Unreported National Court Decisions
N1559
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
CR. 636 OF 1995
CR. 495 OF 1995
STATE v JOHN PUGUM MARA
STATE v PETER PATRICK MUKSY
Mount Hagen
Akuram J
12-25 February 1997
24 March 1997
4 April 1997
CRIMINAL LAW - murder - roles played by each accused - irrelevant by operation of Section 7 & 8 of the Code - sentence - considerations.
Cases Cited:
Gimble v The State [1988-89] PNGLR 271
Lawrence Simbe v The State [1994] SC 455
The State v Laura (No. 2) [1988-89] PNGLR 98
Goli Golu v The State [1979] PNGLR 653
Puka Babai v The State [1995] SC 493
Counsel:
S Carter for the State
B Aipe for the Accuseds
24 March 1997
AKURAM J: The accuseds each and severally are charged that on the 6th day of November 1994 at Mount Hagen, they murdered Michael Pearce, a male person Contrary to s.300 of CCA, Ch. 262.
The State alleged that the two accuseds and others formed a common intention to jointly and together steal a motor vehicle on or about the 6th of November 1994.  The knowledge common to all involved was that in their possession was a short barrel revolver.  As they together approached the deceased they heard a car engine start.  One of the people in the party drew for all to see that he had a gun.  The gate opened and deceased commenced driving through the fence down the drive.  One of the group, State alleges, including John Pugum Mara stood by the driver’s side of the drive and the window was tapped with the barrel of the gun.  And the deceased was told to get out of the vehicle.  The deceased revved the engine and continued to move.  At the passenger’s side of the vehicle was Peter Patrick Muksy standing and watching.  At this stage we have an unlawful purpose with a gun.  When the car started to move one of the group holding the gun fired it directly through the glass window at the deceased.  One of the bullets struck him and killed him.
The State allege that at no time during any of this did any of the party object to the production of the gun and its use or withdrawal from the unlawful enterprise of theft of the motor vehicle or object to the act of stealing the motor vehicle by use of a gun, contrary to section 300 of the Criminal Code and by operation of sections 7 & 8 of the Code, even through the accuseds may not have pulled the trigger, they have done so.  Accuseds and others left the deceased on the road and took the vehicle away.
The accuseds upon arraignment pleaded not guilty to the charge.  The State tendered by consent nine affidavits/statements of witnesses to court including medical report with Post Mortem and Medical Certificate of death pursuant to sections 34 & 35 of the Evidence Act, Chapter 48.  The State then called about another seven (7) witnesses and defence in response called four (4) witnesses (2 accuseds and two alibi witnesses).
The last witness for the State whom I will deal with first, namely Marcus Korayo, comes originally from Madang but grew up with John Pugum Mara and even stays with him on occasions in John Pugum Mara’s village near Ogelbeng outside Mt. Hagen City.  Witness, when employed by Securimax in Mt. Hagen, was living with his step-father at Ogelbeng Seminary and also with accused Mara.  He heard that an expatriate men was killed on the same day, 6th of November, 1994.  It was on a Sunday.  The day before on Saturday he was with accused Mara at Ogelbeng and at night he and accuseds Mara and Muksy and William Philip left Ogelbeng and walked to Kelua No. 1 village.  They slept at Kelua that night.  On Sunday, Muksy, Francis and Mr. Matuk drove to town with some beer and drove to Avi and had some beer there also.  At about 6.30 pm.  Matuk dropped them off at the village.  So, witness, John Pugum Mara, Muksy and William Philip waited on the road in front of a house.  Then Poning, John and Muksy jumped on Francis Kup’s car which came along and were then driven off.  Poning’s other name is Pumbra.  He recalled seeing Poning Pombra and John Pugum Mara sitting in the car of Francis Kup and Muksy hopped on the back of the same vehicle.  He also used to see John Pugum Mara have a pistol in his possession and on that Sunday evening he also saw John Pugum Mara had it in his possession.  He described it as a small revolver with a brown handle and a green rope tide to the butt.  When shown in court, he identified it as the one he had seen and is the one he referred to.
