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State v Amalakwin (No 1) [1996] PGNC 59; N1499 (17 December 1996)

Unreported National Court Decisions

N1499

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO 1721 OF 1995
THE STATE
v
JESSIE AMALAKWIN (NO.1)

Mount Hagen

Lenalia AJ
14-16 October 1996
18 October 1996
2-4 December 1996
13 December 1996
17 December 1996

CRIMINAL LAW - Murder - Not Guilty Plea - Trial - Criminal Code Act S. 300 (Ch No 262).

CRIMINAL LAW -Criminal Liability - Aiding and abetting - Proximity and support - Presence plus wilful encouragement discussed.

CRIMINAL LAW - Joint assault - Murder - Criminal Code S. 7 (1) (c).

The accused was one of a group of about 6-8 policemen which brutally assaulted a group of people from Kindeng Village of Western Highlands Province suspected of forcefully taking away a Department of Simbu government vehicle. On arrival at the Kindeng Village, it was completely deserted but found this minor group of people about 30-40 both young and old who had been gathered together by a village elder purposely to investigate who was actually responsible for the theft of the vehicle. Kerowagi based Mobile Squad members came upon this group of people and brutally bashed them up using fence sticks and whatever they could find resulting in injuries caused to 24 of them and the death of the deceased. The accused raised a general defence that although he was present, he did not hit the deceased directly.

Held:

(1) The victim’s death clearly resulted from the attack joint and combined assault by the accused and other policemen who were engaged in the brutal beating of the group of people on the scene of the crime: The State v Laiam Kiala and Meiri Gomosi [1977] PNGLR 470 considered.

(2) Mere presence at the scene of the crime is not in itself sufficient to constitute aiding for the purpose of S. 7 (1) (c) of the Criminal Code, but presence coupled with wilful encouragement are sufficient: Porewa Wani v The State [1979] PNGLR 593.

(3) The accused participated abetted and aided in the commission of the offence charged. He must therefore be found guilty of murder by virtue of S. 7 (1) (c) of the Criminal Code.

Cases Cited:

The following cases are cited in the judgement:

The State v Paul Kundi Rape [1976] PNGLR 96

R v Lupalupa Sisarowe [1967-68] PNGLR 445

Tapea Kawapena v The State [1978] PNGLR 316

The Sate v Smith William (1995) Unreported N1380

R v Watefield [1963] 3 All ER 659

Porewa Wani v The Sate [1979] PNGLR 593

The State v Laiam Kiala & Meiri Gomosi [1977] PNGLR 470

The state v John Badi Wdi & Pengkas Rakan [1987] PNGLR 51

R v William Taupa Tovarula [1973] PNGLR 140

Amowo Yirihim v The State [1976] PNGLR 188

R v Wendo and Ors [1963] PNGLR 217

Materials Referred to:

The Constitution of Papua New Guinea - Ch No 1 SS. 35, 36, 37

PNG Criminal Code SS. 7 (1) (c), 32 & 300 (Ch No 262)

Criminal Law and Practice of Papua New Guinea page 296

Counsel:

S Carter for the State

B Aipe for the Accused

JUDGMENT ON VERDICT

17 December 1996

LENALIA AJ: The accused stands charged that on the 16th of May 1995 at Papene Village, Kindeng, Western Highlands Province he murdered, one Jerry Yakamp Puk a male person contrary to S. 300 of the Criminal Code Act. The accused pleaded not guilty. To establish the State’s case, the State called six witnesses five of whom were eye witnesses. At the end of the prosecution case, the defence Counsel made a submission of “no case to answer” to which I overruled and ordered the trial to proceed on the basis that on the evidence as it stood, the accused could lawfully be convicted: The State v Paul Kundi Rape [1976] PNGLR 96.

The history of this case is that, the Kerowagi Mobile based Squad Commander received a complaint from the Secretary of the Department of Simbu in Kundiawa seeking assistance from police to assist recover one of Department of Simbu’s vehicles that was forcefully taken away from his driver at Kindeng village a day or two before the date of this offence. Upon receipt of this complaint, four vehicles full of Kerowagi Mobile Squad members and some Kundiawa policemen proceeded to Kindeng village between Chimbu and Western Highlands along the Okuk Highway to enquire and try to retrieve the stolen vehicle. On arrival at Kindeng village, the whole village was deserted except for some Mount Hagen Mobile Squad members. A conversation took place then the Kerowagi Mobile Members took off to Papene Community School a little distance away from Kindeng Village. Evidence of the instant case shows that about 6-8 policemen were involved in the beating of the group of people that had gathered near the school grounds at the school where the offence was committed. Some of the policemen have been acquitted and one or two others have been nollied. In the instant case the accused is charged pursuant to S. 300 of the Code.

I propose to go into detail description of each State’s witnesses’ evidence because the State say that the offence was committed by a number of policemen as it is crucial to determination of criminal liability of the accused. The first witness Thomas Paraka currently a village elder at Kindeng and former Provincial Government Member said he went to Mount Hagen town the morning of 16th of May 1995 came back and being aware of the loss of the Simbu Provincial Government vehicle he left his village and proceeded to Papene Community School with the hope of finding out from his people any information about the lost vehicle. As soon as he arrived at the school he gathered some people with old and young and asking the young people who might have been responsible. As he was still talking to his people, the Kundiawa Police vehicles came. There were four 10 seater vehicles in number.

On arrival, police immediately surrounded the group pointing their guns at them. Thomas observed that there were about 50-60 people in that crowd. Besides there were school children and teachers. As soon as teachers saw this, they returned to their classrooms and some children fled for the day. An order was verbally communicated to the crowd “no move” that is to say in English “don’t move”. The witness either stood up or lied down together with the crowd which by this time were lying down. They were ordered to look down.

As they were looking down toward the ground, one of the police personnel asked “where is the trouble maker”. No reply had yet been given when this witness saw the policemen started to beat the crowd mercilessly. Thomas Paraka stood up only to be told that he was a trouble maker. Thomas told the police that that was the reason why he had gathered his people to find out who was really responsible. This witness was some 3-4 metres away from the deceased. He noted that policemen engaged in the attack either used coffee sticks or sticks that were pulled out from the nearby school fence. This part of his evidence is corroborated by the evidence of witness Jackson Plag, Alex Kompamong and even the defence case as to the use of sticks.

Mr Paraka observed that policemen were using sticks to hit the young men and said the deceased Jerry Yakamp Puk was one of them. In relation to the deceased, this witness said as far as he can recall, there were many policemen engaged in the beating until the deceased was seen to be unconscious. After the crowd were badly beaten up, he heard one of the policemen called out “em inap” meaning “thats enough”. The result of this beating was that the deceased lost his life and about 20-24 members of the crowd were hospitalised. Witness Paraka was quite honest. He said he could not properly identify those policemen who actually beat the deceased, but he can recall seeing the accused having in possession of a stick. In relation to whether he could identify any other policemen engaged in beating his people he said he can identify some but not all. Part of his evidence is that he was present at Kindeng Service Station junction when police had a similar incident during which policemen from Chimbu had a fight with the people. Apart from the assault committed upon his people property worth K20,000.00 was destroyed and his pigs were shot at. He recalled that there were 7-8 policemen involved on this attack on the 16th May 1995 during which the deceased was beaten to death.

Detective Constable Joe Belam was the interviewing officer of the case involving Senior Constable Tony Kure (MFI Ex. I). He recalls that during the conversation he had with co-accused Tony Kure, Tony mentioned the name of the accused as one of those policemen who were involved in the beating. The record of interview between co-accused Kure and the interviewing officer was tendered by consent. Joe Belam’s evidence is relevant to two factors. First to confirm that the accused Jessie Amalakwin was present at the scene of the crime on the 16.5.95 and secondly that state witness Tony Kure described the action and reaction of the accused at the relevant time. I accepted the record of interview as part of the State’s evidence. In question 41 and its answer, Tony Kure related a story to the interviewing officer about an incident that occurred on the 11th of May last year at the Kindeng junction in which the accused was assaulted. The accused confirmed this in his evidence about a drunkard standing in the middle of the road.

