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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR 1259 of 2016; CR 1691 of 2016; CR 1260 of 2016.
CR 1261 of 2016; CR 1690 of 2016; CR 1692 of 2016.
THE STATE
V
SAMUEL KROFUNG; FERDINAND FANOK; SAUL SELIN; WALTER MONEA; MOSES MONEA; MESHACH MONEA
(NO. 1)
Wewak: Geita J
2019: 11th, 12th, 13th, 14th June
2020:16th,17th, 18th,19th November
CRIMINAL LAW – Trial – Wilful Murder – Mob attack on the victim causing a cut under his armpit – Mob attack
on the victim as he lay wounded and helpless in the confines of his uncle’s house.
CRIMINAL LAW - Wilful Murder – Section 299 (1) Criminal Code – All elements successfully made out – Section 7 &
8 Criminal Code invoked and successfully made out.
CRIMINAL LAW – Verdict – Guilty verdict entered against all six accused - Wilful Murder – Section 299 (1) Criminal Code.
The accused each and severally were arraigned on indictment charging them each and severally with the wilful murder of the deceased
Lazarus Nur on 30 April 2016 at Berian village, Kairuru Island. The charge was laid pursuant to Section 299 (1) of the Criminal Code, Chapter Number 262. ss 7 (1) (a) (c) and 8 (a) (b) Criminal Code was also invoked.
Cases Cited:
David Kandakason v The State (1998) SC558
Counsel:
Theresa Aihi, for the State
Christopher Jaminan, for the Accused
JUDGMENT ON VERDICT
19th November, 2020
1. GEITA J: On arraignment all five accused pleaded not guilty to a charge of wilful murder, except accused Samuel Krofung who pleaded guilty. His case was stood down to a later date, whilst awaiting completion of the trial for the five accused who entered not guilty pleas.
2. The following sets of documents were received into evidence by consent. They are numbered as exhibits as follows:
Prosecution evidence – Witness 1 Becket Kmorai
3. He gave testimony of seeing Lazarus Nur injured with cuts under his right armpit between 5.00 pm and 6.00 pm on 30 April 2016. He saw some men chase him towards his uncle, Benjamin Tarom’s house. He said as Lazarus entered the house, Moses Monea who was at Kalberian village approached him. The men broke the door to the house and entered. He said Moses would not listen to him as he tried to stop him. He questioned the group of men and they replied Lazarus Nur. The witness said Moses Monea called out, “kilim em, I will go to court”. The witness said Moses joined the boys, broke the door and went into the house.
4. In examination in chief the witness said the deceased was his nephew and known to him well. He said he saw everything that happened that day as he was standing in front of Benjamin Tarom’s house. He saw Meshach, Ferdinand, Saul, Samuel and Walter clearly. They were under the influence of alcohol as they chased him from Yiwun village all the way to Berian village. He had some wounds on him at the time. As Lazarus ran towards his uncle’s house, he was calling out to his uncle to help him. He said as he stood downstairs next to the house with Lazarus now inside the house, the men assaulted him, broke the door to the house and entered using the veranda. He said they used sticks, stones and bush knife to break down the door.
5. As regards the identity of the accused, the witness described them in this manner: Samuel Krofung is related to me. He is my nephew. He comes from the neighbouring village of Yiwun, and I am from Gabin; Saul Selin is known to me. He is my nephew from Yiwun village; Walter Monea is also known to me. He is my “tubuna” grandson; Ferdinand Fanok and I come from Yiwun village. He is a student; Meshach Monea is from Yawik village. He will call me as “tumbuna”. grandfather Moses Monea is my nephew. He will call me uncle.
6. As to the lighting at the time of the incident, the witness said around 5.00 pm and 6.00pm there is still daylight hours although the sun was setting. There were some houses and during the incident all the community came and watched. He said he was sober and worried at the time and has lived in his village for 42 years before the death of Lazarus. He said he does not have any grudges against the accused persons.
Cross Examination
7. In cross examination the witness admitted that he did not see who cut the deceased under his armpit as that happened in another village. When questioned how he knew the deceased was cut under his armpit, the witness said as the deceased ran towards his uncle’s house, he saw blood from his arm. He said he was sitting under the house with Benjamin’s wife, his wife Nora and Kairo when they saw Lazarus running towards the house. He said as he ran towards the house, he called out to his uncle to help him. He could not say how Lazarus was stabbed. Cross examination continues:
Q. Did you and anyone of you try to help him get up to the house?
A. No. we tried to stop the crowd. We did not help him as we tried to stop the crowd pursuing him.
Q. What do you mean crowd?
A. I mean six people pursuing him with others from neighbouring villages and curious onlookers. Lazarus was wounded as he ran to the veranda of the house.
Q. Did you see what was happening inside the house?
A. No I did not see what was happening in the house.
Q. After Lazarus died, sometimes later you gave statement to the police?
A. Yes. As to suggestion whether his oral evidence given in court or his written statement ought to be believed due to inconsistence in the manner in which the deceased was assisted at his uncle’s house, the witness said the police statement was not true.
Q. Did you see who broke down door?
A. Moses Monea and the six of them broke the door. He was carrying a stick. All the while I was scared and wanted to run away.
Q. After incident, how did you give your statement to police.?
A. Upon investigation and call for witnesses I came forward and told police my story. I did not make a statement. Did not write a statement
8. On the day of the incident you were not there?
A. I was present.
8. Witness Becket Kimora’s statement was successfully tendered into evidence for the defence, now marked exhibit A.
9. In re-examination the witness described Benjamin’s house made of bush material with high posts and a place to sit under the house. The house had a ladder leading up to the veranda. The house had four bedrooms with a central corridor dividing the rooms, with two room on each side. Entry and exit into the house are by same way. As regards his statement given to police, (defence exhibit A) the witness said the CID officer typed it down and told me to sign. The CID however did not read the story back to me before I signed it.
Witness 2 Benjamin Pukaiwun. (Tarom)
10. The witness gave testimony as follows: On 30 April 2016 around 5.00 pm and 6.00 pm as I was in my house with my two brothers Abraham and Gideon Samai, I saw Lazarus Nur come running towards my house. He had a cut under his right armpit as he approached the house and called out for help. He told me that Saul cut him on his hand as he came up the steps and ran into the house. He said as the three of them were trying to stop his bleeding, he saw Walter Monea, Saul Selin and Samuel Krofung running after Lazarus. As they came close to the house, they threw stones and sticks and they heard Moses Monea calling out: “we stap Lazarus, boys move I will go to court”. He came up to the house, kicked the door twice. He hit the deceased many times causing him to collapse. He said in fear of his life he climbed up into the roof of the house. From there he saw Meshach, Saul, Samuel and Moses inside the house as they all kicked the deceased with sticks and Moses hitting him hard on all parts of his body. Moses hit him on the side of his head. I could not count the number of hits as he called out, “Uncle help me”. The witness said they left Lazarus and went down. Lazarus was dead and his heart was not pumping. He tried to resuscitate him but could not and realised that Lazarus had died.
11. In examination in chief the witness said he also saw Samuel, Saul, Meshach and Moses in the room. As they came into the house they were “bel hat” and aggressive and wanted to kill Lazarus. They used sticks. Moses was holding onto a grass knife and a meter-long bush knife. From the roof I could see through sago thatched wall. The witness identified all the accused with relative ease as they were all from the same locality and known to him one way or another as cousins, nephews, uncles etc. He described Samuel Krofung as his brother, saying that their fathers were cousins. All accused who entered the house were identified except Ferdinand Fanok did not enter the house.
