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State v Boka [2024] PGNC 226; N10892 (14 June 2024)

N10892

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1051 – 1058 OF 2012

THE STATE

V
RODERICK BOKA of KATUNA, IJIVITARI ORO PROVINCE; and
KELLY KUAMAR of HOHORITA, SOHE, ORO PROVINCE; and
PHIL SIMON UNDABA of KOJE, TUFI, IJIVITRI, ORO PROVINCE; and
ROBIN OKONO of YAUDARI, IOMA, SOHE, ORO PROVINCE; and
ROY MENDE of KIKIRI, GONA, IJIVITARI, ORO PROVINCE; and
OSCAR AIGAPA of URIO, IJIVITARI, ORO PROVINCE; and
JOHN VERAWA alias KALVIN GEGERA of KATUNA, IJIVITARI, ORO PROVINCE;
and SIMON TONGKOE of PULPUL, POMIO, EAST NEW BRITAIN PROVINCE

Popondetta: Batari, J
2024: 01^st – 9^th April, 11^th, 12^th, 14^th June

CRIMINAL LAW – evidence – attempted murder – Grievous bodily harm with intent in alternative – attempted murder – elements of – police arrests of alleged sorcerers – beatings by policemen – whether proven on facts – general denials – whether beatings done by others than policemen on duty – reliability of evidence on beatings of suspects.

CRIMINAL LAW – evidence – victims injured in police arrest – accused implicated as policeman assigned to arrest suspected sorcerers – evidence – sufficiency of to sustain lawful conviction.

The accused were policemen assigned to apprehend two men suspected of using sorcery on Oro Provincial Police Commander. The men were so severely beaten up, one of them died. The other, the victm in this case, sustained serious bodily injuries. Charged with attempted murder, the accused persons conceded presence but generally denied involvement. This is the verdict.

Held:

1. Where two conflicting accounts are given in support of a criminal act on one side and denial of criminal conduct on the other, the only version that stands the test of truth and reliability on the whole of the evidence can be accepted as highly probable because both cannot be true. The State has the onus to prove its case beyond reasonable doubt whilst the defence is only required to rest its case on balance of probability.
   
2. To be caught under s. 7(1)(b) of the Criminal Code the accused person must know the assault on the victim was willed thereby enabling a commission of an offence. The accused must intentionally aid the persons who committed the offence for the purpose of s 7(1)(c) by active participation or encouragement by presence or spoken words.
   
3. Where members of the disciplinary force are implicated in criminal acts in the course of duty, liability rests only with those identified in committing or aiding to commit the offence including those in authority who knowingly allows commission of the offence by spoken words or encouragement by presence, s. 7 (b), (c) of the Criminal Code
   
4. Where in a criminal trial, the identification of the accused person is the central issue, it is the duty of the trial judge to be; (i) very cautious in concluding that identification has been established, and (ii) that the identifying witness is not only honest in his evidence but also accurate: Jackson Naepe v State [2020] PGSC 144; SC2072
   
5. The charge of, “attempted to kill” under s. 304 of the Criminal Code, involves an intent to actually kill and the offender has begun to put his intention into execution by means adapted to its fulfilment and that his intention is manifested in some overt act that is unlawful to kill another person, consistent with the definition of “attempt” under s. 4.
   
6. To kill another person implies an intention to carry out that result. The State has the onus to prove attempted murder beyond reasonable doubt.
   
7. Where there is no direct evidence on the elements of “attempted to kill”, intention may be inferred from the circumstances of the case including the weapon used, nature of injuries sustained, conduct of the accused before and after commission of the offence.
   

Cases Cited

Jackson Naepe v State [2020] PGSC 144; SC2072 (25 August 2020)
R v Bena Forepe [1965-1966] PNGLR 329
R v Kiki Kau’Au (1970) N557
Samson Banaso v The State (2022) SC2302
The State v John Beng [1976] PNGLR 481

Counsel

Ms M. Tamate, for the State
Mr F. Kuvi, for the Accused

14^th June 2024

1. BATARI J: On 25 January 2018, Oro Provincial Police Commander (PPC) Chief Inspect Lincoln Gerari of Popondetta Police Station deployed a team of policemen to arrest suspected sorcerers from his Katuna village, who were allegedly using sorcery on him. Two elderly men were detained and severely beaten up. One of them sustained a broken leg, the other succumbed to death.
   