Senior Constable Tony Kure was called as the third witness. This was the co-accused with whom the second State witness conducted the record of interview. He was a member of the police force based in Kerowagi at the time of the incident. He confirmed evidence by other state witnesses about police presence at Kindeng junction then later at the Papene Community School on the morning of 16th May last year. He was engaged as a Mobile Squad Driver. He corroborates evidence that the accused was at the scene and this witness had seen the accused held something in his hands and started to beat the people in the crowd sitting down under a tree. He was sitting behind the wheels of his vehicle when he saw a group of policemen bashing up the crowd and he recalled seeing the accused as one of those involved in beating of the persons in that group.

Part of Tony Kure’s evidence is that he heard the accused say something in Pidgin to the effect that “yu pala i mekim na klostu mi bagarap” meaning “you almost killed me the other day”. This was in reference to the incident on the 11th some five days prior to the brutal killing of the deceased in which a police party was proceeding to Mount Hagen when they came across a drunkard who stood right in the centre of the main highway thereby causing a traffic jam particularly from the motorists going toward Chimbu. In their attempt to remove this drunkard, a scuffle arose between police and the village people. Tony’s evidence is also relevant to any consideration of the accused’s mood on the scene of the killing. Asked in chief why concentrated so much on the accused since there were also another 7 police who were engaged in the beating. His answer was that once he heard the accused uttered words in relation to the previous incident, he fixed his eyes on him because the accused was in a bad mood that morning. His evidence is that the accused used a banana stem compared to evidence by the accused that he used a whole bunch of banana. He also recalled that when the policemen were beating the village people, the policemen raised their guns by pointing to the crowd.

Senior Constable Triga Kakarabo gave evidence corroborating that of the third witness that Kerowagi Mobile Squad and Mount Hagen Police were at Kindeng Village investigating the car theft. There is evidence by the defence that this witness was one of those policemen involved in the beating. His evidence is that as soon as he got out of the vehicle he proceeded to where the group of people were sitting down to talk to them but policemen went after him and started to indiscriminately beat the people up. He gathered old people and put them up in a separate group. He said he saw the accused grabbed a stick from a nearby fence and started to hit the people sitting down. He observed that the stick used by the accused broke into pieces, then the accused picked up a banana stem and further bashed the victims up. He confirms that he heard the accused said “yu pala tasol I mekim na klostu mi dai”. He saw one of the men fell down with his hands and legs shivering. He stood some 10 metres away from the accused. He also confirmed that witness Tony Kure was sitting in his vehicle and also confirms that there were many policemen involved in the killing. He also confirmed that there were about 30-40 men in the crowd.

There was evidence by the defence that witness Kakarabo could not present himself on the morning of 31st May 1995 at the identification parade, at Kerowagi, the date appointed for the identification parade to be conducted. This was despite the fact that this witness was informed and was seen and talked to prior to the parade being conducted. Potential witnesses were brought in from Kindeng village to identify suspects. It is abundantly clear from the defence evidence that that Triga was not on the Kerowagi parade. However Triga says that at the second parade conducted this time at the Kiminga Police Barracks he was presnt. Evidence shows that he was then identified. He said, on both identification parades, the accused was not there when in fact the accused was present at both instances. This in my view throws doubt on the credibility of this witness and I do not wish to accept his evidence on the basis that Kakarabo was also engaged in the beating. He might be building up a case against the accused to avoid criminal responsibility.

Evidence by Alex Kompamong corroborates that of the first witness. He was by the time of this offence a teacher at the Papene Community School. Alex clearly said that he was not sufficiently close to carefully identify correctly individual policemen. He estimated he was in the classroom some 100 to 180 metres away. He however describes police behaviour that morning to be very rough. He confirmed seeing about 7-8 policemen beating up a crowd of people sitting down near a tree. Some of the men in the group were standing up but after being hit fell down to the ground. He estimated the total number of policemen present on the scene to have been between 27-38. This witness was honest to say he was not close enough to identify those involved or responsible. He recalled however, that he saw policemen using sticks.

The last state witness Jackson Plag is a villager of Papene Village in Kindeng area. He was present in the crowd that was brutally beaten up by police on the date of this offence. Prior to this incident, he recalled on a similar incident on the 13th May last year when Kundiawa police came to Kindeng Service Station and caused a lot of destruction to property. Three days later Kundiawa Police again came and beat up the village people at the school. He himself was booted, and hit with sticks. The medical report supports his allegation and he was one of the 24 men that was hospitalised at the hospital. He said he particularly identified four policemen. Asked in chief and cross-examination why remember only 4, he said he had just been beaten, he was lying on the ground but raised his head and observed the four to be two from the Highlands and another two from the coastal region.

The deceased was a half a metre away from him. He saw the deceased being beaten to death. Part of his evidence is that he was one of the potential witnesses who identified suspects first at Kerowagi then at Kimininga police stations. he said he did not identify the accused at the identification parades. This is quite the opposite of what the accused says and the court does not wish to take any further issues with the question of identification because I am of the view that the question of identification is quite irrelevant and would only be appropriate if the accused pleaded alibi. This witness said while lying down, he saw the accused ran to a nearby fence picked up a stick and joined the group of 7 beating and kicking his people. He also confirmed that when policemen got out of their vehicles they aimed at the crowd and all those standing around.

The Defence case consisted of four witnesses including the accused himself. The accused’s evidence is that on the 16th of May last year, the Kerowagi based Mobile Squad received a complaint from Mr Bal, the Secretary for the Department of Simbu that some people at Kindeng village had forcefully taken a vehicle away from his driver and wanted the police to assist and try to recover it. On receipt of this complaint Mobile Commander gave orders to proceed to Kindeng with the hope of recovering the stolen Simbu Provincial Government Vehicle. His evidence is that he was a passenger in the 11 Delta vehicle and was the 4th vehicle on the convoy. On arrival at Kindeng village, it was completely deserted in fear of police retaliation in relation to the last two incidences on the 11th and 13th. They only found Mount Hagen based Mobile Unit members. Three Kundiawa police vehicles proceeded to the scene of the crime while the Section Commander of the vehicle on which the accused was in stayed back for some 4-5 minutes talking to the Mount Hagen policemen.

After the conversation, the vehicle in which the accused was in took off to the school. On arrival at the school, their vehicle parked near vehicle 11 Alpha and policemen in that vehicle got out and joined other policemen in bashing up the group of people that was sitting down. The accused saw Senior Constable Besy and the Squad Commander gathering older people into one group leaving young people in that crowd. He recalled that Senior Constable Triga Kakarabo was one of the policemen who used sticks to beat the people up. The accused came and stood near Senior Kakarabo. He said he saw an old man tried to stand up but the accused told him to sit down to tell police where they had hidden the stolen vehicle. The old man did not listen to the accused so the accused picked up a whole bunch of banana near senior Kakarabo and threw it at the old man. He also threw it with his left hand while his right hand was holding a rifle. The bunch of banana broke into pieces. I doubt a bunch of banana thrown with the left hand would have broken into pieces.

Senior Constable Kakarabo spoke angrily to the accused as to why the accused had spoiled the banana since he wanted to take the bunch of banana to his house and suggested that the accused should follow the other policemen to search the coffee garden since the accused was the Section 21C and had a high powered firearm. The accused said he walked away into the coffee garden and while there the Squad Commander gave orders to the police to withdraw. They then withdrew soon afterward.

Part of his evidence is that S/C Kakarabo was in the midst of the group of policemen beating the people. He saw state witness Kakarabo used a coffee stick against the crowd. The accused confirmed that the number of policemen engaged in this beating would have been between 8-9. He was asked in chief what would he say to evidence given by state witness Tony Kure that Tony saw the accused hit an old man with something. The accused said in answer that witness Tony was referring to the bunch of banana that he threw at the old man. The accused completely denied hitting the deceased with any sticks compared to state witnesses S/C Kure, Paraka and Jackson Plag saying they saw the accused used a stick and beat the crowd at the scene. There is evidence that 24 people in that crowd sought medication and the deceased was one of them.

There is evidence by the defence that the accused was present at both identification parades at Kerowagi and Kimininga. It is part of the defence case that in the first identification parade at Kerowagi Senior Kakarabo was not present. The accused said Kakarabo occupies half of the building and the accused the other half. The accused said he recalls having seen and spoken to Kakarabo that morning of the parade but when policemen were called upon to line up, Kakarabo could not be seen in the parade.

S/C Joe Simbratuo confirms the accused evidence that on both identification parade, the accused was present. He also confirmed that S/C Kakarabo was not present at the Kerowagi parade despite the fact that Kakarabo was present on the morning of the date the parade was conducted. The third defence witness was Constable David Kuman confirms that on arrival at the scene, he observed that policemen were man-handling the village people who could not listen to police. He saw the accused only used a banana threw it at the crowd. No reference was made by this witness as to the banana being thrown at any specific persons. The third witness also saw S/C Kakarabo used a stick. The last defence witness says that he could clearly recall that at both identification parade the accused was present but about the Kerowagi one, Senior Kakarabo was not present. That S/C Kakarabo was correctly identified by potential witness during the Kimininga identification parade. I accept as part of the defence evidence that on both identification parades, the accused was present.

As can be seen from the total evidence that there was use of excessive force against the complainants of this case. This was a clear abuse of the process of law and quite contrary to the letter of the Constitution SS. 35, right to life, 36 freedom from inhuman treatment and 37 protection of law. The result of police brutality that morning was that the deceased died. An autopsy examination conducted on the deceased on the 26.5.95 shows the following findings:

PM: Deceased Jerry Yakamp Puk

EXTERNAL

A young man well nourished, slightly pale in rigour mortis.

INTERNAL

Head: Evidence of beating on Right head with some slight swelling but no cuts. At operation through the right skull there was a clot of about 1 cm thick extending from Temporal area to the parietal area of cranium. Several areas of bleeding was controlled the main one being the middle meningeal vessel about 2cm from the skull base.

Dura was not opened.

There was clinical evidence of severe brain injury sustained at the time of alleged injury.

CHEST AND ABDOMEN

Normal.

In view of the above findings the deceased sustained severe primary brain damage as well as significant haemorrhage consistent with blunt/closed head injury.

Signed

GEORGE GENDE (DR)

MBBS.M.M.

SMO Surgery

The accused relies heavily on the general defence that although being present at the scene, he did not actually hit the deceased.

In my view there are two questions involved. The first is that there are no specific exculpatory defences in the Criminal Code which may be available to policemen who act in the performances of their duties. None of the Lawyers addressed this Court on this issue. There are however some general defences that may be available to policemen on duty such as S. 32 (1) (a) of the Criminal Code which provides that a person is not criminally responsible for an act done in the execution of the law. This section says:

“(1) A person is not criminally responsible for an act or omission done or made:

(a) in execution of the law; or

(b) in obedience to the order of a competent authority that he is bound by law to obey, unless the order is manifestly unlawful; or

(c) when the act is reasonably necessary in order to resist actual and unlawful violence threatened to him, or to another person in his presence; or

(d) when he does nor omits to do the act:

(i) in order to save himself from immediate death or grievous bodily harm threatened to be inflicted on him by some person actually present and in a position to execute the threats; and

(ii) believing himself to be unable otherwise to escape the carrying of the threats into execution,

but this protection does not extend to an act or omission that would constitute an offence, punishable with death or the offence of wilful murder or an offence of which grievous bodily harm to the person of another, or an intention to cause such harm, is an element; nor to a person who has by entering into an unlawful association or conspiracy rendered himself liable to have such threats made to him. (Amended by No 12 of 1982, s. 2.)

(2) Whether an order is or is not manifestly unlawful is a question of law.”

This section envisages a number of general defences available to persons who execute their duties according to law and secondly to those who have to execute their duties in response to orders by competent authority. In relation to s. 32 (1) (c) Frost J expressed an obiter view that it only excuses an act done for the purpose of defence and its provisions cannot derogate from specific provisions of SS. 269-271 in relation to self-defence against unprovoked assault: R v Luaplupa Sisarowe [1967-68] PNGLR 455. The provisions excuse acts for the purpose of defence but not covered under s. 269. There need not be a prior assault to invoke the defence. Section 31 (1) (c) offers a defence for an act reasonably necessary to resist actual threatened violence. The test for what is reasonably necessary is subjective: Tapea Kawapena v The State [1978] PNGLR 316, 321. In relation to S. 32 (1) (a) my brother Injia J said that the defence is available and would only apply to policemen who act in the process of executing an order of the Court: The State v Smith William (1995) unreported N1380. I note from S. 32 (1) (b) may also be available where a policemen executes an order from his superior.

To decide whether the accused acted within the limits of the scope of responsibility given him by the statutes it is necessary to look at the accused’s behaviour, action and motive at the scene of the crime and ask the question whether or not he acted in accordance with law. Ashworth J said in R v Waterfield [1963] 3 All ER 659 at pp. 661-662:

“In the judgement of this court it would be difficult, and in the present case it is unnecessary, to reduce within specific limits the general terms in which the duties of police constables have been expressed. In most cases it is probably more convenient to consider what the police constable was actually doing and in particular whether such conduct was prima facie an unlawful interference with a person’s liberty or property. If so, it is then relevant to consider whether (a) such conduct falls within the general scope of any duty imposed by statute or recognised at common law and (b) whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty. Thus, while it is no doubt right to say in general terms that police constables have a duty to prevent crime and a duty, when crime is committed, to bring the offender to justice, it is also clear from the decided cases that when the execution of these general duties involves interference with the person or property of a private person, the powers of constables are not unlimited. To cite only one example in Davies [1937] 2 All ER 213, it was held that even if a police officer had a right to enter a garage to make enquiries, he became a trespasser after the appellant had told him to leave the premises, and that he was not, therefore, acting thence forward in the execution of his duty, with the result that the appellant could not be convicted of assaulting or obstructing him in the execution of his duty.”

In this jurisdiction many of those powers and responsibilities are contained in legislation like the Police Force Act Ch No 65, Arrest Act, the Search Act, Bail Act, the Motor Traffic Act and Regulations: Section 139 of the Police Force Act says:

“139. Powers, duties, rights and liabilities of members of the Force.

Members of the Force have the same powers, duties, rights and liabilities as Constables under the underlying law, except for as far as they are modified by or under an Act.”

It is generally known that it is part of the obligation and duties of policemen to take all necessary steps appearing to him to be necessary and reasonable to keep the peace and prevent crime, to protect life and property and to bring offenders to justice. Where the situation calls for the use of force to prevent the commission of crime the force use ought to be justifiable and reasonable in all the circumstances of each case.

The second issue is that from the total evidence can it be said that the accused was a party to the offence charged. I am grateful to both Counsels for their helpful addresses on parties to offences. Evidence both by the State and Defence clearly show that the accused was present at the scene of the crime. The State’s evidence show that the accused himself used a stick to beat the people in the crowd one of whom was the deceased. Evidence by the defence alone show that the accused used a bunch of banana and threw it at an elderly man. This part of the defence evidence contradicts its case and that of the state that elderly people had been removed and seated in a separate group. There is evidence by the State that the accused uttered words in the following terms “yu pala tasol I mekim na klostu mi dai”. This was followed by the accused beating the 24 victims in which group the deceased was in. What is clear is that there was a group of 6-8 policemen involved in the beating which lead to the death of the deceased and near death of others. I was urged by the defence Counsel that on the basis of the evidence as it stands I should not find the accused guilty.

The question of joint participation in crimes has been discussed both in the Supreme and National Courts. The Supreme Court said in Porewa Wani v The State [1979] PNGLR 593 at 597.

“It is well established that mere presence at the scene of a crime is not enough to constitute aiding. However, presence and wilful encouragement are enough. In the well known prize-fight case of R v Coney (1) Hawkins J said:

‘In my opinion, to constitute an aider and abettor some active steps must be taken by word, or action, with the intent to instigate the principal, or principals. Encouragement does not of necessity amount to aiding and abetting, it may be intentional or unintentional,a man may unwittingly encourage another in fact by his presence, by misinterpreted words, or gestures, or by his silence, or non-interference, or he may encourage intentionally by expressions, gestures, or actions intended to signify approval. In the latter case he aids and abets, in the former he does not.’” (The emphasis is ours.)

That dictum was applied by the Courts-Martial Appeal Court in R v Clarkson (2), where the court said:

“It is not enough, then, that the presence of the accused has, in fact, given encouragement. It must be proved that the accused intended to give encouragement; that he wilfully encouraged.”

In R v William Taupa Tovarula (3) Minogue CJ said:

“However, encouragement in one form or another is a minimal requirement before an accused person may properly be convicted as a principal in the second degree of any crime - see R v Allan (4) per Edmund Davies LJ.”

As to the question whether the death of the victim in the instant case could have been attributed to any of the blows by any of the policeman engaged in the beating of the victims, the National Court said in The State v Laiam Kiala and Meiri Gomosi [1977] PNGLR 470 at 473:

“I do not think it is possible to come to a firm conclusion as to whether Philip’s death is to be attributed to the punch, the kick or to a combination of the effects of both. But I do consider the other suggestion that it may be attributed merely to a fall to be so far-fetched as not to amount to a real possibility. If it were attributable to the fall, that fall would in any event seem to result from Laiam Kiala’s punch. There was no evidence before the Court that Philip was hit or kicked by anyone other than Laiam or Meiri Gomosi (apart from the reference in Laiam’s record of interview). I consider Philip’s death clearly to have resulted from the attack by Laiam and Meiri and no other cause. One view which I think is open, is that this became a joint assault in prosecution of a common purpose once Laiam Kiala indicated by taking his shirt off and moving in an obviously aggressive mood towards Philip, and Meiri Gomosi moved to his support. Such are the notorious usual compulsions in Papua New Guinea society among tribal brothers immediately to move to the support when a fight develops. But I do not think the prosecution needs to rely upon Section 8 of the Criminal Code to obtain a conviction.”

I am urged by Mr Carter that the accused participated or acted in concert, aided or abetted in the unlawful killing of Jerry Yakamp Puk. The defence argues the contrary. Looking at various authorities I have cited can it be said that the accused’s action falls within the armbit of S. 7 (1) (c) of the Code. Section 7 (1) (a) (b) (c) and (d) say:

“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; and

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

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

(d) every person who counsels or procures any other person to commit the offence.”

It is established beyond reasonable doubt that the accused was present at the scene together with other policemen for purposes of retrieving the stolen vehicle. It is also established that where a number of accused were responsible for the death resulting from attack where both in the presence of each other with intent to were aiding and abetting each other in the attack. It was not to the point that it could not be elicited whose blow caused the death: The State v John Badi Woli & Pengas Rakan [1978] PNGLR 51. Mere presence at the scene would not suffice, but it must be willed and not accidental and with the intention to encourage or assist in the commission of the crime charged. It was stated in R v William Taupa Toverula [1973] PNGLR 140 that in some circumstances the fact that a person was voluntarily and purposely present at the commission of the offence and afforded no opposition to it although he may have expected to do so or at least to express his dissent, may not afford cogent evidence that he wilfully encouraged the commission of the offence.

In their commentary in relation to parties to the offences “Criminal Law and Practice of Papua New Guinea” by Chalmers, Weisbrot and Andrew at page 296 it says:

“When several persons being present together attack at the same time the same man, using similar weapons or directing similar blows with the common intention to injure and that man dies as a result of injuries so inflicted, each of the attackers is guilty of wilful murder, murder or manslaughter, according to the intent proved, because each of those several persons is acting in concert with the others at the time, each did the acting constituting the offence under subs. (a), and aided the others under (c). However, if it is not proved that there was any other plan or preconcert to which those several persons were parties, and the hypothesis has not been excluded that the deceased met his death because of injuries inflicted during a later assault by another person or persons, acting alone or together in a common design or concert to which those several persons were parties, and at a time when those several persons were not shown to be present or participating in the attack or keeping watch or using any dangerous weapon, then those original several persons who were parties to the first assault are not criminally responsible in any degree for the death of the man, the reason being that it has not been shown that those several persons did the act under s. 7 (1) (a) or aided another person committing the offence under s. 7 (1) (c) or, there being no preconcert, that they counselled or procured any other person to commit the offence under s. 7 (1) (d). The position under the Code goes further than the common law for under the Code a person may be convicted as a principal if he counselled or procured the offence, whereas at common law for the accused to be guilty as a principal in the first or second degree, the accused must be shown to be actively or constructively present at the scene. R v Sapulo -Masuve and Ors (1973) No 732.”

The Supreme said in Omowo Yirihim v The State [1976} PNGLR 188 said that where two or more persons participate in a crime each is responsible for the act of the other. Although mere presence at the scene of the crime is not enough to constitute aiding, presence and wilful encouragement are sufficient. To come under the armbit of S. 7 (1) (c), intentional encouragement of the crime is sufficient whether by word, action or even by mere presence. Where more accused join in a common purpose to kill but did no physical arm other than being present and walking around the scene it may be open on the finding of facts that they aided by their presence and readiness to assist R v Wendo and Others [1963] PNGLR 217.

Having discussed those authorities and the principles there laid where does the position of the accused fits in, in relation to s. 7 (1) (c) of the Code. There is evidence that the accused was present at the scene. I find that not only was he present but was ready to act to fight back at the people had the people fought with the police. Prior to beating the people in that crowd the accused uttered words of what I may safely say anger or frustration about the incident on the 13th of May. These are evidences I find to be subsidiary only to the cogent evidence put by the State that the accused himself engaged, participated aided or acted in concert with other policemen in the brutal killing of the deceased. I am satisfied that I may safely accept the evidence of State witnesses, Thomas Paraka, S/Constable Tony Kure and Jackson Plag that the accused was seen with a stick and was seen using it to beat the 24 victims and from which the deceased died instantly. He used the stick himself until it broke into pieces.

I must describe the action by the policemen engaged in this killing as brutal and merciless. It was a total disregard to the first and most basic human right is that to life itself. Nobody should be deprived of his life intentionally except under a sentence of the Court which carries a death penalty. The requirement of s. 35 of the Constitution is set out in explicit terms:

35. Right to Life

(1) No person shall be deprived of his life intentionally except:

(a) in execution of a sentence of a court following his conviction of an offence for which the penalty of death is prescribed by law; or

(b) as the result of the use of force to such an extent as is reasonable in the circumstances of the case and is permitted by any other law:

(i) for the defence of any person from violence; or

(ii) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; or

(iii) for the purpose of suppressing a riot, an insurrection or a mutiny; or

(iv) in order to prevent him from committing an offence; or

(v) for the purpose of suppressing piracy or terrorism or similar acts; or

(c) as the result of a lawful act of war.

Subsection (2) of this section provides that there is nothing in subsection (1) (b) to relieve any person from criminal liability in respect of the killing of another person. The police action was also contrary to SS. 36 and 37 of the Constitution. The former section provides for freedom from in human treatment and says that no one should be tortured whether physical or mental or to be subjected to treatment or punishment which is cruel, inhuman or inconsistent with respect for the inherent dignity of the human person.

I find therefore that the accused acted in concert and aided in the brutal killing of the deceased Jerry Yakamp Puk pursuant to S. 7 (1) (c) and therefore find him guilty as principal offender to the charge of murder contrary to S. 300 (1) (b) of the Code. I convict the accused accordingly.

Lawyer for the State: The Public Prosecutor

Lawyer for the Accused: Alphonse Yerr