N1452

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1387 OF 1995
CR 1388 OF 1995
CR 1389 OF 1995
CR 1390 OF 1995

THE STATE

v

TIMOTHY KOI KOLA,
PETER KAWA MAIMA,
MICHAEL BAZ GANAWI
AND
MATHEW KOBO HUGO GERA

WAIGANI: PASSINGAN AJ
1996: 5-7, 10-14, 17-20 & 24 JUNE

Criminal Law - Joint Trial - Wilful Murder - Circumstantial evidence - Series of armed robberies prior and after killing of deceased - Identification parade-failure to point out accused in Court - Whether prior identification sufficient.

CASES CITED

The following cases were cited in the judgment:

The State v Tom Morris [1981] PNGLR 493
Barca v The Queen [1975], 133 CLR 82
Paulus Pawa v The State [1981] PNGLR 498
Plomp v The Queen, 110 CLR 584
John Elida Kalabus v The State [1988] PNGLR 193
The State v Kenneth Baupo and Fabian Girida (CR 117 of 1989),Unreported, No. N 795.

TRIAL

This was the trial of the four accused jointly charged with the crime of wilful murder pursuant to Section 299 of the Criminal Code, Chapter No. 262.

P Kaluwin, for the State.
O Oiveka, for the accused.

20 June 1996

PASSINGAN AJ: The four accused were jointly charged on indictment that on the 10th day of February, 1995 at Boroko in Papua New Guinea wilfully murdered one JON BILLY TOKOME. The State case was that each accused was a party to the crime by virtue of Section 7 of the Criminal Code. Each accused pleaded not guilty to the charge.

The State case was that on the 10th of February, 1995 between 8:00 pm and 9:00 pm the accused held up one Linix Elodo at Morata Settlement and stole from him a white Tata Mobile utility vehicle. They then drove to Lokua Avenue at Boroko where one of the accused shot and killed the deceased with a shotgun. That from there they held up another person namely Camillus Narakobi and stole his vehicle and escaped leaving behind the Tata mobil vehicle. The accused were sighted by police and chased to the Saraga Settlement area where the vehicle was abandoned and one of the accused was injured with a shotgun.

EVIDENCE

State evidence consisted of the evidence of Sergeant Ulagis Mantu in relation to the Record of Interview of the accused Timothy Koi Kola. Sergeant Mantu gave evidence of admissions made by the accused on the 2nd of March, 1995. This Record of Interview was the subject of a voir dire which resulted in the admissions in that Record of Interview being admitted into evidence. The accused had confessed his involvement in the crime with five others, four are now on this trial with him. The next witness was Constable Edward Tangane who corroborated the Record of Interview. The third witness was the Southern Region Commander Philip Taka who gave evidence as to a Police raid conducted at the Saraga Settlement where the accused Timothy Koi Kola was apprehended. The fourth witness was Constable Brian Kombe whose evidence was also in relation to the Police raid and the apprehension of the accused Timothy Koi Kola.

The next two witnesses were Constables Nixon Mamba and Thomas Maob. Their evidence was that on the 10th of February, 1995 about 9:30 pm they were on duty patrolling the 6 Mile area when they noticed a motor vehicle travelling at high speed towards 7 mile. They travelled towards Saraga Street and stopped at the Goilala Settlement. The Police vehicle stopped behind them some 20-30 metres. The occupants got out and started running while the drivers offsider armed with a shotgun fired a shot at the Police. Then Constable Thomas Moab fired two warning shots into the air, followed by three shots aiming at their legs. One was hit and fell to the ground and was assisted into the darkness.

A Police raid of the Saraga Settlement area was conducted on the 11th of February, 1995 where the Accused Timothy Koi Kola was apprehended with a gunshot wound on his left leg. Exhibit "A" is the "Discharge Summary" document from the Port Moresby General Hospital. The document shows that the Accused Timothy Koi Kola was admitted to the Hospital on the 11th of February and discharged on the 2nd of March, 1995.

The next witness was Elena Taumik an Inspector of Police attached to the Criminal Investigation Division at Boroko police Station. He gave evidence of conducting an Identification Parade on the 28th day of February, 1995.

A total of 12 persons and six suspects were on the parade. The first witness called identified one of the suspect "Peter Maima" by placing her hand on his shoulder. The next witness identified a suspect who was not charged with the present crime. The next two witnesses failed to identify anyone on the parade. Inspector Taumik then called on "Peter Maima" and gave him a caution. The suspect elected to see a lawyer at a later date.

The next State witness was Mary Erehe. She was at her house on the 10th of February, 1995 between 8:00 pm and 9:00 pm when a robbery was committed. She was assaulted on the head with an object, her father was cut slightly at the back of his head with a knife, her purse containing K20.00 cash and identification cards was stolen and her brother's white Tata mobile vehicle Registration no CAE 287 was stolen. She was the first witness at the Identification Parade on the 28th day of February, 1995. The following questions and answers appear from her evidence.

"Q.	Tell the Court about ID parade?
A.	Yes, I was taken to a parade. I started the first, I saw a person tall, sharp nose, well-built, he appeared to be from Sepik. The next one I picked was short, had tattoos on the face.

Q.	What made you to pick the first man?
A.	I saw him at our house when they came and asked my father for money and stole the white Tata Mobile vehicle.

Q.	Where did you see him?
A.	He was in the house standing at the back of my father.

Q.	The person you saw at the house and at the ID Parade. Can you see him in Court?
A.	No."

The next witness was Camillus Narakobi, the victim of a third incident of robbery just after the deceased was shot. His vehicle, a Mazda 626 Registration No BAH 545 was stolen from him after he was injured. This was the vehicle that was recovered from the Saraga Settlement by police on the night of the 10th of February, 1995.

At this stage of the trial the following witnesses' statements were tendered by consent - BABU WALTER, NANCY JOEL and EMMANUEL NARAKOBI. The statements of Babu Walter and Nancy Joel relate to the robbery of the Tata Mobile vehicle. The Statement of Emmanuel Narakobi relates to the robbery of his father's vehicle.

The Post-Mortem Report [Exhibit "D"] was tendered by consent. A Post-Mortem examination on the deceased was carried out on the 13th day of February, 1995. The following findings are noted in the Report:

"- Major trauma destroying (L) sternocleidomastoid muscle and severing (L) pectoralis major - 

-	(L) mandible, lateral third (L) clavicle,
-	(L) rib posteriorly.
-	(L) upper lobe lung puncture and haemorrhage.
-	1 litre (L) serosanguinous ploural effusion + 8 x 6 x 4 cm blood clot optical pleural cavity.
-	Multiple pellet wounds to (L) neck and jaw and 3 pellets recovered from body for Police ID.

The cause(s) of death was; haemorrhage secondary to gunshot wound".

State's attempt to call the final witness was unsuccessful as the witness was not available. The State then sought to file a Nolle Prosequi in relation to the accused Michael Banz Ganawi. Defence Counsel raised objection to the course taken by the State. After hearing arguments from counsel the Nolle Prosequi was accepted by the Court and the accused Michael Banz Ganawi was discharged in respect of the wilful murder charge.

At the close of the Prosecution case Defence Counsel submitted that the next two accused, Peter Kawa Maima and Mathew Kobo Hugo Gera had no case to answer. After hearing arguments of counsel the Court ruled that the accused Mathew Kobo Hugo Gera had no case to answer and was acquitted of the charge of murder. The Court further ruled that the accused Peter Kawa Maima had a case to answer.

The trial continued in relation to the accused Timothy Koi Kola and Peter Kawa Maima.

DEFENCE EVIDENCE

In the defence case the accused Timothy Koi Kola gave evidence on oath. He merely adopted his evidence on the vior dire. Basically, he maintained his denial of any involvement in the crime and that he made a false admission to the Police because of the threats and assaults inflicted upon him. He admitted being shot by the Police on the night of the 10th of February, 1995. But that he was shot whilst he was at the dancing area at the Saraga Settlement. His evidence is that he was at the dance when he heard gunshots outside the fence. He had come out of the gate to see what was happening when he was shot on his right leg.

The second accused, Peter Kawa Maima gave an unsworn statement. Firstly he told the Court his name was not "Kawa Ivani" as referred to by the police when he was apprehended. Secondly, he made allegations that the Policeman In-charge of the identification Parade conducted on the 28th of February, 1995 had forced the witness Mary Erehe to inspect the parade three times. That the witness identified him by placing her hand on him when she was called to inspect the parade the third time. He told the Court that during the Identification parade he was the only person identified.

