

12. State called three (3) witnesses to give oral evidence. They are ARON KAMBIAR, ALEX AIMAN and JOHN KAPAK
    

Evidence of Aron Kambiar

13. This witness is from the Kambiar family. He was in the village at the relevant time when the incident happened. He gave an account of the arrival of the police at Kanduanum village to meet with the Kaklep family but they (the Kaklep family) ran away into the bushes and hid. Police burnt a house containing human skeletons and containers used for brewing illicit alcohol and they left.
    
14. After police had left he heard beatings of garamut drums coming from the direction where the Kakleps were in the village. He also heard people calling out for a fight. Then he saw people painted in black all over their bodies covered in leaves. They had shields made from pieces of tuffa tanks and were moving together approaching them. They were armed with shotguns, knives, wire catapults and iron rod spears used for hunting pigs. They were hiding behind the shields as they came towards them. He was able to identify the four accused persons and the others as well. Abraham Kaklep was the person holding on to a shotgun. First they burnt two houses, one belonging to the deceased and the other belonging to a family member. The Kambiar family members tried to defend themselves but they were chased away and had to run to take cover. Witness says he also ran away and after a while he heard that his brother Chris Kambiar had been killed and some more houses burnt, total of eight (8) houses were burnt. Time was between 3.00pm to 4.00pm.
    
15. Witness gave further evidence that he saw the four accused persons take part in the raid and attack but he did not see who actually killed the deceased. He stated that the deceased sustained two big cuts to his chest caused by iron rod spear. He also had a big cut on the side of his body. The cuts were very big and wide open. There were two wire catapult shots. One on the chest and one on the side of his body. The catapult wires were hard to remove so deceased was buried with these wires in his body.
    

Evidence of Alex Aiman

16. This witness also gave an account of what he saw and heard regarding the incident. He gave evidence that on Wednesday 16^thJanuary 2013 between 3.00pm and 4.00pmthe Kaklep family members fought with the Kambiar family and burnt their houses. During the fight Chris Kambiar lost his life. He says that on that day he was drying cocoa beans at his house when the fight started. He left his house and went to stop the fight. He saw houses were burnt and deceased Chris Kambiar was killed. But he did not see who killed him.
    
17. He said he saw Kaklep family members involve in the fight. He saw Harry Kaklep, Jordan Kaklep, Max Kaklep, Raymond Kaklep and Ailyn Kaklep wife of Bernard Ikolo. He pointed to Max Simai in court as Max Kaklep who was also involved in the fight. He said he was able to identify the Kaklep family members as they are from the same village. But he did not see who actually killed the deceased.
    

Evidence of John Kapak

18. This witness evidence is that he was there when the fight started between the Kaklep and the Kambiar families but he ran away when houses were burnt and Chirs Kambiar was killed. He says that before the fight started he saw Harry Kaklep, Abraham Kaklep, Jordan Kaklep, Linus Kaklep, Ailyn Kaklep, Mak Simai, Raymond Kaklep and Kenneth Ikolo. He said they wanted to fight and were armed with weapons: knives, wire catapults, iron rod spears and guns. He saw two guns. One a factory made and the other a home-made. But he did not see who actually killed the deceased.
    

DEFENCE EVIDENCE

19. Defense did not call any evidence. All four (4) accused persons did not wish to give evidence in their defense and instead exercised their right to remain silent.
    

ANALYSIS OF EVIDENCE

20. First thing to note is that defense did not call any witnesses to give evidence, oral or otherwise, in support of its defense. All of the four (4) accused persons opted to remain silent which of course is their right. Therefore the state’s evidence largely remains uncontested.
    
21. The question however is – has the state established all the elements of the offence of wilful murder? It was observed earlier that the essential elements of the offence of wilful murder are:
    
    1. a person who;
    2. unlawfully kills;
    100. another person and;
    4. with intent to cause his death or that of some other person.
       
22. The first element requires the identity of the offender. Second element requires that the act complained of or committed must be unlawful. Third element requires the identity of the deceased or the victim. Fourth element requires the reason or motive for the killing.
    
23. It is not in dispute that deceased Chris Kambiar was killed in the fight between the Kaklep and the Kambiar families at Kanduanum village on the 16^th of January 2013.It is also not in dispute that the killing of Chris Kambiar was unlawful under the circumstances. It is also overwhelmingly clear from evidence that the motive for the attack on the Kambiar family by the Kaklep family was simply because it was the Kambiar family members who reported the Kaklep family members to the police for carry out unlawful activities in the village. So they had the necessary intention to carry out the attack on the Kambiar family.
    
24. There is no doubt State evidence has established the second, third and fourth elements of the offence of wilful murder. The element of identity of the offender is however uncertain. There is no direct evidence to show who actually killed Chris Kambiar. In fact all State witnesses gave evidence that they did not see who killed the deceased. However these witnesses gave evidence that they saw the four (4) accused persons involve in the fight against the Kambiar family during which several houses were burnt and Chris Kambiar was killed. But they did not see who actually killed him. Therefore the identity of the person who actually killed Chris Kambiar is unclear and has not been sufficiently shown by the State.
    