When they left in the car, witness was led by Ek where he slept with him.  In the night John, Poning and Muksy arrived at the house he was sleeping in and witness gave them kaukau which he cooked and left.  They had conversation in their language and witness listened.  They mentioned bringing a Toyota Hilux vehicle to Sanange.  And they mentioned about the murder they caused that night.  And in the morning of Monday before sunrise John woke all of them up.  That is, witness, William, Philip & Muksy and they all left for Ogelbeng.  On their way - witness confirmed with Muksy who said they have shot the owner of the vehicle, an expatriate and have taken his vehicle, and from that time John Pugum warned them that they shouldn’t be talking or mention anything in regard to the incident.  It was also mentioned that they are trying to sell a tool box.  Witness heard that and came to town, bought a Post Courier newspaper and confirmed what he heard.  When pressed further by State Counsel as to whether he heard anything else witness said it was risky for him to dig into the matter so what he heard, he told the Court.  He was then provided accommodation by Securimax company within the yard.
He heard of the reward but did not make any claim for the money.  Some time later in November, the same month, he came into possession of a yellow envelope with some small tools by going to Abugum village where John used to live.  He said he was not motivated by the reward but because he was accused by John & Muksy and arrested so he had to find evidence to clear himself.
He found them whilst in the company of William Philip.  A person by the name of Paraka Popona was in the house where he found the envelope with tools in it.  He got information that this envelope and tools were in the house from John Pugum Mara and Peter Patrick Muksy on 7th November on Monday morning.
However, witness denied seeing the tool box before coming to court.  But before the group went to town with Francis Kup, they told witness that they were going to steal a motor vehicle.  He agreed with Francis Kup who gave evidence first that he never went on a ride into town that night but stayed in the village.  That is why witness was discharged of this charge.  He admits he drank from Sunday (6/11/94) morning till about 5 pm by sharing 4 cartons of beer amongst a lot of them but was not affected by alcohol.
In cross-examination he said there were less then 7 of them who went on the vehicle drinking.  His explanation of number of beers drank is that first in the morning they began drinking the beer which Dr. Makut had from which he had 2 bottles.  Then they came to town and bought a 12 pack and drove to Avi whilst drinking it.  At Avi they drank about 3 cartons with the rest of the people at the party.  Then they drove back and he recalls that those of them sitting at the back of the Ute were himself, Muksy, Poning and a relative of the driver whose name he does not know.  He was then asked by defence Counsel whether he heard some shots being fired whilst at Avi and witness said - yes, I did.  The next and following questions and answers confirm that this witness was with the accuseds and others on the vehicle that took them to Avi, attended party and returned to the village:
Q.       Would you agree that some of those persons who were travelling in vehicle with you were in a drunken stage?
A.       Yes I would agree.
Q.       Whilst you were driving back with the same group, you had some beer in the vehicle?
A.       No, we had all the beers with rest of the party and we came back.
Q.       And that time when you arrived home, what time was it?
A.       It was 6 pm to 6.30 pm.
Q.       That’s when you last consumed it?
A.       Not that time, when we were to leave Avi, I had last beer.  When we arrived at home I had none.
Q.       And you went to sleep straightaway?
A.       No, after I have seen Muksy, John, Poning and Francis left for town, I was left at Ek’s house and slept the night.
Q.       Do you sleep in Ek’s house sometimes?
A.       No, I don’t sleep there.
Q.       Where do you normally live whilst at the village?
A.       I used to stay at Ogelbeng Seminary.
He was then asked about his movements during the night of 6th November 1994 and next day 7th November 1994 and the story that Muksy told him about killing a white man and getting the car was all false to which witness denied but that he heard it from Muksy.  That he slept in the house with John and Muksy.
That period of time when witness was staying with John Pugum Mara, accused Peter Patrick Muksy was there too.  However, he does not know and was not told that Muksy had a sister there and Muksy was staying with her and his brother-in-law.
I have watched carefully this witness when he gave evidence.  He was very detailed in his evidence, his demeanour was good and he answered questions honestly.  His story coincides with Francis Kup’s evidence.  That is from the time Francis picked Muksy, Mara and Poining from the village into the town leaving this witness in the village.
Francis in his evidence said that that time on a Sunday afternoon he left home and on his way to town together with some other people.  On his way to the junction of the main Highway he was called by Poning to stop.  Poning asked him if Francis was going to town.  Francis answered and said that he was going by Kuk way.  So Poning and two others of his friends jumped on the back.  The junction referred is that of Kelua and highway junction.  He knew Poning Ulg and John Pugum Mara but not the other third person (presumably Muksy).  Witness than said he drove to Kuk and dropped his family.  Then Poning and John (Pugum Mara) came into the front, they came to town and he dropped them off and went home.  He dropped the three people off at the field where the Police barracks is, in between the road going into the market.  That is the road from the market going towards Tarangau School.  When the witness stopped near Taragau Community School, all three of them (Poning, John & Muksy) got off the vehicle.  It was about 5 pm to 6.00 pm.  He remembered the time he gave to police in his statement was between 6 pm to 6.30 pm.  The witness said he knows Marcus Korayo by his first name (Marcus) and said he was not a passenger on vehicle that evening.  He first saw Marcus when the three people stopped witness to jump on and later after dropping the three, he returned and saw Marcus in the village around 7.30 pm.
I believe this witness.  He confirms the story given by Marcus Korayo in that Marcus was not with the three people in the car that evening of 6th November 1994 to be dropped off in town.  He also confirms Marcus Korayo’s story that Poning, Muksy and Mara were the ones who came to town.  The only matter is the exact time of dropping the two accuseds and Poning.  But it is quite clear that it was between 6 pm to 6.30 pm.
So there is no doubt in my mind that John Pugum Mara, Poning Ulg Pumbra and Muksy being the third men where in the car of Francis Kup and where dropped off between Tarangau school and market place.
The next witness is Senior Sgt. John Magaidimo who attend the scene of killing about 7.30 to 7.45 pm.  He then went to the hospital and returned and did a door to door knock making inquiries.  Next day he attended at the Morgue and witnessed the Post Mortem.  He was given a single pellet found from the body of the deceased by Doctor Lombange who conducted the Post Mortem.  It was a pellet from a .38 revolver.  The pellet was drawn from near the right side of the body.  Entry was made through the right of the shoulder.
On 22/11/94, Marcus Korayo provided some information which led to the recovery of an envelope belonging to PTC which was later found to be the deceased’s.  Marcus Korayo gave him the envelope which was registered to PTC, Mt. Hagen, PO Box 123, bearing Serial no. 38657B.  It had certain tools - small spanners, one plucker and another instrument and was identified by a PTC staff.  Marcus then told witness about John Pugum Mara and John Pugum Mara was arrested on 24/11/94.  John was in possession of a life shot gun cartridge, 4 life bullets and a small quantity of marijuana.  John was arrested by zones police and when interviewed, had told the police that a pistol he had alleged to be used was in a village called Palinda at Ogelbeng in the house of one Sak Rapipi, (Rapiti).  The pistol was obtained when police went to the village without a search warrant in case it is removed or concealed.
The witness then took the pistol and the pellet found in body of deceased down to Anti-ballistic laboratory in Port Moresby and gave it to Chief Inspector Gesa who is the OIC police Forensic Science.  The pistol had a green rope tide onto the butt.
The witness was also told by Marcus Korayo that there was a red tool box in John Kaipel’s trade store.  So a Search Warrant was obtained and police went there and obtained it at a village near Oglebeng.  Marcus Korayo told witness the name of Peter Patrick Muksy who was arrested on 1/12/94.
A third accused was arrested, namely Poning Ug Pombra and witness conducted part of the R.O.I on him.
I also believe this witness story as far as his investigations were concerned.  He is a very experienced police officer with 20 years experience behind him.  His evidence basically connects the pellet found in deceased’s body and the .38 revolver, alleged to be used, to the expert ballistic witness, Gia Morea.
The next witness is Girua Tagu, the policeman who also conducted investigation and questioned John Pugum Mara during R.O.I.  He followed the story of John Pugum Mara to Sak Rapiti’s (Rapipi) house where the .38 revolver (pistol) was discovered.
This pistol was handed to John Magaidimo who later took it down to Port Moresby police Forensic Laboratory for testing.  He recognised the pistol as being Serial No. C759962 - R.P. & NGC 14.
The defence contested aggressively the illegal search but I ruled that the gun be accepted as evidence on the basis that the search was done properly due to the fact that to obtain a Search Warrant would have delayed matters and police would not have obtained the pistol which would have been concealed and not discovered.  It is an “hot-pursuit” situation pursuant to Section 5(5), Search Act, Ch. 341.  I made a ruling that the pistol obtained without the Search Warrant was accepted as evidence and was admissible (written judgment).
I believed this witness and the evidence he gave, similar to witness John Magaidimo.
The other crucial witness is the ballistic expert.  His evidence is that he is a policemen based at Port Moresby Forensic Centre.  He was on attachment training at Melbourne for 2½ years on Firearms ballistics.  He has been with the police force for over 15 years.
On 1/5/95, he received from the Liaison Officer one Sgt. Tangi, a firearm which was alleged to have been used in a shooting in Mount Hagen with four fired cases and 4 life rounds.  On 2/5/95, he received one plastic containing lead piece which was removed from Mr Pearce (deceased).  He also received another plastic container of lead piece of bullet fragments.
He described the weapon (pistol) as a Smith & Wesson, point 38 revolver, Serial No. C759962.  The witness did microscopic tests to four fired cartridges to see the impression on the cases.  He compared them with the test fired case that he discharged from the same weapon.  He was then asked by State Counsel the following questions and his answers were:
Q.       What conclusions did you draw?
A.       The conclusion I did draw on the fired cases and the firearm was fired from this questioned firearm.
The witness was later asked questions which are crucial to the method of proving whether the previously fired bullet is from this particular weapon or revolver (pistol), a .38 revolver.  These are:
“Q.     Turn to ballistics - items in the container.  What is that?
A.       This is the projectile.  It is a .38 bullet with rifling on them.
Q.       Did you do any tests?
A.       Yes, I did.
Q.       Explain what you mean by “Rifling”?.
A.       “Rifling” is a twist within the barrel - once a cartridge is fired through it, you will find the markings in the bullet which in this case is a “five even right-hand twist” - which are called “Lands And Grooves”.  Of this particular projectile and the test fired bullet from this particular “same fired” had measurements averaging 2.42 mm (or o.95”) and 2.82mm (or.1.11”).
Q.       Did you conduct microscopic tests of the two cartridges, one received from Post Mortem examination and the test fired?
A.       Yes, I did.
Q.       What did you see in that examination?
A.       When I conducted examination and found that they have a similar type of rifling which is five even twist.  I found that the “Striation” - i.e. the cuts caused by the Riflings in the firearm - are the same.
Q.       A Striation in your experience, occur in a particular bullet, are unique to a particular weapon?
A.       That can be determined.
Q.       What did you find?
A.       Striations are cuts filed ontop of each other where in a normal circumstance I can’t find striations filed ontop of each other.
Q.       After all these, what’s the projectile indications to you?
A.       It indicated to me that the rifling of this firearm in this bullet which was removed from Mr. Pearce had individual markings to say it was fired from this particular firearm.
Q.       Now that you find and come to that conclusion.  Is there any possibility that that lead from Post Mortem could be fired from another weapon?
A.       It couldn’t have been.
Q.       In all the tests - firing pin impressions and projectile - what conclusion did you come to?
A.       The conclusion I drew in my examination are that these four fired cases had been fired from this particular firearm.  And this particular bullet (from Post Mortem) had been fired from this particular firearm.
Q.       Could it be fired from another weapon?
A.       I concluded that it could not have been fired from a similar type of weapon.
Q.       When bullet fired, it bends as it goes through?
A.       Yes.
Q.       Is it true rifling makes the bullet spin?
A.       Yes.
In cross-examining he was asked, inter alia, these questions with answers:
Q.       When the State asked you - what conclusion do you draw - you said those are fired from same gun?
A.       I could tell from firing pin impressions.  This particular one is so unique its called “two tooth indent”.
Q.       When a similar pistol is made, does it come out with “two tooth” from firing pin?
A.       No, this impression is individual to the characteristics of this firearm.
I am satisfied from this witness that the bullet found in the deceaseds body was fired from the pistol (.38 revolver) serial number C759962 which was found in the house of Sak Rapiti (Rapipi) in Palinda village.  I also regard this witness as an expert witness who had sufficient experience with ballistic testing and knowledge of guns or firearms.
SUMMARY
All State witnesses gave circumstantial evidence.  However, all their evidence, especially the five key witness which I summarised above, is very strong circumstantial evidence.  All those evidence when looked at in totality, come to connect these two accuseds to the murder.  That is, the evidence of Marcus supported by Francis Kup in time and place.  Then the evidence of Magaidimo and Tagu in relation to the gun and the patrol box (with the tools and Muksy’s Certificate of employment with Electoral Commission), to the evidence of Post Mortem and bullet, to the testing of the .38 revolver and the test fired bullets, all tend to join the whole episode and the two accuseds.
ACCUSEDS’ EVIDENCE
As to the accuseds alibi evidence, first I find their evidence very hard to believe.  Especially when Mara says he came late to town to get Kerosene.  Then his alibi witness who pretends to be a person who does not know what happens around him and in his community.  He does not even know whether Mara went to town to get kerosene and returned.  I also do not believe Muksy’s  alibi evidence and that of his witness.  His witness seem to say that it took four days to make two blinds for the house.  This evidence is clearly contradicted by Francis Kup and Marcus Korayo.  I therefore do not believe both accuseds and their alibi witnesses’ evidence.  Muksy alleged that police took his employment Certificate off him when they arrested him at Minj Police Station.  However, there is no prove of this happening.
