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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR 545 OF 2021, 1140, 1141, 1139 OF 2020
THE STATE
v
DANIEL SIOBA, ADAM DANIEL, DODI DANIEL & KOREKIO DANIEL
Madang: Geita J
2021: 17th February; 17th & 24th June, 15th July; 17th November
2022: 7th & 8th February; 4th & 29th April; 1st, 3rd & 18th August
CRIMINAL LAW – Trial – Wilful Murder – identification evidence – good and reliable - alibi evidence –
riddled with contradictions lacking corroboration – lending support to prosecution evidence.
CRIMINAL LAW – Trial - Wilful Murder – Section 299 (1) Criminal Code – All elements successfully made out -
CRIMINAL LAW – Trial – Wilful Murder Section 7 & 8 Criminal Code invoked and successfully made out – Guilty verdict returned.
The accused each and severally were arraigned on indictment charging them each and severally with the wilful murder of Jethro Agulim
on 10 March 2020 at Erima village, Rai Coast, Madang. 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:
John Jaminan v The State (No.2) [1983] PNGLR 318
Jimmy Ono v The State [2002] SC698
John Beng v The State [1977] PNGLR 115
State v Okata Talangahin (No.1) [2004] N2581
Counsel:
Deborah Ambuk, for the State.
Delailah Ephraim/Noel Loloma, for the Accused.
JUDGMENT ON VERDICT
18th August, 2022
1. GEITA J: On arraignment all four accused pleaded not guilty to a charge of wilful murder.
2. The total of thirteen sets of documents were received into evidence by consent. They include accused records of interview in both Pidgin and English. They all elected to remain silent. The Investigating Officer, the Corroborating Officer’s statements, and Post-mortem Report formed part of the exhibits. Oral testimonies were also obtained.
Prosecution Evidence – Witness 1 - Albert Dabi.
3. He gave testimony of hearing father, Daniel Sioba telling his sons to go and kill as soon as her deceased wife’s body was retrieved from the beach around 3.30pm on 10 March 2020. His eldest son Adam and Korekio then ran towards the deceased’s place. Adam was armed with an axe and a knife carried on his side. Korekio was armed with a tramontina bushknife. As they ran towards the house, I followed but withdrew as I was scared. As they returned to the beach I went into hiding. Their tools were stained with blood. Adam carried an axe and Korekio carried a bush knife.
4. In examination in chief the witness said all the accused were known to him as they all live in the same village. He said at that time there were other people but their numbers had thinned as it was late mid-afternoon, but the three boys led the group. I was standing at a distance of about three meters away from the bed when I heard father urged his sons to go and fight.
Cross Examination
5. In cross examination the witness denied discussing his evidence with other State witnesses. He said he was at the crime scene on that day and saw everything that happened. Although the witness identified the accused, he had difficulty identifying other boys in the group that went with the accused. When asked how he knew when Jethro was killed, he said, the deceased’s family members came after the attack and told them about the incident.
The witness denied suggestions that he was not at the crime scene. When suggested to him that Korikio was not present that day, as he had gone to Erima Primary School, the witness said I saw him ran past him. He said Korekio was present at the time the body was found by Adam who alerted his father who carried the body to the beach. As to suggestions that a group of men went ahead and attacked the victim and the three boys followed later, the witness said no group of men went ahead but only the three boys. Again, when suggested to the witness that the three accused and their father remained behind and attended to their mother, when the group of men went ahead and attacked. The witness maintained that no other group of men went ahead. He said when mother’s body was found father (Daniel Sioba) told his boys to go and kill.
Witness 2 - Walter Doba.
6. The witness gave testimony as follows: I was in town when I got a call from father about mother. I came at 3.30 pm when Adam found the body which was moved. So, Adam led the group and ran up. I saw him with an axe. We ran together towards Jethro’s house as Adam went inside the house and hit him two times with his bush knife. He jumped out and they were attacking him as I stood by. They went away some twenty meters away, but I did not see what happened. After they did what they did I went up and fixed the body and informed the Councillor I then went to my house as I was scared. He said Daniel Sioba and his father were cousins. He said Adam led the boys, but I don’t know them. The witness said at Jethro’s house daddy hit him with a knife. Adam went into the house and hit Jethro. The witness identified accused Daniel Soiba and Adam in court. He referred to him in court as father.
Cross Examination.
7. In cross examination the witness said he was present when the deceased’s body was removed to the bed and his father was also there. Examination continue:
1. Q&A When you followed Adam to Jethro’s house, was Albert with you?
A. We were standing with Albert and we ran together.
2. Was Albert at Jethro’s house?
A. Yes all of us but Albert did not assault Jethro.
3. How many men in that group? A. About 12 men but I only recognised Adam. They were not from our community.
4. I suggest that you were part of the group that chased and assaulted Jethro?
A. Nogat.
5. I suggest Adam was with father cleaning his mother’s body when you went with the group?
A. Father washed body; Adam took group up.
6. As Jethro ran into coconut plantation, you and other boys chased him and assaulted him, Albert Dodi was also present with you?
A. No.
7. I suggest to you that Adam came later to Jethro’s house.
A. Adam and group chased him as we stood near the house.
8. I suggest to you that you know who assaulted Jethro?
A. I do not know.
Witness 3 - Sibo Egerua.
