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State v Nidung (No. 1) [2024] PGNC 409; N11078 (10 June 2024)

N11078

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1765 & 1770 OF 2016

BETWEEN:
THE STATE

AND:
JUDE NIDUNG AND KENNETH YANGUN
(No 1)

Waigani: Salika CJ
2024: 4th & 15 April; 10th June

CRIMINAL LAW - Practice and Procedure – Murder Charge – Trial – Direct and Circumstantial evidence – Whether the accused involved in the assault of the deceased - Whether presence at the scene of crime was willed – Presence was intentional - Application of s. 7 (1) (a), (b) and (c) of the Criminal Code.

Cases Cited:
Biyang v Liri Haro [1981] PNGLR 29
R v Wendo [1963] PNGLR 217
State v Remi Mission and Others (2005) N2917
State v Thomas Liu (2004) N2706

Counsel:
L Jack, for the State
D Kayok, for the Accuseds

10th June 2024

1. SALIKA CJ: INTRODUCTION: The accuseds are charged that they, on 25 July 2015, at Coronation Primary School, murdered one Jeremiah Yinu, thereby contravening s. 300 (1) (a) of the Criminal Code and s. 7 (1) (a), (b) and (c) also of the Criminal Code.

ALLEGATIONS

2. On Saturday, 25 July 2015, between 8.00 am and 9.00 am, a group of male students from the East Sepik Province were travelling on a Dyna Truck from the Taurama Defence Force Barracks to the Coronation Primary School in Boroko for a cultural event. The students had prepared for a cultural show to be staged at the school and were on their way there. At the Five Mile Round About, they were stopped by two men in a red double cab 5th Element Toyota Hilux. On being stopped, 2 men who are soldiers and who appeared to be drunk, got out of the red motor vehicle and approached one of the students, who was wearing a Papua New Guinea Defence Force army jacket. The two soldiers told the student to remove the jacket from his body. A Defence Force Major Timo intervened at this point in time to stop the two soldiers from doing what they were doing. This sparked an argument and resulted in the students assaulting the soldiers. One of the two soldiers, Francis Nasi, was injured in the assaults by the students. The other soldier, Jude Nidung, was able to get away from the assaults, while Francis Nasi was taken to the Military Hospital at the Taurama Military Barracks. The students proceeded to the Coronation Primary School to stage their cultural event.
   
3. The State alleged that Jude Nidung went to Murray Barracks and mobilised a group of soldiers to retaliate. The group of soldiers got on a motor vehicle and went to the Coronation School.
   
4. At the School, the group of soldiers attacked the East Sepik students. Some of the students ran towards the classrooms for safety while others attempted to climb over the School fence. Jeremiah Yinu was one of those who tried to climb over the School fence when he was hit with an object and pulled to the ground.
   
5. The State alleged that the group of soldiers beat Jeremiah Yinu and continued to beat him while he was lying on the ground. The State alleged the accuseds were part of the group of soldiers who came from Murray Barracks to retaliate and who assaulted Jeremiah Yinu.
   
6. The victim Jeremiah Yinu was taken to the Port Moresby General Hospital and admitted at the hospital. Three months later, he died in the hospital as a result of the injuries he sustained at the Coronation Primary School from the assaults inflicted by the group of soldiers.
   
7. The State’s case is that the two accuseds were involved in the assaults leading to the death of Jeremiah Yinu at the School and laid the charge accordingly. The State further invoked s. 7 (1) (a), (b) and (c) of the Criminal Code meaning that whether they were principal offenders or not they were responsible for the actions of each other and the actions of the other soldiers who assaulted Jeremiah Yinu.
   
8. On arraignment, both accuseds denied the charge and the matter proceeded to trial.
   

EVIDENCE

9. The State called five witnesses who gave sworn evidence namely Paschal Gabe, Thomas Yinu, Leah Timo, Gemma Kante and Chris Simi. The State by consent tendered documentary evidence namely:
   

STATE WITNESSES EVIDENCE

10. The State called five witnesses. They were:
    
    • (a) Pascall Gabe
      

This witness was the investigating officer of the case. He was not at the scene of the crime and did not see what is now alleged. His evidence is only relevant for the fact that he conducted the Record of Interview (ROI) with Jude Nidung. The ROI is in evidence as an exhibit.