Cross Examination
12. In cross examination the witness said he was sitting on the veranda when he saw Lazarus running towards the house. He was with his wife Carol and their children. Outside the house were Becket Kmorai, his wife Liom and Nora Sukrai. As Lazarus ran towards him, he ran straight into the house, and no one assisted him. He said he saw Moses Monea and Saul Selin run after Lazarus. When asked if he saw Moses Monea at the time, the witness said when the boys were running, he did not see him but after that he saw Moses Monea a few minutes later.
Q. When Lazarus Nur ran up to the house, did he say anything to you?
A. Yes, he said, “O uncle help me” and said Saul cut him with a knife.
Q. Did you make that statement to the Police?
A. Yes, I did but I cannot recall the date I gave statement to CID James.
Q. Events were fresh in your mind you gave the statement?
A. Yes.
Witness was shown his statement: Meshach Monea was recorded to be the one who stabbed Lazarus. In his oral testimony he said Saul cut Lazarus. When questioned which one of the two statements is correct the witness said he told police that Saul had cut the deceased and not Meshach. He said his statement was written down by CID and he just signed off without it being read back to him.
Q. I put to you that Moses Monea did not arrive at your house until after 7.00pm.?
A. He came when there was still light.
Q. I put to you that Moses Monea did not come to cause harm but to take Lazarus to Wewak?
A. No. Although Moses Monea owns a dinghy, he did not come to assist. Before he entered the house, he said, “Boys move, I will go to court” and he was aggressive.
Q. Moses Monea, Samuel Krofung, Saul Selin broke down door and went into the house?
A. Yes.
Q. They were never at the scene that time?
A. They were all at the crime scene.
Q. You assisted Moses Monea come into the house to see the body?
A. I did not assist him, he broke door and went in.
As to suggestions that his statement was not willingly given to police, the witness said his evidence was willingly and freely given to police. He said he does not hold any grudges against anyone of the six accused, including Moses Monea.
13. In re-examination the witness said he gave his statement to police on 2 May 2016 when they came to the village. That was a few days after Lazarus died. He said as I hid in the roof, I saw plenty of people standing outside the house. I saw Walter and Ferdinand calling out. They were in the crowd, standing some distance away. I do not have any grudges against both men. The witness restated that Lazarus had told him that Saul cut him. As for Ferdinand and Walter they were in the crown but did not do anything and they did not assist.
Note: Witness statement tendered into court despite objections. Court overruled and accepted statement. Now marked defence Exhibit 2 B.
Witness 3 - James Laro
14. The Investigations officer gave an account of visiting the crime scene since 2013 and collecting evidence from witnesses. The six accused were handed over to police as suspects by the community. He also conducted the record of interviews.
15. In cross examinations he denied suggestion that he had asked for monies from accused persons. As to suggestions during the conduct of record of interviews he request for K5000 or K600 for their case to be dropped, he said that was not true.
Witness 4 - Abraham Tapeiwun
16. The witness said he was at Benjamin’s house on 30 April 2016 with Gideon and getting their fishing gear ready. He said Lazarus came running towards the house and calling at the same time: “Uncle help, uncle help.” As he ran up the house, we opened the door, and he came in. As we attended to him Moses Monea came to Benjamin’s house and called out, “Lazarus we?” “Kilim em I will go to court,” as he came up into the house. The witness said he broke the door with a stick in his hand and went straight to where Lazarus was lying down. He went and threw stick at his neck as Lazarus called out uncle. He then came outside and went downstairs and ran away. All the while I was standing inside the house. He was the last person and so he ran away.
17. In examination in chief the witness said Lazarus was running away from Moses, Ferdinand, Saul, Meshach and Walter and they were all drunk. “spak”. They chased him from Yawin all the way to our village Berian. They were “bel hat”. They were all armed with stones, sticks. I was in Benjamin’s house at the time. Lazarus was lying in the living room. Moses broke the door, came in and hit him with a stick and ran away. He was the last man to leave the house. Other men in the house were Benjamin and Gideon.
Cross Examination
18. In cross examination the witness said he was at Benjamin’s house, and he saw Moses Monea use stick to hit deceased as he lay in Benjamin’s house. He said when the deceased approached the house, he said Saul cut him. When further asked if he was certain, the witness said the deceased called Saul, Samuel and Ferdinand’s name.
Q. At what point in time did he call these names? At the bottom of the steps or what?
A. Whilst inside the house he called out these names.
Q. After giving your statement to police, did you give your statement to anyone regarding the killing of Lazarus Nur.
A. No.
Q. Did you give your statement to any relative or to any of the accused?
A. No.
Q. Witness was shown Exhibit D- Handwritten statement dated 7 August 2017 to which he disputed the signature was not his.
Q. On day of statement your wife was a witness, and you gave that statement to the police.
A. Statement given to police did not happen that way.
Q. Your statement is saying that Moses Monea did not hit Lazarus Nur, what do you say?
A. I was threatened and made statement under duress. When threatened by Monea’s wife, I lied to her.
Q. What threats did Mrs Monea say?
A. “Police will take you to the station. Moses Monea will be president.” “You and your brother Benjamin will be prosecuted”. Told me police will come and get me on Wednesday.”
Q. You were scared?
A. Yes.
Q. Why did not you go and report to the police?
A. Because my wife was bleeding, and I was nursing her during that week.
Q. Your arresting officer was James, why didn’t you go and report to him?
A. I have no way to come and see him.
Q. I put to you that Moses Monea was not at Benjamin’s house when Lazarus Nur died?
A. He was there when Lazarus died.
Q. I put to you; you did not make statement to Police......?
A. I say sorry to court for lying to Mrs Monea.
Q. You told a lie to Mrs Monea, why should court believe your story?
A. My first story is true. Story given to Mrs Monea is not true.
19. In re-examination the witness said his first story about Benjamin’s house, given to court was true. He said Moses Monea was a big man in his community and is a clan chief.
Witness statement given to police dated 2 May 2016 tendered and accepted into court. No objections. Now marked Exhibit C.
Witness statement dated 7 August 2017 re. Mrs Monea tendered into court with objections. Basis. Witness says it is a lie. Accepted by court and Marked Exhibit D for defence.
Witness 5 – Dr. Raphael Malien
20. He confirmed carrying out the autopsy and preparing a report on the death of Lazarus Nur on 30 May 2016. (Exhibit 8 – Post-mortem Report). He attributed the cause of death to shock from loss of blood due to a cut under the right armpit, stating that something sharp caused a deep penetrating object. (Sharp iron, bush knife, axe), As regards bruises on the deceased’s left shoulder and back of neck, they are soft tissues and unlikely to cause the death of the deceased. He attributed possible causes to punching, beating with stick or by falling.
Cross Examination
21. When asked if Dr Moses Manwa was present during the autopsy, the witness said he cannot recall, apart from the morgue attendants.
Q. Three (3) state witnesses gave evidence saying that deceased died from severe beating on his head?
A. Loss of bleeding persons can die.
Court Question
22. Onset of death with that kind of wound?
A. Big cut so if he is not rushed to hospital quickly, he will die.
Q. On set of death with that kind of wound, instantly or after some period of time?
A. Unless it is a head attack yes, but it will take 1-2 hours for blood to come out and death.
Mr. Jaminan.
