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State v Yala [1995] PGNC 71; N1347 (6 July 1995)

N1347

PAPUA NEW GUINEA
[In the National Court of Justice]

CR. 818/94
CR.821/94

THE STATE

v

OTOMA ONISA YALA
SIMON KAITA RALAWE
MULU SUMULI

Mendi: Woods, J
6th July 1995

Criminal Law - Sentence - Wilful Murder - Village dispute over compensation - Whether worst type of killing - death penalty or term of years.

J. Kesan for the State
O. Oiveka for the Defendant.

6 July 1995

WOODS, J The three accused, Otoma Onisa Yala, Simon Kaita Ralawe, Mulu Sumuli, are each charged with the Wilful Murder of Ruma Ruli on the 7th of January 1994 at Wakipanda Village in the Kagua District of the Southern Highlands.

The State evidence is from four witnesses who give evidence of an incident at Wakipanda Village when there was some argument about compensation and the accused Otoma and Simon shot the deceased. The evidence from the State comes from the following four witnesses.

First witness was Manda Ruma who is a daughter of the deceased. She gives evidence of the accused with others coming to the house late in the morning of the 7th of January and of Kaita and Otoma shooting at the deceased. What happened was she and her father were in the house and they heard a shot she then followed her father out of the house and saw the shooting. There was first of all a shot into the deceased hand and a second shot into his body which killed him. She clearly identifies the three accused and identifies them in court and clearly knew them as they all come from the same village area. There were no discrepancies or contradictions in her evidence and her evidence held up under cross examination. She does give some background which provides a possible motive for the incident, apparently there was some dispute at a basketball match a couple of weeks before when someone was assaulted and injured and there was a matter of compensation to be paid between the different family groups. And apparently these people came to see the deceased about the compensation.

Another State witness was a woman called Mineadame Wienbi, she is a woman who said she was in the garden when she heard some shots she came towards where the shots came from towards the deceased house and she saw the accused shoot the deceased. She indicated that the garden she was in was not very far away from the scene of the shooting. She clearly identified Kaita and Otoma as shooting at the deceased. When she came and after they had shot the deceased she challenged them to kill her but Mulu Simuli said you are an old woman we will not kill you. She said they were yelling and shouting and she clearly identifies all three accused in the dock as being at the scene at the time. There are no discrepancies or inconsistencies following the cross examination she clearly knew all accused as they come from the same village area and there was apparently some relationship between them.

The next State witness was a man called Yoka Koke who said he was in his garden when he heard some shots and whilst he didn’t come to the scene at the time of the shots he said he saw the accused and others coming up from that direction and he challenged the accused who said "we made him shocked". He confirms that the accused were carrying guns and he clearly identified the accused in court as he knew them well. When he left the accused at the time he then went up to the house and saw the dead body of the deceased.

The next witness for the State was Sipi Yapa who said he was in his house in the same area and he heard some shots and he came out and he saw the accused persons near the deceased house. He clearly identifies the accused and he said they all had guns and he said that after the shooting they ran away and then he saw the body of the deceased. His sighting and identification of the accused was not really challenged or contradicted in the cross examination.

The witnesses do refer to other persons being in the area at the time with the accused and there was a this reference to another person being involved namely a Paka Dubu who is apparently already convicted of the murder and it appears that he may have been with these three accused at the time and has been dealt with by an earlier court. The medical evidence was tendered into court and it was clear evidence of the post mortem on the deceased which indicates that there were pellet wounds on the right arm and hand and also there were pellet wounds in the chest which had damaged both lungs and that was the cause of death. The medical evidence was quite consistent with the evidence of the state witnesses as to what happened at the scene.

The defendants each gave sworn evidence. The accused Otoma Yala in his evidence talked of an incident in a basketball game which led to some compensation claim following a fight. So they said they came to see Ruma Ruli for payment of the compensation and he said that Ruma Ruli took a gun and shot at them so they ran away he said that there were plenty of people with them. He said that he then learnt later that Paka Dumu had shot the deceased and he said that village leaders had handed Paka Dumu over to the police and he was now in jail for this offence. He agrees that Simon Kaita Ralawe was also with him at the time but he denies that Mulu Simuli was with him. He denies that they were carrying weapons. He gives no explanation for why Paka Dubu should have shot at Rimu or even why Paka Dumu was carrying a gun. Although he does agree that Paka was carrying a gun at the time.

The Defendant Ralawe Kaita who appears to be partly disabled on his left side says he went with the others for the compensation payment and he said that when they came to see Ruma Ruli he fired at them so they went away. He said that he then heard later that Paka Dubu had shot the deceased. Ralawe Kaita then says that he was on his own most of the time as there were other people in front of him and others people behind but because he was disabled he walked separately from the others. I note that while he claims to be disabled I note that he had travelled several kilometres from his home to the scene of the compensation demand. He also makes reference to about 100 people went with him to demand compensation but he does agree that Mulu Simuli was not there. Again he provided no explanation for why Paka Dubu would shoot the deceased or why he even had a gun. Neither Ralawe or Otoma make reference to the fact that earlier that morning other members from their line had already approached Ruma Ruli for the compensation.

The accused Muli Simuli gave evidence that he was not there at the time that he was out at his own garden with his dogs and this was some kilometres away from the scene and he denies any involvement in the incident.