8. On 10 March 2020 he went and joined Daniel Sioba and his family at their house until daybreak. As the community gathered to discuss how best to look for Daniel’s wife who was taken by a crocodile, he tried to assist as a leader, but his advice was ignored so he returns to his house. Along the way he met six boys and greeted them, but they did not return his greetings. Amongst them he saw a tall man with dreadlocks, Grovio.
The witness said he rested a bit and woke up at 3pm in the afternoon. From his house he saw Grovio, Adam and Dodi assaulting a little boy, but he could not go closer to observe as his wife stopped him. He was unable to recognise the rest of the boys. He said the six men killed the little boy. He went to the place where the boy was killed and saw that he was cut all over his body. He said Pastor Nelson Abain was also at the beach, but he did not talk to him. The witness said Kaup Mapui is his uncle, but he did not see him that day. Samuel Gideon was also present. He said Mark Anawan was his in-law but was not present at the time. He said Mark may have joined the community by the time he returned to his house. He said he does not know Freddy Getsi. The witness identified all accused persons in the dock with ease.
Cross Examinations.
9. During cross examination, the witness said he met the six boys around 8 am in the morning as he left for his house. He said his house was about two hundred meters away from Daniels’s house. He is related to the deceased. When questioned if he saw the six men kill Jethro he said he did not, but instead saw them chase Jethro.
Cross examination continue:
Ans: I could not but community saw what happened.
Ans. I saw them but my wife stopped me.
Ans. I saw them pull Jethro down from his house, he ran and then chased him, I don’t know.
Ans. My story is related to Daniel’s house where I met the boys.
Ans. Nogat.
Ans. Killed on side of community road.
Ans. Killing?, I did not see, but dragging him from his house, I saw.
As to suggestions that Korekio was not with the boys who assaulted Jethro, but was at Erima Primary School, the witness maintained that Korekio was the one who led the boys and assaulted Jethro. As to suggestions that Adam remained closed to his father and did not go with the boys the witness maintained that he saw the boys go up and killed Jethro. As to suggestions that Dodi and Daniel were not involved in the assault, the witness said he was telling the truth. As to suggestions that he did not give his story to the Police he said as this was his first time he did not do so.
Witness 4 - Paul Imaya.
10. He testified as follows: I was at home on 10 March 2020 and around 3.00 pm I heard some noise coming from my big brother’s house. As I came out of my house I saw Jethro ran past my house. He was followed closely by three boys with Adam, armed with an axe. Korikio was armed with a bush knife and Dodi was armed with a knife.
Dodi cut Jethro’s right leg and Korikio cut his left leg. Adam used axe and cut him on his head. His whole face was damaged. Attack was beside my house and next to a cocoa garden owned by my son. Jethro called out “mama” as he was cut on the head by Adam.
After they killed him, they turned his face downwards and walked slowly away. There were plenty of people, but I could only recognise the three men as they were from our community. The distance between me and the place where Jethro was killed is about 20 to 30 kms and I could see clearly.
Kauik Mapuri is from ward ten. I only recognised three persons amongst a group of men. Mark Anaman is also from ward ten, but I don’t know him. I know Pastor Nelson Abaruk from our community, but he was not present that day as everyone ran when Jethro was killed. I don’t know Freddy Getsi and Samuel Gideon. Adam, Dodi and Korikio are sitting in court.
Cross Examination.
11. The witness admitted in cross examination that he does not know the reason Jethro was attacked. He said some fifty men were in the group, but he could not recognise them all. He said Jethro was his elder brother’s son and he was not related to any of the accused persons. Cross examination continue:
1. Did you see Walter Doba that afternoon?
Ans. Yes, he checked the body and we took him to the house.
2. Who told community leaders that one man was killed in your area?
Ans. Jethro was killed in the community and my house is in the community.
3. Did you discuss your story with your brother (Sibo Eregua) before you came to court.
Ans. I am telling court what I saw.
4. When enemy came you ran away and did not see what they did?
Ans. I heard noise, saw enemy attack Jethro as he was running and they followed him. I was shocked and stood still.
5. Korekio was at Erima Primary School that day, what do you say.?
Ans. He was at the community, about 6-7 kms away.
6. Is that what your brother Sibo told you-Balasiko to Court?
Ans. That’s how I estimate distance to Primary School.
7. Dodi and Adam were with their father taking care of their mother at home, what do you say?
Ans. When their mother was located, both freed themselves and went up.
8. When you gave your story to Police, did you give names to the Police?
Ans. I gave three names to Police, Adam, Korikio and Dodi.
9. Your statement of 17/3/2020 only mentioned Adam, other suspects you could not identify?
Ans. I gave three names to Police after incident.
10. You added names of Dodi and Korekio after you heard stories and now call their names?
Ans. I saw with my own eyes what happened that day.
Re-examination.
12. Upon re-examination the witness maintained that he saw Adam hit Jethro on his head and also saw Korekio assault Jethro on left head with a knife. He also said he saw Dodi cut Jethro on his legs, hand, and skin.
Witness 5 - Benny Molou.
13. The witness gave testimony that he was with the community in their search for Daniel’s wife said to be taken by a crocodile. Daniel asked him to get a canoe to help in the search. He said Daniel distanced himself from the main search party and formed a small group as he did not like what was suggested by the community. The witness said he was at the beach when the body of the woman was found and brought up to dry land. As he returned to his house he saw three brothers running which he recognised but other boys he could only recognise.
He said the first person he saw was Adam carrying an axe and he asked him where he was going. Adam replied that they were going to the middle of the village. He saw Dodi and Korekio approach with a group of boys, but he could not recognise them. He saw the boys surround a house and were making lots of noise. He stood from a distance and saw them chasing a young brother, Jethro Agulum into the bush. He said he only heard people calling out that Jethro Agulum was killed and so he went to see the body. All accused in the dock were easily identified by their names.
Cross Examination.
14. The witness agreed that they were all related and he does not have any land disputes with them. When asked if he had seen a crocodile in the area before he remained evasive and said there were many around, but he did not see any that day. He said Daniel’s wife’s body was found on a Sunday and there were more than 150 people around at the time. Cross examination continue:
1. How long after the body was found when the brothers took action?
Ans. Within 5 minutes. As soon as body was retrieved from the river, they started running.
2. You don’t know why they were running?
Ans. I don’t know the reasons for them running, but I followed them using a short-cut route to the village.
3. How many other boys ran with your brothers?
Ans. Around 50 people following the brothers.
4. How far where you when you saw them running?
Ans. I was about two meters away, they chased Jethro into the bush.
5. Did you tell Court earlier?
Ans. Sorry three of them came and I only asked Adam and talked to him.
7. Can you identify any other persons in the group who attacked Jethro?
Ans.I don’t know them apart from Adam, Dodi and Korekio.
8. Would one of those men running with Adam be Albert Dani?
Ans. I don’t know him or his face.
9. Would one of those men be Walter Doba?
Ans. Nogat.
10. Do you know Walter and Albert?
Ans.Yes.
11. Where they with Daniel that evening?
Ans. Yes.
12. Did they go to Jethro’s house?
Ans. I did not see them.
13. How far were you from Jethro’s house?
Ans. 1 km.
14. I suggest to you that, you were at your house and did not see how Jethro Agulim was chased?
Ans. I heard noise.
15. I suggest to you that you are lying to court about who went to fight Jethro?
Ans. People I saw that day, I tell court.
16. You are lying because you could not identify other people who were involved in the attack?
Ans. I am telling the truth.
17. I suggest to you that your story given to court was told to you by others, true?
Ans. Father was present, brothers were present and I am telling the true story.
18. I suggest to you that on that afternoon, only Dodi and Adam ran up to Jethro Agulim’s house after the house was ransacked?
Ans. I saw Adam who was leading the group and I spoke to him. He was there.(Id)
19. I tell you that Korekio was at Erima Primary School that afternoon?
Ans. They were far and arrived in the afternoon.
20. Korekio was at Erima Primary School and not at the crime scene?
Ans. No I saw all of them that time.
21. You did not speak to Adam as you claimed?
Ans. Adam was there and I spoke to him that afternoon.
Re-examination
15. The witness said as the boys ran he went to the junction and there spoke to Adam and returned to his house. He said the incident at Jethro’s house and chasing I cannot tell as the incident happened very fast. I saw Adam and Korekio.
Witness 6 - Agulim Gomon ( Deceased’s father).
16. On the day Daniel’s wife was taken by a crocodile, sympathisers were sent home to rest by the Council and return back in the afternoon. The witness returned to his haus kuk and sat there. His son Jethro and his two wives were in the main house, some meters away. His son was in the house nursing his infant baby.
He said as he sat in the haus kuk, he saw Adam, Korekio and Dodi approach from the beach and went to his house, without seeing him and enquired about him. Upon hearing his name being mentioned he hid behind a cocoa patch and observed. Some men were chasing his son and ran past him. He said he saw Korekio cut one of his son’s hands as Dodi cut his other leg as he fell down. He said as he raised both hands, they cut him. As he fell to the ground Adam hit him with the axe he was carrying, and he called out: Mama. He said at that time there was no one around, except Adam, Korekio and Dodi.
The witness said he could not help his son as he was scared. They chopped him up like a snake.
The witness said from his haus kuk which is slightly away from the main house he saw Adam went into house first as Korekio and Dodi followed behind and stood on the veranda. He said he does not know what happened in the house as he ran away into the bush. He estimated the time of day to be that when school children normally return home after school in the afternoon.
The witness said as his son lay on the ground with both hands raised and asking them to stop Korekio cut both his hands.
17. He said the accused were known to him as they all come from the same community. Stating that Daniel by adoption was his brother as his grandfather adopted Daniel’s father into his family/clan. He said he was pointed out on suspicion of sorcery for the death of Daniel’s wife.
Cross Examination
Who was with you that afternoon at your house?
A. My son’s wife, Tina and Sabeth, a girl. Both were in the house as I sat at the haus kuk.
Q. Where was Tina and Sabeth when the men came?
A. In the main house. She put pot on fire and went into the house.
Q. How many men came to attack you?
A. I don’t know how many men but I saw Dodi, Korekio and Adam who came asking for me. When I hear them calling my name I ran away.
Q. Estimate the number of men who came to your house?
A. I cannot tell. So many people came and stood around but the three men now in court, I saw.
Q. Did you see Walter Doba with the group of men? (Wit 2)
A. I don’t know as I ran away.
Q. How long after men came when you ran away to hide?
A. As they came and asked for me, I ran away. I cannot tell how many minutes.
Q. Apart from the persons named, who else chased your son and attacked him?
A. I cannot tell. I didn’t see other men except the three men.
Q. If you were at ‘haus kuk ’they will see you and attack you?
A. They came to main house and not haus kuk.
Q. Walter Doba estimated seeing 150 men chasing your son and assaulted him?
A. I don’t agree, group stayed at the main road and the three men came in.
Q. You agree that you did not see Daniel that afternoon?
A. Daniel did not come to us at the house.
Q. The reason why you and your witnesses came to court is that you could not identify the culprits and therefore blame Daniel and his sons.
A. This is not a land court. They come under me and I always support them.
Q. Adam came later, what do you say?
A. That’s not true.
Q. Korekio was with Samuel Gideon and Fred Ketsi at Erima Primary School?
A. If he was at the school I would not see him at the crime scene.
Q. Dodi was with his father at their house at the time?
A. If he was at his house with his father I would not see him.
Q. I suggest to you that they would see you and attack you when they went passed you?
A. They were concentrating on my son and did not see me.
Court Question:
Q. Can you please indicate to court the distance of your haus kuk to the main house?
A. Witness indicate distance from court bench to end of the court 1 wall. Estimated to be between 15/20 meters.
No follow up questions from Counsel.
Witness 7 Tina Jethro (Kosi) (Deceased’s wife)
18. The witness said Dodi, Adam and Korikio went to their house in the afternoon and killed her husband. My husband was in the house with our baby. Sabeth Agulum was with them.
She said as I was cooking at the haus kuk I saw three men running up to their house. Adam led the group with Dodi and Korekio following with some people they hired. They came armed with weapons to fight. They had knives, axe, and a gun. She said Adam went into the house. Along the way he smashed our pots and pans and cut our light chord. When he asked for daddy, my husband told him that he had gone to the river. She said so he dragged my husband and pulled him to the ground.
She said as she stood near the steps, she saw Adman cut her husband on his back. They started chasing him into the bush. We went later and saw his body. She said I cannot tell how many men were chasing my husband, but I only recognised the three men. I know them well as we come from the same community.
19. The witness said Benny Mulou was not there at the time, he was at the beach when community came to observe. She said when his father-in-law saw the men he ran away.
Cross Examination.
Q. How far were you when you saw the men come to your house?
A. Witness indicated distance of ten meters.
Q. Give us the number of men who came to your house?
A. Others I cannot tell, but the three accused I can recognise. Lots of people came about ten people came, including the hired ones.
Q. Can you recognise any of the people they hired?
A. Fresh faces and I cannot tell. One carried a gun.
Q. After your husband was killed, did you and your family members sit down and discuss about the matter?
A. Yes.
Q. Was it during that meeting that the four accused persons were mentioned or blamed?
A. No we saw them that day.
Q. Where you still at haus kuk when men approached your house?
A. As I saw them running to our house I called out to my husband.
A. If you were there, I am telling you that Korekio was not there that time? He was at Erima Primary School.
A. I saw Korekio, Adam and Dodi that day.
Q. I suggest to you that Dodi was with his father and not at your house?
A. I saw him; therefore, I am telling the truth.
Q. I suggest to you that Adam came later, after your husband was chased into the bush?
A. I saw Adam with an axe and knife and he went into our house.
Q. Did you see where your father-in-law went when the group of men came to your house?
A. He saw them and walked out of the haus kuk and went into the bush.
Q. Your father-in-law told court this morning that he was alone, when men appeared at his house, what do you say?
A. As I went to call my husband he went away, both of us were sitting at the haus kuk
Q. So you are saying that your father-in-law was lying to court by being alone in the haus kuk?
A. No.
Court Question.
Q. When your husband told Adam that your father-in-law had gone to the river, what happened to him after that?
A. Adam assaulted him and pulled him to the ground.
20. State: The State opted not to call its last witness Sabeth and formally closed its case.
Defence case open on 7 February 2022. Defence evidence.
Défense Evidence 1– Daniel Sioba (Father) 57 years-Married 6 children.
21. The accused said on 10 March 2020 around 5.30pm the community from Erima and nearby villages gathered at his place to look for his wife who went missing the previous day. He said around 11 am and 12 noon the leaders temporarily called off the search to give the people a break and rest. Around 4 pm and 4.30pm Pastor Nelson gathered the people to pray for divine help for the body to be revealed.
The witness said as they sat there his sons returned from the search and so he directed his son Adam to walk along the creek to look for his lost mother. About 20 minutes later raised the alarm that he had found his mother. The witness attended to Adam, jumped into the river, and retrieved the body with assistance from Samuel Kulong to dry land.
He said the body was carried to their house and cleaned as they cried over their mother. All his sons were with him. At the time the community began to return to their houses.
The witness said Adam and Dodi got up and followed the group of people to their villages.
He said Korikio left them around 11.30am and returned to the school as the search party had returned.
He said as he prepared his wife to be taken to the morgue, they received information of Jethro’s death. Pastor Nelson and Erima Primary School family members were with him.
The witness said when he got news of Jethro, Adam and Dodi were with him and assisted wash their mothers’ s body. They then followed the community to the village as Korekio and Keril went to the school as Leon and Menduk remained behind with their uncle Gideon Sioba.
The witness said State witness were from the maternal side of his family. He said when Saiko Mambel came and told them about the death of Jethro, the people started blaming them and left, leaving only a few people who remained behind to assist them. Saiko’s wife was crying over my wife when he came to take her away, saying ‘man I dai, man I dai’. He estimated the distance of his house from Jethro’s house to be 1.5 kms away.
Cross Examination.
22. In cross examination the accused maintained that after a prayer session with Pastor Nelson for divine intervention around 4.30pm, his son Adam returned from searching his mother. He then told Adam to go search near the creek nearby. Around 5.30 pm Adam raised the alarm that he had found his mother. The witness described the body as if the left side was scarred with what appeared to be knife wounds on her back with fresh blood still flowing from her body, when it was retrieved from the creek. The witness maintained that his late wife went missing on 5.30pm the previous day and found the next day at around the same time at 5.30pm with signs of fresh blood still on her body.
Q. When did the ambulance arrive at the village?
A. A villager assisted us at around 7 pm that evening.
Q. I suggest to you that your wife’s body was found on 3.00 pm that day?
A. Not true.
Q. So the six state witnesses were wrong, is that what you are saying?
A. We got the body exactly at 5.30pm that day.
Q. Did you say that your sons Adam and Dodi left you and followed the crowd?
A. Yes they walked away with the villagers.
Q/ So they were not with you when you were preparing your wife’s body?
A. Yes.
Q. At the time Korekio was not with you?
A. Yes.
Q. About what time of the day did you receive the news of Jethro’s death?
A. Around 6.30pm and 7.30 p m.
Q. I suggest that you were the last person to be with your wife before she went missing?
A. Yes.
Q. Is it true that you told your son, Adam to walk down stream about 15 to 20 meters to look for your wife?
A. Yes.
Défense witness 2 - Korekio Daniel – 25 years, married.
23. He testified that around 5.30pm on 9 March 2020 he received information that his mother had gone missing. He ran down to the place his mother went missing and joined in the search until the next day on 10 March 2020 when the leaders called off the search. He said being hungered and tired he went to Erima Primary School and met Freddy Getsi and they went to their village. (Alibi witness). They met Samuel Gideon and continued on to the garden. They remained with Samuel who offered them cooked food and after eating they all slept. He said around 3.00pm Samuel woke them up and they returned to join the search party via the river and main junction.
At the junction, some people returning to the school informed them that his mother body was found and also told them an incident had happened and cautioned them not to go down as the body will be taken to the hospital. He said they remained at the junction unto around 6.00 pm and 7.00pm. He said he was not at the area where his mother’s body was found. He estimated his father’s house to be about three kms away from Erima Primary School. He said the person who died was his cousin brother and estimated his house to at a distance of 3km. He said he does not know anything about his death.
24. In cross examination the witness said as soon as he received information around 5.00pm and 6.00pm he went to his parents’ house which is about an hour’s walk and arrived as it was getting dark. He was accompanied by his brothers Dodi and Adam. They started searching using torch light.
Q. What time did you leave the beach to go to your house at Erima Primary School?
A. Around 12 midday, I cannot tell but the sun was still shining.
Q. When you walked back to your house, who was with you?
A. I was with Freddy Getsi only. Samuel Gideon lives with us in our house.
Q. Did you meet a Kaup Mapui? (Alibi witness)
A. All those witnesses were at the beach.
Q. Did you see a Benny Molol when you left home?
A. I did not see him, lots of people.
Q. What about Tina Jacob? (wife)
A. I cannot tell if I saw her.
Q. What about Agulim when you left the beach?
A. I cannot tell as I was hungry.
Q. These people came and told Court that they saw you at 3.00pm?
A. I can’t tell as I did not see them.
Q. They told court that they saw you cut Jethro with your brother assisting?
A. I was not there at the time and I cannot tell.
Q. You arrived at the school around 12.00 noon?
A. I cannot tell exact time.
Q. I suggest to you that you wanted to distance yourself from 3.00pm, because at that time Jethro was assaulted?
A. I don’t know what happened as was far away.
Q. Is Samuel related to you?
A. He is my cousin. My small father is Gideon Sioba.
Q. Is Freddy Getsi related to you?
A. He is married to one of our sisters who teaches at Erima Primary School.
Q. So they informed of an incident?
A. Yes, we heard and did not want to move around.
Q. As you are the first-born son, you did not want to go and see your father and family?
A. I decided not to go down and face second incident.
Q. I suggest to you that you did not go want to face the second incident because you caused the second incident?
A. I was not there and I don’t know what happened that time.
Q. So you are saying that Mrs Tina Agulim misled court?
A. Yes.
Q. You are saying, they lied saying you cut Jethro?
A. Yes.
Court question.
Q. Where were you when your mother’s body was prepared to be taken to the morgue?
A. I was at Erima Primary School.
COUNSEL: None from both Counsel following court question.
Défense witness 3 - Dodi Daniel – 20 years, single.
25. The witness gave testimony as follows: On that day me and my brother Adam and Korekio were searching for my mother. We searched everywhere and returned home. He said around 5.30pm his daddy told Adam to follow riverbank and will find his mother’s body float up. Adam went down and found his mother’s body and alerted them and they all ran down and retrieved the body. He said his father went in and drew the body out and took her to their house and were crying.
The witness said as they were crying, the community began returning to the house. He said he followed the community, crossed the creek and some people returning stopped them from going to the community about an incident in the village. The witness and Bill Kana turned around and returned to their houses. He said both he and Bill followed the community around 5.00pm and 6.00pm as it was getting dark. He said the deceased was his stepmother and his natural mother was also assisting in the search.
26. He said his daddy prepared the body and they all stayed at the house. The community told them that Jethro was dead and so they returned to their house. He said he could not tell who was searching for his mother as there were lots of people. He said he has no idea how Jethro Agulim died.
Cross Examination.
Around 5.30pm when father told Adam to go to the creek, where were you?
A. We stood together; he went inside as I stood outside.
Q. At that time was also was with your father?
A. Lots of people in the house.
Q. You able to tell what they were doing that time?
A. Sitting and waiting to search again.
Q. All that happened at 5.30pm that afternoon?
A. Yes.
Q. Was that the same time that other community left your area to their houses?
A. No.
Q. When did community start to leave your house?
A. After body was found, crying, many people and others moved away.
Q. When you left your father, what stage of your mother’s in?
A. She had wounds and fire burns.
Q. Your father told court as he was washing mother, you left him, true?
A. Yes.
Q. So you weren’t there when others were crying over your mother?
A. No we were there crying
Q. Which statement is true? Getting your mum ready for morgue or crying over her?
A. We got up and followed group as my father prepared the body for morgue. We returned back and stayed with father.
Q. What time of day was that?
A. 6.00pm to 7.00pm we returned to be with our dad.
Q. I suggest to you that at the time you were not with your father at his beach house, you went with community and you want to fight Jethro Agulum?
A. No.
Q. Your father told court that you all left as he prepared mother and waited for a motor vehicle to take her to the morgue, what do you say?
A. I came back, waited with him, lifted body into the motor vehicle for morgue.(corroboration??)
Défense witness 4 - Adam Daniel – 23 years, single.
27. The witness testified as follows: On that day when the search was called off by daddy during lunch time. I rested and went home when my father told me to follow the side of the creek where I will find my mother’s body. I found the body floating and alerted my father and the community came and assisted us. The witness said the body was taken to the house and women came to prepare the body. He said as it was getting late he went to the beach and followed from behind. Because there was no water and food I returned to get some food to give to the crowd.
The witness said as he walked back he met Kauk Madui on the road and was told to return home as there was an incident up ahead so they both turned around and returned home. He said as we waited for the car to take mum to the hospital Kuak told him about the death in the community. He said he was 1 km away from the family home.
He said he has no idea about Jethro Agulim’s death and said he was not involved in the assault. He said he cannot tell why witnesses came to court and called his name. He said the people he was following were returning home and so he returned home with them. He said he lives with his mother and three other brothers.
28. He said as he and Dodi went to daddy’s house Korekio was not with them. He said Kuak Mapui was related to him and is his uncle. He said his mother’s body was found around 5.30pm. He met Kuak around 6.00pm as place was getting dark and his mother’s body taken to the hospital between 7.00pm and 8.00pm.
Cross Examination.
What time did you return to your father’s house?
A. Around 5.30pm, got home and daddy told me to go to the creek.
Q. That’s when father called you?
A. Yes, he told me to walk downstream alone and found?
Q. Where were the other boys, where did they go?
A. They went to the beach as dad called out to me.
Q. Can you call some of their names?
A. Dodi, Kenneth, Jefferey, that’s all.
Q. You acted alone and walked to the creek?
A. Yes, dad called me aside and I went and found mum. We all came together but when dad called out to me.
Q. Dodi came to court yesterday and told court that your father called out to you?
A.Yes.
Q. So was Dodi with you also?
A. Dodi and other brothers went down to the beach.
Q. When you walked downstream, tell us where exactly was the body found?
A. She was found within rubbish.
Q. Describe the body?
A. From her left side, signs of burning on left leg and left hand. Skin was peeled off and wounds on her back. Peeling off left hand. The hole at her back looked like knife wound.?
Q. Do you think such injuries be caused by crocodile?
A. I cannot tell as I have not seen a crocodile attack.
Q. Previous days you were searching creeks, sago swamps and mangroves, why was that?
A. We suspected crocodile took her so we went into these areas, searching.
Q. Because you assumed her death you blamed Agulum?
Q. Nogat.
Q. I suggest to you that because of suspicion you all went and attacked his son?
A. No.
Q. You cried and you were angry at the time?
A. No I was upset and worried.
Q. Dodi said he was with father as mother was dressed?
A. Yes.
Q. Your stories are now conflicting because you were not present?
A. I was there.
Q. I suggest that you were angry and you boys went looking for Agulum to attack him and that’s why you killed his son.
A. Nogat.
Q. Benny, Sibo and Paul, State witnesses were at the beach with father and they heard your father instructed you boys to go and find and kill Agulum?
A. No
Q. As it was getting dark you started to walk back home?
A. Yes
Q. I suggest mother’s body was found at 3.00pm?
A.No.
Q. I suggest to you that finding the body, taking her to the house, crying, washing, and dressing the body etc would not be made within 30 minutes?
A. Nogat.
Q. I suggest all that happened between 2.00pm and 5.30pm, what do you say?
A. Nogat.
Q. After 5.30pm you returned to your biological mother’s house?
A. No.
Q. So you left your father’s house for your biological mother’s house after 5.30 – 6.30pm.
A. No that’s not correct?
Q. I put to you that these timings, 5.30pm etc, someone gave you these timings to come and tell court?
A. No.
The witness continued in re-examination that he thinks his mother was taken by a crocodile and said his father did not instruct them to go and kill Agulum.
Défense witness 5 Freddy Getsy – 32 years, married (Alibi witness).
29. The witness said on that day he was at his house at Erima when Korekio came looking for him around midday. The sun was up and I estimated the time to be 1.00pm. We went to Giru and met Samuel Gideon. We left Samuel and went to the garden and returned with a banana. Samuel told us that it was 3.00pm and told us we needed to rest. After cooking Samuel woke us up and offered some cooked food to eat and told us to return to the search party. By that time, it was 5.30pm.
The witness said as they returned to the main road it was getting dark and at the junction and the road leading down to the beach they heard some people approaching. The people told them that mother Betty’s body was found and also told them that another death has occurred but they did not tell them who was killed. They told them to return home.
Cross Examination.
30. The witness agreed in cross examination that his teacher wife was related to the accused. The accused were his in laws. When asked Samuel was doing what when they arrived, he said Samuel was cooking. Samuel did not send them to go and get banana.
Q. When you harvested banana, what did you do?
A. We roamed around a bit for about 30 minutes and returned home.
Q. You stopped at Samuel’s place after garden?
A. Yes from there we rested.
Q. What happened to the banana you cut?
A. We just left the banana.
Q. How long where you a Samuel’s house before you asked him for time?
A. As we returned from the garden both of us asked Samuel for the time at same time.
Q. Why ask for specific time?
A. We need to return to join the search party therefore we asked for the time.
Q. You said Samuel woke you both up?
A. Yes, time would be around 4.30pm.
Q. Was Samuel with you at the junction?
A. Yes they told the three of us at the junction.
Q. What else did the people say?
A. Nogat, they only told us about Betty’s body and told us about another death.
Q. Did they tell you who died?
A. No they only told us that another man is dead
Q. Why did Korekio visited you when there is no urgency for his visit?
A. We were tired
Q. I suggest to you that between 1.00pm and 2.00pm, that’s when Korekio arrived?
A. Yes it will be around that time.
Q. The last time you saw Korekio was 3.00pm, what do you say?
A. Nogat.
Q. So that day you went to sleep two times?
A. We returned from garden and slept.
Q. I suggest to you that someone gave you those times.
A. Not true.
Q. Korekio told court you were at junction at 5.30pm, now you are saying 6.45pm, which is true?
A. At junction place was getting dark when we went to the village..
Défense witness 6 - Kauk Mapui – (Alibi witness).
31. The witness gave testimony that he was at the crime scene when Betty died in the creek. He was with Daniel Sioba, Adam Sioba, and some family members, waiting for the body to be found. Crocodile got lady and so knew that she would be found in the river-creek. I was with the family and around 5.30pm the body was found. The body was washed and prepared so we went home since we have been searching for 2 ½ nights and said I was involved in preparing the body, the whole family was present, Daniel Sioba, his sons, brothers, and their wives.
He said Adam Daniel and Dodi Daniel, we were involved in preparing the body for the morgue. I left before body was taken to the morgue around 6.00pm and 7.00pm. He said I left my house to look for food around 6.00and 7.00pm.On the way I got information that another incident happened, so I returned to Daniel’s house. He said I heard about the death but I don’t know who died. We stayed at Daniel’s house when body was taken away and I left for my house around 12 midnight. He said as he and Adam were returning they saw Dodi and told him to go along with them.
25. In cross examination the witness admitted that he was related to the accused and the deceased Jethro.
Q. Where exactly did other villagers told you about Jethro incident?
A. Some meters away from late Betty’s house, community told us.
Q. At that time you were with Adam.?
A. Yes.
Q. You met Dodi?
A. Yes after we got news and returned we met Dodi and so we went back home.
Q. When the three of you were walking home, what time of day was it?
A. It was between 6.00 -7.00pm.
Defence close case- No more witnesses.
Submissions – Defence.
32. Counsel of Defence Mr Loloma submitted for an acquittal of all accused on the grounds that they were not directly responsible for the death of the deceased in that that were all not present at the crime scene. In short arguing that the defence alibi evidence more credible and ought to be believed and invited court to observe the principles relating to alibi evidence: (John Jaminan v The State (No.2) [1983 PNGLR 318 and State v Okata Talangahin (No.1) [2004] N2581). As to accused Daniel Sioba Mr Loloma submitted that there were no direct evidence linking him to the death of the deceased.
Submissions – Prosecution.
33. Prosecution submission in the main is that all 8 witnesses gave direct evidence of either hearing the killing words uttered by Daniel Sioba instructing his three sons to go and kill as soon as the body of his wife was retrieved from the creek nearby. Witness Sibo Eregua, a community leader offered his services to assist in the organising the search but got offended when Daniel Sioba declined to include him in the search and instead settled for another group to co-ordinate the search. Witness Tina Jethro, Agulum and Paul Imaya gave direct eyewitness accounts of seeing the three accused armed with dangerous weapons in search of Agulum. Since Agulum was not in sight they instead dragged his son Jethro out from his house and assaulted him in front of his wife Tina. Ms Ambuk submitted that all state witnesses were related to the accused and they had no ulterior motives but to come and tell court what they each saw and heard. Their evidence was given in a chronological order and they all corroborated each other and ought to be believed.
34. As to defence evidence Ms Ambuk submitted that the story told by Daniel Sioba of the crocodile taking his wife and the story of Pastor Nelson’s prayer for divine intervention for his lost wife to be revealed too good to fathom. Daniel’s instructions to his son to go and search at a particular location in the creek, where he will find his mother’s body again too good to be true. She submitted that Daniel Sioba was the last known person to be with his wife when she was reported missing. As to the alibi evidence, they all appear to be focused on some fixed time in their attempts to distance the accused from the time the body of their mother was found. Witness Freddy Getsi’s evidence places Korekio at two different locations at the same space of time over a distance of 2 kms. The alibi evidence defies common sense and logic and ought not to be believed.
Issues raised by the Evidence
Identification.
35. On their part all accused remained mum. They all elected to remain silent in their respective records of interviews. Their notice of alibi filed on 16 June 2021 places the three of them at home attending to making arrangements for their mother’s body to be taken to the morgue. And that the incident happened in the coconut plantation which was some meters away.
36. As to the question of their identification none of the accused evidence have dented prosecution evidence on same They were all seen at the material time the body of their mother was found, they were all seen running to Jethro Agulim’s house in search of his father Agulum, they were all seen assaulting Agulim’s son Jethro as they could not find him, they were all seen returning home with the bloodied weapons. Daniel Sioba’s evidence of all his sons remaining in the house with him soon after his wife was found was not corroborated by any of his sons. Korekio said he was at the junction between 6.00pm and 7.00pm with Freddy Getsi when he received news that his mother’s body was found. He said he was 3kms away from his father’s house at the time. Dodi Daniel likewise contradicted his father’s evidence of staying in the house when he said he left as his father was preparing the body. Adam Daniel said as the body was found some women came and prepared the body. He said as it was getting dark he followed the community via the beach.
37. As to whose evidence is plausible and believable I am more inclined to believe prosecution version as opposed to the accused version. The accused evidence is riddled with inconsistences and contradictions between themselves making their versions not believable. None of their evidence or a gist of same were captured in their respective records of interview. To my mind their evidence remains suspicious and could easily amount to be of recent invention.
I am satisfied that prosecution evidence of confirming their identities in chasing and executing this crime credible and not disturbed. They were all related and know each other and come from the same community. As to why they have remained resolute to come forward and identify our cousins and relatives who committed this crime, their only motive was to see that justice be seen to be done and none other.
38. The identifications of all the accused from the beach leading up to the commission of the crime remains resolute and good. The quality of identification evidence from all prosecution witnesses remains supreme, lending itself to a safe conviction. They all come from the same community, they were all related to each other, they were all present to assist in the search of Daniel Sioba’s wife.( John Beng v The State [1977] PNGLR 115 and Jimmy Ono v The State [2002] SC698.
39. Inferentially therefore the accused evidence found wanting credibility and unreliable. I did not find them to be truthful witnesses. Prosecution evidence of the accused’s’ identification good and accepted by court.
Alibi Evidence.
Pastor Nelson Abaro, Samuel Gedion were not called to give evidence save for Freddy Getsi. Witness Getsi said Korekio came to his house around 1.00pm. They both returned to the main road around 5.30pm as it was getting dark at the junction, they met some people returning from the beach who told them that mother Betty’s body was found. The people also told them that another death had occurred and told them to return home. Getsi’s alibi evidence dismally fails to find corroboration with Korekio’s evidence. He deviated from placing Korekio at the family house assisting in preparing his mother’s body to be taken to the morgue to that of placing Korekio away from his home with him at Erima Primary School. Even if he still stuck to running his alibi evidence along the lines given in the alibi notice, this will run foul with Korekio’s evidence that he was not present when his mother’s body was found. Similarly, his evidence contradicts his father’s evidence in that when his wife’s body was found, the community returned but all his children remained with him.
What is the quality of the Alibi evidence?
40. I take judicial notice of the principles of alibi evidence as pronounced in the leading Supreme Court case of John Jaminan v The State (No.2) [1983] PNGLR 318.The Prosecution must disprove the alibi. Prosecution must establish beyond reasonable doubt that the accused was at the scene of the crime at the relevant time. Furthermore, an alibi given in evidence and found to be false may, depending on the circumstances, amount to corroboration on the charge.
41. Having considered the above matters, I record the following relevant considerations:
42. In view of the above I have concluded that all the alibi evidence of the accused were not honest and credible. I consider them to be false alibi. Having considered the identification evidence and the alibi evidence I am satisfied that there is sufficient credible evidence to sustain a conviction. Furthermore, in light of a false alibi been presented to the court, this corroborates and strengthen the State’s case.
Is there any evidence implicating Daniel Sioba’s involvement?
The relevant laws
7. Principal Offenders.( Ss 7 (1) (a)(b) and 8 (a)(b) Criminal Code.
(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
Findings.
43. In view of the above I have concluded that by uttering those words go and kill, Daniel Sioba aided his sons to go and kill Jethro Agulum. The three sons immediately took up arms and ran towards Jethro’s house, assaulted him resulting in his death. The manner in which the attack was seen, and wounds described by state witness couples with the graphic photos of the wound manifest in themselves that the three accused intended to cause the death of Jethro. It follows that Daniel Sioba can be safely convicted by operation of Section 7 (1) (a) (b) Criminal Code. Similarly, Adam Daniel, Korekio Daniel and Dodi Daniel formed a common intention to go and kill Jethro Agulum in conjunction with their father Daniel Sioba. They each and severally have committed the offence of wilful murder.
44. This court is therefore satisfied that they each and severally aided 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. 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 Jethro Agulum.
The relevant laws
45. 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.
Findings.
46. From the evidence now before this court I am satisfied that the State has proven beyond reasonable doubt that the three accused were directly involved in the wilful murder of Jethro Agulum on the morning of 10 March 2020 at Erima village, Rai Coast Madang. 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.
Verdict.
47. Accordingly, I return a verdict of guilty against the four (4) of you and have you convicted.
| 1. Daniel Sioba | Guilty of wilful murder |
| 2. Adam Daniel | Guilty of wilful murder |
| 3. Dodi Daniel | Guilty of wilful murder |
| 4. Korekio Daniel | Guilty of wilful murder |
_________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitors: Lawyer for the Accused
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