Q. 1 to 2 hours?
A. Individuals behave differently, some between 1-2 hours, some between 3 – 4 hours, lying on the ground.
State formally closed its case: Mr Jaminan for defence indicated calling eight (8) witnesses.
Défense Evidence 1– Accused Ferdinand Fanok
23. Married 36 years old with four children and comes from Yiwun village, Kairuru Island. He gave testimony that on 30 April 2016 he together with Patrick Monea, Fidelis Sio, Samuel Krofung, Saul Selin and Meshach Monea took their chain saw and went into the bush to cut timber. They returned to the village around 3.00pm and sat down to eat as Fidelis Sio and Patrick went home. After relieving himself at the beach he returned and stood with Alois Kaifoi and Kennedy Salin who were seated at Ayu’s veranda. He went to the canoe area and saw Karen Nur and Edrick Selin. He then returned to his house leaving Kennedy.
24. The witness said as he was sitting outside his house, Lazarus Nur armed with a 1-meter long bush knife approached him and questioned him if he had sworn at his sister Karen, to which he denied. Karen Nur also came and told him that Lesly heard him swore at Karen and told Karen about it. The witness asked that Lesly be questioned about the incident.
25. He said Lazarus left them and went to his in-law’s place at Munmieo, some 1-2 kms away. He went to sleep around 4.00pm and did not know what happened afterwards until his mother woke him up around 6.30 pm. He said his mother told him about the fight and how Lazarus had returned and cut their house to which Samuel retaliated and cut him with a spade causing him to run away and was now dead.
26. The witness said Lazarus’s people came to fight them and so he ran away to Braunek village. Whilst there police officer Dickson came and arrested him, Walter Monea and Meshach Monea and took them to St John auxiliary base on Sunday night and detained. They were later transported to Wewak Police Station in a dinghy by Justin Duemen.
27. One week later arresting officer James Laro took them into the CID office for interrogations. The witness said whilst waiting at the cell corridor James Laro demanded K5000 or K6000 in order for him to drop their case. He told the boys not to give any money to James as they were innocent and to wait for their court appearance. He returned to the cells after his record of interview was completed.
28. In examination in chief the witness denied any involvement with others in the death of Lazarus Nur and said he was asleep at the material time. When Lazarus’s family returned to fight them around 6.30 00pm and 7.00 pm he fled to Brunick village around 8 and 9 pm. He said before he fled, he did not see Samuel Krofung and others. He further denied being seen at Benjamin’s house, saying he was asleep in his house.
Cross Examination
29. In cross examination the witness admitted that he was closely related to the deceased and his sister Karen as they share a common grandparent. They were close cousins.
Q. Whilst at your house Lazarus Nur came and asked you?
A. Yes.
Q. Did Lazarus tell you kind of swear words used?
A. No only took a knife.
Q. When directed to Q & A 18 in his record of Interview regarding his admissions of use of those swear words: “ol boi husat umi drink istap na pilim kuap o kok tait, mama bilong Noria, Karen istap, olim em na Wasim bainat.” The witness said he used those words around 5 pm and 5.30 pm Lazarus died.
A. Yes, it’s true I made that tok.
Q. You did not deny tok?
A. No that is not true CID wrote it down, that is why I did not sign record of interview.
Q. When referred to Q&A 44 ROI about making the statement at his own free will, the witness disputed the correctness of that recording saying that the CID put that in.
Q. I put to you that because of Q&A 18 in your record of interview, swearing words at Karen, Lazarus was upset?
A. No I did not swear at Karen Nur.
The witness maintained that he went to sleep at 4.00pm that day and did not know what happened afterwards. He said his biological brother got cross and cut Lazarus with a spade. He also denied being seen at Benjamin’s house and denied chasing the deceased, adding that he was asleep and totally innocent.
Q. You were involved, that is why you ran away from your village to another village?
A. No, I was scared of Lazarus’s relatives and ran away. I am innocent.
Q. But you are family, why would they fight you?
A. Yes, they called out to me and said Samuel cut Lazarus, so I got scared and ran away.
Defence Evidence 2 – Accused Meshach Monea
30. Married, 26 years with one child from Yawik village, Kairuru Island. He testified that on 30 April 2016 he went to Sinagru bush to cut timber in the morning. He was accompanied by Ferdinand Fanok, Samuel Krofung, Saul Salin, Fidelis Sio and Patrick Monea. They returned to the village around 2.00pm and he went to his house at Yawik leaving the boys behind. He then went to attend a mining meeting at Berian village. After the meeting he went to Samuel Krofung’s house and had some food. Lucy Krofung was also at home. From there he saw Lazarus Nur and his brother Daren Nur approach the house.
31. The witness said as both men were approaching the house, they saw Saul Selin who was sitting with them and said, “So it’s your father who poisoned me causing me to sleep at home for one month.” Lazarus saw Elijah Kalim came from the beach and hit him with a 2-meter long bamboo stick on his back, causing it to break and both men fought. Elijah is related to Lazarus. He said he was sitting about 15 meters away and saw Elijah hit Lazarus on his neck.
32. The witness said he saw Lazarus swing a 1-meter long bush knife at Saul Selin who was standing in front of him. Saul Selin ran away in fear to the back Samuel Krofung’s mothers’ house. He said he called out to Lazarus to stop and for them to return to their village at Yiwun but he kept on swinging the knife at Samuel Krofung. The accused said as Samuel Krofung used a banana spade to block Lazarus’s bush knife, his arm landed on the spade. That was about 5.30 pm.
33. After that Lazarus ran away to Yawik community and slept at Benjamin’s house as I returned to my house at Yiwun village. During the fighting Lucy Krofung was at her house at Yiwun. I did not help Lazarus Nur. From my house I could not see Benjamin’s house.
34. The witness said as he was in his house the community came to fight them with weapons and so he got scared and fled to Yawik at night. He could not tell what time it was. The witness denied being seeing chasing Lazarus to Benjamin’s house.
35. The witness said the next day he came out from bushes at Braunek village and all was quiet. He came and met up with Saul Selin and Walter. He said Dickson Monokoi took them to St John’s Police Base and left them with Justin at Kairuru Island.
36. The witness said during their interviews at Wewak Police Station James Laro asked for K5000 to K6000 in order for him to dismiss their case. After they had discussed the request amongst themselves, they refused to pay him saying they were innocent as none of them committed the crime. He said he was not drunk and was not involved in the killing of Lazarus Nur.
Cross Examination
37. When the witness was pointed to his Q&A in his record of interview regarding Samuel hitting Lazarus with a canoe paddle, he said he told the Arresting Officer that a spade was used but not a paddle. When put to the witness that his statement was read back to him before signing, he said, yes, he read his statement. NB: Police officer was in court, but he was not questioned about this story.
Q. I put to you that your story told to court is of recent invention?
A. That is not true. He said Lucy and Samuel Krofung and Saul were there. Walter, Ferdinand and Moses were not there. He said Lazarus was cut and so he ran to his uncle’s house.