The State witnesses have clearly identified the three accused as being present and that Otoma and Kaita shot the deceased. There are no discrepancies or hesitancies or conflicts within their evidence. State witnesses also agree that Paka Dubu was there with the accused. State witnesses are definite about the accused carrying guns. All the state witnesses saw the incident at different times but all as part of a consistent sequence as one witness was there at the scene and the other witnesses was either in the house or garden and came along and saw parts of the incident. It has been submitted that the state witnesses have just made up their story however there is too much consistency in their story and there is no explanation as to why they would make the story up and tell lies against the accused especially as the accused seem to come from the same village area and in some way related to some of the witnesses. Also the detail of the comments made by the accused to Miniadame Wiambi and Sipi Yapa are too unusual to be invented.

There seems to be no difficulty about the motive for the incident as there was apparently some grievance going back a couple of weeks to a sports incident when someone was injured and there was a demand for compensation.

The three accused all give denials they agree that they went to Ruma Ruli’s house for compensation although they give minor variations of what happened and where they were as to whether the two were together or whether they were actually slightly separate. Kaita says that he was in effect not with the others but on his own whereas Otoma suggests he was with them at the same time. Whilst Kaita suggests he was separate from Otomo and the others and was away from the main group yet he clearly claims he saw the deceased coming out of the house and shooting a gun. None of the accused make any reference to the earlier demands by people called Rumbu, Thomas and Kono for compensation that morning. So what was their status in the group with the demands for compensation there is no explanation given for their demands after the earlier demands that day. No one gives any explanation for Paka Dubu’s action as to why he alone was carrying a gun and why he would have shot the deceased. One can only therefore wonder that if Paka did that alone why didn’t he give evidence particularly as it is suggested that he has already been convicted and therefore in custody. Mulu Simuli denies being there at all but his is only a bare denial and it must be weighed against the clear evidence from the state witnesses.

Ruma Ruli was clearly killed by some shotgun wounds the state witnesses have given clear consistent and perfectly clear explanations and descriptions of what happened. The accused deny being involved in the killing but give vague evasions and while they suggest who really did it they give no real explanation of how one of their line came with a gun to do this. I am therefore satisfied that the state evidence is overwhelming and on the basis of the evidence before me I find the following.

(i) The deceased was shot two times and died from the shot and injuries to the chest.

(ii) The three accused were there with the others and were armed

(iii) Otoma and Kaita shot at the deceased and it was one of the shots that caused the death of the deceased.

(iv) All the accused carried guns and it must now be common knowledge that carrying of guns like this is illegal unless you have a special licence. And it must be accepted that by doing so by carrying guns then they carry them for a reason and the reason must be to use it.

(vi) By shooting at the deceased with guns they intended more than just to injure they must have intended to kill the deceased and anyone who carries guns and shoots a person must be presumed to intend to kill. I am not satisfied and there is no suggestion of any self defence.

(v) Muli Simuli may not have shot at the deceased but he was there armed and he was with the others to obviously support the others with any problem or demands. So once there is a shooting he is a party to the offence by virtue of S.7 of the Criminal Code.

I therefore find Otoma Onisa Yala, Simon Kaita Ralawe and Mulu Sumuli each guilty of the Wilful Murder of Ruma Ruli contrary to S.299 of the Criminal Code.

JUDGEMENT ON SENTENCE

Otoma Onisi Yala, Simon Kaita Ralawe, Muli Sumuli you have each been found guilty of the Wilful Murder of Ruma Ruli which happened on the 7th January 1994. The penalty laid down in the Civil Code for Wilful Murder is Death however the law also says that a person liable to death may be sentenced to imprisonment for life or for any shorter term.

There is too much disrespect for human life especially in these areas of the highlands and of continual stories of killings and many many cases have been coming into the courts for a number of years for such deliberate killings. It must be common knowledge whether at your village level or in the general area that it is an offence to kill someone and the people of P.N.G. and the Courts are getting tired with all this killing and it is because the people were getting so upset about all this killing that the law was changed a few years ago to create a heavier penalty of death for such killings.

Also there is too much of carrying guns around and what often happens is the carrying of guns leads people to do such killings. Anyone who is involved in a killing like this should be seriously considered for the death penalty as provided for under the Criminal Code. However Parliament seems to have accepted that there may be some killings worse than others. Whilst it is hard to distinguish between Wilful Murders as they all involve the same background namely a deliberate intention to kill and the subsequent loss of a life, whether by shooting or axing or other means and there can be no real consideration that one killing is any different to another. But occasionally one can accept that there are killings that appear more vicious or terrible or more cold blooded or involve completely innocent lives for example a cold blooded ambushing killing on the highway of innocent people who have nothing to do with the perpetrators. And it is therefore accepted that sometimes there are customary pressures and situations which get out of control and which while still Wilful Murder under the law are not perhaps as vicious or don’t horrify society as much.

I am satisfied that the situation before me today appears to be a situation where there was an argument over compensation and it appeared to get out of control and people because they were carrying guns shot people and killed them. I am not suggesting it could be accidental as if you carry guns and shoot at people there is nothing accidental about that. But it was a situation that appears to have got out of control. So I will consider that perhaps the extreme punishment of the death penalty is not necessarily warranted in such a situation. So I will follow S.19(1)(aa) of the Criminal Code and not impose the death penalty. Further as one of the accused Mulu Simuli did not actually fire a gun at the deceased and really was only involved through being with the other people thereby giving them the moral support and the strength of numbers in their confrontation so I will consider an even lesser penalty for Muli Simuli even though under the law he is still guilty of wilful murder.

Otima Onisi Yala, and Simon Kaita Ralawe I sentence you each to life imprisonment. Mulu Simuli I sentence you to 20 years imprisonment. And you must remember that anyone who joins people with guns and people are killed must be punished equally heavily as the people who actually pulled the trigger.