The Charges

2. The accused persons were arrested and charged with wilful murder for the death of the deceased. They were all acquitted on that unlawful killing charge. This is the trial on attempted murder under s. 304 (a) of the Criminal Code and in the alternative, unlawfully causing grievous bodily harm with intent under s. 315.
   

The Law

3. The relevant provisions pertaining to attempted murder are sections 304 and 4 of the Criminal Code. They read as follows:
   

304. Attempted murder, etc.

A person who—

(a) attempts unlawfully to kill another person; or

(b) with intent unlawfully to kill another person does any act, or omits to do any act that it is his duty to do, the act or omission being of such a nature as to be likely to endanger human life,

is guilty of a crime.

Penalty: Subject to Section 19, imprisonment for life.

4. ATTEMPTS TO COMMIT OFFENCES.

(1) When a person, intending to commit an offence–

(a) begins to put his intention into execution by means adapted to its fulfilment; and
(b) manifests his intention by some overt act,

but does not fulfil his intention to such an extent as to commit the offence, he is said to attempt to commit the offence.

(2) It is immaterial, except so far as regards punishment whether–

(a) the offender does all that is necessary on his part for completing the commission of the offence; or
(b) the complete fulfilment of his intention is prevented by circumstances independent of his will; or
(c) he desists of his own motion from the further prosecution of his intention.

(3) It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.

(4) The same facts may constitute one offence and an attempt to commit another offence.

Factual and legal issues

4. Each accused in this joint trial has all along denied the charges on the defence of general denials. He was present at the scene, but he did not commit the unlawful acts alleged against him. So –
   
   • (a) who were those persons involved in assaulting the victims (identification)?
   • (b) Were those present, liable as principal offenders by virtue of their presence under s. 7 or s. 8 of the Criminal Code?
   • (c) whether on the proven facts, the accused can be lawfully convicted of attempted murder or unlawfully causing grievous bodily harm with intent?
     

Background

5. The defendants are serving police personnel (as reservists and regular policemen). At the time of the incident, they served under the then PPC Chief Inspector Lincoln Gerari.
   
6. On 25/1/2018, between 2:00pm and 8:00pm, a team of policemen went to Katuna Village, Ijivitari District, Oro Province on directives from PPC Gerari to apprehend Nichomed Guka (victim) and Reginal Berugari (deceased), for using sorcery to cause swellings on his legs.
   
7. PPC Gerari handpicked a police team comprising Rodrick Boka, Kelly Kuamari, Philip Simon Undaba, Robin Okono, Roy Mende and Oscar Aigapa all of Oro Province to apprehend the suspected sorcerers. His son, John Verawa aka Kalvin Gerari accompanied the team to the village in a dinghy.
   
8. Nichomed Guka was the first accosted. Robin Okono assaulted him several times with a dried empty coconut and used a black palm axe-handle to hit him on various parts of his body and on his right leg, fracturing the leg. The beatings also resulted in Nichomed bleeding from the head and nose. Reginal Berugari was next located. He too was severely assaulted and bled from the beatings. While returning to Kikiri beach, police shot and injured him on his finger with a firearm.
   
9. Co-accused, Simon Tongkoe dropped the police team at Kikiri Boat bay in the afternoon of the date in question. He returned late in the night to pick them up and drove to Popondetta Police Station. From there, they took the two men to Popondetta General Hospital. Reginal Berugari died the same night.
   
10. The accused persons were said to be accomplices in an attempt to unlawfully kill Nichomed Guka when they continuously beat him on his head and body with offensive weapons, causing him hemorrhages and a fractured leg. Their conduct contravened s. 304 (a) of the Criminal Code and in the alternative, unlawfully Causing Grievous Bodily Harm with Intent pursuant to s. 315 (b), (d).
    