25. However State invoked the application of Section 7 of the Criminal Code (alluded to earlier) arguing that the accused persons fall within the meaning of Section 7. In that they aided and abetted the other Kaklep family members in the attack on the Kambiar family resulting in the burning of several houses and the killing of Chris Kambiar. Therefore they are principal offenders and are responsible for the killing of the deceased.
    
26. Evidence of all state witnesses are consistent in that they saw all the four (4) accused person in the group of the Kaklep family when they attacked the Kambiar family. There is no doubt they actively participated in the attack on the Kambiar family which resulted in the burning down of 8 houses and killing of Chris Kambiar.
    
27. Although there is no direct evidence to show how and who killed Chris Kabmbiar, the fact remains that all the accused persons were involved in the attack on the Kambiar family. They actively participated in the attack resulting in the death of Chris Kambiar.In the case of R v Tovarula [1973] PNGLR140, the court stated the general principal that:

“ When several persons together attack the same man at the same time, using similar weapons or directing similar blows with the common intention to injure, and the man dies as a result of injuries so inflicted, each of the attackers is guilty of wilful murder, murder or manslaughter, according to the intent proved, because each of those several persons is acting in concert with the others at the time, each did the acting constituting the offence under Section 7 (1) (a), and aided the others under Section 7 (1) (c). ‘’

28. I am convinced that all the accused persons together with the other members of the Kaklep family acted in concert and aided one another in the killing of Chris Kambiar and therefore are placed within the meaning of Section 7 of the Criminal Code.
    
29. The only issue is that no particular person or persons within the Kaklep family have been directly identified as having killed Chris Kambiar whereby the accused persons are deemed to have aided or abetted that person. This is an important issue to address in order for the accused persons to be reasonably found guilty of aiding in the killing of Chris Kambiar. Meaning that there must be a person identified as responsible for doing an act, in this case killing of Chris Kambiar, before the accused persons are found guilty of aiding that person. That is to say that there must be a principal offender identified in order for the accused persons to become principle offenders too within the meaning of Section 7 of the Criminal Code and to be found guilty.
    
30. Counsel for the state asked the court to make a finding of fact as to who killed the deceased and then making a finding on whether the accused persons killed the deceased Chris Kambiar.
    
31. In the cases of State v John Badi and Pengas Rakam [1978] PNGLR 51, court found that both accused persons were responsible in law for the death of the deceased resulting from an attack where both in the presence of each other and with intent to harm, were aiding and abetting each other in the attack but it could not be ascertained whose blow caused the death. In the earlier case of R v Hamme Manga (1970) No. 596 the court held that ‘’person present in a raiding party were aiding by their presence and in readiness to assist.’’
    
32. The circumstances of the present case are quite unique. The Kaklep families were the raiding or attacking party. All the accused persons are from the Kaklep family and they were all seen in the group of the raiding party. This party attacked the Kambiars and burnt their houses and in the course of the attack killed Chris Kambiar. I am of the strong view that the Kaklep family being the raiding party killed Chris Kambiar irrespective of who actually inflicted the fatal injuries causing his death. This follows therefore thatthe accused persons who were involved and who actively participated in the attack aided and acted in concert with the other Kaklep family members in the killing of Chris Kambier, and are covered within the meaning of Section 7 of the Criminal Code. The point is that the accused persons were not merely by standers or observers to the events which took place. They were in the group of the Kaklep family and were involved and actively participated in the raid and attack on the Kambiar family resulting in burning down of 8 houses and killing of Chris Kambiar.
    
33. Who could have killed Chris Kambiar. My answer is none other but the Kapleps alone, and the accused persons actively aided and abetted in his killing. They had the intention to kill him because it was the Kambiar family members who reported them to the police. This intention was manifested firstly by painting themselves in black and decorated themselves with leaves. Secondly they armed themselves with fighting shields made from pieces of tuffa tank, shot guns, knives, iron rod spears and wire catapults. Thirdly they beat garamut drums to which in many Papua New Guinea societies signal a declaration or start of a full scale tribal war. Fourth they raided the Kaklep family and burnt 8 houses belonging to them and in the course of the raid they killed Chris Kambiar. And lastly Chris Kambiar sustained deep and large open wounds to his chest and other parts of the body. He also sustained two wire catapult shots to his chest which were hard to remove so he was buried with these objects still in his body. All these in my view speak volumes of the greatness of intention they had, not only to kill members of the Kambiar family but to destroy their homes and properties as well.
    
34. I am therefore satisfied that the state has established all the elements of the offence of wilful murder. I am also satisfied that the state has satisfactorily pleaded the application of Section 7 of the Criminal Code which is applicable in this case. State therefore has made out its case beyond reasonable doubt.
    
35. Accordingly I find all of the four accused persons GUILTY of wilful murder of Chris Kambiar and are convicted forthwith.
    

Verdict Accordingly

________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused