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State v Meakoro [2024] PGNC 166; N10828 (29 April 2024)

N10828

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO.848 OF2018

BETWEEN:
THE STATE

AND:
HENI MEAKORO
of
MAREA VILLAGE, IHU,
GULF PROVINCE
Accused

CR NO. 844 OF 2018

THE STATE

AND
NOEL SINE
of
KOGE VILLAGE, SINESINE, CHIMBU
PROVINCE
Accused

CR NO. 840 OF 2018

THE STATE

AND:
ALEX GAMBE
of
ARlO VILLAGE, SOHE,
ORO PROVINCE
Accused

CR NO. 835 OF 2018

THE STATE

AND:
FRANCIS DOKONO
of
SEREMBE VILLAGE, SOHE,
ORO PROVINCE
Accused

CR NO. 831 OF 2018

THE STATE

AND:
JUNIOR KORE
of
MARAPEANDA VILLAGE, LUMUSA,
WESTERN HIGHLANDS PROVINCE
Accused

Lae: Polume-Kiele J

2021: 17^th February 3^rd March, 12^th & 30^th April, 3^rd May, 1^st July, 2^nd &18^th August 1^st & 29^th September, 1^st October, 1^st November ,1^st December,
2022: 2^nd & 10^th October, 9^th May, 1^st March
2023: 7^th February, 11^th April, 5^th June, 17^th July, 5^th & 20^th September, 3^rd & 5^th October, 5^th December
2024: 6^th February, 18^th March, 3^rd & 29^th April

CRIMINAL LAW – No Case Submission – principles - The State v Paul Kundi Rape [1976] PNGLR 96; State v Thomas Sange & Ors (2005) N2805 & State v Nathan Kovoho CR. No. 163 of 2005, N2810. "Whether on the evidence as it stands the accused could lawfully be convicted?" Relevant considerations – Case to answer

CRIMINAL LAW – Identification – State witness – close relationship - at scene of crime –sufficient lighting - no difficulty pointing directly and identifying accused persons as the person who hit the deceased – issue of intention addressed – No case submission over –ruled – Accused persons have a case to answer.

CRIMINAL LAW – - State invoked s. 287(1) and (2), Criminal Code - co-accused persons are liable for the unlawful death of the deceased under s. 302 of the Criminal Code. Manslaughter – S. 302 of the Criminal Code- Criminal Negligence – Duty of Care – Breach of Duty – Causation – Death of victim in course of escape.

Cases Cited:

The State - v - Paul Kundi Rape [1976] PNGLR 96
The State - v - Roka Pep [1983] PNGLR 19
State v Moro [2011] N4906
State v Manak [2022] N10339
The State v Michael Earley (2024) N10803

Counsel

Ms. S Joseph, for the State
Mr C. Boku, for the Accused

RULING ON NO CASE TO ANSWER

29^th April 2024

1. POLUME-KIELE J: The co-accused persons, Heni Meakoro, Noel Sine, Alex Gambe, Francis Dokono and Junior Kore were jointly charged with the manslaughter of the deceased, Samuel Kola Khay, on 20 January 2018 under s. 302 of the Criminal Code (Ch. 262) (the Criminal Code). On 18 August 2021, Ms Langtry of the Office of the Public Prosecutor presented an indictment against the co-accused persons indicting each of them jointly with one count of manslaughter under Section 302 of the Criminal Code (Ch.262)
   

The Charge

2. The Manslaughter provision reads:
   

'302. MANSLAUGHTER.

A person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder or infanticide is guilty of manslaughter.

Penalty: Subject to Section 19, imprisonment for life. '

3. The elements of the charge are:
   

(a) The Five (5) accused persons.

(b) Unlawfully - without authorization, justification, or excuse by law (s 289).

(c) Caused the death of.

(d) Another person i.e., Samuel Kola Khay

Allegations

4. The State ’s alleges that at the time of the offending the deceased was an unemployed youth. The co-accused persons were policemen performing their official functions and tasks as commissioned police officers. The State further alleges that between 7 p.m. and 9 p.m. on 20 January 2018 the co-accused persons picked up the deceased in their vehicle a 10-Seater Toyota Landcruiser from Kapiak St, 1 Mile, Lae, Morobe Province following a complaint of unruly behaviour and disturbance of peace along Kapiak St, 1 Mile, Lae.
   
5. The co-accused persons then apprehended the deceased including other suspects and loaded them into the 10-Seater Toyota vehicle and drove off from Kapiak St, 1 Mile, Lae.
   
6. The State says further that at the time the co-accused persons were policemen acting in the course of their duties failed to observe due care and attention to the welfare of the suspects and also failed to take precautionary actions in the circumstances described, resulting in the death of the deceased.
   
7. Further and in addition, the State alleges that pursuant to s. 287(1) and (2) the co-accused persons are liable for the unlawful death of the deceased under s. 302 of the Criminal Code.
   

Arraignment

8. Upon arraignment, they all elected to remain silent, and a trial was conducted.
   
9. The matter proceeded to trial on 18 August 2021 for a three-day trial. However, Counsel for the co-accused persons requested for an adjourned as one of the co-accused persons became ill and trial could not continue.
   
10. Trial continued on 28 September 2021 and the State closed its case on 29 September 2021.
    
11. Counsel for the co-accused then requested for an adjournment to file a No Case to Answer Submission.
    
12. At the close of the State's case, the Defence made a no case to answer submission.
    
13. It must be pointed out that during this interval, legal representation has changed, and the Office of the Public Solicitor took carriage of the matter.
    
14. The No Case to Answer was heard on 20 September 2023.
    
15. I reserved my decision which I now deliver.
    

The issue

16. The issue at this stage of the trial is whether on the evidence as it stands the five (5) co-accused persons could lawfully be convicted for the unlawfully death of the deceased, Samuel Kola Khay.
    

The law on no case to answer applications

17. I must warn myself that the question is not whether the State has established its case beyond reasonable doubt, but rather on the evidence as it stands, can the accused be lawfully convicted?
    
18. The case of The State - v - Paul Kundi Rape [1976] PNGLR 96, sets out the principles governing a no case submission:
    

"Where there is a submission of no case to answer at the close of the case for the prosecution, the question to be asked is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands, he could lawfully be convicted. This is a question of law, to be carefully distinguished from the question of fact to be asked at the close of all of the evidence namely whether the prosecution has proved its case beyond reasonable doubt."

Also, the case of The State - v - Roka Pep [1983] PNGLR 19 held that:

(i) A submission of no case to answer at the close of the prosecution is the question of law for the judge to decide, the question being whether there is evidence, which if accepted by the jury would establish the elements of the offence.

(ii) Where there is a case to answer, but the judge is of the view, on the facts that no matter what evidence may be called by the accused, the prosecution case will not be proved beyond reasonable doubt or the prosecution case will not improve, or the prosecution case is hopeless or intrinsically weak, then the judge has a discretion to acquit the accused on the no case submission.

The State’s Case

19. To prove its case, the State called 8 witnesses from a number of witnesses which it had identified as potential witnesses. These witnesses gave oral evidence under oath in tok Pidgin, and it was translated to English. They were all cross-examined.
    

Evidence in chief

(1) Selwin Sobbie

20. Selwin Sobbie gave oral evidence under oath in Pidgin and was cross-examined. It was translated to English. He was cross-examined in his evidence. In his testimony he states that he is a resident of Kapiak Street, Lae and has lived at Kapiak Street since childhood. He testified that he knows Samuel Kola Khay. They both lived at Kapiak Street. He also testified that he also knew Johannes Batara also known as Alias “Aka Kipa Wala”. They all live at Kapiak Street, and he knows him well.
    
21. As to the reason he is in Court today, he testified that he is in Court to tell the story of some policemen, who ambushed him and his friends on 20^th January 2018. He states that between 6 to 7 pm him and his friends were down the road looking for food. He was with five other boys and as they passed through Church of Christ Building, car headlights were switched on and it was flashed at them. During that time, someone got out of the car, and pointed a pistol at us. He then commanded us to lie down. He also testified that this person was wearing a Rabaul Guria jersey and long jeans. The other men behind him were dressed in full Police Uniform. These men then started searching us and checking our pockets whilst the lights of a Toyota Ten-Seater were on. He also testified that these policemen said that we were suspects and beat us. At some point of his testimony, he also gave evidence that one of the men, picked up a Marita Pandanus and smashed it on his head and he also searched him. This person was wearing a PNG Mask and he identified him by name as Francis Dokono.
    
22. He also testified that there are houses within in the church vicinity.
    
23. Sobbie in his evidence also referred to and identified the man with the pistol as Heni Meakoro. He states that he knows him as this man used to come to East Taraka and drink with his cousins, so he knows him very well. He also states that the driver of the vehicle, was making phone calls and telling the others to hit them. He was giving orders. He identified this person by name as Noel Sine. This person is the one giving orders. He gave evidence that this person was referring to “bossman” on the phone.
    
24. Sobbie then went on to identify the third and the fifth accused as two remaining Policemen. He only referred to the fifth Policeman picking up the remaining pandanus and smashed it on his head.
    
25. Sobbie is not sure what the third accused did.
    
26. Sobbie also states that he could not remember who threw him in the car but s that says they were within the Church of Christ area for about 25-30 minutes and within the church vicinity. The lights of the church were on, including that of the pastor’s house. He stated that there was sufficient lighting, and he could see clearly. He saw the driver and the offside passenger were in front and there were three Policemen at the back. He testified further that when he was thrown into the vehicle, there were already two others inside, namely Johannes Batara and Samuel Kola Khay at the back. We were all pleading for them to let us go. I told the men that I was a student and to let me go. I cannot recall what Samuel Kola Khay said. But I also recall Johannes Batara pleading with them to let us go.
    
27. Sobbie also testified that there was a carton of beer at the back of the vehicle because he fell on it and realize that they were drinking. The witness also testified that he smells alcohol on the Policeman with the pandanus. The witness testified that the vehicle drove on and came to a stop. He states that the vehicle had stopped at Raun Wara because when the men opened the door of the vehicle, he would see St. Pauls Church and houses on the other side of the road as he laid on the floor. He then knew the vehicle had stopped at Raun Wara. At Raun Wara, the men took Johannes Batara and Samuel Kola Khay out of the vehicle. I remained in the vehicle and whilst in the vehicle, I could hear the men beating the two suspects (Johannes Batara and Samuel Kola Khay outside. He also stated that he heard a gunshot about 10-15 seconds after they took them out. The policemen then asked me if I heard the gunshot and told he me I was going to die next. He was seated at the back with me. I was lying face down. I heard water splashing I and didn’t hear anything else after that. The men came back and took me out. I could not count how many of them beat me. There was light but not clear enough. Francis broke my necklace and threw me into the water. I saw his face as he held me and dragged me to the water. He was about half a meter from me and dragged me to the water. They did not say anything. I did not see Johannes Batara and Samuel Kola Khay. The witness gave evidence that he swam to the other side of the lake about a hundred meters. When he reached the other side, he asked some boys on there for shirt and went to my house.
    
28. In addition, the witness was shown exhibit 2 which is the map of the Raun Wara Lake, and he marked it with numbers 1 to 13 and gave evidence of what happened at these particular areas which he marked.
    

1- Where he swam from
2- Where he swam to
3- Where he swam from
4- He swam to this spot
5- He swam from this spot
6- Where he swam to
7- Where the car parked
8- The public toilet
9- He was dragged to this spot
10- He jumped into the water here
11- He swam to this spot
12- The public toilet
13- The public toilet

Cross-examination

29. In cross examination, Sobbie said that he could not remember if there were any other person apart from the five Policemen and the three boys because he was lying face down in the back of the vehicle. It was also dark in the car.
    
30. When put to him that he did not know what happened to the two when the Policemen took them out, he says he was in the car and does not know. Sobbie however confirms that there were five Policemen and three victims in the car. They grabbed Kipa Wala and Samuel and they were already in the car when he was thrown in.
    

No re-examination

(2) Johannes Batara

31. Johannes Batara gave oral sworn testimony under oath and was cross-examined. In his evidence he states that he lives at Kapiak Street and grew up with Selwin Sobbie. He stayed together with Samuel Kola Khay at Kapiak Street. Samuel Kola Khay used to go with him to Kabwum and they used to share buai and smoke. Now Samuel Kola Khay is dead. He testified that he recalls that on Saturday 20 January 2018, he finished work around 12 noon. At around 7-8 pm he met Samuel Kola Khay at Kapiak Street near his house. When he met up with him, he called out for K1 to buy a smoke. I stood there talking with him at that place for 2-3 minutes and a car came, and it stopped. The car came and stopped and ordered us "kaikai kan, sleep!" So we lay on the ground. While we were lying down, they started hitting us. I asked why they were hitting me, and they asked, "you know Rasta?" and we said no.
    
32. When they beat us, they pulled us towards the front of the car and while we were sitting in front of the car, the tall men asked me "you know Rasta?" He was in Police uniform. There were more men. Some took Samuel to the other side of the car and hit him. Some took me to the front of the car and beat me and questioned me. The light was bright as it came from the car, the container store, and houses nearby. The distance from the container store to where he was at the car was about 15 meters. They parked on the road towards the side. There were other people there, but they did not come closer. The tall Policemen asked me about Rasta and many times about the same thing. He was standing close by to me sitting down. The witness indicated less than a meter away. Samuel Kola Khay was about two meters away from me. About 20-30 minutes they were beating us, and we knew nothing.
    
33. They took Samuel and me and put us in the car. I fell on bottles. They kicked me and stuck me towards the floor of the car. Samuel was lying next to me inside the car they continued to beat and cut us and asked about Rasta. They started the car engine and we drove out. While we drove out, we realized we were heading towards Eriku and stopped. They continued beating us. Then the vehicle stopped for about 30-45 minutes then one Policemen said we caught the wrong suspects so call and check bossmeri. Driver called someone and said "Mrs Governor, you talked about two suspects, can we bring them to the house, and you identify them?" She said lock them or take them away and so they continued to beat us.
    
34. 10 to 15 minutes later we heard them fighting some people outside, after that we heard them carry one man and throw him on top of us. It was dark so I could not identify him. We left and drove down to 212 roundabouts, they said to make our last prayers. They said "kaikai kan blo mama blo yupla, we're gonna kill you, you are rubbish" They also said, "you pray, we will take you to Markham River and throw you guys there". While the car was on the road, we prayed for our lives. Then I sensed we were no longer on cement, but on porthole road and the car stopped. They pulled me and Samuel out. When they pulled us out, they said go down to that river. They parked at the side of the Public Toilet and told us to go down. When they took us down there, they told us to jump and swim and I said I cannot swim. They said the same thing to Samuel. They put a gun at our back and pushed us down. They hit us to jump and swim. They were still talking and hitting us and when we did not listen, they fired one shot. We did not want to swim, when they fired that shot, I jumped and swam. I thought of my life, and I jumped.
    
35. I do not know about Samuel. I jumped and swam but I had clothes on, so I thought of turning back. I did not swim to the other side. I turned back and almost drowned and lost my life. I did not see anyone. I did not see Samuel from the area in which I jumped. I did not see anyone in the water. When I swam back, I came to some water lily and they said, 'one of them came back, shoot him'. While I was there for about 2-3 minutes, I heard another man jumped into the water. Same place me and Samuel were standing, he came and jumped off. I was tired and laid there until 4am and got up and walked home. I did not see Samuel. On Sunday I stayed home and on Monday I heard some news. After I finished work and went home, Samuel's family told me that on Saturday when they took you, Samuel died.
    

Cross-examination

36. In cross-examination, he said he could not identify the plate number or the registration number of the vehicle. He heard of Samuel's death on Monday afternoon.
    
37. When put to him that the Policemen in the car could not be the Policemen in the dock, he said, no, I saw one. He said only one of them hit me and I saw him. He said he did not have any medical report of his injuries.
    
38. It is noted that he has not identified which of the five accused persons hit him.
    

No re-examination

(3) Shane Kei

39. Shane Kei gave evidence under oath in tok Pidgin, and it was translated into English. He was cross-examined. In his evidence, he testified that he is a Defence Force soldier. On a weekend on 2018 he was at Igam Barracks. He came down to see his girlfriend at Bumbu Barracks. He said, I took her to Eriku and Town. We went back to Eriku and Andersons. I was standing there and met some Policemen. They came in a brown Ten-Seater Vehicle with tinted glass, they saw me, and it was the birthday of one Police Officer whom I knew.
    
40. We did not go anywhere. We stopped at the Police Station and picked up a lawyer. It was in the afternoon while the shops were still open. We took the lawyer to West Taraka. There were five Policemen: two senior non-commissioned officers, and three probation officers, and me. One senior non-commissioned officer was the driver, the other senior non-commissioned officer was the offside passenger. The probation officers sat at the back with me. They got a call and picked up a couple at West Taraka. They said we go down to China Town. I do not know the name of the Street. We went down there; they said wait and they went into a house and came back. The married couple said to go to Steven’s trading to get some beer. They bought two cartons of beer one for us and we put it in the ten-seater. They left. It was around 5pm when we went down to Papuan Compound. While we were there, I got a phone call from a colleague a soldier Junior Balasam. He said he was stranded, and I said I am with the boys, we will come pick you up and go to Igam Barracks. We drove up to Bumbu Police Barracks and I told him we were waiting for him. We stopped and got him and went up to Mt Lunaman. That one carton of beer the two senior non-commissioned officers said we should go get one each and then break up. It was already dark by that time we went up to Mt Lunaman. We went up and had one each. While we were drinking, they got a call. I do not know what kind of phone call. We jumped into the car and drove down. We were there for about 20 to 35 minutes. When they got the phone call, they said there was a disturbance at Morobe Provincial Governor's House. They said there is a disturbance at his house, so we drove to Polytech. The rest of us stayed out and two non-commissioned officers went inside. I do not know what was said, when they came out, they said "not here, it's at Boundary Road Kapiak Street. "We drove down there and asked the security, and he said there was a drunkard at Boundary Road Kapiak Street. The two senior Non-Commissioned Officers spoke to the Security Guards and one senior non-commissioned officer asked if there was some disturbance. So the Security told them, some drunk boys came and made disturbance, and security said yes, he knew them. They told the security guard to get into the car. There was about eight people in the car. Security got into the car, and they told him if you know the boys, we are going to pick them up. We drove out of the street and the security recognize the boys and said those are the two boys. When the security recognizes the boys, they got out and put them into the car and we went into the next street, a church street. They put the two boys into the car and beat them. All five Policemen went out, beat them, and threw them in the car and told them to lie on the floor. We sat in the car. We stopped next to the church and all 5 Policemen went down. A group of boys had walked down while the car parked at the church. When these boys walked down the Policemen put the car headlight and told them to lie down. They told them to lie on the ground and they searched them. One of them who was holding the pandanus, they put in the car and the rest they released. He laid down on the floor. I thought they would take them to the Police Station for one non-commissioned officer to arrest them. We drove towards show ground and the car turned towards the public toilet at Raun Wara. The two non-commissioned officers told the three probation officers to remove the boys out. One non-commissioned officers told all three boys to jump in the officer. I and my colleague were inside the vehicle. The non-commissioned officers were outside with the Policemen.
    
41. Kei also gave evidence that one of the boys said boss I do not know how to swim. The other one who was standing said I do not know how to swim and one of the non-commissioned officers fired a pistol. It sounded like a pistol. After the shot they jumped into the water. We dropped off the security and went to club 99 and dropped off two probation officers at bowling club. This was around 10pm.
    
42. Kei also identified the five police officers as the five accused sitting in the dock. He identified the first accused was one non-commissioned officer, the second accused being the other senior non-commissioned officers, the third accused being Probation Constable Alex Gambe, the fourth accused as Probation Constable Francis Dokono, and the fifth accused being Probation Constable Junior Kore.
    
43. Kei also gave evidence that he knows the accused persons because his girlfriend is a Policewoman. As for the three Probation officers, I used to go to Bumbu Police Barracks, and I used to meet them. As for the two non-commissioned officers, I was introduced to them that day by the three probation officers. One of them is Heni Meakoro. Heni is the person who fired the gun at Raun Wara
    

Cross-examination

44. At cross-examination he said they were at Raun Wara when he heard the one shot, but he did acknowledge that there was not enough light, so he was unable to see what happened down at the lake. But he states that he is a soldier, so he knows about guns. It is an actual pistol, and he could tell the difference between guns.
    

Re-examination

45. In re-examination, he said he knew that Heni fired the gun because he went out of the offside of the driver and the shot came from where he was. He does not know if the other Policemen were carrying guns.
    

(4) Junior Balasam Stephen

46. This witness statement was tendered by consent into evidence and is marked Exhibit 3. The statement is reproduced, and it reads:
    

'That my name and address are as above, and I am Private Balasam Stephen. I well recalled and wish to make my statement regarding the incident of drowning that occurred at Lae Raunwara-Iake opposite the Lae showground. It was on Saturday, 20 January 2018, I was with my girlfriend namely Policewoman probation constable Amenda Kalapa at female single quarters police barracks. I stayed with her for the whole day, and we went into an agreement between ourselves. And I decided not to sleep in the girls’ single quarters so and go back to Igam Army Barracks.

It was at time between 5pm and 6pm, and the PMV buses had stopped running on the roan doing final loads. So I rang my comrade Private Shane Kei and asked for his whereabouts, and he said, he was with Policemen in a vehicle moving around. I then asked him that I wanted to go back to Igam Barracks, and I was stranded at Bumbu Police Barracks. He replied to me and said to come into Bumbu Police Barracks and picked me, so I waited for them, and they arrived and picked me.

At about 6pm, they arrived and asked them if they could drop me off at Igam Barracks and they said yes. They were five Policemen, but I do not know their names, and some were brothers of Private Shane Kei. The vehicle that drove in was a brown Toyota Land Cruiser, Ten-Seater but I cannot recall the registration number plate of the vehicle. I went inside and sat down. All of them were drunk and there was a carton of SP Lager Bottle beer in the middle and some loose bottles of SP Beer were lying all over the floor of the vehicle.

As soon as I sat down, they offered me a bottle of SP Beer to drink so I took it and drank it at the same time we drove out of Bumbu Barracks gate and headed towards Top Town way. We drove all the way up to Namanual Mountains where the Digicel Towers are installed and went ahead drinking beer. We had good fun drinking together there.

The noncommission officer (NCO) a police officer, whose identities were familiar to me said, boys get into the vehicle, so we all got into the vehicle. It was at time around 7:00pm something when we drove towards the opposite of Poly Tech College and checked the house of the Morobe Governor Hon Gibson Saonu, and the security man there directed us to go to Kapiak Street that there was a disturbance done by drunkards. I did not know what the whole mission was all about the driver had the communication on his phone and we were watching and drinking.

We went and arrived at Kapiak Street and stopped at Karoka Place and the place where we were told that some drunkards had caused some damage on the outside betel nut sales table market and had all got away before our arrival.

The policemen got off the vehicle whilst me and Shane Kei remained in the vehicle and watched. Policemen picked up two youths. Both of them were also drunk so the Policemen pulled them into the vehicle after searching them. Then we drove into the next street and stopped at the back of the church building and watched.

A group of youths walked up the streets from the main highway into Karoka Place, so the Policemen stopped them and searched them. One of the boys carried a long knife and some rolls of drug, marijuana, cannabis so they slapped him and also pushed him into the vehicle and laid the three of them in the middle of us. We drove down towards 212 Round about and drove along Markham Road passing Bugandi Secondary School and headed towards Law Show Ground. I thought we were going up to Lae Central Police Station, so I sat quiet.

Just before passing the Lae show ground the driver turned left into the public toilet near the Lae Lake and stopped. The Police men then pulled the two boys down outside and questioned them to give the name of the youth that caused disturbance at the Governor's House at Karoka Place. But they all denied so Policemen ordered them into the lake. And swim to the other side which only one of the two did and the other one waded into the water about a meter away and said," boss mi no save 10 swim ya " and swam back. Later the Policemen ordered the third man with the drug to also follow his two friends and swim to the other side. But he did not swim away instead he stopped next to the youth who said he did not know how to swim and stopped there. Which made the policeman with the pistol angry, so he fired the pistol. One of the two senior officers of the police offsider, whom I was told that he was from Kerema, but I do not know his name fired the pistol once.

The three of the youths were gone into the lake so we left the lake and drove to Lae bowling club upon the request of two of the Policemen and we went and drove both of them there. After from there, the driver, his offside, Private Shane Kei and myself, drove straight to Dragons Club late old airport and continued drinking beer. Shane and I went into the dancing hall and remained there until the time about 4am a fight broke out outside. There was a big noise and music, and we did not know who fought with who and just remained inside until we realized that all the Policemen were gone with the vehicle. Myself, Shane and one Policemen remained in Dragons Club until they broke, and we made our way out and I went to Bumbu Police Barracks.

That is all my statement."

(5) Allan Pinia

47. Allan Pinia gave oral evidence under oath and was cross-examined. He gave his evidence in tok Pidgin, and it was translated to English. In his evidence, he testified that he is a Policemen in the rank of Sergeant. He graduated in 1984. In 1998 he transferred to the Lae Traffic Section. He served for 35 years and now he is with CID Motor Squad. He joined CID in 2003. He said, my duties as an investigator are to investigate reports of case involving motor vehicle. Sometimes we do other cases like murder, GBH and wounding. He came to know the five accused when the case was handed over to Nick Otire. That day, we overheard over the Police Radio about a body floating at Raunwara. He and Michele Sibong and another Policeman got the message. The message came from Zero Alpha operations room and Lae Central Police Station. They were broadcasting for any CID unit to respond and see the body that was floating at the Raunwara we responded. On the Police Radio, our OIC CID inspector Russel Egimbari asked to ask us to fetch mortuary guys to fetch the body. When we arrived at Angau, we got the morgue attendant and two body bags. We came to Poinciana Street at Eriku, we could see the body floating above the water some meters away from the side of the lake. We asked around and bystanders said some boys found it and the body was there overnight. It was lying face up, hands and legs outstretched. Two bystanders swam out and tied a rope to the body and pulled it out. It was carried upwards to the place we were standing, and we took the body to Angau. The body was placed at the layout at the morgue, and I took a photo of the body and we drove off. We drove to Kapiak Street we stopped at the market, and I showed the picture on my mobile to some vendors there. I talked to the mother who took care of the body, and she recognized him and said that is my son. When came to the Police Station, we reported the matter as suspicious death. We reported the matter in the occurrence book.
    
48. Before apprehending suspects, we searched them for offending weapons and drugs and take them straight to the Police Station. We then charged them or reprimand them. Upon apprehension take them straight to the Police Station for questioning, and if we see that the complaint is serious or minor, we decide whether to charge or release them. We decide based on the nature of the charge. Police only reprimand suspect if it is a domestic disturbance complaint. When you come across a suspect, you question, search, and take them straight to the Police Station. Then you decide whether to arrest or caution them.
    
49. The record of the interview of Junior Kore and Noel Sine was tendered and marked exhibits 4 and 5. The witness explained that the 5 Policemen were engaged to recover the cars of the Provincial Government. They were all in the same team engaged to retrieve the vehicles. The vehicle they used at that time was owned by a hire car company and only 5 of them were charged for the death. The witness marked photo 6 on exhibit 2 with the number 14 as the place where the body was floating.
    

Cross-examination

50. In cross examination, he said they have the power to bring suspects straight to the Police Station, they do not decide straight there at the scene. He said when asked if they had the power to release them, he said if it is minor, we release them on the spot. When asked if nothing was wrong for accused to released disease at Raunwara, he said I cannot speak for them.
    

No re-examination

(6) Michelle Sibong

51. Michelle Sibong gave oral evidence under oath and was cross-examined. In her evidence, she testified that she is a Policewomen with the rank of Senior Constables. She was previously attached to CID but now with Police Training. Her duty was to facilitate the training of Policemen and women. She conducts development and supervision for Policemen and women. She passed out in 1998, was in Mendi with Public Safety and in 2000, posted to CID Sexual Offence Section and in June 2001, posted to training.
    
52. On Monday 22 of January 2018, we were instructed by Russel Egimbari of a body at Raunwara. I, Sergeant Pinia and Birik Kamai were instructed to check. After we confirmed, we went to the mortuary, and then to Raunwara. There were four of us including the morgue man who went down to Raunwara between 8-9am. The body was faced down and outstretched in the water. It was a male body, and it was dead. The body had clothes and shoes on. We were at the Eriku side of the Raunwara, and the boys around there swam and took the body to us, and we put it to the car and took it to the mortuary. The body was swollen from the face down to the leg. There was no blood or physical injury to the body. The by-standers told us he was from Kapiak Street, so Sergeant Pinia took a picture of the body, and we went to Kapiak Street, and they identified him as someone from Kapiak Street. Then we went and reported the death.
    
53. Police Officers take suspects and bring them to the Police Station. The Police have training manuals and during the course of employment, the manual is given to them. The Arrest Act requires the suspects to be taken to the Police Station because it is a neutral place.
    

Cross-examination

54. In cross examination, she said we were standing on a hill looking down to the lake. It was towards the Eriku side. The body was about 5 meters from the bank. When asked if it was mandatory to take suspects to the Police Station, she says it goes back to the seriousness of the matter.
    

Re-examination

55. In re-examination, she said Raunwara is a big lake, it was estimated to be about a kilometre wide.
    

(7) Andy Ikime

56. Andy Ikime gave oral evidence under oath and was cross-examined. In his evidence, he testified that he is a Constable of Police. His duty is to attend to Crime Scenes. He attends to autopsies and takes photographs. He graduated in 2012 and was attached to the Public Safety unit. In 2017, he joined CID Forensics. He said he was instructed by case officer to attend to the crime scene and postmortem. On 6^th and i h February 2018, he took photos at Raunwara, and on 20th March 2018, he took photos at the mortuary Exhibit 6 was tendered through this witness. He identified photo 1 as the general view of the deceased; Photo 2 as the deceased's face; Photo 3 as deceased upper body; Photo 4 as deceased leg; Photo 5 as deceased upper body and photo 6 as deceased lower legs. His statement dated 17'h April 2018 was also marked exhibit 6.
    
57. He said there were minor tissue injuries on the lower leg of the body. The postmortem was conducted on the 20 March 2018. No other injuries on the body. Samuel Kola Khay was the name of the deceased. It was not made known to him the cause of death at the time of the autopsy.
    

No cross-examination

(8) Nick Otire

58. Nick Otire gave oral evidence under oath and was cross-examine. He testified that he is a senior constable attached to CID Unit. He has been a CID for 28 years and he has been investigating for 29 years. He was Porgera when the incident occurred. When he came in February, the file was with OIC CID. All documents were filed and pending further investigations. The five accused were already suspended. At the time the five were recouping government vehicles. The car they were allocated was LBO 614. He conducted the record of interview of three of the accused. The ROI of Heni Meakoro was marked exhibit 7, the ROI of Alex Gambe was marked exhibited 8, and ROI of Francis Dokono was marked exhibited 9.
    
59. I was present at the autopsy with Andy Ikime and Dr Komnapi. The body was slightly decomposed. The stomach was swollen, lips was swollen, but no other injuries found on the body of the deceased. When the body was lifted, water came out of the eyes, mouth, and ears. The abdomen area was full of water. He said, I reconstructed the crime scene and completed the file. The Raunwara lake is deep. No one can stand in it. It is quite wide, and no one can walk across the lake. It is deep.
    
60. He said police personnel search, caution, and take suspects to the Police Station. He said, we take exhibits off them and consider them for arrest. If found drunk, we take them to the Police Station for 48 Hours. Then we take them out and cautioned them under section 42 and apply judges' rules. The judges' rules are giving them short cautions, Constitutional rights to seek legal aid before further detained them and formal arrest. It is professional conduct to be sober. We got to be professional, we got to be dressed appropriately and attend to complaints. We got to properly label exhibits; we have discretion under Police Force Act. If it's a minor case, we can warn suspects and let them go. Secondly depending on the complaint we charge them. The non-commissioned officer is the officer on ground. If the non-commissioner is sick, I report to the PIC Police Station. If he is sick, then it is up to the Metropolitan Superintendent and then the Acting Commissioner of Police.
    

Cross-examination

61. In cross examination, he said when he got the file, it had the notice of the suspension of the Police Officers, the report to corona, and some statements of witnesses. Another officer had taken those statements. He said any Police Criminal Investigator can take up an investigation from another officer. The OIC is the one who assigns cases. He said he administered section 42 rights during the record of interview as shown on the records.
    
62. If a complaint is lodged, we assess the situation and if it serious, we arrest. Not on the public street. When put to him that if an offence was not serious, it was discretionary to release them anywhere, he said yes. We do if the offence is not serious.
    

Re-examination

63. In re-examination, when asked what was required when releasing suspects, he said we got to administer judges' rules, inform them that they are now released from Police custody and make sure they understand why we release them.
    

The documentary evidences

64. The table contains an outline of the exhibits tendered at trial are:
    
    • Nine Photographs numbered 01 to 09
      
    • Four Photographs of Brown Toyota Ten-Seater Vehicle bearing registration number LBQ-611
      
    • Statement of Junior Balasam Stephen dated 23 February 2018
      
    • Record of Interview Between the Police and Junior Kore dated 09 February 2018
      
    • Record of Interview Between the Police and Noel Sine dated 09 February 2018
      
    • Statement of Andy Ikime dated 17 April 2018
      
    • Six photographs numbered 01 to 06
      
    • Record of Interview Between the Police and Heni Meakoro dated 09 February 2018
      
    • Record of Interview Between the Police and Alex Gambe dated 09 February 2018
      
    • Record of Interview Between the Police and Francis Dokono dated 09 February 2018
      
    • Affidavit of Dr Lucas Komnapi dated 28 March 2018 and attached autopsy report dated 20 March 2018
      

Submission for the Defence

65. Mr. Boku for the accused persons submitted that the co-accused persons were jointly charged for manslaughter under s 302 of the Criminal Code. Although trial of the matter was conducted by Mr. Kusip, he has now taken over the matter and has prepared a submission on the “No Case Submission” after reviewing the transcripts of the trial process, which was produced for his purposes on 18 July 2023.
    
66. Counsel submits that the no case submission is based on the first limb of Paul Kundi Rape [1976] PNGLR 96 where there is no evidence satisfying the elements of the offence to connect each of the accused to the alleged offence.
    
67. The Defence raise issues relating to the inconsistencies identified in the evidence of the witnesses Selwin Sobbie and Johannes Batara who were with the deceased at the time of the apprehension. The defence also raised issues with regard to the inconsistencies discovered in the evidence of Shane Kei and Junior Balasa Stephen who although were accompanying the co-accused persons, had turned “State witnesses”. These are matters which I will deal with in the later part of this judgment.
    

Selwin Sobbie

68. Regarding the evidence of this witness, the Defence say that the witness came prepare to lie to the Court due to his demeanour during examination in chief. Firstly, his demeanour was that of a person who was rushed to answer questions and also had asked Counsel to repeat questions put to him, indicating inconsistencies and uncertainties in his recollection of the incident and that he was prepared to lie to the Court. The defence had raised several incidents or points which it alleges are inconsistent in his evidence, and I will attempt to address them below:
    

Residential status

69. The witness states that he has lived at Kapiak Street since childhood, his evidence appears to be unreliable and credible in relation to his subsequent answer as to the incident of 20 January 2018. This is so where he states that he has knew deceased 3 years before and after the incident.
    
70. Having assessed the evidence of this witness in relating to answer to the question of his residential status, his evidence is that he has lived at Kapiak Street since childhood and his co-defendants are familiar faces and known to him.
    
71. He states further he only came to know the deceased in the 3 years before and after the incident of 20 January 2018. I understand that it is now three years after the demise of the deceased, so I find no inconsistency here.
    
72. However, the only remaining issue is that there appears to be a break in the residential status of the witness, where he explained that he “came for Christmas holidays and the incident happened in January so couldn’t get back to Madang” so, what does this mean?
    
73. Having assessed this evidence, I find that the explanation is not inconsistent, it does not mean that the witness did not grow up at Kapiak Street. It implies that he may have moved to Madang and had returned to Kapiak Street for holidays and whilst here, the incident occurred, which he explained prevented him from returning to Madang.
    

Knowledge of Johannes Batara

74. Here the defence say that the witness’s knowledge of Johannes Batara and his rush responses to questions put to him by counsel and the Court is unreliable and not credible. His demeanour is that of a witness who came to Court prepared to lie. His recollection of the incident and responses to questions put to him demonstrate that he was coached to come and lie to the Court. Counsel submits that demeanour is an aspect that assist the Court in determining cases therefore he submits that this Court negative his evidence.
    
75. In this regard, I understand from this witness evidence is that he lives at Kapiak Street (Section 1) so does the other witness, Johannes Batara (alias Kipa Waka) who is known to him, who also lives at Section 2) of Kapiak Street. He also gave evidence that Johannes Batara works at the Lae City Council. I also understand that when questioned as to how long, he had lived in this area, he initially stated that he lived there 3 years since the incident which is means that he has remained at Section 2, Kapiak Street since 20 January 2018 and three years prior to 20 January 2018. It can also be inferred that he has since moved from Section 2, Kapiak Street as no question was put to him to clarify his statement.
    
76. Given that, I do not see any inconsistency in his evidence. He states that the other witnesses reside within his area, and they are known to him.
    
77. In any event, the defence in this case has not countered any evidence to say that the witness did not reside at Kapiak Street, Lae on 20 January 2018.
    

Knowledge of incident

78. Here the defence is alleging that the witness came prepared to lie to the Court, whilst I do note that the demeanour of a witness is an element which this Court is mindful of, in assessing credibility of a witness, I am of the view that the question raised here is an innocent one, because, a lot of events had taken place that evening, such as being apprehended at Kapiak Street, dumped into the backseat of the 10 Seater, driven to Raun Wara and being told to jump in Raun Wara, those are different incidents in themselves, so I find that the witness was genuine in asking what specific incident was Counsel referring to and thus there is no inconsistency in his evidence.
    

Identification of number of police

The witness in this case, is telling his story as to what occurred on the evening of 20 January 2018. I do not see anything wrong with him telling his story without Counsel prompting him. In telling his story, he stated that 5 policemen drove up in a 10-seater vehicle and apprehended them. He also gave evidence that one policeman pointed the gun at him and his friends and told them to lie down on the road. He also told the Court that it was night-time, and the policemen shone the car lights on them. I do not find any reason for this witness to lie about what occurred on that evening. This witness statement is corroborated by the evidence of Johannes Batata, Shane Kei, and Junior Balasam Stephen.

79. The witness gave evidence that the policemen apprehended them at night at Church of Christ, Kapiak Street. He identified Francis Dokono as the policeman who hit him on the head with a Marita or Pandanas fruit, he also broke his necklace and threw it into the water and by this, his evidence places Francis Dokono at the edge of the Raun Wara Lake.
    
80. This witness also gave evidence that the policeman with the gun is known to him as he frequents his cousin’s place at East Taraka and drinks beers with him. He identified him as Heni Meakoro.
    
81. This witness also gave evidence that the policeman who is the driver of the 10-Seater vehicle is Noel Sine. He also gave evidence that this policeman is the one giving orders to the other policemen to do this and do that, including orders which were directed to the other policemen at the Raun Wara Lake.
    
82. Aside from identifying the three policemen, no suggestion or evidence has been tendered with regard to the involvement of the two remaining policemen who were in the company of the three policemen identified by this witness.
    
83. However, I do note that the State has invoked s 7 of the Criminal Code, hence, in the normal course of event, if anything, their involvement in the offence would be in accordance with the degree of participation.
    

Evidence to number of persons in vehicle

84. Regarding the evidence relating to the number of persons in the 10-seater vehicle, I take it that there were in fact, more than 8 persons in the said vehicle, the two other persons in the vehicle were non policemen and this is confirmed in the evidence of Shane Kei and Junior Balasam Stephen. So I find no inconsistency here because the witness did not know that Shane Kei and Junior Balasam Stephen were not police officers. In fact, Shane Kei in his evidence states that there were all together 7 of them in the 10-Seater when they arrived at Kapiak Street.
    

Evidence of consumption of alcohol

85. This is confirmed in the evidence of Shane Kei who gave evidence that whilst in the company of the policemen, they went to China Town and stopped at Stephen’s Trading and bought two cartons of beer and went to Mount Lunaman and drank beer and whilst there, the NCO received a phone call and then they headed back to Lae to attend to a disturbance at the Governor’s Polytech residence and then on to Boundary Road, Kapiak Street.
    

State witnesses

86. As regards the allegations regarding the testimony of State witnesses, Shane Kei and Junior Balasam, relevant notices had been given to the Defence of the State intending to call them as witnesses. No issues had been raised by the Defence. The Defence have not raised any issues in relation to the competency of Shane Kei as a witness. Furthermore, the Defence has consented to the tendering of Junior Balasam’s statement. Once tendered and accepted as evidence by the court they are for all intent and purposes evidence which the party tendering them can rely upon as evidence. A party cannot hark back and argue against their admissibility. Nor can a party argue against relying upon this evidence: See State v Moro [2011] N4906 (18 February 2011), State v Manak [2022] N10339 (14 April 2022). Once a party has consented to the tendering of any documents and or statement into evidence, they cannot now argue against it admissibility: see also a recent judgment in the case of The State v Michael Earley (Unreported judgment, 19 April 2024).
    
87. With regard to the evidence of the other State witnesses, they each gave evidence as to their respective roles in the conduct of the investigation.
    
88. In this case, Witnesses Allan Pinia and Michelle Sibong gave evidence as to their roles in the recovery of the body from Raun Wara Lake and transporting it to the morgue, although he cannot recall the exact date that the recovery of the body took place. As regards anything else about knowledge of police procedures employed in regard to apprehension of suspects and etc, that is really not relevant as he is not the arresting officer. But the procedure is clear, in that police are empowered to release suspects on the spot where appropriate. They both prepared a report on the recovery of the deceased person and forwarded that report to the superiors for appropriate action.
    
89. Witness Allan Pinia did however give evidence that he conducted a Record of Interview with the accused persons, Junior Kore and Noel Sine and tendered them as evidence marked Exhibit No.4 and 5 respectively. The accused persons elected to remain silent. Given these matters, I do not see any inconsistencies in their evidence.
    
90. Witness Andy Ikime gave evidence that he is a photographer and his role in taking photographs of the deceased body and attendance at the post mortem is part and parcel of his job. I do not see any inconsistencies in his evidence. There is a deceased person. The issue before the Court is what caused his death? I do not see any inconsistency in his evidence.
    
91. Witness Nick Otire is the lead investigator, and he gave evidence that he conducted a Record of Interview with the accused, Heni Meakoro, Alex Gambe and Francis Dokono. They all elected to remain silent. Given these matters, I do not see any inconsistencies in his evidence.
    
92. In any event, the co-accused had elected to remain silent.
    

The State's Submission

93. The State submits that all the elements of the charge of Manslaughter are supported by the evidence adduced thus far.
    
94. It is not disputed that the body of a male person was found dead at Raun Wara Lake on 22 January 2018. It is also not disputed that the name of the deceased was Samuel Kola Khay. The first question is, what caused his death?
    

The cause of death

The autopsy report 20 March 2018 was tendered by consent of Defence: See State v Moro (supra) State v Manak (supra) and The State v Michael Earley (supra). The report states that the direct cause of death was drowning. In the report summary on page two, Dr Komnapi said the autopsy examinations showed a moderately decomposed body in long pants and boots. He had bruises to his left inner thigh, right knee, and shin of the right leg. The internal examinations of the systems were unremarkable and free from physical injuries of the internal organs. It was therefore Dr Komnapi's opinion that the deceased died from drowning. The defence cannot now dispute this evidence before the Court. Evidence of death by drowning also comes from Nick Otire that when the body was lifted at the autopsy, water came out of the eyes, mouth and ears and the abdomen area of the deceased was full of water. Although there were findings of bruises to the deceased's left inner thigh, right knee and shin of the right leg, the cause of death remains as death by drowning. The State also points out that the Defence has not suggested that the death was caused by something other than drowning. Consequently, the cause of death is an uncontested fact.

Identification of the person(s) who caused the death

95. The State submits that there is evidence establishing that the death by drowning was caused by the five accused persons.
    
96. The State submits however that the evidence of Selwin Sobbie goes to show what had happened to the deceased prior to his death.
    
97. In his evidence, Selwin Sobbie said that on 20th January 2018, he and five other boys were passing through Church of Christ when headlights went on and flashed at them. Someone came out of the car and pointed a pistol at them and commanded them to lie down. He was wearing a Rabaul Gurias jersey and long jeans. The men behind him were in full Police Uniform. They started searching them and checking their pockets. The witness identified the one with the PNG Mask as Francis Dokono. The one with the pistol was Heni Meakoro. The driver was giving orders and was identified as Noel Sine. Selwin Sobbie identified the third and the fifth accused persons as the other two remaining policemen on the vehicle. The fifth accused picked up the remaining pandanus and smashed it on his head. He was not sure what the third accused did. They threw him in the car. The driver and the offside passenger were in front and there were three Policemen at the back. There was already Johannes Batara and Samuel Kola Khay at the back. The three boys pleaded to be set free.
    
98. They drove to Raun Wara and took Johannes Batara and Samuel Kola Khay out and left him behind. He heard them beat the two outside and then a gun went off about 10-15 seconds after they took them out. He heard water splashing and he didn't hear anything else. They came back and took him out and beat him. Francis Dokono broke his necklace and threw him into the water. He did not see Johannes Batara and Samuel Kola Khay. He swam to the other side of the lake about a hundred meters. He asked some boys on the other side for shirt and went to his house.
    
99. Can the Court rely on the evidence of Selwin Sobbie? The State submits that it is safe to accept his evidence as he could see clearly. At the church area, the lights of the Toyota Ten-Seater were on, and he could see. Also, there were houses in the church vicinity.
    
100. Selwin Sobbie's evidence as to what happened to the deceased to have caused his drowning is corroborated by the evidence of Johannes Batara, Shane Kei and Junior Balasam Steven.
     
101. Johannes Batara stated that on Saturday January 2018 at around 7-8 pm, he met Samuel Kola Khay at Kapiak Street near his house. They stood for about 23 minutes and a car came and stopped. They were ordered to lie on the ground, and they were hit by the policemen. The policemen pulled them towards the front of the car and while we were sitting in front of the car, the tall man asked him "you know Rasta?" He was in Police uniform. There were more men. Some took Samuel to the other side of the car and hit him.
     
102. They took Samuel and him and put them in the car. They kicked him and stuck him to the floor of the car. Samuel was lying next to him inside the car. They continued to beat and cut them and asked about Rasta. They then started the car and drove out, heading towards Eriku and then stopped. 10 to 15 minutes later the policemen beat some people outside and then carried a man and throw him on top of them.
     
103. They drove off and when the car stopped, they pulled him and Samuel out. When they pulled the two of them out, they said go down to that river. They parked at the side of the Public Toilet and told them to go down. When they took them down there, they told the two to jump and swim and Johannes said he could not swim. They said the same thing to Samuel. They put a gun at their back and pushed them down. They beat them to jump and swim. They were still talking and hitting the two and when they did not listen, they fired one shot. The two did not want to swim and when they fired that shot Johannes jumped in and swam. He thought of his life, and he jumped. He did not know about Samuel. He jumped and swam but he had clothes on, so he thought of turning back. He did not swim to the other side but turned back and almost drowned and lost his life. He did not see anyone and did not see Samuel from the area in which he jumped. He did not see anyone in the water. When he swam back, he came to some water lily and they said, 'one of them came back, shoot him'. While he was there for about 2-3 minutes, he heard another man jumped into the water. At the same place where Johannes and Samuel were standing, he came and jumped off. Johannes was tired and laid there until 4am and then got up and walked home. He did not see Samuel. On Sunday he stayed home and on Monday he heard some news: after he finished work and went home, Samuel's family told him that on Saturday when they took you, Samuel died.
     
104. He was able to identify the persons who hit them because there was sufficient light and time to make the identification. The lighting was bright as it came from the car, the container store about 15 meters and the houses nearby. The tall Policeman who asked him about Rasta was standing less than a meter away. All this occurred for about 20-30 minutes.
     
105. Johannes does not specifically state that he saw the deceased jump into the water when the gun went off. However, an inference can be drawn from his evidence that the deceased did jump into the water. Johannes did not see the deceased on the shore or in the water when he saw back to where he jumped off. He also did not see the deceased when he was lying in the lake till 4am in the morning. The only reasonable explanation for the deceased not being seen by Johannes is because the deceased jumped into the lake.
     
106. Support for this inference can be drawn from the intention of the five accused persons at the time. The State submits that the intention of the five policemen was to harm the deceased and the other two boys by throwing them in some somebody of water.
     
107. According to the evidence of Johannes Batara, he said that when they drove down to 212 roundabouts, the policemen said to make their last prayers. They said "kaikai kan blo mama blo yupla, we're gonna kill you, you are rubbish" They also said, ''you pray, we will take you to Markham River and throw you guys there". These words and their action of taking the boys to Raun Wara and firing a pistol to scare them to jump into the water also manifests their mental state.
     
108. Considering their actions and their words at the time, the State submits that the only reasonable conclusion is that the five accused did not release the deceased to go free while the deceased was on dry land but rather caused him to jump into the lake (Raun Wara).
     
109. Further support for this inference of the deceased having jumped into the lake (Raun Wara) comes from the evidence of Selwin Sobbie that the deceased was not on the shore (side of the lake) when he was taken down and thrown into the water. Because Selwin was taken down to the lake after Johannes and Samuel, Selwin should have seen the deceased on the shore when he was taken down to the lake, but Selwin did not see the deceased and so the only plausible explanation for the absence of the deceased is that he jumped into the lake and drowned when Selwin was still in the vehicle. As for Johannes Batara, it is presumed that he had swam away from the bank of the lake in his attempt to get away from the accused and to get the other side of the lake because he was threatened by the accused that if he did not swim, they will shoot him.
     
110. More support for Johannes Batara's evidence comes from the evidence of Shane Kei and Junior Steven Balasam. Junior Steven Balasam's evidence was that the three boys had gone into the lake, so they then drove off from Raun Wara. He said: 'The three of the youths were gone into the lake so we left the lake and drove to Lae bowling club upon the request of two of the Policemen and we went and drove both of them there '.
     
111. Shane Kei said they drove towards show ground and the car turned towards the public toilet at Raun Wara. The two non-commissioned officers told the three probation officers to remove the boys out. When they removed then he thought they would let them go. One non-commissioned officer told all three boys to jump into the water. Shane and his colleague were inside the vehicle at the time. The other non-commissioned officer was outside with the other policemen. One of the boys said, 'boss I do not know how to swim'. Then one of the non-commissioned officers fired a pistol. It sounded like a pistol. After the shot, one jumped into the water. He doesn't know what happened to the other two. Later they dropped off the security and went to club 99 and then dropped off two probation officers at bowling club. This was around 10pm.
     
112. Shane Kei's evidence shows that the three boys were taken out of the car and told to jump in the water. It also supports the evidence of Johannes Batara and Selwin Sobbie that a gun was fired to force them to jump into the lake.
     
113. Shane Kei knew the accused persons because his girlfriend is a Policewoman. He used to go to Bumbu Police Barracks, and he used to meet three probation officers there. As for the two non-commissioned officers, he was introduced to them that day by the three probation officers. One of them is Heni Mea. Heni fired the gun at Raunwara.
     
114. Shane Kei spent time with the five accused when it was still light and could not mistake them. He was picked up by the five accused while there was still light, and the shops were open. He drove around with them to West Taraka and China Town and then to Steven’s trading. Around 5pm they went down to Papuan Compound. Later they went to Mt Lunaman where it was then dark.
     
115. Shane Kei also knew the three probationary officers personally. As for the two non-commissioned officers in the dock, he was introduced to the two when they picked him up at Andersons-one of them was Heni. Shane Kei identified the five police officers as the five accused sitting in the dock. The first accused was one of the non-commissioned officers, the second accused was the other senior non-commissioned officer; the third accused was probation constable Alex Gambe; the fourth accused was probation constable Francis Dokono; and the fifth accused was probation constable Junior Kore. The State therefore submits that the Court can thus accept the evidence of Shane Kei as to what happened to the deceased.
     
116. Further evidence to support the evidence of Selwin Sobbie, Johannes Batara, Shane Kei, and Junior Steven Balasam as to what happened to the deceased at the lake is the undisputed fact that the body of the deceased was found at the lake on 22 January 2018. This fact confirms their story that the deceased had jumped into the lake. His body was found at the lake because he jumped in and drowned there.
     
117. The State submits that the evidence of Selwin Sobbie, Johannes Batara, Shane Kei and Junior Steven Balasam support or reinforce each other and when viewed in conjunction with one another, all their evidence point towards a finding that the deceased had been forced to jump into the lake.
     
118. Having outlined in the above paragraphs the evidence showing what happened to the deceased at raun Wara, the State now moves on to outline below other evidence which supports the identity of the five accused as the persons who forced the deceased to jump into the lake.
     
119. The persons who caused the deceased death were connected to the provincial governor. Johannes Batara said that while they stopped at the church for about 30-45 minutes one of the Policemen said that they had caught the wrong suspects and to call and check bossmeri. So the Driver called someone and said "Mrs Governor, you talked about two suspects, can we bring them to the house, and you identify them?" She said lock them or take them away. Furthermore, Shane Kei talked of the policemen responding to a call from the provincial governor's residence when they picked up the deceased at Kapiak street.
     
120. The State submits that the only persons who were connected to the governor at the time and could have responded to his wife's call were the five accused persons. There is evidence that the accused persons were engaged by the provincial government to recover vehicles belonging to the provincial government and they were given a car to carry out the operations.
     
121. A further point to be made here is that from the earliest point in time the five accused were connected to the offense, and they are the only police personnel who have been dealt with administratively and arrested and charged in connection with the death of the deceased. Hence, it can only have been the five accused who were involved in the death of the deceased.
     
122. The State has invoked section 7 and B of the Criminal Code hence each of them are equally liable for the conduct of one another. Even if they all did not fire the gun that scared the deceased to jump into the lake, they were all present at Raun Wara, they all took the deceased out of the car and none of them separated themselves from the group before the deceased jumped into the lake. None of them voiced any objection to Heni Meakoro firing the shot to scare the deceased into jumping into the lake. They had a common purpose and intention, and they carried it out, as a result of that, the deceased passed away. They are all equally responsible for his death.
     

Was their conduct legally justified?

123. The State submits that there is no legal justification for them causing the deceased's death.
     
124. The State first refers to section 197 of the Constitution of Papua New Guinea sets out the functions of the Police Force:
     

'197. FUNCTIONS OF THE POLICE FORCE.

(l) The primary functions of the Police Force are, in accordance with the Constitutional Laws and Acts of the Parliament-

(a) to preserve peace and good order in the country; and

(b) to maintain and, as necessary, enforce the law in an impartial and objective

125. The function of the police force is therefore to maintain peace and order in the community. The State submits that the conduct of the five accused did not reflect this function.
     
126. Turning now to the constitutional safeguards of all persons, the freedom of all members of society are protected by section 42 of the Constitution:
     

'42. LIBERTY OF THE PERSON.

(1) No person shall be deprived of his personal liberty except-

(a) in consequence of his unfitness to plead to a criminal charge; or

(b) in the execution of the sentence or order of a court in respect of an offence of which he has been found guilty, or in the execution of the order of a court of record punishing him for contempt of itself or another court or tribunal; or

(c) by reason of his failure to comply with the order of a court made to secure the fulfilment of an obligation (other than a contractual obligation) imposed upon him by law; or

(d) upon reasonable suspicion of his having committed, or being about to commit, an offence; or

(e) for the purpose of bringing him before a court upon execution of the order of a court; or

(j) for the purpose of preventing the introduction/ or spread of a disease or suspected disease, whether of humans, animals, or plants, or for normal purpose of quarantine; or

(g) for the purpose of preventing the unlawful entry of a person into Papua New Guinea, or for the purpose of effecting the expulsion, extradition, or other lawful removal of a person from Papua New Guinea, or the taking of proceedings for any of those purposes; or

(h) in the case of a person who is, or is reasonably suspected of being of unsound mind, or addicted to drugs or alcohol, or a vagrant, for the purposes of-

(i) his care or treatment or the protection of the community, under an order of a court; or
(ii) taking prompt legal proceedings to obtain an order of a court of a type referred to in Subparagraph (i)

• (i) in the case of a person who has not attained the age of18 years, for the purpose of his education or welfare under the order of a court or with the consent of his guardian.
  

(2) A person who is arrested or detained-

(a) shall be informed promptly, in a language that he understands, of the reasons for his arrest or detention and of any charge against him; and

(b) shall be permitted whenever practicable to communicate without delay and in private with a member of his family or a personal friend, and with a lawyer of his choice (including the Public Solicitor if he is entitled to legal aid); and (c) shall be given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained, and shall be informed immediately on his arrest or detention of his rights under this subsection.

(3) A person who is arrested or detained-

(a) for the purpose of being brought before a court in the execution of an order of a court; or

(b) upon reasonable suspicion of his having committed, or being about to commit, an offence, shall, unless he is released, be brought without delay before a court or a judicial officer and, in a case referred to in paragraph (b), shall not be further held in Custody in connection with the offence except by order of a court or judicial officer. '

127. Section 42(2) does not allow a suspect to be assaulted and forced to jump into a lake. He should be given his section 42(2) rights and then brought before a judicial officer.
     
128. Nick Otire said that police personnel search, caution, and take suspects to the Police Station. He said, we take exhibits off them and consider them for arrest. If found drunk, we take them to the Police Station for 48 Hours. Then we take them out and cautioned them under section 42 and apply judges' rules. The judges' rules are giving them short caution, Constitutional rights to seek legal aid before we further detain them and formally arrest. It is professional conduct to be sober. We got to be professional, we got to be dressed appropriately and attend to complaints. We got to properly label exhibits. We have a discretion under Police Force Act: if it's a minor case, we can warn suspects and let them go. Secondly, depending on the complaint we charge them. The non-commissioned officer is the officer on ground. If the non-commissioner is sick, I report to the PIC Police Station. If he is sick, then it is up to the Metropolitan Superintendent and then the Acting Commissioner of Police.
     
129. Michelle Sibong supported his evidence by saying that police officers take suspects and bring them to the Police Station. The police have training manuals and during the course of employment, the manual is given to them. The Arrest Act requires the police to take suspects to the Police Station because it is a neutral place.
     
130. Her evidence is supported by the Arrest Act.
     

'17. DUTIES OF A POLICEMAN AFTER ARREST.

(1) Where a policeman makes an arrest, he shall-

(a) take the arrested person without delay to a police station to be dealt with under Section 18 or before a court; and

(b) subject to Subsection (2), use all reasonable means to prevent the arrested per on from escaping.

(2) Subsection (l)(b) does not justify the use of greater force than is reasonable in the circumstances.

18. DUTIES OF OFFICER-IN-CHARGE OF STATION.

(1) Where a person has been arrested and taken to a police station, the officer in-charge of the police station shall-

(a) immediately release the person if he considers that-

(i) the person arrested did not commit the office for which he was arrested or any other offence and there is no other reason to justify his detention under this Act or any other law; or

(ii) there are good reasons why the arrested person should not be proceeded against for an offence; or

(iii) proceedings can be effectively taken by way of summons against the arrested person; and

(c) if he does not release the person under Paragraph (a)-take the person into custody and enter in a permanent register of arrests the name of the person and if it appears that the person arrested-

(i) has committed an offence-the nature of that offence; or

(iii) has been arrested for some other reason-that reason; and

(d) promptly inform the person arrested or cause him to be informed in language he understands of-

• (i) the reason for his arrest; and
  
• (ii) details of the charges against him; and
  
• (iii) his right, immediately and in private-
  
• (A) to communicate with a member of his family or a personal friend; and
  

(B) to give instructions to a lawyer of his choice, including the Public Solicitor if he is entitled to legal aid; and

(d) as soon as practicable consider and accordingly grant or refuse bail in accordance with the Bail Act 1977; and

(e) if bail is not granted under Paragraph (d) or if for any other reason the person arrested remains in custody at the station-take the person, or cause him to be taken, before a court without delay; and

(f) if bail is granted to the person by a court but for any reason the person remains in custody at the station after bail is granted-take the person or cause him to be taken before a court as soon as practicable after the expiration of 14 days after the bail is granted; and

(g) if bail is granted to the person but he remains in custody after being brought before a court on one or more occasions-take the person or cause him to be taken from time to time before a court as soon as practicable after the expiration of 14 days after the time he last appeared before a court.

(2) The officer-in-charge of a police station shall at all times permit persons arrested or detained at the police station-

(a) whenever practicable, without delay and in private to communicate with:-

1. a member of his family or a personal friend; and
   
2. a lawyer of his choice, including the Public Solicitor if he is entitled to legal aid; and
   

(b) to give instructions to a lawyer o his choice, including the Public Solicitor if he is entitled to legal aid. '

131. Section 17 of the Arrest Act is relevant here as it requires that a policeman must take the arrested person without delay to a police station to be dealt with under Section 18. At the police station, s 18 requires that the officer-in-charge of the police station immediately release the person if he considers that the person arrested did not commit the offence for which he was arrested or any other offence and there is no other reason to justify his detention under any law.
     
132. To conclude, the deceased was apprehended as a suspect who is alleged to have committed a domestic disturbance at the house of the provincial governor. In this case, he should have been immediately brought to the police station where a decision be made either to detain and charge him or release him from custody. The Constitution of Papua New Guinea, the Arrest Act and all other rules and regulations which guide the conduct of a police officer do not permit the police personnel to assault suspects. In this case, the policemen were obligated to take the suspect to the police station, lay appropriate charges accordingly. The Arrest Act does not permit the accused persons to cause suspects to swim in any body of water. Consequently, the actions of the accused persons were contrary to the requirements of the Constitution, Arrest Act and Police Force Act; and therefore unlawful.
     
133. By reasons of the foregoing, I accept the State’s case that the co-accused persons were who performing their roles and functions as police officer, apprehended and assaulted the deceased, at Kapiak Street, Lae for some common unruly public behaviour. Instead of taking the deceased to the Police Station for questioning and laying of charges, the accused took him instead to the Raun Wara Lake, threatened to shoot him if he did not jump into the lake and swim. From evidence adduced during trial, it is common ground that the deceased did not know how to swim. The deceased jumped into the lake in fear of his life and safety, and consequently drowned, which had led to his death. That is a matter which the State has called evidence to prove. It is noted that the State had invoked s 287 of the Criminal Code to prove that the accused person killed the deceased.
     
134. Overall, I am satisfied that the evidence presented by the State established each of the elements of the charge of Manslaughter contrary to s 302 of the Criminal Code.
     
135. Consequently, I make a finding that the five accused persons, Heni Meakoro, Noel Sine, Francis Dokono, Alex Gambe and Junior Kore have a case to answer the charge of manslaughter under s 302 of the Criminal Code proffered against each of the co-accused persons, namely Heni Meakoro, Noel Sine, Francis Dokono, Alex Gambe and Junior Kore accordingly.
     

Orders accordingly
________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused persons