THE ISSUES

Both counsel submitted that the issue before the Court was one of identification. Whether the two accused remaining on this trial, namely Timothy Koi Kola and Peter Kawa Maima were responsible by virtue of Section 7 of the Criminal Code, for the death of Jon Billy Tokome. It is conceded by both counsel that the evidence against the accused is circumstantial.

The law on this was discussed and applied in the case of The State -v- Tom Morris [1981] PNGLR 493 AT P 495 by His Honour Mr Justice Miles, where he followed and applied what the High Court of Australia said in the case of Barca v The Queen (1975) 133 CLR 82 at p 104.

The Supreme Court in the case of Paulus Pawa v The State [1981] PNGLR 498 at p 501 affirmed the law as applied in the State v Tom Morris:

"When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused: Peacock -v- The King (1911), 13 CLR 619 at p 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a national inference but that it should be "the only national inference that the circumstances would enable them to draw."Plomp -v- The Queen (1963) 110 CLR 584, at pp 605-606. However, "an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence". Peacock v The Queen at p 661. These principles are well settled in Australia. It was recently held by the house of Lords in McGreevy v Director of Public prosecutions, [1973] 1 WLR 276, that "there is no duty on the trial judge to direct the jury in express terms that before they could find the accused guilty they should be satisfied that the facts proved were in consistent with any other reasonable conclusion than that the accused had committed the crime. That decision goes only to the form of direction necessary to be given to the jury, and although its effect may be that the practice in this respect is less rigid in England than in Australia, it does not reflect upon the correctness of the principles stated, which are really principles of logic and common sense."

At p 496 His Honour Miles J continued to explain -

"It is clear however, that it is the tribunal of fact that has to decide whether the guilt of the accused is the only rational inference that the circumstances would enable it to draw. It should be obvious that a jury should not be told that merely because there are a number of competing inferences then they are bound to acquit. It is for them to decide which inferences they draw and which they reject and which inferences they regard as reasonable and which they regard as mere conjecture, whether those inferences are in favour of the prosecution or in favour of the accused, if either."

The following evidence are not in dispute and I find them to have been so proved. That there was a robbery at the Morata Settlement committed by a group of about seven men between 8:00 pm and 9:0 pm on the 10th of February, 1995. Among other things a Tata Mobile vehicle Registration No. CAE 287 was stolen and driven to Lokua Avenue at Boroko. That at Boroko there was an attempted robbery of a second vehicle on the deceased premises. That when the deceased hit one of the men with a golf stick he was shot with a shotgun by one of the men. Very shortly after the same group of men held up a third vehicle driven by Mr Camillus Narakobi. He was wounded and his Vehicle Registration Number BAH 545 was stolen from him. The original vehicle, namely the Tata Mobil was abandoned there. Mr Narakobi's vehicle was sighted and Police pursued the vehicle to the Saraga Settlement. The vehicle was abandoned and one of the occupants was shot by the Police on his leg.

A police raid was conducted the next day (11th February, 1995) and the accused Timothy Koi Kola was apprehended.

On the evidence I find that it was the same group of men who had carried out the robberies alleged and the killing of the deceased.

At this point I have to separate the evidence against each accused. Firstly, the evidence against the accused Timothy Koi Kola. The crucial evidence against him is his own admissions in his Record of Interview. I found on the voir dire that his admissions were made voluntarily. The next item of evidence which further confirmed the admission is that the accused was the only person who was shot by the Police at Saraga Settlement. I am satisfied beyond reasonable doubt that the accused was among those who were being pursued by Police and driving Mr Camillus Narakobi's vehicle.

Now the evidence in relation to the accused Peter Kawa Maima. The main evidence against him is that of the witness Mary Erehe. The accused was one of the two men who had gone to the witness's house, threatened and assaulted them and stole a Tata mobile vehicle. The vehicle was abandoned at Boroko where Mr Camillus Narakobi's vehicle was stolen. On the 28th day of February, 1995 Mary Erehe identified the accused at an Identification Parade. That he was one of the persons she saw at their house on the 10th of February, 1995.

The witness Mary Erehe gave evidence on the 14th day of June, 1996. When asked if she can see the person she saw at her house on the 10th of February, 1995, and also at the Identification Parade on the 28th of February, 1995, she answered "no". Defence Counsel submits that her evidence is contradictory.

The second witness was Inspector Elena Taumik of the Criminal Investigation Division at Boroko. He gave evidence of conducting an identification on the 28th day of February, 1995 where Mary Erehe identified the accused Peter Kawa Maima.

There is a difficulty here in light of Mary Erehe's failure to point out the accused Peter Kawa Maima as the person she saw at her house on the 10th of February, 1995 and identified eighteen (18) days later on the 28th of February, 1995. Defence Counsel submits that there is no evidence of identification and therefore, Peter Kawa Maima should be acquitted.

According to Cross on Evidence (Australian Edition p 57) direct evidence is of much value only if "the identifying witness can swear that he or she idenitified the accused on a former occasion, and, in that event, another witness may be called to say that he saw him to do so."

No doubt the State expected the witness in (Mary Erehe) the witness box to say that the man in the dock is the one she saw at her house on the 10th of February, 1995 and again identified on the 28th of February 1995. In my view the question put by the State was so general and wide that the answer given was fair in the circumstances:

(a)	there were the four accused in the dock, plus a couple of correctional officers;
(b)	most (except Timothy Koi Kola) had short haircut and clean shaved;
(c)	the audience in Court'
(d)	the lawyers, interpreter and court attendants; and
(e)	she was giving evidence one year four months later (since the ID parade on the 28th of February 1995).

Therefore on the whole of the evidence I am satisfied beyond reasonable doubt that the accused Peter Kawa Maima was a party to the robbery and stealing of the Tata Mobile vehicle at Morata, the attempted robbery of the vehicle and the killing of the deceased and the robbery and stealing of Mr Camillus Narakobi's vehicle.

The next matter to be considered is whether the State has proved all the elements of the charge of wilful murder. I am satisfied beyond reasonable doubt that the deceased died as a result of a gunshot wound inflicted upon him, by an accomplice of the accused Timothy Koi Kola and Peter Kawa Maima.

On the question of "intention" to cause death I find the evidence insufficient. On the evidence before the Court I am not satisfied that accused and others drove to Boroko, Lokua Avenue with a plan to attack the deceased. I find that it was more a co-incident as the deceased was not then directly involved at the beginning. The deceased was shot just after he struck an accomplice with a golf-stick.

On the whole of the evidence I find each accused (Timothy Koi Kola and Peter Kawa Maima) guilty of murder pursuant to Section 300(1)(a) of the Criminal Code.

SENTENCE

Timothy Koi Kola and Peter Kawa Maima you have been found guilty of the crime of murder pursuant to Section 300 (1)(a) of the Criminal Code. This was after a trial on a charge of wilful murder pursuant to Section 299 of the Criminal Code.

The facts and circumstances of your case are set out in the judgement. You were among a group of about seven young men who, on the 10th of February 1995 between 8:00 pm and 9:00 pm held up one Linix Elodo at Morata Settlement. You stole a white Tata Mobile Vehicle Registration No. CAE 287, a wallet containing K20.00 cash and identification cards. Whilst you were on that premises a female and her father were threatened and assaulted. The female victim was hit over the head with an object whilst her father was cut slightly with a knife at the back of his head. You then drove the stolen vehicle to Boroko where you all attempted to steal another vehicle on the deceased's premises as some of the family members were about to drive out of the gate. You were armed with a shot gun and bush knife and you again threatened the family. And not only that you all became violent and one of you fired a gun at the deceased killing him. From the evidence it is clear that you had not planned to go to this particular premises. But the manner you treated this family with your insistence and violence shows how determined you were to get what you wanted. You disturbed their rights to privacy and peace and took one innocent life away in just a few minutes. You deprived the deceased of his God-given life. He was aged 54 at that time.

You left and drove along the same street when you met another family on their vehicle going about their own business. For the third time you committed another crime. You held this family up, wounded the father and stole the family vehicle, a Mazda 626, Registration No BAH 545. Once again you exhibited such violence to get what you wanted. In my view you were so excited by your greed that you forgot that the victims were just as human as you are.

Now I have to consider what the Court should do in light of the facts as found in the evidence. At the outset my view is that this is a very bad case of murder. The aggravating features of this case are:

(a)	the robbery of the Tata mobile utility vehicle at the Morata Settlement;

(b)	the threats and violence used against the family at Morata;

(c)	the stealing of the Tata mobile vehicle itself;

(d)	the attempted robbery of the second vehicle on the deceased's premises;

(e)	again the threats and violence used against that family - including the shooting of the deceased;

(f)	the third incident of robbery of the third vehicle, a Mazda 626, Registration No BAH 545;

(g)	the threats and violence used against this third family;

(h)	Deceased was killed during the commission of a number of robberies;

(i)	the group was armed with offensive weapons - a shotgun and bushknives.

The innocent citizens of Papua New Guinea must be protected from such behaviours. The gift of life, in my view is the highest of all gifts to us as human beings including yourselves. Section 35 of the Constitution recognise life as a fundamental right to each person.

In your statements on allocutus you have maintained your innocence despite the Court's finding. Therefore, it appears to me that you are not sorry for what you did. It shows to the Court how bitter you are inside of you, in other words you have no concern and love for anyone.

The following submissions are made in mitigation:

(a)	Timothy Koi Kola - you are aged 24 years, married with one child, a first offender and that you have been in custody awaiting trial for one year four months and two weeks.

(b)	Peter Kawa Maima - you are aged 20 years and that you have one prior conviction for robbery where you were sentenced in 1992 to 12 years imprisonment.

The maximum penalty for the crime of murder (subject to Section 19 of the Criminal Code) is life imprisonment.

Mr Oiveka for the prisoners urged the Court to exercise its discretion not to impose the life sentence. That based on the facts, t he prisoners be given the opportunity for rehabilitation.

At the outset my view is that rehabilitation may be considered in relation to Timothy Koi Kola, but certainly not in relation to Peter Kawa Maima, who has a prior conviction for robbery. In the case of John Elipa Kalabus v The State [1988] PNGLR 193, the Supreme Court said at pages 196-197:

"Rehabilitation or reformation is a factor to be considered in assessing a sentence. But in serious cases such as this one it is something to be aimed at only in so far as it is compatible with the main function of the Court of protecting the public: See Acting Public Prosecutor v Andrew Lalaina and Angelo Ume (Unreported, Supreme Court, No SC 203. 3 July 1981)."

The Supreme Court continued at pages 197-198:

"There are various purposes for punishment and they include rehabilitation. But rehabilitation of the criminal must not obscure the consideration of deterrence and protection of the public from the commission of crimes. In this case the learned trial judge said:

In my view there are three main areas of consideration in determining punishment in a case such as this - deterrence, retribution and the protection of the community."

In my view the facts of this case are such that the deterrent aspect, retribution and the protection of the community out weigh the need to rehabilitate only two individuals. I have said earlier that the innocent Papua New Guinean citizens must be protected from such behaviours. For the reason that life is the highest of gifts to us as human beings. Section 35 of the Constitution recognises life as a fundamental right to each person.

The next consideration is this. Is the maximum penalty of life imprisonment called for in this case?

On the facts before me I consider that the imposition of the maximum penalty would be justified if:

(a)	the prisoners and others had planned to go to this particular premises (of the deceased) with the intention to commit robbery; or

(b)	there was evidence that the prisoners are the ones who had actually fired the shotgun which killed the deceased.

The facts of this case differ from the facts of the case of The State v Kenneth Baupo and Fabian Girida (CR 1117 of 1989) Unreported Judgment No. N795 dated 13th December, 1989. This was a decision by Hinchliffe J where the two prisoners were convicted of murder. The deceased a 63 year old man was stabbed with a knife while a robbery was taking place at night in the house he was living in. The two accused and three others were heavily armed with a shotgun, spear guns and knives had gone to the premises with the intention to rob. The group subsequently stole a motor vehicle on the same premises and took off with the stolen money. The two prisoners were sentenced to life imprisonment.

I have considered whether the Court should give you different sentences. Timothy Koi Kola you are a first offender, whilst Peter Kawa Maima has a prior conviction for a serious crime of armed robbery. On that basis your sentences will be different. You are both convicted of the crime of murder and sentenced as follows:

TIMOTHY KOI KOLA - SENTENCE - 10 years IHL
Less: - 1 year, 4 months, 2 weeks custody.
To Serve: - Balance 8 years, 7 months 2 weeks IHL.

PETER KAWA MAIMA - SENTENCE - 12 years IHL
Order: To be served cumulatively with his current term of 12 years.

__________________________

Lawyer for the State: Public Prosecutor.
Lawyer for the Accused: Public Solicitor.