11. The State relies on s. 7 (1) (a) (b) (c) and s. 8 (a) (b) of the Code to allege aiding and abetting by accomplices in the commission of an offence and/or committing an offence in the prosecution of an unlawful purpose.
    

Undisputed facts

12. The oral evidence of witnesses from both the State and the Defence are commendably well summed up by Mr Kuvi of counsel for the accused persons in his written final submissions. This will be read into the records.
    
13. The background facts are substantially undisputed. In addition, and for clarity, PPC Gerari sanctioned the arrest of the two elderly men from his village of Katuna, upon his own belief, the swellings to his leg were sorcery related.
    
14. Nichomed was apprehended at his premises. Reginal was next detained at the medical premises; I think in reference to a village aid post. A CRC Pastor Edison Jabua called by the defendants, testified, Reginal was kept at the medical premises after his grandson attacked him. The Pastor cautioned the police twice not to touch Reginal, once at the aid post premises and again at the dinghy.
    
15. The suspected sorcerers were severely beaten up to the extent that they suffered serious bodily injuries resulting in the death of one. The victim in this case survived head injuries and broken limb. The brutalities against the two men were committed in the presence of and with the full knowledge of the accused.
    
16. I also find it highly probable from the evidence, the injuries sustained by the victims were caused by use of weapons in the form of, a dried empty coconut nut, a black palm axe-handle, a firearm and possibly a paddle.
    
17. Both men were assisted to the dinghy, incapacitated by the beatings. When the team left Katuna, it was raining with winds and sea swells. The dinghy stopped briefly at the mouth of Kumusi river and the accused Phil Simon Undaba discharged a shot from his firearm. The party arrived in the rain, late night at Kikiri beach and waited some time before co-accused Simon Tongkoe picked them up.
    
18. Other undisputed facts peripheral to and in support of the primary facts are many. I refer only to some I find essential and relevant to the outcome of this case. On the day in question, the CRC Church in Katuna Village hosted a church event. Many people from Katuna and surrounding villages had gathered at the church grounds and celebrating when police arrived around 4.00pm.
    
19. From Kikiri beach, the party drove past Popondetta General Hospital to Popondetta Police Station with two seriously injured detainees. I also infer, both men were dripping wet from the rain, in agony and distress from beatings. The two men were later taken to the hospital. Their dignities and sufferings were low a priority and urgency to police, more so, the person in charge of the operation.
    
20. The policemen team was tasked to bring in the suspected sorcerers for purported mediation. I say purported because the manner and selection of police deployment, the physical confrontation and harsh treatment of the two men were not consistent with known protocols for mediation.
    
21. I deduce from the manner and approach in the police operation, the apprehension of the suspected sorcerers was devious, it was an abuse of power and authority. The timing of the operation meant the two men would be kept overnight in the police cells without lawful charges.
    
22. Despite the presence of police at Katuna Village, no villager was arrested for hindering or obstructing police work. The accused also failed to record the Katuna incident in the Police Daily Occurrence Book as required. Likewise, no report or complaint was filed against community interferences with police work.
    
23. I make the observations in the preceding paragraphs, to highlight the unfavorable inferences on creditability and consistency of police conduct on duty.
    
24. A complaint was lodged alleging the accused persons caused the death of Reginal and the injuries to the victim. Each accused has made statements in records of interview and volunteered statements. The admissions in the documentary evidence are contradicted in the oral evidence of the accused.
    

Disputed facts and the defence

25. The suspected sorcerers were attacked by members of the community. Police discharged shots from firearms to disperse the angry crowd that had gathered and attacking the two men. While returning to Kikiri, Undaba discharged his firearm to empty the firearm chambers for safety. The victims were not assaulted on that return trip and they were not mistreated at Kikiri Boat bay.
    