Q. I put to you that you knew because you chased him?
A. Not true.
Q. You knew injury and bleeding was big and loosing blood?
A. No.
Q. You saw him cut and you told court?
A. Yes, I saw spade under his arm, but I did not see cut.
Q. But he is your cousin, why didn’t you help him?
A. I tried to stop him, but he refused.
Q. Did you bother to tell his friends that he may get hurt?
A. I wanted to tell them, but they came in a big group to fight us.
Q. Before that, you did not tell his friends?
A. I was scared and did not.
Q. I suggest to you that you were involved in fight with Saul Selin, Samuel Krofung, Ferdinand Fanok, Walter Monea and Meshach Monea?
A. That is not true.
Q. That is why you ran away and did not tell his family?
A. Yes, I got scared and ran away.
Q. But you did nothing so why would you be scared?
A. Because they came in a big group and so I got scared and ran away.
Q. You were involved so they came to your house?
A. Not true.
Q. You ran away to another village with two accused and policemen came and took you to St, Johns?
A. Yes.
Q. First contact with the law. First opportunity to tell policemen to plead your innocence.
A. We told them, but they said for our safety we must go to the police cells.
Q. I suggest to you that on 30 April 2016 the six of you all assaulted Lazarus Nur?
A. That is not true.
Q. He suffered a lifelong injury?
A. That is not true.
Q. You intended to cause his death?
A. That is not true.
Defence Evidence 3 – Accused Saul Selin
38. Single, 19 years from Yawik village, Kairuru Island. He testified that on 30 April 2016 he went to Sinagru bush to split timber in the morning. He was accompanied by Ferdinand Fanok, Samuel Krofung, Fidelis Sio and Patrick Monea. They returned to Samuel Krofung’s house around 3.00pm and Meshach Monea left them. The five of them went to the creek to wash and returned to Samuel Krofung’s house to eat some food prepared by Samuels’s mother. After eating all the boys went to their houses
39. The witness remained with Samuel at his house. Meshack Monea returned and joined them and was given a plate of food to eat by Lucy.
40. As they sat in the house, they heard Lazarus Nur and his brother come shouting at them, so they came outside the house. He said as Lazarus saw him, he accused his father of poisoning him.
41. The witness said Elijah Kalim took a bamboo and hit Lazarus on his neck and so he chased Elijah with a bush knife, and he ran away. So, he turned to me and I ran to the back of Samuel Krofung’s house and stood at a small hill. From there I saw him swing knife at Samuel. He swung 1st, 2nd and 3rd time so Samuel took a spade to block his bush knife attack. In the process the spade cut Lazarus’s armpit and he called out: “Aiyo mama oh”, and he ran away.
42. The witness said as he returned to the house Lucy told Samuel that he was at fault now for cutting Lazarus. That was around 5.00pm. He said he returned to his house and between 6.30 pm and 7.00pm Lazarus Nur’s family came to fight with them. They called out my name, Meshach Monea, Samuel Krofung and Lucy Krofung.
43. He then ran away into the bush, took a short cut route and went to Braunik village and met up with Samuel Krofung. They paddled to Mushu Island and stayed with Councillor until Constable Justin Rewak took them to Wewak Police Station.
44. The witness said after one week their record of interviews were conducted. The arresting officer met them at the corridor and demanded K5000 – K6000 and told them that he will drop their case. They refused to come up with the money saying they were innocent, only one man caused the trouble.
Cross Examination
45. In cross examination the witness admitted seeing Lazarus and his brother come to Samuel’s house with anger, causing damage and making a loud noise.
Q. Do you know why they came to Samuel’s house and damaged property?
A. Yes father was accused of poisoning Lazarus. Samuel is my first cousin.
Q. I suggest to you that you were angry when Lazarus came and damaged Samuel’s house?
A. No.
Q. You were at Benjamin’s House at Berian at the time of the incident?
A. Yiwun and later ran to Berian.
Q. Reasons is you were chasing Lazarus?
A. No.
Q. How did Lazarus die?
A. Me and Meshach cut him.
Q. I suggest that is correct, you and Meshach cut him with a knife under his arm?
A. No.
Q. You cut him because he destroyed Samuel’s house?
A. No.
Q. During drinking home brew, what did you say about Karen?
A. Yes, to drinking and Ferdinand Fanok’s swearing.
Q. I suggest you were drinking alcohol?
A. No.
Q. The words used were very bad and provocative, agree?
A. No
Q. So it’s good that same words said to your sister is good?
A. No.
Q. When you were asked to tell your story in Q & A # 33, you said Meshach cut him? From your story you and five others fought with Lazarus on that day?
A. No.
Q. As regards the authenticity of the ROI in Q&A 40? Policemen gave you chance and time to hear it and understand it?
A. No I did not understand what was read back to me.
Q. I put to you that you gave evidence freely?
A. I was enticed to give my story. (grisim).
Q. I suggest that all your story given to court are of recent invention?
A. No.
Q. I suggest to you that Lazarus’s uncle Benjamin and relatives saw you at house chasing Lazarus?
A. No.
Q. I suggest to you that you and five others accused caused the death of Lazarus Nur.
A. No.
46. In re-examination the witness denied that his ROI was read back to him by the policemen. He also denied the policemen showing him his ROI. As regards not signing his ROI the witness said because he did not understand it as he could not read, therefore did not sign his statement.
Defence Evidence 4 – Accused Walter Monea
47. Single, 16 years from Kalberian village, Wewak. He said on 30 April 2016 he came into Wewak by dinghy to pick up President Pius Bukatab for a mining meeting. He was accompanied by Moses Monea and Solomon Bukatab. When the president arrived, it was late in the afternoon and so he said it was late to attend the meeting. They picked up four other passengers and returned to Sagur village at the back of Kairuru Island. From there they travelled to Wemarde village, got some sage and return to Kalberian village.
48. At Kalberian village Solomon took his bag and went to Yiwun village as Moses also went to his house. He remained behind to tidy up the boat and later carried the fuel container to the house. His aunt Monika Sugamud called out to Moses Monea and told him to help Uncle Lazarus as he has been cut and is in a critical condition at Benjamin’s house.
49. He said Moses Monea told him to leave the engine on the boat and to go take Lazarus for help. He said not long Moses Monea and Regina Monea went to Berian to collect Lazarus Nur to take to the hospital.
50. No long afterwards they returned, and Moses told him that his brother was dead and for him to remove the motor from the dinghy. He said he asked Regina and Moses who cut Lazarus, but they said they did not know.
51. The witness said as we sat on the veranda talking, a big crowd of people came out calling for Meshach: “kill them all and burn their houses”. They started cutting betel nut trees, sago palms and lights. He said me and my brothers and sister fled into the bush in fear and walked to Braunik village.
52. He said the next day he met Meshach and Ferdinand Fanok and they remained all day until Peace Officer Dickson Monokol took them with some leaders to St. John’s Auxiliary Base. From there Constable Justin took them to town police station.
53. After being kept at Wewak police cells we were interviewed, and our statement obtained. He said as they were at the corridor Arresting Officer James Laro called out to them and said: “O boys, wait if you give me K5000 or K6000 I will drop your case.” However, they said they will discuss first amongst themselves and come up with a decision, they all decided that not all of them caused the crime and therefore will not pay but rather go to court.
Cross Examination
54. In cross examination the witness said his parents walked over to Benjamin’s house to assist Lazarus. They returned and told him that Lazarus had died.