Paschal Gabe also conducted the ROI with Kenneth Yangun. That ROI is in evidence by consent as an Exhibit.

(b) Thomas Yinu

This witness is the father of Jeremiah Yinu. He was not present at the scene of the crime. He gave evidence that he is the father of Jeremiah and that Jeremiah is now dead and identified his body to the doctors.

(c) Gemma Kante

This witness was present at 5 Mile in the bus carrying the girls and was at the Coronation School too but did not recognize anyone at the school while Jeremiah was being assaulted.

(d) Leah Timo

She said she saw Jude Nidung. This witness identified Jude Nidung and Kenneth Yangun. She said she saw Jude Nidung at 5 Mile but in cross-examination, she said could not recognize anyone.

(e) Chris Simi

This witness said he saw Kenneth Yangun at the School and said Kenneth Yangun was part of the group that assaulted the deceased.

11. That was in essence the State’s oral evidence in the matter. The State also relied on documentary evidence namely the Records of Interview of the two accuseds, the autopsy report and a medical report concerning Jeremiah Yinu when first admitted to the hospital.
    

THE DEFENCE CASE

12. The Defence called the two accused to the stand.
    
    • (a) Jude Nidung
      

This witness gave evidence of being present at the 5 Mile, Jack Pidik Park, where the first incident took place. He was also present at the Coronation Primary School, the scene of the crime. He said he did not assault anyone at the School. He said he did go into the School premises, but when he arrived, all the Sepik students ran away and climbed the School fence to get away. He said he turned back and him and the other soldiers got on a truck and returned to Murray Barracks.

In cross-examination, he was asked if he had a weapon on him and he said he did talk to the police and told them a story but could not recall carrying a weapon.

(b) Kenneth Yangun

This witness said he was at the School but said he just followed at the back of the group of soldiers to go into the School grounds and did not do anything. He said he was not there for long and came out. He further said he did not see anyone assaulting the deceased and that he himself did not assault the deceased.

THE ISSUES

13. The two accused are charged for the murder of Jeremiah Yinu on the 25 July 2015, at the Coronation Primary School. Their respective denials raise the following issues:
    
    1. How did Jeremiah Yinu die?
    2. What was the cause of his death?
    3. Who caused the death of Jeremiah Yinu?
    4. Whether Jude Nidung and Francis Nasi were drunk when they stopped the students at 5 Mile, Jack Pidik Park?
       

DEALING WITH THE ISSUES

WHAT WAS THE CAUSE OF DEATH OF JEREMIAH YINU?

14. To answer this question, I read the initial medical reports by Dr Esther Apuahe and the autopsy report by Dr Seth Fose. The medical reports were tendered into evidence by consent. The reports by Dr Esther Apuahe are Exhibits F1, F2 and F3. The Autopsy reports of Dr Seth Fose are Exhibits G1 and G2.
    
15. Dr Apuahe in her affidavit dated 23 February 2024 and filed on 1st March 2024, said Jeremiah Yinu was rushed to the Emergency Department in an unconscious state and had weakness on the left side of his limbs. She further said:
    

“An initial assessment was made and he was intubated to prevent airway compromise. Further assessment and investigations were carried out after his airway was secured. Examination revealed right papillary dilation, swelling and bruising of his right frontal region and right eye”.

16. The Doctor went on to say:
    

“An assessment of Traumatic Brain Injury with Severe Head Injury. A CT-Scan of the brain was organized and revealed:

1. Comminuted Fracture of his Right Temporal and Frontal bone.
2. Subdural Hematoma of his right frontal, temporal and parietal lobe ( approximately 90mls).
3. Pockets of Intracerebral Bleeding in the right Fronto-temporal lobe;
4. Mass effect with midline shift to the left.
5. Opacification of the sinuses.”
   