Parties Submissions

26. The Defendants’ contention is twofold. The first is a question of law. Mr Kuvi submitted, the accused cannot be lawfully convicted of attempted murder under s. 304 (a) of the Criminal Code because the prosecution has not discharged the onus to prove the essential elements of “intention to kill” beyond reasonable doubt. The evidence does not go far enough to support “intent” in an unlawful killing charge. If the accused persons had the “intention to kill, there were ample time and opportunities for them to execute that intention, but they did not.
    
27. On the alternative charge of “intent to cause grievous bodily harm” under s. 315 of the Criminal Code, Mr. Kuvi reiterated, the term, “intent” connotes, the result of the offence was willed by the offender. There is no such intention to unlawfully cause the victim grievous bodily harm. Even if the assault on the victim is proven, there is no or sufficient evidence, the accused attacked the victim, with intent to cause grievous bodily harm. The Court should acquit as a matter of law.
    
28. The defence’s second line of contention was on sufficiency of evidence. Mr. Kuvi submitted the State has not done enough to prove the guilt of each accused person. The identification evidence cannot be relied on. It is marred by inconsistencies in the evidence of the State’s principal witnesses. Each accused has given consistent and reliable evidence, sufficient to cause incurable dent in the State’s case. The accused should be acquitted on the principal charge and the alternative charge on insufficiency of evidence.
    
29. State’s contentions by Ms Tamate is, that there is overwhelming evidence on the intention to kill seen in the continuous attack resulting in death of Reginal, head injuries and a broken limb sustained by the victim. The beatings in the village continued in the dinghy. Counsel argued the eventuality of death is evidence of the extent of the beatings. These clearly pointed to the intention to unlawfully kill and hence, supports a conviction on attempted murder. Ms Tamate argued, there is equally overwhelming evidence to convict on the alternative charge of unlawfully causing the victim grievous bodily harm with intent.
    
30. Counsel submitted, that in conceding presence at the scene the accused knew and accepted the assault on the victim and the deceased. If he was not specially identified and named by the witnesses, or if he did not stop the assault on the two men, his presence encouraged the commission of the offence by his accomplices. So, he is liable as principal offender under s. 7 of the Criminal Code.
    

Assessment of the evidence and conclusions

31. I bear in mind as always, when two possible and conflicting explanations are given in support of a criminal act on one side and denial of criminal conduct on the other, the only version that stands the test of truth and reliability on the whole of the evidence can be accepted as highly probable because both cannot be true. The State has the onus to prove its case beyond reasonable doubt. The defence is only required to rest its case on the balance of probability.
    
32. The facts are substantially admitted as seen in the background facts and the undisputed facts. The disputed facts are few. I will deal with those here.
    
33. Assaults on the victims. I pose this issue in the context of the conflicting evidence, thus; whether the apprehension of the victims was hijacked by angry villagers who severely assaulted them as the accused persons claim, or were the victims beaten up by policemen as the State alleges?
    
34. I find the story by the accused persons in their respective oral testimonies dishonest and unreliable. It is dishonest because their evidence was clearly tailored for consistency. It is unreliable because of inconsistencies with earlier concessions in the records of interview and written statements. Those documents contain admissions that the victim and the deceased were unlawfully assaulted by police at Katuna Village and the beatings continued while returning in the dinghy.
    
35. The confessions are in court as evidence. It is assumed, their admissibility into evidence is upon instructions by the accused. The confessions unequivocally confirmed the truth in police beatings and associated mistreatments of the victims in the village and in the dinghy. I confine my findings to the fact of police atrocities. The admissions of police brutalities are not seriously contested in the oral evidence. So, the police cannot have it both ways.
    
36. The confessions of police assaulting the alleged sorcerers were made in March and April 2018, shortly after the incident. The accused have had the time and space to ponder their predicaments and no doubt colluded to deny involvement. I find their insipid denials in Court unimpressive. I think they volunteered to tell the truth in their earlier statements to the police investigator.
    
37. The adapted shift of position in the oral evidence in Court I think is to do with the culture of camaraderie with which some of them were possibly coerced to depart from their previous positions so that they will all stand and fall together. The result is the lame denials of criminal conduct and shifting blame to villagers.
    
38. I think some of them like Kelly Kuamari, Roy Mende, Oscar Aigapa and John Verawa cooperated and told police the truth about police assaulting the victims in the village and in the boat. Even Phil Simon Undaba said in his record of interview, he shouted at other policemen in the boat to stop assaulting the two men.
    
39. Their witness, Pastor Edison Jabua did not assist them. He was wary of police beatings and cautioned the accused persons twice not to touch Reginal Berugari. Reginal died the same night from injuries received from the beatings. The death of the deceased gives context to the Pastor’s caution. The policemen were in all probability, assaulting Reginal in his presence, so he had to caution them. The Pastor’s evidence also gives credibility to State’s evidence of the deceased being beaten at the aid post area and while being assisted to the boat.
    
40. The evidence implicating police involvement in assaulting the victims is overwhelming. Some villagers may have been involved. If so, they would be acting with the knowledge and consent of policemen at the scene. Either way, police involvement is not exonerated. The pivotal issue is whether the policemen acted in concert with each other, or whether individuals acted on their own devices. The issue of identification is relevant here. I will return to this aspect later.
    
41. Discharge of firearm. The reason for police discharging firearms in the village has two versions. The version in the documentary evidence is that police fired shots to disperse the crowd that was threatening to attack them. In the collective oral evidence of the defence, police discharged firearms to disperse villagers attacking the victim and Reginal. I think the latter version is tailored.
    
42. It was more likely; police beatings of the two elderly men displeased and angered their relatives to the extent that they reacted in retaliation, prompting police to discharge their firearms. The absence of police report or complaint against obstruction of police work by villagers does not assist the accused persons in the assessment of their honesty and reliability in carrying out lawful duties.
    
43. Shooting in the boat. On the issue of discharging a firearm at sea, I have little difficulty in finding that Phil Simon Undaba deliberately shot Reginal in his finger at the mouth of Kumusi river. His story of clearing the chambers of his gun for safety reasons has no ring of truth about it.
    
44. Identification. The issue of identification is made easier with the accused persons conceding presence at the scene. The accused were all present when Nichomed and Reginal were badly beaten up. Individual policemen who assaulted the victim were identified and named. In assessing the identification evidence, I bear in mind, this caution in, The State v John Beng [1976] PNGLR 481:
    

“Where the identification relied upon is that of a single witness it is proper to be mindful that the identification “was critical, and that mistakes have in the past occurred in regard to identification, thereby occasioning a miscarriage of justice”, and the Court must be satisfied that the witness was not only honest but also accurate in the evidence given. Matters to be taken into account are, what opportunities the person identifying had to form a judgment of the identity of the person who committed the crime, the position of the parties when the identification was made, the lighting, the opportunities to form a judgment, and generally the circumstances in which the identifying witness formed his judgment as to identification.”

45. I also bear in mind, where in a criminal trial, the identification of the accused person is the central issue, it is the duty of the trial judge to be; (i) very cautious in concluding that identification has been established, and (ii) that the identifying witness is not only honest in his evidence but also accurate: Jackson Naepe v State [2020] PGSC 144; SC2072 (25 August 2020) (Batari, Dingake, Miviri JJ)
    
46. I accept the evidence of Nichomed Guka on the identification of his assailants as honest, truthful and reliable. Any inconsistencies with other witnesses can be quickly dismissed as minor and insignificant peripheral matters.
    
47. Nichomed observed three policemen from very close proximity when they attacked him. It was broad daylight. He did not mention any other policemen. In the dinghy the same two people he named as Roderick Boka and Okono continued to beat him up and Reginal with the axe handle. He also identified the third policeman he later learned his name from others as, Undaba. I think that is in reference to Phil Simon Undaba, the policeman who led the team to Katuna Village. He was present throughout and did nothing to stop his men from assaulting the victims. He was clearly in support of the actions of his policemen.
    
48. Nichomed testified that Undaba shot Reginal’s hand with a gun at the mouth of Kumusi river and named Okono as the main perpetrator in assaulting him with dried coconut and fractured his leg with the axe handle. He did not waver under cross examination, nor was it put to him that Roderick Boka would not touch him as he was/is his in-law. Nichomed pointed out the three men in Court, consistent with where the accused was seated in the dock.
    
49. Frank Weston’s evidence confirmed Okono as the policeman who assaulted his father. He also implicated John Verawa as one of the assailants. His father, however, did not mention John Verawa. I think he was better placed because of his proximity and contact with his assailants. Too, Frank Weston said he saw the assault on his father and left crying. He was obviously overwhelmed and distraught by the violence against his father. That is enough to affect his judgment. Furthermore, Nichomed spoke of John Verawa assisting him to the boat. He confirmed John Verawa’s story. It would appear odd for a hostile and violent person to suddenly turn into a ‘good Samaritan’ to assist his nemesis.
    
50. The evidence of the first State witness, Howard Yapuri, the boat operator, adds weight to the testimony of the principal witness on the names and identity of policemen he conveyed to Katuna Village. In the village, he observed from some 15 meters away, policemen assaulting Nichomed and Reginal. He also mentioned villagers aiding policemen in assaulting the victims.
    
51. Principal offenders. The provisions of s. 7 are more pertinent and applicable to the circumstances of this case. So, if one, or several policemen were involved, were the others also guilty as principal offenders by their presence?
    
52. In Samson Banaso v The State (2022) SC2302 (Kariko, Berrigan and Gora, JJ) the Court stated these principles which I adopt and follow:
    

“ To establish liability pursuant to s.7(1)(b) of the Criminal Code the State must establish beyond reasonable doubt that: (a) the offence was committed; (b) the accused knew the essential facts constituting the offence, including where relevant the state of mind of the person who committed the offence; and (c) the accused did or omitted to do any act for the purpose of, or with the intention of, enabling or aiding that person to commit the offence, even if those acts or omissions did not in fact assist.

(9) To establish liability pursuant to s.7(1)(c) of the Criminal Code the State must establish beyond reasonable doubt that: a) the offence was committed; b) the accused knew the essential facts constituting the offence, including where relevant the state of mind of the person who committed the offence; and c) the accused intentionally aided (assisted or encouraged) that person to commit the offence.”

53. To be caught under s. 7(1)(b) of the Criminal Code the accused person must know the purpose of the trip to Katuna was to apprehend and beat up the suspected sorcerers thereby enabling a commission of an offence. The accused must intentionally aid the persons who committed the offence for the purpose of s7(1)(c) by active involvement or encouragement by presence or spoken words.
    
54. It is a notorious fact that members of the Police Force commit atrocities in making arrests or conducting raids of settlements and villages in pursuit of suspects or stolen properties. But not all policemen and women would lapse into undisciplined work habits and attitudes. Many who are honest and committed in carrying out their lawful police duties, deserve credit and approbation.
    
55. I make this observation to drive home the point that one policeman may go out on his own merry frolic and devices to take advantage of the situation at hand to commit an offence, and this would not be necessarily approved and shared by the others, except for the officer in charge who knowingly allows his subordinate to commit the offence. And for many reasons, a policeman or policewoman may be restrained from speaking out because of rank-and-file protocols or out of fear of reprisal. From the documentary evidence here, there were traits of back-chats against those trying to stop their colleagues from assaulting the victims.
    
56. In conclusion, my view is, where members of the disciplinary force are implicated in criminal acts in the course of duty, liability rests only with those identified in committing or aiding to commit the offence including those in authority who knowingly allows commission of the offence with encouragement by presence or spoken words under s. 7 (b) & (c) of the Criminal Code.
    