Q. I suggest you knew that Lazarus was dead that’s why you asked?
A. No.
Q. Lazarus’s family members came to your house, what do you say?
A. Yes, they came to fight. They called out and looked for Meshach.
Q. Benjamin and Abraham saw you at Benjamin’s house?
A. That’s, not true.
Q. You were armed with stones, sticks and bush knife?
A. Not true.
Q. You went into house when Benjamin saw you and your father hit Lazarus with a piece of stick?
Q. That’s not true.
Defence Evidence 5 – Accused Moses Monea
55. Married to Regina, 56 years from Kalberian village, Wewak and has 7 children including Meshach and Walter. He said on 30 April 2016 he went into Wewak around 7.45 am by dinghy to pick up President Pius Bukatab for a mining meeting. He was accompanied by Moses Monea and the president’s son Solomon Bukatab. Around 5.30 pm the president arrived and told them that it was too late to travel out and also, he needed to attend to some trouble at Hawain road. They then picked up four other passengers and returned to Sogar island around 6.30 pm. From Sogur they went to Waimarade village and arrived at 7.00 pm, got some sago and returned to Kalberian village around 7.15 00pm. As Solomon returned to his house at Yiwun, he told Walter to remove the engine. He then went to his house.
56. The witness said as he sat in his house with his wife Regina Monea, he heard his sister Monica Singawung approach him and told him to take Lazarus to hospital. Monica told him that Lazarus was injured at Yiwun and ran to Beria village and now sleeping at Benjamin’s house. He and his wife went to Benjamin’s house and saw Abraham in front of the house. Abraham told him that Lazarus was injured at Yuwin and came to Benjamin’s house
57. The witness said he asked which part of the house Lazarus was sleeping and was told that he was sleeping in the kitchen. He said he needed proof before he could take Lazarus to the hospital. He said he walked up the ladder to go into the house as it was a low post house. He said he opened the door, and saw Lazarus lying in a pool of blood, dead with the help of a torch light. He returned to the ground and told his wife that Lazarus was dead and so did not need their help.
58. The witness said as they returned to their house, he heard a large crowd approaching their house and shouting: Meshach we, Meshach we, he killed our man” The crowd came and destroyed out property, flowers, sago trees, betel nut tree etc. “kilim, burn their houses”. He said he and his wife and children, Tony, Merceles and another girl Salin fled into the bushes.
59. He said as he stood the crowd came and demanded for Meshach. He said they attacked him with a bush knife and so he ran towards the light. The witness said he saw two men attempting to get his boat, but he could not recognise them as it was dark. He said as he got to the boat, he saw Meshach Monea try to remove the motor from the boat but was shot on the left elbow by the crowd, Meshach ran to Berian village, took canoe and came to Mushu Island.
60. On Sunday morning ex councillor helped us and took us to Wewak Police Station. The witness said he reported to the duty officer but cannot remember his name.
61. The witness said they were interviewed and arrested after 1 week. He said as they were in the corridor, Laro called out: “Boys you wait for a while, if you give me K5000 or K6000 I will squash your case and have you released”. He said they discussed between themselves and decided against giving him the money, but rather go to court and clear their names.
62. In examination in chief the witness admitting pushing the door open with his hands in the presence of Abraham and his wife. He denied seeing Benjamin, Berket Painok and Saul Selin.
Cross Examination
63. Q. On 30 April 2016, when returning from Wewak to your house? I suggest that the time was 5.00 – 6.00pm?
A. Not true.
Q. By the time you arrived around 5.00pm – 6.00pm, there was a crown outside Benjamin’s house?
A. No.
Q. Because your house was close by you went to find out?
A. No.
Q. Upon finding out that two of your sons, Meshach and Walter were in a group (Saul Selin, Ferdinand Fanok) chasing Lazarus. Because of that Benjamin saw you acting in an aggressive manner.
A. That’s not true.
Q. You incited Meshach, Walter, Ferdinand Fanok, Saul and friends to go up ladder to look for Lazarus?
A. Not true.
Q. Berket who was standing next to the ladder saw you hit, and you were aggressive?
A. Not true.
Q. Abraham could hear your voice, banging on the door and you broke door?
A. Not true.
Q. They saw you assault Lazarus Nur and ran away?
A. Not true.
Q. Witness was shown photo of stick used to hit Lazarus. Exhibit 7 (1 e). I suggest that’s the stick that Benjamin saw you hit Lazarus.
A. No.
Q. Are you a community leader at Yuwik?
A. Yes.
Q. As a leader you can influence people to work in the village?
A. Yes. I tell people to live and stay peacefully.
Q. If young men cause trouble, you will report them to police, yes?
A. Yes
Q. When you found out that Lazarus did die, did you ask Benjamin what happened?
A. At that time I did not see Benjamin and at the same time I was scared and ran away?
Q. When you went into Benjamin’s house, did you talk to Benjamin?
A. Yes, I asked Abraham where Benjamin was?
Q. Did you try to find out who killed Lazarus?
A. I did not find out.
Q. I suggest to you that you and five (5) others killed Lazarus?
A. No
Q. You killed him by assaulting him with sticks, stones and bush knife. From the wounds received he died?
A. No.
Q. Did you see policemen at St. Johns on the Island?
A. No, because I was not on the island but came to Wewak Police Station?
64. In re-examination the witness admitted that in order to go to his house he must go past Benjamin’s house. He said it was dark and so he could not see.
Defence Evidence 6 – Witness Lucy Krofung (F.39 years from Yiwun village)
65. She gave testimony of seeing Ferdinand Fanok, Patrick Mokio, Meshach Monea, Samuel Krofung, Saul Selin and Frank Fediles Sio, going into Singpu bush around 8.00 am on 30 April2016 to cut timber, and returned home around 3.00pm the same afternoon. After washing Meshach Monea went to his village at Yawik. Ferdinand Fanok, Fidelis Sio, Samuel Krofung and Saul Selin returned to the house and were fed. Patrick Mokio and Fidelis Sio went to their houses.
She said Samuel Krofung and Saul Selin sat in the house with her. As she came onto her veranda, she saw Ferdinand Fanok sitting on his veranda and saw Lazarus Nur swinging a 1-meter-long bush knife at Ferdinand Fanok. The witness said Lazarus asked him what he had said to Karen to which he denied. Karen called out that Lesly had told them so. They both returned home to Yawik village, a distance of about 2 -3 kms away. The witness said she than returned home to Saul and Samuel Krofung.
The witness said as she sat on her veranda, she saw Lazarus and Daren Nur returned again from Yawik village to her house. Lazarus, now in front of her house called out and accused Saul of poisoning him, causing him to sleep away from home for a month. The witness said Lazarus called out to them that he will kill them and burn down their house and swung a bush knife at Meshach, causing him to run away.
The witness said Elijah Kalem came from the beach with a bamboo stick and hit Lazarus on his neck two times. Lazarus saw Saul Selin and swung knife at him causing him to run away to his house at a mountain. The witness said Lazarus saw Samuel Krofung and swung knife at him on two occasions forcing him to a corner of the house. Samuel Krofung swung spade to block off Lazarus swinging knife. She said because Lazarus was tall, the spade cut him, and Lazarus called out: “ai yo mama” and ran to Benjamin’s house bleeding. She said Samuel cut Lazarus with a spade at Yiwun village in front of their house between 6.00 pm and 6.30 pm.
66. In cross examination the witness admitted that all the accused including Lazarus Nu were related to her by birth or through extended cousins. She admitted in cross examination that Saul Salin was amongst those persons seen in front of her house. She however denied seeing Saul and Meshach Monea cut Lazarus with a bush knife. Cross examination continue:
Q. When police charged these men, why didn’t you go to the police and tell police your story?
A. They did not call me to get my story.
Q. You were worried about them?
A. Yes.
Q. Did you go to Police Station to give your story?
A. No. I was scared and stayed in the village.
Q. I suggest to you that your story is of recent invention?
A. No.
Q. Did you go and visit them?
A. Yes, I talked to them but did not talk about this case.
Q. You observed what happened at your place?
A. Yes.
Q. You don’t know what happened at Yawik?
A. Yes.
Defence Evidence 7 – Witness Monica Singamul (F.49 years)
67. The witness gave testimony of approaching Moses Monea at their home at Berian village and asked for his assistance to help Lazarus Nur to the hospital around 6. 30 pm. She said as her and her son Walter Money took petrol to the boat and to wait for Moses to return. However, Moses returned and told them that Lazarus was dead. She said at the same time fight broke out. She said Moses Monea was his biological brother.
68. The witness denied in cross examination of visiting his brother in goal and discussing her evidence. She denied all knowledge of her brothers’ involvement in the death of Lazarus Nur. She admitted that Lazarus Nur’s family coming to fight them after the death of Lazarus. She said she visited Moses for help around 7.00pm and the big fight happened around 7.15 00 pm.
Defence Evidence 8 – Witness Regina Monea (F.54 years, Yawik village)
69. The witness is married to accused Moses Monea and the mother of Meshach and Walter Monea. She knows all accused by name and refers to them as her sons etc. She testified that on Saturday 30 April 2016, at 8 am Moses Monea, Walter Monea and Solomon Bukata travel by boat to Wewak. She said they left Wewak around 5. 30 00 pm and travelled to Keimu Island to a village called Sabuil to drop off some passengers. They turned into her small village at Wamerek at Braunek community. She said around 7.15 00 pm they arrived at Kalberian village. Moses Monea got off the boat and returned to his house. Whilst at the house Monica Singamul came and told him to go to Benjamin’s house. She said Pokaiwin Albert had told her that Lazarus was cut and lay injured at Benjamin’s house. The witness said her and Moses took their torch and went to Benjamin’s house. She said Moses told Monica and Walter to get the boat ready and wait.
She said as they got to Benjamin’s house, Moses climbed into the house and saw Lazarus lay in a pool of blood. Moses came down from the house and told her that it was too late for any help and so they returned to their place at Kalberian village. At the same time families came to attack them and they ran away. She said her and Moses visited Benjamin’s house around 7.15 00pm. At that time, she said she did not see Abraham or Berket Kmorai.
70. In cross examination the witness denied suggestions that her husband and son had arrived at home when the fight started. She also denied suggestions that she discussed her evidence with her husband. She also denied suggestion that she discussed her evidence with Monica. Cross examination continue:
Q. When police went to your village and took your husband and sons, why didn’t you tell police that your husband and sons were not involved?
A. I was at police station on 30 April 2016 and spoke to police but they refused to take my statement.
Q. Is Lazarus related to you?
A. Yes, he is my husband’s nephew.
Q. Do you know who cut Lazarus?
A. No.
Q. Did Lazarus come to fight you?
A. No.
Q. After Lazarus death did, they come to fight you?
A. No.
Q. So from that day until now, no dispute between you and Lazarus family?
A. Yes
Q. I suggest to you that your sons, your nephew caused Lazarus Nur’s death?
A. No.
Defence close case- No more witnesses.
Submissions – Defence & Prosecution
71. Counsel of defence Mr Jaminan submits that Prosecution oral and documentary evidence were inconsistent on identification, therefore not credible and not to be relied upon. He submits for a not guilty finding for all accused.
72. Counsel of Prosecution Ms. Aihi submits that the Court accept the State’s evidence on the identity of the accused. She submits that the requirements of s. 7 of the Criminal Code were successfully met in that the accused aided and abetted each other in the commission of the office. She submits that pursuant to s. 539 (1) if the elements of intention to cause death not made out, an alternative count of murder under s. 300 (1) be considered.
Issues raised by the Evidence
73. Involvement. - Swearing at Samuel Krofung’s house?
74. Inferentially therefore that the accused who used the foul language within the hearing of other accused was Ferdinand Fanok
75. Where the accused (boys) drinking homebrew that day?
76. Inferentially therefore I find that all the accused were drinking together when Ferdinand Fanok uttered those foul language.
78. However, none of those detailed visits and stops in between villages were given to police in Moses Monea’s record of interview. Neither were those precise timings of departure from home, arrival at home and stops in between recorded in his record of interview. Similarly, Regina Monea’s statement was not given to police during their investigation, thereby casting doubt on its currency and credibility. All fingers pointing to her evidence being of recent invention. No independent witnesses were called to corroborate their absence from Wewak on that day. From their respective testimonies two possible alibi witnesses were named: Solomon Bukatab and his father President Pius Bukatab. None of these witnesses were called by defence.
79. Inferentially therefore their evidence found wanting credibility and unreliable. I did not find them to be truthful witnesses. I am satisfied that Walter Moneo and his father Moses Moneo did not travel to Wewak that day.
80. Was Walter Monea among the other accused that day?
Saul Selin admitted in his record of interview that Walter Monea was also drinking homebrew with Ferdinand Fanok, Meshach Monea, and himself, when he heard Ferdinand uttered the swear words. These lines of evidence immediately throws out Walter’s defence that he accompanied his father Moses Monea travel into town (Wewak) that day. Similarly, Moses Monea’s defence of being away in town must also fail. In the absence of independent witnesses to verify their story of being away in town not believable. I therefore find that Walter Monea did not go into town but was amongst the group of boys who assaulted Lazarus Nur. His father Moses Monea, likewise, although not present at Samuel Krofung’s house did not leave the island but was at his Kalberian village on that day. Furthermore, Moses Monea’s testimony of his son Meshach Monea being shot on his left elbow by the crowd as he attempted to remove the motor from the boat that night, did not find corroboration with his son’s testimony.
81. Nothing of that sort was recorded in Meshach’s record of interview or his testimony in court, thus casting doubts on his father’s credibility. Monica Sangamul evidence of being told by Moses Monea to help Walter Monea failed to find corroboration with accused Moses and Walter’s evidence. To my mind this piece of evidence remains suspicious and could easily amount to be of recent invention.
82. Inferentially therefore I find that Walter Monea was amongst other accused that day.
83. Is there evidence to show that the same group of men assaulted and chased Lazarus Nur from Yiwun village to Benjamin’s house at Berian village?
84. Inferentially therefore I find that all accused chased Lazarus Nur all the way to Benjamin’s house and further assaulted him, which resulted in his death from wounds he received.
85. As to what part each accused played in assaulting Lazarus as he lay wounded inside Benjamin’s house?
86. I am therefore satisfied and find that they all took part in assaulting Lazarus, causing him to die from the wounds he received. Ferdinand and Walter are freed from any involvement in assaulting the victim inside Benjamin’s house.
87. Allegations of Bribery against Investigation Officer James Laro?
All accused gave evidence on allegations of bribery by James Laro with a promise that all charges would be dropped if he was paid between K5000 to K6000. James Laro was said to have asked for the money after they were all interviewed and were waiting around at the Police Station corridor. James Laro has denied all the allegations in cross examination. None of those allegations found their way into their respective records of interviews. They all refused to sign their statements, however, willingly gave their statements to police. Is it therefore possible that when they all refused to give the bribe money to James Laro, he finalised their record of interviews with eventual laying of charges? Saul Selin said he could not read and so the interview was suspended for the interviewer to read back to him; As for Meshach Monea the interview was suspended to allow him to read his statement; As for Samuel Krofung he said there were too many questions and he does not want to read for himself; As for Walter Monea the interview was suspended to allow him read through his statement; As for Moses Monea the interview was suspended to allow him to read through his statement.
88. In light of every opportunity given to all accused to canvass the correctness of their respective record of interviews I fail to understand how none of them protested when their allegation of bribery was not recorded. Or better still immediately register the allegations of bribery to James Laro’s superior officers to attend too immediately. There is no evidence that, that cause of action was taken or their Lawyer immediately notified of the bribery allegation. None of those things happened.
89. Inferentially therefore I am not satisfied that the allegations of bribery was ever made. I consider it to be of recent invention, concocted and therefore not believable.
90. Who amongst the accused caused the armpit injury on Lazarus Nur?
Ferdinand Fanok said Lazarus and his sister Karen Nur approached him and questioned him if had sworn at Karen to which he denied. He said Lazarus and his sister then left for his in-law’s place at Munmieo.
Meshach Monea said Lazarus and his brother Daren Nur came to Samuel’s houses, saw Saul Selin and blamed his father for poisoning Lazarus. He said at that time Elijah Kalim approached from the beach side and hit Lazarus on his back with a two-meter bamboo stick, causing it to break. He said Lazarus swung the bush knife at Saul Selin, causing him to run and take cover behind Samuel’s house. He said Lazarus kept wielding the bush knife at Samuel Krofung on three occasions. As Samuel attempted to block the bush knife with a spade, the victim’s arm landed on the spade. The victim then ran away.
Saul Selin said as he was in his house Lazarus and his brother came shouting and accused his father of poisoning him. He saw Elijah Kalim hit Lazarus Nur with a bamboo stick on his neck. As Elijah ran away, Lazarus turned his attention towards him causing him to run away also. He said he stood at a small hill behind Samuel’s house and observed what was happening. He said he saw Lazarus swing his knife three (3) times at Samuel so Samuel took a spade to block the knife. In the process the spade cut Lazarus under his armpit, causing him to run away. Walter Monea and his father Moses Monea said they were in town, Wewak at the material time.
91. Prosecution witness Berket Kmorai said he does not know who cut Lazarus as it happened in another village. Benjamin Pukaiwun said whilst sitting under his house he saw Lazarus Nur running towards the house, wounded. Benjamin said Lazarus Nur told him that Saul Selin had cut him on his hands. NB: In an earlier statement given to police he said Meshach Monea stabbed Lazarus Nur. However, in his oral evidence he said Saul Selin cut Lazarus. When questioned in cross examination he maintained that Saul cut Lazarus and not Meshach Monea.
Abraham Tapeiwun said as he sat with Benjamin at his house, he saw Lazarus Nur running towards the house. In cross examination he said Saul Selin cut him, however when further questioned he said Lazarus called out Saul Selin, Samuel Krofung and Ferdinand Fanok. As regards Moses Monea’s involvement, he said the story given to Mrs Monea was taken by coercion. Moses Monea’s wife had threaten him to make that statement recusing Moses Monea from the crime scene.
Defence witness Lucy Krofung said Samuel Krofung was forced to a corner by Lazarus’s swinging bush knife on two occasions. Samuel Krofung tried to block of the swinging knife by raising a spade, which cut Lazarus. Her version of events failed to find corroboration with Samuel Krofung’s evidence in his record of interview. Samuel Krofung said as he was in his house Lazarus Nur came and swung knife at Ferdinand Fanok. He said he does not know the reason why. As Lazarus Nur went for him, he threw a canoe paddle at him and ran away. He said Meshach Monea, Saul Selin and Ferdinand Fanok were present at the time of the argument and fighting with Lazarus Nur, when he was injured, causing him to run to Benjamin’s house and died. When Saul Selin was asked in cross examination as to how Lazarus died, he said he and Meshach cut him
92. The upshot of the detailed and elaborate oral evidence given by Meshach Monea, Saul Selin and Ferdinand Fanok all point towards Samuel Krofung as the alleged perpetrator. Not surprisingly however, none of their detailed and elaborate evidence of the fight with Lazarus Nur found their way into their respective record of interviews. Here was their opportunity to register their innocence and non-involvement in telling the whole world how Lazarus Nur received the armpit injury. Human tendency is such that one’s non-involvement in serious crimes is immediately registered at every available opportunity, lest you be blamed or accused. Instead, they remained evasive and were very casual with their answers during their interviews: “That is not true; I was sleeping, and I do not know; I will remain silent”. Ironically, Samuel Krofung was aged 15 years and happens to be the youngest amongst them. They were all grown up and adults with exception of Walter Moneo who was aged 16 years. For them to place the young boy in the middle of the fight, thereby distancing themselves hard to fathom and highly unlikely. Samuel Krofung said in his record of interview that he threw a canoe paddle at Lazarus Nur and ran away leaving the men behind. His evidence of the “paddle story” finds corroboration in point in Meshach Monea’s record of interview. To my mind his evidence appears more credible. Any young boy finding himself in a hostile environment will in most cases flee from impending danger. That is what he did, and I find him to be a truthful witness. His evidence finds corroboration with prosecution witness evidence wherein Lazarus was heard to name Saul Selin as his assailant. “Saul cutting him”. I am not convinced that Saul Selin was a witness of truth and find his evidence not credible. Nor do I believe the evidence of Meshach Monea and Ferdinand Fanok.
93. Therefore, I do not consider them to be witnesses of truth and do not find their evidence to be credible. Inferentially I am satisfied that Saul Selin and Meshach Monea were responsible for the wounds received by Lazarus Nur in front of Samuel Krofung’s house.
94. All accused persons ending up at Braunik- Coincidence?
According to evidence from the accused they fled in different directions that night independently and ended up at Braunik. Coincidence? That’s quite possible but to suggest that they escaped independently and ended up at one location, highly suspicious. Was there no other place they could run and hide on the island? Their collective evidence of escaping and going their separate ways that night but all ending up at Braunik too good to be true. I am not convinced that this was not their good fortune and coincidence. I am more inclined to think that they were all together in the fight that evening one way or another and they all fled the scene at the same time when the victim’s relative mobilised in retaliation of his death that evening. Their respective testimonies of fleeing separately and ending up at Braunik unreliable and not credible.
95. Inferentially therefore the accused escape to Braunik and eventually meeting each other was not by coincidence. They all escaped together when confronted by the victims’ relatives.
96. Prior inconsistent statements – its implication on the weight of evidence?
Section 23 Evidence Act. Cross-examination as to previous statements.
(1) A witness may be cross-examined as to previous statements made by him in writing or reduced to writing relating to the subject matter of the proceedings without the writing being shown to him, but if it is intended to contradict the witness by the writing his attention shall, before the contradictory proof is given, be called to those parts of the writing that are to be used for the purpose of contradicting him.
(2) The court may at any time during the proceedings require the writing to be produced for its inspection and may make such use of the writing for the purposes of the proceedings as it thinks fit.
97. As to defence exhibit “A” prosecution witness Berket Kmorai said the victim was not assisted into the house as opposed to him being assisted by his uncle, hence the inconsistency. This inconsistency to my mind is not crucial to the allegation. I see this as defence nit picking to discredit the witness. As to defence exhibit “B” Prosecution witness Benjamin Pukaiwun said as the victim came running to his house, he told him that Meshach Monea cut him with a knife. The witness was quoting the victims utterances. They were not his words. His evidence is consistent as in cross examination in that he said Saul cut Lazarus. I see no inconsistency and see this as an attempt by defence to nit-pick prosecution evidence. The inconsistency alleged in the witness peeping through a hole in the walls to see people as opposed to using the window, again preposterous. Another example to defence nit picking with no utility.
98. As to defence exhibit “D” prosecution witness Abraham Tepewum disputed the authenticity of his signature affixed on a prior statement he supposedly made distancing Moses Monea from assaulting the victim in the house. His testimony in court places Monea as the ringleader who broke down the door and encouraged others to assault the victim inside the house, hence the inconsistency. Going by the principle of prior inconsistent statement expounded in the Supreme Court case of David Kandakason v The State [1998] SC 558 and later adopted in David Kandakason v The State [1998] SC 558 Abraham’s two statements would now be rendered unreliable evidence and discredited. The writing has been produced before me for my inspection: At the outset, the witness has disputed the authenticity of his signature; The writing was dated 7 August 2017, one year after police record of interviews were conducted on accused persons in 2016 and eventual trial in 2019, some two years later; Moses Moneo’s wife Regina and the witness’s wife Joyce, signed as witnesses. Having had the opportunity of inspecting the prior inconsistent writing I am of the view that it should not be introduced as evidence of the truth of the writing as it was not given in live testimony and under oath. (Section 23 (2) Evidence Act.)
Common sense and Logic
99. For the moment Lucy Krofung’s testimony is centred around events that unfolded in front of her house at Yiwun village. For its worth she places her brother Samuel Krofung, Saul Selin, Ferdinand Fanok and Meshach Moneo at the scene of the first fight when Lazarus Nur and his brother Daren Nur came to her house. She gave detailed accounts of seeing Lazarus Nur attacking Ferdinand Fanok, Samuel Krofung, Meshach Moneo and Saul Selin with his bush knife. She also gave detailed accounts of Lazarus threatening to kill them and to burn their house, including the account of Elijah Kalem hitting Lazarus with a bamboo stick twice on his neck. Unfortunately, none of these crucial evidences found their way into statements collected by police. Her testimony of seeing Lazarus Nur swinging his 1-meter-long bush knife at Ferdinand Fanok did not find corroboration with Ferdinand’s evidence. Ferdinand never mentioned the event of the swinging knife by Lazarus. Her brother and all the accused were related to her by birth or through extended cousins. They were apprehended and eventually charged for the death of Lazarus Nur.
100. Now common sense and logic dictates that she of all people would willingly come forward and give her statement to the police in defence of her brother and all accused charged with a very serious crime. When questioned why she did not tell police her story, she said she was scared, and she was not called upon to tell her story. Although she maintained that she did not discuss her evidence with the accused, her detailed recollection of events she claimed to have seen clearly mirrored in accused Saul Selin, Samuel Fanok and Meshach’s evidence, a manifestation of evidence which are highly fabricated and of recent invention. In her desperation to convince court to believe her story she said Lazarus Nur came to her house on two different occasions, whereas Saul Selin, Samuel Krofung and Meshach only spoke about the one visit which resulted in the fighting. Again, a case of whose version to believe and glaring inconsistency amounting to evidence recently invented.
101. As for witness Monica Sungamul, her evidence in the main was hearsay. In any event her testimony was riddled with inconsistencies and failed to find corroboration with Moses Moneo and Walter Moneo’s evidence. Walter Moneo makes no mention of Monica assisting him carrying petrol to the boat to wait for Moses Moneo. I was not impressed with her evidence and do not consider her to be a witness of truth. She was out to see that her brother and his children freed from this allegation.
102. Witness Regina Monea’s evidence of her husband and son Walter travelling to Wewak at 8.00 am in the morning on 30 April 2016 and returning home at exactly 7.15 pm that evening, mirroring Moses Monea evidence. Her evidence of her husband and son departing Wewak and exactly 5.30 pm, too good to be true. These were events and happening not within her knowledge as she was not with them, yet she was able to give detailed departure times, arrival times. In the main her evidence was mostly hearsay and therefore not credible. Her evidence of Moses telling Monica to get the boat ready and to wait for them failed to find corroboration with Walter and Moses’s version of events. In any event her evidence was thrown out of the window by Saul Selin’s evidence in his record of interview wherein he said Walter Monea was drinking with them at the time. Inferentially therefore I did not consider her to be a witness of truth.
The relevant laws
103. Section 299 Criminal Code Act creates the offence of wilful murder and it is in the following terms:
S. 299 (1) 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.”
Elements of the Offence:
1. A person
2. Who unlawfully kills another person
3. Intending to cause his death.
104. Findings
105. Due to the foregoing reasons, I find beyond reasonable doubt that the prosecution has successfully made out all the elements of the charge of Wilful Murder under s. 299 (1) Criminal Code Act against all accused.
106. The relevant laws
7. Principal Offenders.
(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) ...;
(c) every person who aids another person in committing the offence;
as if he had done the act or made the omission and may be charged with himself doing the act or making the omission.
8. Offences committed in prosecution of common purpose.
Where–
(a) two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another; and
(b) in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the
prosecution of the purpose,
each of them shall be deemed to have committed the offence
107. Findings
108. This court is therefore satisfied that they each and severally aided and abetted each other and had a common purpose in causing the death of the deceased. I find them to be held criminally liable by operation of s.7 (1) (a) (c) Criminal Code.
109. Furthermore, this court is satisfied that they formed a common intention to harm the accused which resulted in his death. By operation of s.8 (a) (b) Criminal Code they are each and severally held criminally liable for the death of Lazarus Nur.
Verdict
110. Accordingly, I return a verdict of guilty against the five (5) of you and have you convicted.
| 1. Samuel Krofung | |
| 2. Saul Selin | Guilty |
| 3. Walter Monea | Guilty |
| 4. Moses Monea | Guilty |
| 5.Ferdinand Fanok | Guilty |
| 6.Meshach Monea | Guilty |
111. Immediately following the finding of guilty verdicts against the five accused, Samuel Krofung was arraigned again to which he pleaded guilty to the wilful murder indictment. The facts as agreed by the prosecution and defence on the depositions for the guilty plea are similar to those contained in the trial. Having satisfied myself upon reading the depositions that the evidence does support the charge, I found the accused guilty.
112. No prior convictions were recorded against his name. During allocutus the accused apologised to court and to the family of the deceased. He said five houses and other property were destroyed by the deceased’s relatives. He pleaded for a short sentence and to be put on probation.
113. His pre-sentence report and submissions on sentence are included in the body of the judgment.
114. A guilty verdict entered for Samuel Krofung.
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Public Prosecutor: Lawyer for the State
Jaminan Lawyers: Lawyer for the Accused
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URL: http://www.paclii.org/pg/cases/PGNC/2020/489.html