17. Jeremiah Yinu was subsequently seen again by Dr Apuahe on 21 August 2015. At that time, Jeremiah was still admitted at the Port Moresby General Hospital since the first admission day on 25 July 2015. She prepared a medical report relating to Jeremiah Yinu.
    
18. In this Report, she reported that:
    

“Whilst in ICU he underwent surgery Tracheostomy because of prolonged intubation and prolonged coma. He is still on coma, with a Giasgow coma scale of 4/15. He is able to breathe spontaneously and he is fed through a nasogastric tube which is passed down into his stomach.

A repeat CT Scan was done on the 19^th August 2015 to assess the injury to his brain. The result revealed:

1. Small subdural Haematoma of his right Frontal;
2. Small collection on his frontal lobe that is suggestive of Brain Abscess;
3. Cerebral Infarction of his right frontal lobe;
4. No cerebral oedema and no mass effect.
   

He also has developed chest infection as a result of being prolonged coma and also because he is a now susceptible to an hospital acquired infection. A Chest X Ray was done and revealed heterogeneous opacity of his right lung fields. This is suggestive a Pneumonia. As a result he has been commenced on antibiotics to treat the chest infection as well as the brain abscess.

Progressive update on Mr Jeremiah Yinu he has now developed.

1. Chest Infection – Pneumonia
2. Brain Abscess
3. Cerebral Infarction of his right frontal lobe.
   

The latter two are sequelae to the primary head trauma which he sustained and the chest infection is a complication of prolonged hospitalization.

At this time, Jeremiah’s condition remains critical and his prognosis and outcome is still uncertain.”

19. Dr Seth Fose compiled an Autopsy Report for the Coroner in relation to the cause of death of Jeremiah Yinu. In his opinion based on what he observed, his experience and training and information supplied to him, the cause of death of Jeremiah Yinu was head injury due to blunt force to the head with a blunt object or objects. Dr Fose’s Report is dated 11th February 2016, and is Exhibit G2 in the proceedings.
    
20. The accused through their lawyer do not dispute the medical reports of the two doctors and consented for the reports to be tendered. The defence do not contest the cause of death. The Defence Counsel in his submission on paragraph 26, submitted that “the injuries that the deceased sustained which led to his death are serious injuries. There is no dispute that the deceased sustained those injuries which caused his death”. That is all that is said by counsel for the accused in relation to the cause of death. The cause of death of Jeremiah Yinu, I find is “head injury due to blunt force to the head with a blunt object”. This finding is based on the autopsy report compiled by Dr Seth Fose.
    

WHO INFLICTED THE INJURY TO JEREMIAH YINU’S HEAD.

21. State witnesses who gave oral evidence are Leah Timo, Gemma Kante and Chris Simi.
    
    1. Leah Timo’s evidence is that she witnessed events at 5 Mile, that is the first fight. She did not give any evidence of the events at the Coronation School.
       
    2. Gemma Kante’s evidence is that she identified David Tape but said he was not present in Court. Gemma Kante gave evidence of a boy being beaten up with boots and iron and sticks and was helpless on the ground. She said more than 4 men beat him up.
       
    3. Chris Simi’s evidence was that he saw Kenneth Yangun at the Coronation Primary School. In examination in chief, he was asked if Kenneth was part of the group fighting the boy and his answer was “yes”. In cross examination, he was asked:
       

“You did not see Kenneth Yangun assault anyone?

His answer was “yes”.

That answer was not clarified by counsel or the Court as to what the “yes” meant. Yes, he did not assault anyone or yes, he did assault someone.

Be that as it may the two witnesses Gemma and Chris Simi did give evidence that some men assaulted a boy. That was their sworn evidence.

22. The two State witnesses did not see who assaulted Jeremiah Yinu at the school. They however saw a group of men assault the boy.
    
23. Evidence from the two accuseds was that they were both present at the Coronation Primary School premises at the material time. They both do not dispute being at the School premises at the material time Jeremiah Yinu was beaten. Both the accuseds denied they assaulted the boy or anyone for that matter at the school grounds. They said they did not see anybody being beaten and they left.
    
24. The State in charging the two men for murder invoked Section 7 (1) (a), (b) and (c) of the Criminal Code: S. 7 (1) (a), (b) and (c) provides:
    

“7. PRINCIPAL OFFENDERS.

(1) When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:–

(a) every person who actually does the act or makes the omission that constitutes the offence;

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c) every person who aids another person in committing the offence;”

25. The provision of s. 7 (1) (a), (b) and (c) of the Criminal Code are very clear to lawyers but for the lay person, it needs a bit of explanation. Here I do that. Firstly, the facts of the case are that Jude Nidung and Francis Nasi, both soldiers were assaulted by Sepik students near the 5 Mile roundabout at the Jack Pidik Park. They had stopped a blue dyna truck loaded with East Sepik students travelling to the Coronation Primary School and angrily demanded two of the students wearing Army issued jackets to remove them. These students were sons of soldiers who lived with their parents at the Taurama Defence Force Barracks. A serving Defence Force officer, Major Timo, who was responsible for them intervened on their behalf and told Jude Nidung and Francis Nasi that he (Timo) was a Defence Force Officer with the rank of Major and that he was responsible for them and told them to allow the students in the Blue Dyna to proceed on. Nidung and Nasi instead of following the orders of a superior officer argued with him and this prompted the students to come down from the Dyna Truck and assaulted both Nidung and Nasi. Nasi sustained serious injuries and was taken to the Military Hospital at the Defence Force Taurama Barracks while Nidung went back to Murray Barracks and mobilized a group of Defence Force soldiers to retaliate. The soldiers got on an open back motor vehicle and went to Coronation Primary School to take revenge for the assaults inflicted by the East Sepik students earlier in the morning on that day on Jude Nidung and Francis Nasi. The group of Defence Force soldiers entered the premises of the Coronation Primary School and assaulted Jeremiah Yinu when he tried to climb over the School fence to safety. Jeremiah was assaulted with boots, iron and sticks which led to his eventual death on 25^th October 2015.
    
26. The State led evidence that these two accused were present at the School premises at the material time and either assaulted Jeremiah Yinu making each of them principal offenders under s. 7 (1) (a) of the Code or aided the commission of the offence of murder making each of them aiders under s. 7 (1) (b) and (c) of the Criminal Code by being there to retaliate and not mere bystanders. That is what the State alleged.
    
27. The accuseds do not deny they were there. They however individually denied assaulting Jeremiah Yinu or any body for that matter at the School.
    
28. Evidence from the accused Jude Nidung in his own record of interview dated 31 August 2015 is recorded in parts of the interview as:
    

Q46. You and Francis Nasi were observed as drunk when approaching the people on the truck and did not approach them in an aggressive manner, is that correct?

Ans. Yes, we approached them in an aggressive manner but we were not drunk.

Q47. Did you swore at the people on the truck?

Ans. No.

Q48. Did you swore at Major Timo when he approached you and Francis Nasi?

Ans. When he came and introduce himself to us, we did not swore at him.

Q.49 Was there any commotion at Jack Pidik Park between you, Francis Nasi and the people on the truck?

Ans. Yes.

Q50. How did this commotion started?

Ans. When Major Timo gave instruction to the people on the truck to attack us.

Q.51 The commotion started because your approach to the people on the truck with Francis Nasi was not polite and you were swearing at them, is that correct?

Ans. No, we did not swore at them. The commotion started when Major Timo came and gave instruction to the people on the truck to attack us.

Q52. Did your two civilian friends came to assist you and Francis?

Ans. No they drove off in fear of their vehicle being damaged.

Q53. What happened during the commotion?

Ans. Francis and I were attacked by the people on the truck with pieces of timber about 2 to 3 meters long. Francis sustained serious head injury and he was taken to hospital and I manage to escape on foot after falling on the ground on three occasions.

Q54. Where did you go, when you escape from the attack?

Ans. I ran to the other side of the main road and got help from a passing motorist who transported me to Murray Barracks.

Q55. What happened to Francis Nasi?

Ans. At the time I don’t know where he was but later in the evening I heard that he was admitted at Taurama Army Hospital.

Q.56. What did you do at Murray Barracks?

Ans. At the Barracks my colleagues (soldiers) saw me bleeding with bruises on my body with swollen face and wanted to know what happened to me. I told them about what happened to me and Francis Nasi. They were angry. My colleagues and I came out from the Barracks, stop a passing white dyna truck, got onto the truck and directed the driver to leave us at Coronation Primary School at Boroko.

Q.57 Why did you direct the driver to leave you and your colleagues at Coronation Primary School?

Ans. I did not stop the white dyna truck. One of my colleagues stop the truck and they called me and we all drove to Coronation Primary School.

Q.58 How many of your colleagues went with you to Coronation Primary School?

Ans. They were plenty of them, about more than twenty soldiers, all from Murray Barracks.

Q. 59 Where you wearing your PNGDF uniform that time before going down to Coronation School?

Ans. No, I was in civilian clothes and some of my colleagues were in half dressing whilst others were in full camouflage uniform.

Q.60 How did you know that those people who attacked you earlier were at Coronation Primary School?

Ans. I saw them in traditional Sepik dress and came to know now that my colleagues told me that the East Sepik cultural day is being held at Coronation Primary School.

Q. 61 Where did the white dyna truck leave you and your colleagues?

Ans. Outside the small school gate near the Coronation School crossing, from the Paddy’s bar way.

Q.62. Where did you and your colleagues go?

Ans. We walked along the fence all the way to the main entrance into the School.

Q63. You and your colleagues were seen armed or carrying offensive weapons such as pieces of sticks, stones, pieces of iron rods and softball bats into entrance of the school premises, is that correct?

Ans. Yes, I did carry a piece of aluminum iron rod that I pick on the road near the school fence.

Q.64. What about your colleagues?

Ans. I could not remember seeing what type of weapons my colleagues were carrying because I was concentrating and looking out for the East Sepik students inside the school premises.

Interview suspended at 12 midday for Lunch break.

Interview starts again at 1.05 pm after Lunch break.

Q.65. I will be asking you further questions based on the above alleged matter, however, before I carry on, I want you to know that, “You do not have to say anything or answer any of my questions if you do not wish to do so and anything you do say will be recorded by typing it into the computer and may later be given in as evidence. Do you understand?

Ans. Yes.

Q.66. How did you and your colleagues get into the Coronation Primary School premises?

Ans. We walked through the main entrance.

Q67. What did you do when you were inside the school premises?

Ans. I saw the Sepik students running away from the right side of field when they saw us entering the main gate. As soon as I saw them running away, I ran towards that direction.

Q.68. Did some of your colleagues follow you towards the direction of the Sepik students?

Ans. Yes.

Q.69. What did you do when you arrive at the place where the Sepik students were gathering?

Ans. I was looking for Major Timo and those male students who attacked me earlier at Jack Pidik Park between 7 am and 8 am but I could not find them.

Q.70. Who did you saw at the location?

Ans. I saw female Sepik students with some mothers. All the male students ran away by jumping over the school perimeter fence.

Q.71. From female students and mothers who were there at the area where the Sepik students were gathering, they saw you hitting the victim (Jeremiah Yinu) who is now admitted at the ICU ward, Port Moresby General Hospital. Is that correct?

Ans. No, I did not hit him.

Q.72. Where were you when the victim was bashed up by your colleagues that accompanied you to Coronation School?

Ans. I don’t know. I will remain silent.

Q.73. From witness who gathered at the Sepik Students camping area, they saw you hitting the victim with an iron rod, assisted by your colleagues using other weapons such as sticks, iron rods and baseball bats, what do you say about this statement?

Ans. I will remain silent.

Q.74. Did you hit the victim with the iron rod that you were armed with?

Ans. No.

Q.75. Did you colleague soldiers beat up the victim with weapons such as iron rods, pieces of sticks, stones and baseball bats and even kicked him when he was lying on the ground?

Ans. I don’t know.

Q.76. Did you saw your colleagues assaulting the victim?

Ans. No.

Q.77. How did the victim receive serious injuries on his body?

Ans. That I don’t know.

Q.78. Why did you say you don’t know when you were actually seen at that location?

Ans. I was not at there at the location when he was attacked.

29. I have deliberately reproduced the excerpts of the Record of Interview of Jude Nidung because it is from that evidence, certain inferences will be drawn from it in relation to the involvement of Jude Nidung in this entire saga and determine whether he is a principal offender under s. 7 (1) (a) of the Code or an aider under s. 7 (1) (c) of the Code.
    

KENNETH YANGUN

30. This witness down played his part in his entire evidence. He was one of the soldiers who got on the motor vehicle at Murray Barracks that was stopped by some of the soldiers which took them to the Coronation Primary School.
    
31. His evidence was that he heard the soldiers saying “lets go, lets go” and so he simply followed where the others were going. As it turned out, they went to Coronation Primary School gate and he went into the School premises.
    
32. At the end of his evidence, he did admit he went with the group to retaliate for the assaults inflicted on Jude Nidung and Francis Nasi.
    
33. From all the evidence both direct and circumstantial before this Court, the Court by inference is satisfied beyond reasonable doubt that Jude Nidung and Kenneth Yagun were involved in the assault of Jeremiah Yinu and as such they are principal offenders under s. 7 of the Criminal Code. They with others inflicted the wounds on Jeremiah Yinu. Jude Nidung is responsible for his own actions and at the same time responsible for the act and omissions of Kenneth Yagun. Similarly, Kenneth Yagun is responsible for his own actions and at the same time responsible for the acts and omissions of Jude Nidung.
    

THE LAW

34. The accused are charged with one count of Murder under s. 300 (1) (a) of the Criminal Code Act. S. 300 (1) (a) provides:
    
    300. MURDER.

(1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:–

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person;

Penalty: Subject to Section 19, imprisonment for life.

35. The State also invoked s. 7 (1) (a), (b) and (c) of the Criminal Code Act. It reads:
    
    7. PRINCIPAL OFFENDERS.

(1) When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:–

(a) every person who actually does the act or makes the omission that constitutes the offence;

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c) every person who aids another person in committing the offence;

ELEMENTS OF OFFENCE OF MURDER

36. The following are the elements of the charge of Murder and the position of each of the accused as to whether the element is disputed or not:
    
    • (i) On a date - not disputed;
    • (ii) At a place – not disputed;
    • (iii) The accused – disputed;
    • (iv) Killed – not disputed;
    • (v) A person – not disputed;
    • (vi) With intent to cause grievous bodily harm – not disputed.
      

ONUS OF PROOF

37. The State has the burden of proof to prove each element of the offence beyond reasonable doubt. See Biyang v Liri Haro (1981) PNGLR 29.
    

ADDRESSING THE ELEMENTS OF THE OFFENCE AND THE EVIDENCE

38.There is no dispute in relation to the date the crime was committed, that was on 25 July, 2015. There is no dispute where the offence was committed, and that was at the Coronation Primary School. There is no dispute a person, in this case Jeremiah Yinu, was assaulted so seriously that he died three months later, after those assaults. The injuries were such that, it will be inferred from the medical report and the autopsy report that whoever assaulted him intended to cause grievous bodily harm to him. The Defence Counsel agreed that the injuries were serious which led to his death (see paragraph 26 of the Defence submissions).

39. The elements of the charge which are not in dispute are proved beyond reasonable doubt. The Defence do not dispute those elements.

40. The only element of the offence in dispute is the element iii) which alleges that the two accused inflicted the serious assaults on the deceased. They both denied assaulting the deceased.

41. In addressing that issue, I do not forget that there is not dispute of the date and the place of the assaults. I do not forget that the person assaulted on the date and place was Jeremiah Yinu. I do not forget that Jeremiah Yinu died on 15 October 2015 at the Port Moresby General Hospital and that he died due to head injuries due to blows inflicted to the head with a blunt object or objects.

42. Jeremiah was at the Coronation Primary School, minding his own business. It is not disputed that Jude Nidung, after being assaulted at 5 Mile, Jack Pidik Park area, went back to Murray Barracks and informed a group of soldiers of what happened to him and Francis Nasi. The other soldiers and him made up their minds to retaliate. The soldiers stopped an open back motor vehicle at Murray Barracks and told the driver to take them to Coronation Primary School. The driver dropped the group of soldiers at the small gate of the school. After dropping them off, the group of soldiers went to the main School gate and entered the School premises in search of the East Sepik students who had assaulted Jude Nidung earlier at 5 Mile. All of that evidence is not disputed.

43. The State witnesses Gemma Kaute said Nidung and Nasi were drunk, Nidung said he was not drunk. When I consider Jude and Francis Nasi’s actions at 5 Mile in stopping the Blue Dyna truck loaded with East Sepik students, who were minding their own business, and the said two soldiers demanding the boys to remove their Army jackets in an aggressive manner and not listening to a Major Timo, a soldier with a superior rank to them in the Defence Force and not obeying a lawful order from a superior officer, and instead arguing with him smacks of a drunk person. I have to by inference conclude that they were drunk as stated by State witness Gemma Kaute in her evidence. Moreover, to then go back to Murray Barracks and mobilise support to retaliate, to me, smacks of a behaviour of a drunken person. Accordingly, from all the evidences and circumstances, I find Jude Nidung was drunk at the material time and place. Had he not been drinking, I doubt this would have happened. If they were not drunk they would have listened and obeyed lawful orders from Major Timo and addressed him with proper courtesies.

44. The issue here is not about identification of the two accused as both admitted they were there at the material time. The issue is whether these two accused took part in the assaults of Jeremiah Yinu. There is no direct evidence each of the two accuseds assaulted the deceased. The Court here relies on both direct and circumstantial evidence to determine each of their participation. There is direct evidence both accused were present at the scene of the crime.

45. The two men were present at the Coronation Primary School premises on the date of the incident. Why were they there? The answer is simple. They did not go there to be spectators of a cultural event to be held at the School that day by the students. They did not go there to be mere bystanders. They all discussed and agreed to retaliate after Jude Nidung told them what had happened to him. They went there purposely to take revenge on the East Sepik students who assaulted Jude Nidung and Francis Nasi earlier that morning at 5 Mile Jack Pidik Park. That again is direct evidence.

46. Chris Simi in answering questions from the State Prosecutor gave this evidence:

17. Can you describe how they attacked him?

Ans. They attacked him and once he fell to the ground, they started lifting objects and hitting him.

17. And these men were attacking him with the objects, were you able or do you know any of them?

Ans. Yes.

17. Can you name them?

Ans. Yes, Kenneth Yangun.

47. This witness said he knew Kenneth from when they lived at the Barracks and said he was from the Southern Highlands and said he saw Kenneth at the Coronation Primary School and that Keneth came with the group. The witness said Kenneth was part of the group that was assaulting the boy. Kenneth himself said he went there to retaliate for the assaults on Jude Nidung. Kenneth Yangun is indeed from the Southern Highlands and he was at the School that day. That is an admitted fact. Chris Simi is a reliable witness on that aspect of the State case.

48. During cross-examination, Mr Kayok asked the witness this:

“Well, the question is you did not see Kenneth assault the boy, who was being assaulted? Is that correct?

Answer was a “yes”.

That question was asked in the negative and his answer was in the positive “yes”. Counsel did not clarify what the “yes” answer meant. The “yes” answer could mean “yes” I saw him assault Jeremiah or “yes” I did not see him assault Jeremiah.

49. In situations where the evidence could be read either way, I am urged to interpret that answer in favour of the accused and that is that he did not see Kenneth Yangen assault the deceased. That however does not mean he was not with the group involved in the assault of the victim Jeremiah. Accordingly, I find accused Kenneth Yangun was with the group that assaulted the victim Jeremiah Yinu. Whether he assaulted the deceased is not stated in the evidence, but the State witness said he was present with the group. He was not a mere spectator.

50. The question of whether the two accused were involved in any way in the commission of the offence, I find from the evidence that they were both involved in the killing of Jeremiah Yinu. Jude Nidung went to the Coronation School to take his revenge and armed himself with an aluminium rod to use as a weapon. There is direct evidence of himself with a piece of aluminium iron rod and the question is why was he carrying that rod? I draw an inference from that evidence that he took it as a weapon to use. Otherwise, why would he be picking that rod and taking it with him into the School grounds except to use it as a weapon.

51. In relation to Kenneth Yangun, he was seen with the group of soldiers when the soldiers were beating Jeremiah Yinu. Kenneth was not a mere bystander. Again from all the evidence direct and circumstantial, presented I cannot ignore the reason for Kenneth going to the Coronation School on 25^th July 2015. He admitted that he was at the School to take revenge on the East Sepik students. He lied when he said he did not see any soldier assault a young boy at the School at the material time. The evidence is that all the material time Jeremiah Yinu was seriously beaten by the soldiers which led to his ultimate death.

52. I am mindful of the application of s. 7 (1) (a), (b) and (c) of the Criminal Code to the factual circumstances of the way this offence was committed.

53. It is alleged in this matter that the two accuseds were principals in assaulting the deceased Jeremiah Yinu, which caused this ultimate death. The State called evidence of their respective participation and conduct before the actual assault at Murray Barracks, at the School after drop-off, entering the School gate and at the School. Nidung was armed with an aluminium iron rod and he entered the School premises. His conduct from the earlier altercation with the students in the blue dyna bus at 5 Mile Jack Pidik Park then to Murray Barracks and mobilizing a group of soldiers to take revenge at Coronation School and then arriving at the School to retaliate is indicative of persons intent on doing what they had planned to do and that was to retaliate. Retaliation was their plan, carried out and the outcome achieved.

54. Some of the East Sepik students ran to the classroom area to hide. Others attempted to climb the School fence to escape. Jeremiah Yinu attempted to climb over the fence but the accused and others pulled him down. These findings are drawn from direct evidences presented in Court by the State witnesses and the accuseds themselves and drawn from circumstantial evidence.

55. Moreover, there is the admission evidence by the two accuseds that they came to the School to take revenge on the students after what the students had done to Jude Nidung and Francis Nasi earlier that morning. Their respective presence was intentional. The case of R v Wendo (1963) PNGLR 217 before Independence enunciated the principle that mere presence at the scene of a crime is not sufficient to infer criminal responsibility and that there is no aiding when a person merely stands by and does nothing. The evidence in this case is specific in that the two accuseds presence was willed and intentional. They were not coerced into joining the group. They intentionally made their decision to partake in the revenge and retaliation efforts. The criminal law on this point has developed over the years and other subsequent cases supported that principle and in more recent cases such as the State v Remi Mission and Others (2005) N2917 and the State v Thomas Liu (2004) N2706. These case precedents stand for the proposition that a person’s presence at or during the commission of an offence whether actually lending a hand in its commission may make that person as much a principal offender as the principal.

56. In this matter, the State’s submission is that the two accuseds willed their presence at the School for a purpose and that was to take revenge and assault the East Sepik students. That was successfully executed. Mission was accomplished by the two accuseds and the group of soldiers.

56. Applying the principle expounded in R v Wendo (supra), State v Remu Mission and Others (supra) and State v Thomas Liu (supra), this case falls into the cited case precedents. The accuseds were principals under s. 7 (1) (a), (b) and (c) of the Criminal Code. If Jeremiah Yinu did not die, the accuseds would be charged for another offence or offences.

57. Taking into account the charge and the invocation of s. 7 (1) (a), (b) and (c), I am satisfied beyond reasonable doubt that the accused were involved in the assault of Jeremiah Yinu which assaults resulted in the death of Jeremiah Yinu. I am satisfied that all the elements of the charge have been proved beyond reasonable doubt and find each of the accused guilty of the murder of Jeremiah Yinu.

58. Accordingly, I find Jude Nidung and Kenneth Yangun guilty to the charge of murder beyond reasonable doubt.
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Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accuseds