I am therefore satisfied beyond reasonable doubt that State has proved its case beyond reasonable doubt.
I therefore find the two accuseds guilty of the murder of Michael Pearce and convict them accordingly.
JUDGEMENT ON SENTENCE
The two prisoners have been found guilty after two weeks trial on the 24th March 1997.  I have adjourned to 1st April 1997 for submissions on sentence.  After hearing submissions I adjourned to 4th April for sentence.  However, I realised the next day that I have not administered allocutus.  This I did now and adjourned to 1.30 pm for sentence which I now do.
In allocutus, prisoner Mara basically said his father was an ex-CIS Warder and retired in 1980 and died in 1991 leaving his mother, sisters and himself behind.  He has no other brothers.  He asked that court take into account the fact that if his mother dies, no one to bury her.  He also said whether the witnesses from both sides, State and defence, were telling the truth or not, only God knows who killed the deceased.  He finally said that he will let the court decide on sentence.  He had no priors.  Prisoner Muksy said he had no priors, comes from Minj from a Christian family.  He said he is not happy for another man’s trouble.
Both Counsels than assisted the court on two matters.  First is that although the prisoners had escaped whilst in custody that should not be taken against them as neither prior convictions nor as part of this offence as they were found guilty after trial after those offences of escape were committed.  Secondly, the Defence submitted that that fact above should not be an aggravating factor against them.
As to the general submission on sentence, their Counsel basically submitted that the Court must take particular note of what role each of them played.  That is, they did not actually pulled the trigger but were part of a group that went there to steal a vehicle and in the process the deceased was killed.  So by virtue of sections 7 & 8 of the Code, they were found guilty.  He submitted that they be given a sentence between 7-12 years.
State basically agreed on their roles in the crime and that the facts do not warrant a life sentence as the maximum for this offence to be applied here.
I agree with both Counsels on their submissions and am of the view that the facts in this case do not warrant a life sentence.  But whatever sentence to be imposed must be fair, just and have a deterrent effect on the like  minded people involved in criminal activities which results in death.  They may have not intended the consequence of death but as said in Gimble v The State [1988-89] PNGLR 271 at 272-273, by the Supreme Court that:
“...Again we do not think that the trial judge erred on this.  The General rule is that all active participants in the crime should be sentenced on the same basis.  The Court does not normally stop to consider whether a particular prisoner actively held up the victim, or held the gun, or the iron bar, or was a watchman outside, or was the driver of a get-away vehicle.  All are equally guilty because without each playing his full part the crime could not be perpetrated.”
In this case, the crime being committed was that of stealing a motor vehicle from the deceased.  The prisoners were part of the group and in the process of stealing the vehicle, the deceased was killed.  So the two prisoners here were by operation of sections 7 & 8, active participants in the murder case.  I agree that there is no evidence actually stating who pulled the trigger.  In this regard, I have to consider what is said in Lawrence Simbe v The State [1994] SC 455 that:
“We say that it is not a matter of a tariff for particular types of murder but rather that each case must be decided on its own facts bearing in mind the various factors that are involved in each case and the gravity of the attack and the concern of the court at people who take the law into their own hands.”
Again in The State v Laura (NO. 2)  [1988-89] PNGLR 98 court said, inter alia, that in a contested case, sentence be from 12-15 years.
The State basically agreed with Defence on the issue of the roles prisoners played and that the facts do not warrant a life sentence.  The State informed the Court on the back ground of the deceased and the effect of his death on his wife and children.  I also considered Goli Golu v The State [1979] PNGLR 653 but that case deals with wilful murder where the maximum penalty at that time was life.  Here it is a murder case and although the maximum is life, court has a discretion to give a determinate term of years.
In view of all the circumstances of this case, section 19 of the Criminal Code, statements in allocutus, submissions from Counsels and the authorities referred to above and the time spend in custody, I am of the view that a period of 12 years is a suitable penalty.  I therefore order and sentence the prisoners to 12 years IHL.  In doing so, I have also taken into account the length of time each of them have been in custody awaiting trial and  but do not make a separate deduction as pointed out by the Supreme Court in Puka Babai v The State [1995] SC 493.
If I were to have sentenced them without deducting the period spent in custody, I would have imposed at least 14 or 15 years.
Lawyer For The State: Public Prosecutor
Lawyer For The Accuseds: Public Solicitor