57. “Attempted to kill”. The charge of, “attempted to kill” under s. 304 of the Criminal Code, involves an intent to actually kill and consistent with the definition of “attempt” in s. 4, the offender has begun to put his intention into execution by means adapted to its fulfilment and that his intention is manifested in some overt act that is unlawful to kill another person. To kill another person implies an intention to carry out that result. The State has the onus to prove attempted murder beyond reasonable doubt. A useful guide is set out by the learned authors of, Criminal Law and Practice of Papua New Guinea, 3^rd Edition as follows:
    

“In a case of attempted murder, the state must prove an intent actually to kill. The other elements of the crime to be proved by the state are to be found in s. 4, which defines attempts. Thus, the state must prove beyond a reasoble doubt that:

(a) the accused intended actually to kill the deceased;
(b) the accused put his or her intention into execution by means adapted to its fulfillment; and
(c) that the accused had manifested his or her intention by some overt act.”

58. In R v Bena Forepe [1965-1966] PNGLR 329 the court explained that the charge of attempted murder places upon the State (then the Crown), the obligation to prove an intent to kill. See also, R v Kiki Kau’Au (1970) N557 which averted to the proposition, that specific intent (to kill) is a necessary ingredient of this offence and must be proved beyond reasonable doubt.
    
59. In this case, there is no direct evidence on the elements of “attempted unlawfully to kill”.
    
60. Intention may be inferred from the circumstances including the weapon used and the nature of injuries caused, the conduct of the accused before and after the offence. If a victim is struck on the head or neck with a weapon and he survives, an attempted unlawful killing may be easily inferred because the head and neck are vital parts of the body. Or if the victim sustained severance of a main blood vessel on a limb and deliberately left in an isolated location bleeding, an intention to kill may be inferred from circumstantial evidence. Mr Kuvi gives another classic example of a case where a group of men laid in ambush and left the victim to die after attacking him with bush knives. Another person came upon him still breathing, rushed him to the hospital and he survived.
    
61. In this case, the victim was beaten with dried coconut several times and he bled from the head implying he was hit on the head. His right leg was then fractured with a palm axe handle. The beatings continued in the boat with the axe handle, a paddle or both. And one of them was shot in the finger with a gun. The atrocities continued at Kikiri beach. The inferences to be drawn from the whole of the circumstances of the beatings point to an intention to kill.
    
62. However, upon further considerations, that conclusion is not as clearcut. First, there are doubts on the “willed act”. I accept the submissions by Mr Kuvi, it is not hard to imagine, that if the police had intended to kill, they had ample time and opportunity to carry out that intention, but they did not. The shooting of one of the victims in the dinghy was selective and hardly sufficient to amount to an intention to kill. Second, the policemen or at least some of them in their records of interview, expressed dissent and showed compassion. The same policemen conveyed the two victims to the hospital for medical treatment. I do not find the evidence sufficient to sustain a conviction on the attempted murder charge.
    
63. The indictment, in the alternative, charges unlawfully causing grievous bodily harm with intent under s. 315 of the Criminal Code. There is strong evidence to sustain a conviction. The evidence of the victim being attacked with weapons in the village and in the boat, causing head injuries, a fractured bone in the leg and generally inflicting pain to the body with an axe handle or paddle is, in my view, sufficient to satisfy the element of intent in s. 315 of the Code.
    
64. I find Rodrick Boka, Phil Simon Undada and Robin Okono not guilty of attempted murder. Each accused person is acquitted on the charge of attempted murder. I find Rodrick Boka, Phil Simon Undada and Robin Okono guilty on the alternative charge of causing the victim grievous bodily harm with intent.
    
65. In respect of the accused, Kelly Kuamali, Roy Mende, Oscar Aigapa and John Verawa, I find the evidence insufficient to prove their guilt beyond reasonable doubt on the principal charge of attempted murder and on the alternative charge of causing grievous bodily harm with intent. Each of these four accused persons is acquitted on the charges. They are to be discharged forthwith.
    
66. The 8^th co-accused, Simon Tongkoe from Pomio, East New Britain Province has been earlier acquitted of the charges in a no case application.
    

__________________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused