N5026
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 914-925 OF 2005

THE STATE

V

PAUL GAMBU LAORE, VINCENT MATANA LAORE,
EMMANUEL KITA LAORE, JOE GIMA LAORE,
STEVEN DAKOA MULAGE, PAUL MAKELE LAORE,
LAWRENCE LUMBOLUMBO MULAGE,
RAPHAEL TAPELE MULAGE, PETER BALUAE MULAGE, STANLEY BITO RANGA, PAUL MAKUA KITA &
LEO MULAGE

Kimbe: Cannings J
2007: 12, 13, 14, 15, 16, 19, 20, 22, 23 November,
11 December

CRIMINAL LAW – trial – wilful murder – multiple accused – village dispute – altercation between groups of villagers – man killed – competing versions of events – determination of whether any of the accused killed the deceased – causation – defences to wilful murder – whether any of the accused intended to kill him – self-defence – alternative verdicts

Twelve accused pleaded not guilty to a charge of wilful murder. They are alleged to have confronted their cousin, assaulted him and killed him in a mob attack. It is agreed that there was an incident in which the deceased was injured and that several hours later he died from injuries sustained during the incident. The State says that all the accused killed him. The defence says that none of the accused killed him but if any of them did, it was only a small number of them and they acted in self-defence.

Held:

(1)	Four of the accused, Vincent Matana, Paul Makele, Lawrence Lumbolumbo and Peter Baluae, killed the deceased. They had no defences available to them, so the killing was unlawful.

(2)	They had no intention to kill, so were found not guilty of wilful murder. They had no intention to cause grievous bodily harm and none of the other circumstances giving rise to murder were proven. So they were found not guilty of murder. The killing was, however, unlawful and they were convicted of manslaughter.

(3)	The remaining eight accused were acquitted.

Cases cited

The following cases are cited in the judgment:

Browne v Dunn (1893) The Reports 67
Cosmas Kutau Kitawal & Christopher Kutau v The State (2007) SC927
Government of PNG v Moini [1978] PNGLR 184
Omben Kumbe v MVIL (2005) N2860
R v Kaiwor Ba [1976] PNGLR 90
R v Nikola Kristeff (1967) No 445
Tapea Kwapena v The State [1978] PNGLR 316
The State v David Yakuye Daniel (2005) N2869
The State v Jeffery Bijuma (1989) N765
The State v Lenny Banabu (2005) N2871
The State v Stanis Gala (2005) N2846
The State v Takip Palne of Dumbol [1976] PNGLR 90

Abbreviations

The following abbreviations appear in the judgment:

aka – also known as
CID – Criminal Investigation Division
cm – centimetre
Const – constable
CR – Criminal case
DCJ – Deputy Chief Justice
Det – detective
gm – gram
J – Justice
kg – kilogram
km – kilometre
LLG – Local Level Government
MVIL – Motor Vehicles Insurance Limited
N – National Court judgment
No – number
OIC – officer-in-charge
PNG – Papua New Guinea
PNGLR – Papua New Guinea Law Reports
SCRA – Supreme Court Criminal Appeal
SDA – Seventh Day Adventist
Snr – Senior
v – versus
WNBP – West New Britain Province

Glossary

The following people and places are referred to in the evidence.

People

Alfred Joe Dori – son of Dori Lapu
Alphonse Pua – referred to in unsworn statement of Raphael Tapele Mulage
Babai, Andrew Miagalo – cousin to deceased & accused persons – State witness
Baule Dumbi – Dori Lapu's in-law
Bito Buo – Dori Lapu's in-law
Bruno Dori Lapu – brother to deceased – State witness
Dako Lapu – one of the Lapu brothers
Dori Lapu – same as Bruno Dori Lapu
Elijah Dakoa – referred to the evidence of Paul G Laore
Elisa Pua – referred to in unsworn statement of Raphael Tapele Mulage
Emmanuel Kita Laore – accused # 3
Francis Dalman, a Det Const (Police) – crime scene investigator
Galama – Mulage's wife; Paul Gambu Laore's adopted mother
Gilbert Buo Dori – son of Dori Lapu
Joe Gegilo Lapu – LLG president – deceased's brother
Joe Gima Laore – accused # 4
Joe Mamae Lapu – brother to deceased
John Chigomuri – committee member – State witness
John Pengesi – one of Dori Lapu's in-laws
Joseph Nale, Dr – the doctor that performed the post-mortem, State witness # 7
Kaue Tupi – one of Dori Lapu's in-laws
Keluku Talania – one of Dori Lapu's in-laws
Lawrence Lumbolumbo Mulage – accused # 7
Leo Bito – Dori Lapu's neighbour, Sila Olema's brother
Leo Mulage – accused # 12
Linge Umbiruai – referred to in evidence
Lucy Vogae – a nursing sister at Kumburi aid post, WNBP
Luke Tupi – third defence witness
Marulai – Paul Gambu Laore's biological mother
Miagalo – elder brother of Takoi and Marulai
Michael Moir – Uncle of Raphael Tapele Mulage
Moses – another committee member (surname Walou)
Mulage Umbiruai – father of Mulages, adopted father of Laores; aka as 'Old Man' Mulage
Paul Gambu Laore – accused # 1
Paul Makele Laore – accused # 6
Paul Makua Kita – accused # 11
Peter Baluae Mulage – accused # 9
Peter Kapi – second defence witness
Peter Nale Lapu – the deceased
Petha Yakoyagi – Police OIC of the investigation
Philip Nale – son of Peter Nale Lapu
Raphael Linge Lapu – one of Dori Lapu's sons
Raphael Tapele Mulage – accused # 8
Sila Olema – Leo Bito's sister, fourth State witness
Stanley Bito Ranga – accused # 10
Steven Dakoa Mulage – accused # 5
Tago Dumbi – Dori Lapu's in-law
Takoi – mother of deceased, Joe Gegilo Lapu, Bruno Dori Lapu and Joe Mamae Lapu (the Lapus')
Tupi Divu – first defence witness, father of Luke Tupi
Umbiruai Koroi – one of Dori Lapu's in-laws
Vincent Matana Laore – accused # 2

Places

Bali – an island in West New Britain
Karanas – aka Wundepapaka – Peter Nale Lapu's hamlet, Bali
Kimbe – provincial capital, West New Britain
Kumburi – village, Bali, aid post also located there
Makiri – station on Bali, where a health centre is located
Malabuburu – Paul Makele Laore's hamlet, Bali
Nakokoranga – hamlet where incident occurred, home to the Mulages and Dori Lapu
Napisiau – hamlet where Luke Tupi lives, Bali
Nigilani – SDA mission station, Bali
Nitutuku – hamlet where Tupi Divu and Peter Kapi live, Bali
Penata – the main village, Bali
Wundepapaka – aka Karanas, Bali

TRIAL

This was the trial of twelve accused charged with wilful murder.

Counsel

F Popeu, for the State
G Linge, for the 1st accused
B Tanewan and T Gene, for the 2nd to 12th accused

11 December, 2007 

1. CANNINGS J: Twelve men from Bali Island, West New Britain – "the Bali 12" – are before the court charged with wilful murder. They are alleged to have confronted their cousin, Peter Nale Lapu, on the morning of Easter Saturday, 26 March 2005 near Penata village, Bali, assaulted him and killed him. Peter Nale was 38 years old. The first accused, Paul Gambu Laore, is alleged to have twisted the deceased's neck. The second accused, Vincent Matana Laore, is alleged to have cut him on the legs with a bushknife. The others are alleged to have hit him with sticks and stones, punched and kicked him. All of the accused pleaded not guilty so a trial was held. There are two distinct groups of people involved in this case:

•	the Laore and Mulage families – five accused use Laore as their last name, five use Mulage and the other two accused are related to them – they are also known as 'the Marulai', the name of their mother;

•	the Lapu family – the deceased was a member of this family and two of his brothers, Bruno Dori and Joe Mamae, were State witnesses – they are also known as 'the Takoi', the name of their mother.

2. Marulai and Takoi are sisters. The two groups are closely related. The 12 accused are cousins of the deceased and his brothers.

UNDISPUTED FACTS

3. It is agreed that at about 8.00 am on Saturday 26 March 2005 there was a confrontation between some members of the two groups. It took place at the hamlet of Nakokoranga in front of the house of the first State witness, the deceased's brother, Bruno Dori Lapu. Some of the accused also live at Nakokoranga in houses close to Dori Lapu's house. The deceased, Peter Nale, sustained bushknife wounds to his legs. The bushknife was his own. He had been holding it and one of the accused took it from him and cut him with it. He was taken to a health centre on Bali after he was injured. He died there on the afternoon of the incident. A post-mortem report concluded that the cause of death was loss of blood due to leg wounds caused by a sharp object. The deceased also had an extremely swollen neck, a dislocated jaw and a fractured collar bone. Something happened the night before, which led to the incident of 26 March.

THE CHARGE

4. The 12 accused are each charged with wilful murder under Section 299 of the Criminal Code, which states:

(1)	Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2)	A person who commits wilful murder shall be liable to be sentenced to death.

5. The prosecution therefore has the onus of proving beyond reasonable doubt that:

•	the accused killed the deceased;
•	the killing was unlawful; and
•	the accused intended to cause the death of the deceased.

6. They are the three elements of the offence. If the court is not satisfied as to the third element – intention – an alternative verdict of murder or manslaughter can be entered under Section 539 of the Criminal Code.

THE ISSUES

7 That is not agreed are:

1	What happened in the years and weeks leading up to the incident that created bad blood between the two groups? The defence case was that there were problems on and off for some years and that events in early March 2005 further increased the tension. But one of the key State witnesses challenged that view of history so it will be useful to make some findings on this as it helps determine whose version of the events of 26 March 2005 to believe.

2	What happened on the night of Friday 25 March 2005? The State says that some of the accused raided Dori Lapu's house and damaged it badly. The defence says that it was Dori Lapu who raided their houses.

3	Which of the accused were present on Saturday 26 March 2005? The State says they were all present, they came in a group and aided and abetted each other in assaulting the deceased and inflicting fatal injuries. The accused say that some were not present.

4	What happened on Saturday 26 March 2005? The State says it was the first accused, Paul Gambu Laore, who led the others in an attack on the deceased and his relatives, who were unarmed. The defence says that the deceased attacked Paul Gambu with a bushknife and that the deceased's relatives were armed and joined the deceased in attacking Paul Gambu, who was unarmed. Some of the accused ran away; some were injured themselves and did not injure the deceased; one admits cutting the deceased but says he acted in self-defence.

5	Who, if anyone, killed the deceased? The State says that all the accused killed him. The defence says that none of the accused killed him. Though one of the accused injured him, there was a break in the chain of causation between the infliction of injury and death, due to the protracted delay in getting him to the health centre for treatment.

6	Did any of the accused who did not actually kill the deceased aid the person(s) who killed him? The State says that all the accused aided and enabled the killing and that the death occurred in prosecution of an unlawful purpose, therefore all accused are criminally liable under Sections 7 and/or 8 of the Criminal Code. The defence argues that Sections 7 and 8 do not apply.

7	Do those who killed the deceased have any defences available? The State says no, as this was an unprovoked attack on an innocent man. The defence says if anyone is found to have killed the deceased, they acted in self-defence, and should be acquitted.

8	If no defences are available, is this a case of wilful murder or should an alternative verdict be entered? The State says that it is wilful murder as the accused intended to kill the deceased. The defence says that there was no intention to kill and a lesser verdict should be entered.

OVERVIEW OF EVIDENCE

8. I will address those issues one by one but before doing so I will summarise the evidence presented by the State and the defence.

9. The State relied on:

•	23 exhibits; and
•	eight witnesses who gave oral evidence.

10. For the defence:

•	no exhibits were tendered;
•	three witnesses other than the accused gave evidence;
•	six of the accused made unsworn statements from the dock; and
•	six gave sworn evidence.

THE STATE'S 23 EXHIBITS

Exhibits A-L are the records of interview of the 12 accused.

11. A: Paul Gambu Laore was present at the incident on Saturday morning, which was preceded by an attack, the night before, on the houses of the accused by the deceased and others. On Saturday morning he went to Dori Lapu's house to restore peace. The Lapu brothers said that they would make peace but they were in possession of offensive weapons. He mentioned Babai Miagalo's name. When Babai heard his name he came out talking angrily. At that point the deceased and the others got their weapons and ran towards him. The deceased called out that he would kill him (Paul). So he turned and ran.

12. B: Vincent Matana Laore was present at the incident. He declined to answer questions about Friday night. He saw Paul Gambu talking with the deceased and the deceased's brothers to sort out the problem. Paul had come up from the beach. Paul was sorting out the problem, then asked for Babai who came from the back of the kitchen house shouting and arguing. That made the deceased and his brothers angry. The deceased ran towards Paul to cut him with his bushknife. So he (Vincent) ran towards the deceased, grabbed his knife, disarmed him, then two of the deceased's relatives came at him with a bushknife. Fearing for his safety, he swung the knife at the deceased's legs.

13. C: Emmanuel Kita Laore denied being present. He said he slept at his house on Friday night and on Saturday morning worked in his vanilla garden. He did not know anything until hearing in the afternoon that Peter Nale had been taken to the health centre.

14. D: Joe Gima Laore was present at the incident. He heard Paul Gambu talking to their cousin brothers about the problem. Babai came out of Dori Lapu's kitchen house, arguing. Peter Nale approached Paul Gambu. Then he saw Paul Makele fall down and he took him to the aid post at Nigilani.

15. E: Steven Dakoa Mulage was present at the incident. The night before, Peter Nale and others had come into their area, destroyed their houses, stolen belongings and sworn at them. The next morning he observed Paul Gambu talking to Peter Nale and others. Paul was talking to them nicely and mentioned Babai's name. Babai came out of the kitchen house where he was, instigating the others to fight. Peter Nale ran towards Paul and threatened to kill him. Paul got scared and ran away and he (Steven) also ran away.

16. F: Paul Makele Laore was present at the incident. He saw Paul Gambu talking with Peter Nale and his relatives, saying that there was 'no more cross' and they would sort it out nicely. Paul Gambu then asked for Babai Miagalo. Babai shouted and got cross and came from the kitchen house and this caused the others to fight. Peter Nale attacked Paul, who ran. He (Paul Makele) and Lawrence Lumbolumbo Mulage tried to hold Peter's hands. Then he (Paul Makele) was injured on his head, shoulders and knee, by an axe wielded by Umbiruai Koroi, and taken to the aid post.

17. G: Lawrence Lumbolumbo Mulage gave an account of previous incidents and said their houses were damaged by the deceased's lain on Friday night. He was present at Saturday morning's incident. Paul Gambu was talking to Peter Nale and the others. Paul mentioned Babai's name and when Babai heard that, he was angry. That is when Peter raised his knife to cut Paul. Then he (Lawrence) tried to hold Peter. But Peter's knife cut his hand and he ran away.

18. H: Raphael Tapele Mulage said he arrived late at the scene of the incident. He saw Kaue Tupi cut the hand of his brother, Peter Baluae Mulage, with a pocket knife. He (Raphael) then took Peter to the hospital.

19. I: Peter Baluae Mulage said he was present at the incident. Paul Gambu was trying to sort out the problem with Peter Nale and the others and Paul mentioned Babai's name and Babai became angry. Peter Nale then attacked Paul. Then Kaue Tupi ran towards him (Peter) and cut him with a pocket knife and he was taken to the health centre.

20. J: Stanley Bito Ranga gave an account of previous incidents and said their houses were damaged by the deceased's lain on Friday night. He was present at Saturday morning's incident. He heard people shouting and he saw Peter Nale use his knife in a threatening manner. He saw Paul run away, and he (Stanley) also ran away.

21. K: Paul Makua Kita denied being present.

22. L: Leo Mulage denied being present.

23. Exhibits M-P are statements by police investigators, explaining when and how the interviews were conducted. The interviews were conducted in the CID office at Kimbe police station in the period from 28 April to 10 May 2005.

24. Exhibit Q is an affidavit by Dr Joseph Nale, who conducted the post-mortem examination. He also gave oral evidence. The details of the post-mortem report are summarised later in the judgment.

25. Exhibit R is a sketch plan of the incident scene prepared by Det Const Dalman.

26. Exhibit S is a set of three stones found at the incident scene, all approximately 10-12.8 cm in diameter and weighing roughly 250-350 gm.

27. Exhibit T is Peter Nale's bushknife: riveted, wooden, discoloured and stained handle, 71.2 cm blade, 12.8 cm handle.

28. Exhibit U is a medical report re Paul Makele Laore: he went to the Nigilani aid post on 26 March 2005 with axe wounds to head, shoulder and left knee – details of treatment given.

29. Exhibit V is medical report re Lawrence Lumbolumbo Mulage – he came to the aid post on 26 March 2005 with very painful laceration on the palm of the hand – details of treatment given.

30. Exhibit W is a statement by Sister Lucy Vogae of Kumburi aid post – Peter Baluae came to the clinic on 26 March 2005 after receiving 27 stitches to his hand at Makiri heath centre earlier that day.

STATE WITNESSES

31. They are:

1	Bruno Dori Lapu, the deceased's brother, who gave evidence of the deceased being assaulted near his house;

2	John Chigomuri, community leader, who gave evidence of the events of Friday night 25 March 2005;

3	Det Const Francis Dalman, crime scene investigator, who gave evidence of his observations of the scene when he went there two days after the incident;

4	Sila Olema, who lives next door to Dori Lapu, and gave evidence of what happened;

5	Andrew Babai Miagalo, a cousin of both groups, his father being a brother to Marulai and Takoi – he was present at the incident – he is the one who the defence says instigated the trouble;

6	Dr Joseph Nale, the doctor who conducted the post-mortem;

7	Joe Mamae Lapu, another of the deceased's brothers, present at the incident;

8	Det Snr Const Petha Yakoyagi, officer-in-charge of the police investigation.

STATE WITNESS NO 1: BRUNO DORI LAPU

32. He is a younger brother of the deceased. The incident took place outside his house at Nakokoranga, a hamlet consisting of about eight houses, 500 metres from the main village at Penata. He gave evidence about:

•	previous disputes;
•	Friday 25 March 2005; and
•	Saturday 26 March 2005.

Previous disputes

33. Some of the accused, including Steven Dakoa Mulage and Paul Makele Laore, were arrested by the police about a month beforehand as they were suspected of committing a break and enter. Steven Dakoa and Paul Makele ran away but the police got their father, Mulage Umbiruai, and another person, took them to Kimbe and put them in the cell. They were angry about that and one of his pigs went missing.

Friday 25 March 2005

34. It was Good Friday, he is a Catholic and went to church. He was returning to the village at about 7.00 pm. As he approached he heard noises on the roofing iron of his house. A woman told him that his house was being broken into. He sent John Chigomuri to stop his children from coming to the house. He arrived at Leo Bito's house, next door to his. He was told that the people raiding his house were holding knives, axes and spears. So he stayed at Leo's house. He saw and heard them destroying his house. Vincent Matana Laore ran upstairs, smashing the louvres with a water container. Stanley Bito Ranga also ran up the stairs and broke louvres on the other side of the house. Paul Gambu Laore had a flashlight guiding them while they were destroying the house. Vincent is his brother and he could recognise his voice. Stanley Bito Ranga is his nephew. Vincent said that he would come back at 8 o'clock in the morning and kill him and that Dori would suck his penis. Then they all went back to the beach. After a while there was no noise and he went to his house, crying. He stayed there until the next morning.

35. In cross-examination Dori changed his evidence about the place from which he observed Paul Gambu flashing the torch. He said that he observed Paul from under his house but when the defence counsel pointed out that that was different to what he said previously, he said that the first story he gave was the correct one. He was confused when he said that he observed Paul from under his own house. Dori also changed his evidence about whether anyone stayed with him that night, at one point saying that his relatives only arrived in the morning; at another point saying that Peter Nale and others stayed at his house that night. Defence counsel, Mr Linge, suggested that he was lying, to which Dori replied that he was telling a long story and had forgotten some of the small details. Asked whether any of the people who stayed under his house were armed, Dori said he could not see what they were holding. It was only in the morning that he saw that Peter Nale had a knife. Mr Linge put it to Dori that on the Friday night there were a number of people under his house, including Peter Nale. They had killed chickens and stoned the houses of the accused persons. Dori responded that this might have happened. But those people are not his brothers, they are his in-laws. They might have destroyed crops and other things.

Saturday 26 March 2005

36. A group led by Paul Gambu Laore came towards his house. They had no shirts on and were looking very serious. Paul came out from the group and approached him. He did not come to talk peacefully. He came to fight. Vincent had said the previous evening that they would come in the morning to fight and that is what happened. Paul went chest-to-chest with him. He pushed Paul away and told him he had no right to enter his premises. He was a public servant and he should stay away. Paul came back again and he told him the same thing again. Paul went away and came back a third time and he told him the same thing again. Paul then approached Peter Nale who had walked from under the house and stood near a post. He did not run. Peter Nale had a knife but he did not use it and did not intend to use it. If he intended to use it he would have swung at Paul and cut him. Paul invited Peter to cut him with his bushknife. Peter replied that he had no grudges against Paul and he would not cut him. Then Paul walked away and called Babai's name. Babai was in the kitchen house and came out. Paul approached Babai, held him by his hands and challenged him to fight. Babai fell down, Paul stepped on his neck and pushed his left hand into his eye. While Babai was on the ground Lawrence Lumbolumbo Mulage hit him and Steven Dakoa Mulage kicked him. Babai held no knife, he was just carrying his basket. Babai lives in the main village, Penata. Paul left Babai and told the others to follow him to fight Peter Nale. Paul pushed Peter back and banged his head against the iron post of the house. Paul's brothers ran up, held Peter's hands and Paul twisted Peter's neck while the others were punching and kicking him. Peter fell to the ground, Paul sat on him and twisted his head a second time. Paul then ran back to his house at the beach, leaving the others still assaulting Peter. They were shooting him with stones. Vincent Matana Laore used the bushknife to cut him three times. Vincent punched one of his eyes with a ring. Vincent lifted the knife and was shouting. Then he and the others ran back to their houses. Dori identified the people who assaulted Peter as being the twelve accused. He knows them all, as he is related to them. A number of Dori's relatives were with him under the house:

•	Alfred Joe, his nephew;
•	Babai, one of their cousins;
•	Gilbert Buo Dori, his son;
•	Mamae, his younger brother who lives at Karanas, his father's hamlet – he was there as he heard that they would come back and kill Dori;
•	Philip Nale Lapu, the deceased's son;
•	Raphael, his younger brother; and
•	the deceased, Peter Nale, his elder brother, who was living at Karanas, near Nakokoranga.

37. Asked whether anyone in his group was armed, Dori said that when Paul tried to fight with him he, Dori, had no weapon. Peter Nale was holding the bushknife that he brought from his house but he did not use it and did not intend to use it. While standing under the house they were not holding anything, except for Peter Nale. Dori was asked the same question in re-examination: were any of his brothers, apart from Peter Nale, holding weapons? He replied that while standing there, when they were approached by the accused, none of them was holding anything.

38. Asked in cross-examination whether any of the accused had weapons Dori said that he was told that when they came up from the beach they had weapons. But they left them at Mulage's house at Nakokoranga. When they came to his house they had no weapons. Asked what he was doing when Paul Gambu was challenging Peter Nale and Babai for a fight, Dori said he was just standing close by with his arms folded and did not fight. His arms were heavy and he was worried about his house. Paul Gambu's brothers (the accused) were running everywhere, chasing the others and throwing things. Asked whether he saw Peter Nale rushing out with a knife, Dori said that after Paul left Babai to see Peter, he did not see in that short instant what happened. Asked whether any of his brothers threw stones Dori replied that he did not see them throwing stones. He was not looking at them, he was looking at his brother, Peter Nale, who was being assaulted. He, Dori, denied doing anything to any of the accused. He was not involved in the fight. He was just standing there with his arms folded. He had to hide to avoid all the stones and could not see everything. Dori did not see any of the accused being stabbed or injured in any other way. He only heard about their injuries later. Asked where other members of the group were when the assaults were happening, Dori said that people were all over the place throwing stones and moving around. It was a big commotion. The only people throwing stones were members of Paul Gambu's group. Seven of them were holding onto to Peter Nale and assaulting him. The others were throwing things. Asked if he was saying that people on his side were doing nothing, Dori replied that he was only worried about himself and did not see if any of his lain was also fighting. It was possible that his lain was also throwing things but he did not see that happening. Peter Nale was unconscious due to the assault. He was first put under Dori's house, then moved to another house. Luke Tupi helped to lift Peter Nale and put him on the cement. Peter Nale was taken to the beach and put on a boat at about 1.00 pm to go to Makiri health centre but died there. Dori was with them when Peter Nale was taken to the beach. Those who helped him were Raphael Linge Lapu, Joe Mamae Lapu and Keluku Talania. It took a fair while to get Peter to the clinic as there was no one else to help them. Peter was bleeding from his legs and his ears, nose and chest. He was talking a bit. He said his neck was in great pain but his legs were OK. Peter was a big-boned person and heavy. They moved slowly and had to pause a lot on the way to the beach. In his opinion Peter would not have survived even if he had been taken to the hospital straight away. There was quite a distance to the beach and the boat operator lived a long way away and there was a long boat ride to take into account. He did not go with Peter Nale to the clinic. He left him at the beach. Peter's wife and others took him to the clinic in the boat. After Peter Nale's death the houses at Nakokoranga were destroyed except for his house. It has not been burnt down. Dori had been adopted into the Mulage family but he lives on his natural father's land.

STATE WITNESS NO 2: JOHN CHIGOMURI

39. He has been a member of the Ward Development Committee for ten years. A number of witnesses referred to him as 'a committee' or 'the committee'. He lives at the main village, at Penata. He gave evidence about:

•	previous disputes; and
•	Friday 25 March 2005.

Previous disputes

40. In February 2005 one of Dori Lapu's pigs went missing and the main suspect was Stanley Bito Ranga. Stanley got upset about that and damaged Dori's kitchen house later that month. He told them that, using his powers as a community leader, he would resolve the matter later.

Friday 25 March 2005

41. He walked into Nakokoranga in the evening and saw Vincent Matana Laore under Dori's house, breaking a bed and utensils. He told Vincent to stop, which he did and ran away. Soon after, however, Vincent came back with Stanley Bito Ranga. Vincent had a stick and was breaking louvres. Stanley was breaking louvres on the other side of the house. He told them to stop, which they did and went away. One of Dori's in-laws got cross with Stanley and chased him. Later, Vincent and Stanley came back with their brothers, Paul Gambu Laore and Joe Gima Laore, so he (John) left them to do what they wanted to do. By that stage Dori had arrived back from church and met him (John) at Leo Bito's house. Dori saw Vincent and Stanley breaking his louvres. Dori was worried, not angry. Vincent said that they would come back the next morning and Dori would suck his penis and they would kill Dori. John stayed at his house (he has a 'business house' at Nakokoranga) until the noise quietened down, then went to check what happened to Dori's house, saw that it was damaged, then went home to Penata.

STATE WITNESS NO 3: DET CONST FRANCIS DALMAN

42. He has been a crime scene officer for ten years. He travelled to Bali from Kimbe on 28 March 2005 with the police investigation team. He examined the crime scene and prepared a sketch map (exhibit R). This shows Dori Lapu's house between Leo Bito's house and a cluster of three houses that were occupied by various members of the Mulage family: Mulage senior (referred to by a number of witnesses as 'Old Man Mulage'), Steven Dakoa Mulage and Lawrence Lumbolumbo Mulage.

STATE WITNESS NO 4: SILA OLEMA

43. She lives at Nakokoranga in the same house as her brother, Leo Bito, next to Dori Lapu's house, about ten metres away. She is married to a man from Mussau Island, New Ireland Province. She gave evidence about:

•	Friday 25 March 2005; and
•	Saturday 26 March 2005.

Friday 25 March 2005

44. She came back from the beach with her family. It was between 6.00 and 7.00 pm. She saw Vincent Matana Laore using a stick to break louvres in Dori Lapu's house. Someone was shinning a flashlight on the house to guide him. Vincent yelled out 'you will suck my penis until you die'. He said that they would come back in the morning and fight. Joe Gima Laore was with him.

Saturday 26 March 2005

45. Around 7.30 am she and her family were having breakfast and preparing to go to church, as it was their Sabbath. The 12 accused walked in a "V" format to Dori Lapu's house. They had no shirts on and they looked like they had come to fight. Paul Gambu Laore stepped out in front of them. Paul asked Dori to fight. Dori said he had no quarrels with Paul and told him he had no right to enter his premises, he is a public servant and should stay out. Paul challenged Dori three times to fight but Dori refused each time. Some of Dori's relatives were with him. The ones she could see were: Peter Nale; Peter's son, Philip; Mamae Lapu; and Linge Lapu. They were sitting down except for Peter Nale who was standing. Apart from Peter Nale they were not holding any weapons. Paul approached Peter Nale and invited Peter to cut him. Peter said he had no quarrels with Paul. Dori's relatives were just sitting down, watching. They held no weapons. Vincent Matana Laore called out 'you are mothers, take off your trousers and give them to the ladies and they can fight'. When Peter refused to fight him, Paul called out 'Takoi [the Lapu lain] has refused. I will look for Miagalo.' When Babai [Miagalo] heard that, he came out of the kitchen house and walked straight up to Paul. Babai was not carrying anything. Paul wanted to fight with Babai but Babai said he had no quarrels with Paul. Then Paul pushed Babai towards where she was standing. He tripped Babai and he fell. Paul stepped on his neck, then hit him in the eye. Steven Dakoa Mulage and Lawrence Lumbolumbo Mulage helped Paul to assault Babai. By that time the fight had broken out. They were fighting and running towards her house. Paul then moved back to Peter Nale, held both his hands, pushed him into one of the iron posts of Dori's house and twisted his neck. Vincent Matana, Joe Gima and Stanley Bito ran towards Peter Nale and pulled a knife from his hand. Paul sat on Peter and twisted his neck again. Vincent got the knife, swung it at Peter's legs and cut him. She did not see where Dori Lapu was at that time. She viewed these events from a spot between her house and Dori's house. She wanted to see what Paul's group had come to do. She was scared but wanted to see what was happening. She was not really afraid as she had no quarrels with anyone. By the time they started throwing stones she left that spot. She remembered that they said the night before that they would come back at 8.00 in the morning so she ran into her house and checked the time. It was 5 past 8. She stayed inside for a while, by which time they had brought Peter Nale under Dori's house. Paul Gambu's lain had moved back and thrown stones at Dori Lapu's house.

46. In cross-examination she said that she was giving evidence of her own free will and bears no grudges against the 12 accused. The deceased was her nephew. Babai did not run out of the kitchen house. He walked. She saw Paul Gambu twist Peter Nale's neck and bang his head against the house post. Peter fell face down and Paul went on top of him. She agreed that it was a fight between two sides, but not all of them were fighting. Asked whether Dori and Raphael Linge were fighting against Steven Dakoa Mulage, she said that she was only looking at what Paul Gambu Laore and Peter Nale were doing. She did not see what was happening with the others. She denied that Babai attacked Paul. She denied that Peter Nale had tried to chop Paul with his bush knife. She helped to carry Peter Nale to the hospital. That was done around 9 or 10.00 am but she did not check the clock on that occasion.

STATE WITNESS NO 5: ANDREW BABAI MIAGALO

47. He is the man who was in Dori Lapu's kitchen house when Paul Gambu Laore came to Dori's place. He lives at the main village at Penata. He is related to the accused and also to Dori Lapu and his lain. He gave evidence about:

•	previous disputes;
•	Friday 25 March 2005; and
•	Saturday 26 March 2005.

Previous disputes

48. Babai said he knew nothing of an ongoing dispute between the two groups. He knows nothing about fights that allegedly took place in 1997 and 2000. He denied that the two groups at the centre of this case have had disputes going on over a number of years. He has not always been living at the village. Asked about the years in which previous fights allegedly occurred he said he is from the village and he is not good with times, dates and years.

Friday 25 March 2005

49. He was not at Nakokoranga, he was at the main village. Word spread quickly that Vincent Matana Laore had said in public that he was going to kill Dori Lapu. He was not at Dori Lapu's house. He slept at the main village, Penata.

Saturday 26 March 2005

50. He went to Dori Lapu's kitchen house at Nakokoranga. He was thinking that he would be able to stop any trouble. He had no weapon. He only had his basket and lime. When he arrived at about 8.00 am he saw the following people under Dori's house:

•	Alfred;
•	Dori Lapu;
•	Gilbert Buo;
•	Linge Lapu;
•	Mamae Lapu; and
•	Peter Nale.

51. They were not holding any weapons. It was not long before he heard Paul Gambu Laore's group shouting. Then he saw them running towards Dori's house, holding stones, sticks, knives, sarifs and spears. In the group were Paul Gambu Laore, Vincent Matana Laore, Lawrence Lumbolumbo Mulage and Steven Dakoa Mulage. Dori and his group were just standing there watching. Paul first approached Dori and asked him to fight but Dori replied that he had no quarrels with him and no reason to fight. Paul was not holding a weapon. Paul asked Peter Nale to fight but he too refused. Paul told them that they were all women and called for him. He was still in the kitchen house chewing betel nut. Upon hearing his name he came out. Paul approached him, wanting to fight but he told Paul that he had no quarrels with him. Paul attacked him karate-style and when he fell, Paul stepped on his neck and punched him on the left eyebrow. Lawrence and Steven punched and kicked him. He did not see if they had weapons. He tried to defend himself but he was injured – he had a big cut over his eye – so he went to Leo Bito's house. He did not see what happened after he was injured. He went to sleep. When he came out of Leo's house to check his basket, he saw that Peter Nale was injured.

52. Asked in cross-examination what he was doing in the kitchen house, he replied that he did not want his brothers to think that he was taking sides. He was chewing betel nut. He did not have any stones with him. It was not his intention to fight. He was not hiding. He only went there to see what was happening. He heard from some people that Paul Gambu's group was coming. That is why he went there. But didn't he say in examination-in-chief that he went there to solve the problem? So, why was he hiding in the kitchen house? Shouldn't he have been standing in the middle? Yes, Babai replied, but he had to see what was going to happen. Paul Gambu came to the scene first while the others were running behind him. He denied spitting his betel nut and running from the kitchen in an aggressive manner. Asked why Dori's group was not armed when it was public knowledge that Vincent was going to come and kill Dori, Babai replied that the problem had been put before 'the committee'. They were waiting for the committee to come and sort it out. They were just standing there with no weapons, except for Peter Nale who had a knife and was holding it by its blade. When Paul got him karate-style it was as fast as lightning. Paul has a yellow belt and teaches karate in the village. Asked whether he knows how to fight Babai said that yes, he can fight, 'but this was like lightning'. Dori was just standing there when the fight started. It started like lightning and finished the same way. Babai denied involvement in the fight. He denied that Peter Nale had run with his bushknife to attack Paul Gambu. A lot of stones were being thrown by the two groups. He did not help to take Peter Nale to the health centre as he was himself injured and worried about his own life. In his opinion, even if they had taken Peter Nale quickly to the hospital, he would still have died.

53. In re-examination he said that, at the time Paul Gambu confronted him, he could not say what the others in Peter Nale's group were doing under the house. He reiterated that the reason he was in the kitchen house was that both sides of the dispute are 'his brothers' and that if he stood outside they might think that he was with one side.

STATE WITNESS NO 6: DR JOSEPH NALE

54. He conducted the post-mortem on Bali Island on 28 March 2005, two days after Peter Nale died. His report is in evidence as exhibit Q.

55. Significant injuries recorded were in the following areas:

•	head – dislocation of left lower jaw – a 3 cm x 2 cm x 1 cm deep rugged head wound – blood discharging from ears;
•	neck – extremely swollen with extensive haematoma – 1 cm opening on the thyroid cartilage;
•	chest – fracture of sternum/clavicle (sternum/collar bone);
•	right lower leg – wound caused by a sharp weapon, cutting through both tibia and fibula (bones) through all exterior tendons and muscles, leg left hanging by a 4 cm flap of skin;
•	left lower leg – 8 cm x 3 cm x 4 cm deep wound, also produced by sharp weapon, at back of leg – fibula exposed.

56. Cause of death was:

Cardio-respiratory arrest due to heamodynamic shock due to heavy loss of blood from injuries sustained.

57. Dr Nale clarified those findings by oral evidence. The dislocated jaw would have to have been the result of application of significant force. The haematoma (collection of blood under the skin) could have been caused by significant squeezing or twisting of the neck or an insult injury to the neck. There was, however, no fracture of the neck. Dislocation of the clavicle would have been caused by direct force. These injuries were, however, not the cause of death. The heavy loss of blood, caused by the leg wounds, was the cause of death. In his opinion the deceased's life could have been saved if he had been taken to the hospital as soon as possible. He could say that comfortably. It seemed to have taken more than five hours to get the deceased to the health centre. If he had been taken by road it would only have taken one and a half hours. As he has the same name as the deceased, Dr Nale, who comes from Bali, was asked if he is related. He said that the deceased was a distant relative. The relationship was coincidental and all parties agreed that the doctor was attending to his normal duties by conducting the post-mortem. No issue about his independence or competence was raised by the State or the defence.

STATE WITNESS NO 7: JOE MAMAE LAPU

58. He is a younger brother of the deceased and State witness No 1, Bruno Dori Lapu. He gave evidence about:

•	Friday 25 March 2005; and
•	Saturday 26 March 2005.

Friday 25 March 2005

59. He went to Dori Lapu's house as he heard that some of the accused had broken the house and Vincent Matana Laore said that they would come back the next morning to kill Dori. All the public heard about it. He stayed with Dori and his family that night. Peter Nale was also there. Babai was not there. They did nothing to the Mulages' houses at Nakokoranga. Nor did they kill any chickens or pigs.

Saturday 26 March 2005

60. He was sitting under the house of his brother, Dori Lapu, around 8.00 am. With him were Peter Nale, Alfred Joe Dori, Buo Dori and Raphael Linge Lapu. None of them had weapons. Paul Gambu Laore led the group of 12 towards Dori's house. They were bare-chested, carrying knives, sticks and stones, looking very serious, getting ready to attack. This made him and the others scared. They left their weapons at one of the Mulage houses. Paul approached Dori and asked him to fight but Dori said he had no quarrels with Paul, it was against the law for Paul to enter Dori's premises, and Paul was a public servant and should go away. Paul approached Peter Nale and asked Peter to cut him with his knife but Peter refused, saying that he had no quarrels with Paul. Peter just stood there holding his knife. Paul said that Peter's group was scared and should be wearing their wives' clothes. Paul then called for Babai. Babai was hiding in the kitchen house and came out to try to stop the fight. Paul told Babai to fight him but Babai refused, saying that he had no quarrel with Paul. Paul used a karate technique to trip Babai. It was like lightning. He tripped him from the back with lightning speed and Babai fell. Then he punched Babai in the left eye. Steven Dakoa Mulage and Lawrence Lumbolumbo Mulage helped Paul fight Babai. Paul then went back to Peter Nale, who was just standing there, under the house, with a knife, making no move to fight anyone. Four of Paul's group chased him (Mamae) with sticks, stones and axes. They were: Emmanuel Kita Laore, Lawrence Lumbolumbo Mulage, Raphael Tapele Mulage and Leo Mulage. He ran away. If he had stayed there they would have killed him. He did not see what happened to Peter Nale. When he returned he saw that his brother Peter was badly injured and lying on the ground.

61. In cross-examination he said when Paul Gambu approached Dori Lapu the rest of the accused stood five metres behind him in a circle. At that point they had no weapons. They had left them (bushknives, sticks, slings and stones) at the Mulages' house. He was standing on the steps of Dori's house when he saw them leave their weapons. Babai was hiding in the kitchen house as if he had been seen with the Lapu group, the opposing group might think that he was with the Lapus. He did not spit his betel nut. He denied that Peter Nale had run out intending to cut Paul Gambu with the bushknife he had been carrying. He denied that a lot of stones were being thrown by both sides. He was upset when Peter was beaten up but he did not do anything. Defence counsel, Mr Tanewan, put it to him that a normal person would come in to assist his brother if his brother were being attacked. 62. Yes, Mamae replied, it would be normal to assist if the attackers were using their hands. But if the attackers had weapons it would be normal to run away.

STATE WITNESS NO 8: DET SNR CONST PETHA YAKOYAGI

63. He is attached to the Kimbe CID and is the officer-in-charge of the police investigation of the Bali 12. He led an investigation team, together with Dr Nale, to Bali and they arrived on Monday 28 March 2005. He examined the scene of the incident and picked up three stones (exhibit S) that he believed were used to strike the deceased. The police team took statements from a number of witnesses. He asked the accused if they had used anything in the incident and one of them, Emmanuel Kita Laore, gave him a bushknife (exhibit T) and a small axe (which has since been lost). The accused told him the bushknife had been pulled away from the deceased and the axe came from one of the accuseds' relatives. He arrested the 12 accused and they boarded a ship that night to come back to Kimbe. He did not have time to take statements from them.

64. Asked in cross-examination whether it was a big fight, Det Snr Const Yakoyagi said he cannot really say what happened but it appeared that the accused had incited the deceased and his lain to fight but none had retaliated.

EVIDENCE FOR THE DEFENCE

65. For the defence:

•	no exhibits were tendered;
•	three witnesses other than the accused gave evidence;
•	six of the accused made unsworn statements from the dock; and
•	six gave sworn evidence.

66. Witnesses other than the accused were:

1	Tupi Divu;
2	Peter Kapi; and
3	Luke Tupi.

67. The accused who made unsworn statements were:

•	Emmanuel Kita Laore;
•	Joe Gima Laore;
•	Raphael Tapele Mulage;
•	Stanley Bito Ranga;
•	Paul Makua Kita; and
•	Leo Mulage.

68. The accused who gave sworn evidence were:

•	Paul Gambu Laore;
•	Vincent Matana Laore;
•	Steven Dakoa Mulage;
•	Paul Makele Laore;
•	Lawrence Lumbolumbo Mulage; and
•	Peter Baluae Mulage.

DEFENCE WITNESS NO 1: TUPI DIVU

69. He lives at Nitutuku, a hamlet 400 metres from Nakokoranga. He gave evidence about:

•	previous disputes;
•	Friday 25 March 2005; and
•	Saturday 26 March 2005.

Previous disputes

70. The problems between the two groups have existed for many years. It started with their grandparents and followed to the present generation. He is related to both groups. In cross-examination it was put to him that he is more inclined to support the Mulage-Laore group. He replied that he is a neutral person but when this incident happened he was not happy with the stories that were being told by Peter Nale's lain, especially the false story that they were not carrying any weapons. There are many people caught in the middle of what has happened.

Friday 25 March 2005

71. He was at the Mulages' place at Nakokoranga with Steven Dakoa Mulage, Raphael Tapele Mulage, Peter Baluae Mulage and Leo Mulage. He was returning from church and went there to tell stories. He saw Dori Lapu at church. He saw Peter Nale's lain shooting stones at the Mulage houses. Peter Nale was present and they were throwing stones at the houses belonging to old man Mulage, Paul Gambu Laore and Vincent Matana Laore. Babai was with them. Three of Dori Lapu's lain cut pigs and destroyed the poultry house: John Pengesi, Kaue Tupi and Dako Lapu. He faced them and told them that they had destroyed the people's houses and chased them away and they should leave their other things alone. However, they took a pig away and cooked it under Dori Lapu's house.

72. In cross-examination he was quizzed about his knowledge of what happened to Dori Lapu's house earlier in the evening. He replied, first, that he did not know anything about what happened at Dori Lapu's house but later appeared to give a different answer: the Mulages had broken louvres at Dori Lapu's house and Dori Lapu had sent a message to his in-laws at the village to come and see what had happened. A lot of people stayed at Dori Lapu's house that night. The ones that he saw were: Dako Lapu, John Pengesi, Kaue Tupi, Linge Lapu, Mamae Lapu, and Peter Nale.

Saturday 26 March 2005

73. He saw Paul Gambu Laore talking to Peter Nale's lain. Peter Nale was armed with a knife. Others present were also armed:

•	Alfred Linge had a heap of stones in front of him;
•	Dako Lapu had a sling;
•	Dori Lapu had a sickle;
•	Linge Lapu had a catapult; and
•	Mamae Lapu had a knife.

74. Paul said 'Takoi does not want to fight with Marulai'. Then he said he would look for Babai, at which point, Babai came out of Dori Lapu's kitchen house, looking angry. He had been sitting there until daybreak. Paul went to him, pushed and Babai fell down. He stood up and ran away. Peter Nale and his brothers wanted to fight Paul with their bushknives. Paul ran away to one of the Mulage houses and did not come back. Vincent and Lawrence tried to remove the knife from Peter Nale. Lawrence was cut on his hand in the process. Then it was only Vincent struggling with Peter Nale. He (Tupi) was only five metres away from them. Vincent finally got the knife but Peter grabbed his trousers from the back. Vincent tried to remove his hands but then he saw Mamae Lapu and Dori Lapu approach. Vincent started swinging the knife to defend himself. He did not know the knife had already cut Peter on the leg. Vincent then gave him (Tupi) the knife and said 'wan bel i stap'. Tupi had it for three days before giving it to the police. The prosecutor, Mr Popeu, suggested that this showed that he was a supporter of the Mulage-Laore group but Tupi maintained that he was neutral.

DEFENCE WITNESS NO 2: PETER KAPI

75. He is a young man, aged in his 20s, who lives at Nitutuku. He gave evidence about:

•	Friday 25 March 2005; and
•	Saturday 26 March 2005.

Friday 25 March 2005

76. He was at Nitutuku and heard noises coming from Nakokoranga so he went there. He met Babai who was a carrying a 10 kg bag of stones, a bushknife and a flashlight. He said some things against Paul Gambu Laore, 'he is longlong and does not know anything'. There were a number of other people around including Alfred Joe Dori, Bito Buo, Dako Lapu, Gegilo Lapu, Gilbert Buo Dori, Joe Mamae Lapu, Kaue Tupi, Philip Nale Lapu and Raphael Linge Lapu. He went to the Mulage houses and saw that the walls were broken. Then he went to Dori Lapu's house and saw a number of men from the main village including John Chigomuri, Mako Valaka, Nale Keluku, Nale Lulagi and Peter Nale Lapu. Dori Lapu was talking loudly and said 'if I see one of them tomorrow morning I will kill him straightaway'. He could identify the people at the Mulage houses as he knew all of them. He saw them with his own two eyes. He (Peter Kapi) stayed at Nakokoranga until he felt sleepy and then he went home to sleep.

77. Asked in cross-examination if he had heard noises earlier in the night, around 6.00 or 7.00 pm, he replied that he was asleep at that time. He only woke up when he heard the other noises, which must have been close to midnight. The prosecutor asked him about one of the people he mentioned as being present, Peter Nale's son, Philip Nale. Wasn't he just a 10-year-old boy? He was not sure of his age. His height would have been about 120 to 130 cm.

Saturday 26 March 2005

78. He went back to Nakokoranga. He saw Paul Gambu Laore talking to Peter Nale, saying that when he (Paul) is away in Rabaul the people in the village argue amongst themselves and he has to come home and straighten things out. Paul told Peter Nale that if he were to cut him with his bushknife that would be a way of getting rid of their frustration. Peter Nale and his lain made no response so he (Peter Kapi) thought to himself that there would be no more trouble. Peter Nale's group was armed:

•	Alfred Joe had a bushknife;
•	Babai Miagalo had an axe;
•	Bito Buo had an axe;
•	Dako Lapu had a sling;
•	Dori Lapu had a sickle;
•	Gilbert Dori had a bushknife;
•	Joe Mamae Lapu had a bushknife;
•	Linge Lapu had a catapult; and
•	Umbiruai Koroi had a tomahawk.

79. They were standing with Peter Nale in front of Dori Lapu's house. Peter Nale was in front of the group, followed by Dori Lapu, then Joe Mamae Lapu, then the others. Paul mentioned Babai's name and Babai ran out, spat his betel nut and asked who called his name. He was shouting and angry. Babai regards himself as their 'ironman'. He ran with such force that he became unbalanced and fell. Peter Nale saw this, ran to attack Paul from the other side of the house, lifted his bushknife, spat on it and yelled 'Klia! Bai mi kilim em!' (Get out of the way! I will kill him!). Peter Nale was cross and shouting. Lawrence ran towards Peter Nale and tried to catch the knife but got cut with it. Then Kaue Tupi shot Peter Baluae on the inside of his left arm and Peter Baluae started running. He did not see what happened after Peter Baluae was injured. He was present at the courthouse when the State witnesses gave their evidence but not inside the courtroom when all the evidence was given.

DEFENCE WITNESS NO 3: LUKE TUPI

80. He is the son of defence witness No 1, Tupi Divu. He lives at Napisiau, 1.2 km from Nakokoranga, and is aged in his early 20s. He gave evidence about the events of Saturday 26 March 2005. He arrived at Nakokoranga after Peter Nale had been injured. He saw his father ask Vincent Matana Laore for a knife and Vincent said wanbel istap. His father told him to go and help Peter Nale who was lying down injured. He asked Peter if he was OK and he replied that his body was OK but his legs were not. Peter was talking freely at that stage. From his head down to his legs he seemed OK but there was bleeding coming from his legs. He tried to carry Peter but he was too heavy, so he dragged him for a distance of five metres and put him on the cement under the house. There were no women or children around. Only Keluku Talania helped him by getting a laplap from the line and tying Peter's leg with it. He ran towards Paul Gambu Laore and the others, who were trying to go to the beach, and he told them that they should stay together as 'we have a problem on our hands'.

EVIDENCE BY ACCUSED NO 1: PAUL GAMBU LAORE

81. He lives in Rabaul. He is the Provincial Education Planner for East New Britain. He left Rabaul on 20 March for Kimbe by plane, then got a boat from Kimbe to Bali, arriving on 22 March. He has two houses on Bali, one at Nakokoranga and the other at the beach. He went home on this occasion for two reasons. Firstly to see his parents, both his biological parents and his adopted parents (Mulage and Galama). Secondly for an initiation ceremony for his two-year-old son. He was due to go back to Kimbe on Saturday 26 March 2007. He gave evidence about:

•	previous disputes;
•	Friday 25 March 2005; and
•	Saturday 26 March 2005.

Previous disputes

82. They were related to politics. The same groups were involved. The person often causing the problems was Babai Miagalo. Peter Nale's brother, Joe Gegilo Lapu, the LLG president, was involved in two incidents in which his (Paul's) mother and his sister were assaulted. Those incidents happened just after the 1997 election, then in 2000 and 2002.

Friday 25 March 2005

83. The initiation took place at the beach in the morning and continued until late in the day. He then walked up from the beach to Nakokoranga with Mulage and Galama to check on his things as he was due to leave the next day. He has a house there with Lawrence and one room is allocated to him. As he was sitting in the house with his family he heard John Chigomuri talking on the road with his in-law Elijah Dakoa. He was talking with them about some previous incidents and then he went back to the house. Tupi Divu was there too. As soon as he went back to the house and sat down he heard noises from Dori Lapu's house. He could tell that something was going to happen. He could hear people shouting from Peter Nale's place at Wundepapaka. Stones were thrown at their house and one just missed him. He flashed his torch and recognised a number of men running towards the house. They were led by Dori Lapu who was armed with stones and a bushknife. He was followed by three of Dori Lapu's in-laws, Umbiruai Koroi, Baule Dumbi and Tago Dumbi. There were a number of others behind them. He told Mulage and Galama, who was making a mumu, to hide themselves. He was trying to take off a lantern as he was worried that if it was hit it might cause a fire. When he was doing this another missile just missed his hand. He moved to the back of the houses behind the mango tree. Dori Lapu and the others were already under the house. Those coming from Peter Nale's place were swearing at them, eg 'Yupela koapim ol mama na susa bilong yupela!' (You fuck your mothers and sisters!). They called out at Mulage: 'Yu ashol! (You arse hole!). They continued to throw stones on the roof. He could hear people chopping flowers and fruit trees. Dori said: 'This is your cemetery when you return we will kill you here'. At the same time people were going into the house and helping themselves to things. Babai was amongst them and went into Steven Dakoa Mulage's house. He knew he could not do anything so he walked back to the beach where his other mother and father and his children were. It was already about 11.00 pm so he slept.

Saturday 26 March 2005

84. He walked up to Nakokoranga by himself at about 7.30 am and went into the house. Everything was in a mess. His personal belongings had been looted. He walked outside and stood near the steps. He looked across to Dori Lapu's house and saw a number of people under the house. He walked across to them. They were standing in single file in front of the steps holding weapons:

•	Joe Lapu – bush knife;
•	Linge Lapu – catapult;
•	Dako Lapu – sling;
•	Gilbert Buo Dori – bushknife;
•	Alfred Joe – bush knife;
•	Philip Nale – bush knife.

85. Baule Dumbi and Tago Dumbi were also there. With him were Paul Makele (who was helping him negotiate peace), Vincent Matana and Lawrence Lumbolumbo. He walked straight up to them, approached Peter Nale and started talking to him from three metres away: as an elder he should be leading his brothers not to fight; what they had done the previous night was not good; if he wanted to, he could fight him (Paul) now or cut him with his bushknife; that might relieve their frustration. Peter Nale replied that he was his brother and he had no grudges against him. Paul moved across to Dori Lapu and said much the same thing. Seeing that he was holding a sickle Paul said 'I can see you holding a sickle, are you getting ready to work in your plantation?' Dori Lapu replied: 'You are a big man. You are my brother. I have no cross with you.' Seeing that nothing was going to happen he called Babai's name: 'Takoi does not want to fight with Marulai, so I will go and see Miagalo'. He called for Babai as his father is the elder brother of his (Paul's) mother and Babai is the first-born son. He should be the one making peace. Babai was amongst the group that raided their house the previous night and in previous fights and incidents he has normally sided with the Takoi. Paul did not realise that Babai was in the kitchen house. But when Babai heard his name called he spat his betel nut and said 'Who wants me? I am here'. Babai was not holding anything but was looking serious. Sensing that something was going to happen he left Peter Nale's group and walked towards Babai. Babai came out of the kitchen house rushing towards him. They met close to the flowers and he (Paul) pushed and tripped him as members of Peter Nale's group rushed out towards him: Bito Buo, Umbiruai Koroi and Kaue Tupi were all armed. When Babai fell, Peter Nale came running at him with his bushknife saying 'Klia! Bai mi kilim em!'. His knife was right up in the air. At the time a fight broke out. Stones were being thrown and he (Paul) ran from Peter Nale's knife. He heard people calling out that Kaue Tupi had stabbed Peter Baluae. He saw Peter Baluae lying down badly injured. He picked him up and told Raphael Tapele Mulage to rush him to the health centre. They took him down to the beach and put him on a dinghy and rushed him to Makiri.

86. In cross-examination he said that he went alone, not in a group. When Peter Nale rushed at him Babai had already run away. He (Paul) was standing where Babai had fallen. People were coming at him from two directions. When Babai fell they surrounded him and he ran. They did not manage to cut him as he was running away. He could not say what happened early in the evening at Dori Lapu's house as he was not at Nakokoranga then. He was at the beach. It was put him that he was trying to solve problems without knowing what had caused them. He responded that he had to try to solve the problem. He was unarmed, even though the other side were armed. He went with his reputation as a leader and he had not been involved in any of the previous incidents. Mr Popeu put to him that his story was not believable as, if it were true that he was a respected man, they would not have attacked him. Also it was not believable that he would go into the meeting with Peter Nale and the others without being armed. Paul replied that he was a respected man and trouble only arose because of Babai's actions. He was emphatic that he was not armed. When they attacked him he had no choice but to run. He admitted that he did not tell the whole story to the police. He reserved some things to tell his lawyers and the court. It was put to him that he never told the police because many of these things never happened. He was emphatic that they did happen. They were fully armed and they were attempting to cut him. His natural parents previously lived at Malabuburu but because of the problems his father got fed up and moved to the beach. Asked what he meant when he said in examination-in-chief that a fight broke out, Paul replied that the people fighting were those who attacked him and his brothers Steven Dakoa and Peter Baluae. It was put to him that the deceased's son, Philip Nale, was a 10 year old child and it was unrealistic to expect that he would be armed with a bushknife. Paul responded that he might have been a child but he was armed.

EVIDENCE BY ACCUSED NO 2: VINCENT MATANA LAORE

87. He lives at Nakokoranga. He gave evidence about:

•	previous disputes;
•	Friday 25 March 2005; and
•	Saturday 26 March 2005.

Previous disputes

88. While denying in cross-examination of damaging Dori Lapu's house on the night of 25 March, Vincent said the cause of the dispute between the two groups goes back a long time. It started with the old fathers: Lapu against Laore and Mulage. Lapu had killed a man. This is the third generation of the dispute. The Lapu family are always attacking the Mulage and Laore families who have reported the matter to the law on a number of occasions. The Lapu family say that they will straighten things out but they always lie. Their brother is the LLG President. They have the mentality that they are the law and can do as they please. The Lapu family came to the Mulage houses at Nakokoranga on 7 March 2005. They wanted to kill old man Mulage and Paul Makua Kita. This was reported to the committee but they failed to straighten it out. The problem on 7 March arose because the police had arrested some boys who Dori Lapu suspected of stealing his pig. But when the police brought them to the wharf they sent most of them back to the village. The police only took Old Man Mulage and Paul Makua Kita back to Kimbe. When it became clear that they were not the ones who had stolen the pig the police released them. That was on 6 March. On 7 March, when they found out that they had returned to Bali, Peter Nale's lain left their houses at Karanas and raided the Mulage houses at Nakokoranga.

Friday 25 March 2005

89. He was sleeping in the haus boi that belongs to Lawrence Lumbolumbo and Paul Gambu. He heard stones on the roof. Some louvres were broken. He jumped out the window and ran away to the bush and hid. He does not know where the others went. It was late at night perhaps between 10.00 and 11.00 pm. While hiding in the bushes he heard John Chigomuri talking. John told him not to go back to Nakokoranga as the men up there were holding weapons. So he hid in the bush until daybreak.

90. In cross-examination he said that earlier in the day he was down at the beach at Paul Gambu Laore's son's ceremony. Paul Makele was on the ship but his other brothers were present for the customary ceremony. They celebrated it with a mumu and pig. There was no alcohol. He went to Nakokoranga late in the afternoon. He was tired as he had to go diving for the ceremony. There was no one else at the haus boi so he just went to sleep. His house is the third one from Dori Lapu's but not very far away. He denied damaging Dori Lapu's house on the night of 25 March. He denied hearing any noises at Dori's house.

Saturday 26 March 2005

91. He walked to Nakokoranga. When he arrived he saw Paul Gambu Laore, Paul Makele Laore and Lawrence Lumbolumbo. They were with a number of others including:

•	Alfred Joe Gegilo;
•	Baule Dumbi;
•	Dako Lapu;
•	Dori Lapu;
•	Gilbert Buo;
•	Lapu Lumbolumbo;
•	Linge Lapu;
•	Peter Nale; and
•	Tago Dumbi.

92. All of the men that the two Pauls were talking to were holding weapons. But nobody seemed interested in fighting so he walked towards them and stood next to Lawrence. When they tried to go near Paul Gambu, Paul got a bit cross and told them (Vincent and Lawrence) he wanted to talk to the others. Paul Gambu told Peter Nale's group that when he was away in Rabaul they get cross with each other and when he comes back home he has to sort out the problems. He told Peter Nale that he was not leading his brothers well. Paul suggested that if Peter were to cut him with his bushknife that might get rid of their frustration and the problems will be resolved. Peter Nale said that he was not cross with Paul. Paul then told Dori Lapu if he were angry he could fight him and that might solve the problem. But Dori replied that he had no anger against Paul either, and that he will straighten out the things that were destroyed the previous night. Paul asked for Babai: 'Where are you?' Paul said that every time there is an argument between the two groups Babai stands on one side and fights against the Mulages and Laores. He should be standing in the middle and trying to stop the two sides fighting. Babai was in Dori Lapu's kitchen hiding. When he heard Paul calling his name he ran outside, spat, asked for the person who called his name and ran straight towards Paul. When Peter Nale and the others saw Babai running out they were provoked to fight. They charged at Paul. Peter Nale lifted his knife and spat on it and said 'Klia! Bai mi kilim em!' When he saw that, he knew that Peter Nale was going to kill Paul. Peter Nale was known to have killed his wife. Also his grandfather had killed someone on the other side of the island. He ran after Peter trying to save Paul as Paul is his brother and he looks upon him as his father. He ran behind Peter, grabbed him and the two of them wrestled for the knife. Dori Lapu got stones and ran towards the two of them. Dori threw the first stone and he ducked and the stone hit Peter Nale in the chest and he fell. The two of them continued to fight for the knife. Dori threw another stone. He (Vincent) ducked again and the stone hit Peter on the chin and he started bleeding. Dori threw a third stone and this one hit Peter behind the left ear. Paul Makele came in and disturbed Dori. While the two of them continued to struggle over the knife Vincent discovered that Peter was not as strong as he was before. He managed to pull the knife from Peter and tried to run away but Peter held him from behind, by the belt and the left hand. He swung the knife with his right hand. He saw Mamae Lapu and Dako Lapu running towards him with knives intending to cut him. At that moment he saw there was no way for him to go and started swinging the knife to make Peter afraid. He bent to the right and swung the knife around Peter. Mamae Lapu and Dako Lapu were seven metres away running towards him. He did not realise that the knife had cut Peter on the leg until Peter let go. He turned around and ran with Peter's knife in his hand. Tupi Divu called his name and asked him to give him the knife. He knew that Tupi was a neutral person and told him 'wanbel istap' and gave him the knife. He ran away and tried his best to save his brothers who had been injured in the fight: Peter Baluae Mulage, Paul Makele Laore and Lawrence Lumbolumbo Mulage. Paul did not touch Peter Nale. He (Vincent) was the first one to touch Peter and the last one also. He (Vincent) was not armed. He was very afraid for his life.

93. In cross-examination he said that when Paul Gambu was talking to Peter Nale and Dori Lapu, he (Vincent) was at the basketball court about 18 metres away. When Peter started to run towards Paul, Peter's group also started running to attack Paul. That is when he started running also, from about eight metres away. Peter Nale's lain were standing in front of Dori Lapu's house. The group was armed with knives, slingshots, catapults and sickles. They cut three of his group. When Dori Lapu was standing with his brothers he was armed with a sickle. During the fight he was shooting with stones. Paul Gambu Laore ran away. If he just stood there he would have been cut and killed. Paul ran towards Leo Bito's house. He ran around it and came back to the Mulage houses. Paul did not cross the flowers. He did not actually go into Leo Bito's yard. He ran along the boundary. The others were running behind him. The people with the bushknives got to within 1½ metres of Paul before he got away from them. If Paul had stayed put they would have killed him right there. Mr Popeu put to him that the story he was telling about Peter Nale having killed his wife was not in his record of interview. Vincent was empathic that he did say this to the police. Some of the things he told the police were omitted from his record of interview. Dori Lapu had interfered in the interview and bought the police officers lunch. He was not happy with the document prepared by the police and refused to sign it. Other parts of his story were reserved from the police, to tell the court. He was afraid of the police. He might not have told them everything but he did not lie to them. He was the first person and the last person to touch Peter Nale. Paul Makele did not touch Peter. Paul Makele only came in to disturb Dori Lapu who was shooting stones at him and Peter. Mr Popeu put to Vincent that if Dori Lapu's lain was fully armed it did not make sense for Paul Gambu Laore to talk about peace. Vincent replied that Paul knew that they would respect him. Every time there is dispute between the families Paul is the one who comes to straighten things out. Paul Gambu invited Peter Nale and Dori Lapu to his son's initiation ceremony on 25 March. But they did not come because of the problems that had existed since 7 March. Philip Nale was under Dori Lapu's house. He was armed with a bushknife. Vincent does not know his age then, but now he is a big boy. There were other young boys under the house also, including Gilbert Buo Dori and Alfred Gegilo Lapu. They are very aggressive. He saw with his own eyes that they had weapons. They were supporting their fathers. When they saw Peter Nale trying to cut Paul all of them ran out to support him.

UNSWORN STATEMENT BY ACCUSED NO 3: EMMANUEL KITA LAORE

94. He said he is innocent. On Friday night 25 March 2005 he was sleeping at his house with his family. On the morning of Saturday 26 March 2005 he, his wife and son (accused No 11 Paul Makua Kita) went to their vanilla garden to work. They were there until the afternoon. Late in the day they heard the tractor from Makiri bringing Peter Nale's body back to his village.

UNSWORN STATEMENT BY ACCUSED NO 4: JOE GIMA LAORE

95. He said that on Saturday 26 March 2005 he was with his wife and child at his in-law's house. They walked to his father's place at the beach and he asked his father about Paul. His father said he had not seen Paul since early morning so he left the beach and walked up to Nakokoranga. He was standing under Lawrence's house and heard Paul talking to Peter Nale and the others. He saw Peter Nale lift up his knife and chase Paul. He saw Paul Makele lying face down. He helped to take Paul Makele to the aid post at Nigilani.

EVIDENCE BY ACCUSED NO 5: STEVEN DAKOA MULAGE

96. He lives at Nakokoranga. He gave evidence about:

•	previous disputes;
•	Friday 25 March 2005; and
•	Saturday 26 March 2005.

Previous disputes

97. Old Man Mulage and Paul were released by the police and arrived back at the village on a Saturday. The next morning Peter Nale and his boys came, intending to kill old man Mulage and Paul. They were arguing when the committee member, Moses Walou, intervened.

Friday 25 March 2005

98. Peter Nale came back on the night of 25 March. With him were Babai Miagalo, Dako Lapu, Kaue Tupi, Linge Lapu and Mamae Lapu. They destroyed their things, swore at them and stole K450.00, three bicycles, poultry and two pigs. He, his wife and children ran away.

99. Asked in cross-examination whether anything had happened to Dori Lapu's house on the night of Friday 25 March between 6 and 7 pm, Steven said that he do not know. But he was at his own house at that time and stayed there until Dori Lapu's people attacked them. Asked what the reason for the attack was, Steven replied that the other group was still cross about Old Man Mulage and Paul Makua Kita.

Saturday 26 March 2005

100. On the morning of Saturday 26 March he went back to the house to check on things. He saw Paul Gambu Laore talking to them. He went up and stood close to Paul. Those of his group also with Paul Gambu were Lawrence Lumbolumbo Mulage, Paul Makele Laore and Vincent Matana Laore. Paul Gambu was talking to them properly but when he called Babai's name, Babai spat and ran out of the kitchen house and walked straight to Paul. Peter Nale yelled 'Get out of the way, I'll kill him'. Paul ran away. When Steven saw this happening he also ran away. Paul did not touch Babai or Peter Nale.

EVIDENCE BY ACCUSED NO 6: PAUL MAKELE LAORE

101. He has a job as a crew member on the ship MV Kathleen. His house is on Bali at the hamlet of Malabuburu, 300 metres from Nakokoranga. He gave evidence about:

•	Friday 25 March 2005; and
•	Saturday 26 March 2005.

Friday 25 March 2005

102. He knocked off work from the ship late at night, at Makiri, then walked to Malabuburu to see his family. On the way he met John Chigomuri who told him that his family had been chased away. He took them to Nitutuku where they stayed with one of their cousins.

Saturday 26 March 2005

103. He got up early to go back to the ship. He went to Nakokoranga to check on his brother's houses. Paul Gambu Laore was talking to Peter Nale. Also present were Alfred Joe Lapu, Dako Lapu, Dori Lapu, Linge Lapu and Mamae Lapu. He walked up to them to help them talk. Paul Gambu told Peter Nale that if he were cross with him then he should kill him now and that would put an end to all the problems. Peter Nale replied that he had no quarrels with Paul. Paul walked towards Dori Lapu and the same exchange occurred between them. He (Paul Makele) also talked to Peter Nale and told him he is a grandfather and he should stop the young boys from fighting. Then Paul Gambu called for Babai who was in the kitchen house. Babai came out and spat and asked who was looking for him and what did they want. He walked quickly to Paul Gambu, bumped into him and fell. This provoked Peter Nale and the others. Peter Nale walked out with a bushknife, spat on it and told the others to get out of the way and he would kill Paul Gambu. Paul Gambu ran away and Lawrence Lumbolumbo and Vincent Matana came in. He (Paul Makele) tried to stop them but was unsuccessful. Dori Lapu shot Vincent and Peter Nale with stones. He punched Dori, causing him to fall, and told him he was trying to stop the fighting. Umbiruai Koroi lifted his axe and swung it at his (Paul Makele's) head. The axe flew out of his hand and hit his head and shoulder. Then Umbiruai cut him (Paul Makele) on the leg. He couldn't walk and sat down, managed to get the axe and gave it to the police later. Joe Gima Laore helped him get to Old Man Mulage's cocoa drier; and later Vincent Matana helped to take him to the aid post at Nigilani SDA mission station. He obtained a medical report (exhibit U) showing axe wounds to the head, knee and shoulder, requiring 18 stitches.

104. In cross-examination he said that when he met John Chigomuri on the road, John told him that Peter Nale's lain had chased Old Man Mulage and his family away. John did not say why they did that. Whenever there is a fight it is Paul Gambu and him who lead the negotiations for peace. These are things that he told the police but they are not in his record of interview. He cannot read.

EVIDENCE BY ACCUSED NO 7: LAWRENCE LUMBOLUMBO MULAGE

105. He lives at Nakokoranga. He gave evidence about:

•	previous disputes;
•	Friday 25 March 2005; and
•	Saturday 26 March 2005.

Previous disputes

106. The most recent trouble started in early March 2005 when the police released Old Man Mulage and Paul Makua Kita and they came back to Bali. The next day Peter Nale's lain ran down to Nakokoranga. They wanted to kill the old man and Paul Makua. The committee members, John Chigomuri and Moses Walou, told them to go away.

107. In cross-examination he said he regards John Chigomuri as a neutral person.

Friday 25 March 2005

108. He was asleep in the haus boi that belongs to him and Paul Gambu. He heard stones on the roof. Dori Lapu was swearing at them. He heard Dori say that they would clear the place for their cemetery and bury them there. He ran away.

109. In cross-examination he said that he attended the ceremony at the beach during the day for Paul Gambu Laore's son. He came to Nakokoranga in the afternoon. Vincent was already asleep. He does not know anything about things that had happened at Dori Lapu's house between 6 and 7 pm on Friday night.

Saturday 26 March 2005

110. At daybreak he found his mother on the road to Nigilani. She held him and cried and asked him to go and check on their houses. When he arrived at Nakokoranga he saw that fruit trees and flowers were cut down. He looked inside and a number of things had been stolen. When he came out he saw Paul Gambu talking to Peter Nale and his lain. He sat down on the grass near the basketball court. Paul Gambu talked to Peter Nale and Dori Lapu and they both said that they would straighten the problems out. Paul called for Babai who came out of the kitchen house angry. Paul was walking towards Babai. Then Peter Nale ran out from under the house with his bushknife and shouted: 'Klia! Bai mi kilim em!' He ran towards Peter Nale and tried to get the knife but he held it on the blade. Peter Nale twisted the knife and pulled it and the knife cut his hand. Then he ran away. He went to the aid post at Nigilani. A medical report (exhibit V) shows his hand injury required 11 stitches.

111. In cross-examination he said he observed that Dori Lapu's people were holding weapons. He did not see Sila Olema. Asked whether the cut on his hand was caused by roofing iron that he was trying to steal, Lawrence insisted that Peter Nale's knife had cut his hand. He denied going to Dori Lapu's place to fight.

UNSWORN STATEMENT BY ACCUSED NO 8: RAPHAEL TAPELE MULAGE

112. He said that on the afternoon of Friday 25 March 2005 he left Nakokoranga, intending to go to church. He went to the house of his uncle, Michael Moir. It was already dark. He stayed there for quite a while and headed back to Nakokoranga without going to church. When walking back he met Umbiruai Koroi. They walked together for a while then Umbiruai left him and went ahead. He then met up with Bito Buo. He (Raphael) then went to the house of his third father, Linge Umbiruai. He stayed there for a while and had some food. Then he heard shouting and noises from Nakokoranga. He did not, however, go to Nakokoranga. On the morning of Saturday 26 March he went back to his in-law's house for a while and then headed to Nakokoranga. Just as he was about to cross a drain he saw Kaue Tupi stab his brother (un-named) with a pocket knife. He lifted him up and two of his other brothers helped him carry him to the beach and then to the hospital. They were at the hospital for quite a while and then Peter Nale was brought in. Stiches were inserted into his brother's head. A lot of people had followed Peter Nale to the hospital. He felt afraid, so went to the beach. He heard later that day that Peter Nale had died so he collected his injured brother and the old people and children and put them on the boat and took them to Kumburi where they slept.

EVIDENCE BY ACCUSED NO 9: PETER BALUAE MULAGE

113. He lives at Nakokoranga. He gave evidence about:

•	Friday 25 March 2005; and
•	Saturday 26 March 2005.

Friday 25 March 2005

114. He did not attend Paul Gambu Laore son's initiation ceremony. He was with his in-laws all day at Penata village. He did not go to his house until Saturday morning. He did not hear about anything happening at Dori Lapu's house on Friday night.

Saturday 26 March 2005

115. He was with his in-laws in the morning then he walked to Nakokoranga and saw Paul Gambu talking to Peter Nale who said that the problems would be straightened out in the village. He was standing fifteen metres from Paul. When Paul called Babai's name, Babai came from the kitchen house, spat and asked who was calling him. He looked cross. Peter Nale and his group were incited to fight by Babai. There were a lot of them and they were armed. Paul ran away. Kaue Tupi came up to him (Baluae) and stabbed him on the hand. His brother Raphael took him to the beach and they got on a boat to Makiri health centre. He was there for a while, the medical staff stitched him up, then he saw Peter Nale being carried in. He went back to the village and heard that Peter Nale had died during the afternoon. He then went to Kumburi where he slept until Monday, when the police picked him up to take him to Kimbe. This is not the first time this sort of problem has occurred. It has happened plenty of times in the past.

116. In cross-examination he said that when Paul and Babai bumped and Babai fell, Peter Nale ran towards Paul and that is when Kaue Tupi stabbed him. He was on the side of the basketball court with other people from Nakokoranga who had come to see what was happening. He saw Paul Gambu, Paul Makele and Vincent Matana present. He did not see the others.

UNSWORN STATEMENT BY ACCUSED NO 10: STANLEY BITO RANGA

117. He said that the problem arose when the police released Paul Makele and Old Man Mulage and they returned to the village. Peter Nale's lain heard that they had come back. On 7 March they came with weapons to kill one of them. The problem was sorted out by the committee member, Moses Walou. On 25 March they came back again. It was about 10.00 pm. They were swearing on the road. He ran away into the bushes. Peter Nale's lain came inside the house and robbed the house. They also got six chickens and two pigs. The next morning he came back to Nakokoranga to check on his things. Paul Gambu Laore was already there talking to Peter Nale's lain. The next thing he knew he heard men shouting. He stood in front of his house and saw Peter Nale chase Paul with a bushknife. He heard him shouting 'Klia! Bai mi kilim em!' Paul ran away. He thought about his life and also ran away, to the beach.

UNSWORN STATEMENT BY ACCUSED NO 11: PAUL MAKUA KITA

118. He said that he was at his house on the morning of 26 March before going to the vanilla garden with his father, Emanuel Kita Laore. They worked in the garden and returned in the afternoon. They heard a vehicle with people crying on the vehicle. They heard that Peter Nale had died at the hospital.

UNSWORN STATEMENT BY ACCUSED NO 12: LEO MULAGE

119. He said that on Saturday morning 26 March he went to the beach for a swim. When he was returning to the village he saw his brother, Peter Baluae, being carried by Elisa Pua and Alphonse Pua. They told him that Kaue Tupi had stabbed his brother on the hand. They took him back to the beach.

SUMMARY OF THE MOST CONTENTIOUS EVIDENCE

120. As there are very different accounts of what happened on Friday night and Saturday morning, I will summarise the evidence, first, of the State witnesses, then of the defence witnesses.

The State witnesses

121. Five State witnesses gave hotly contested evidence, which is summarised in table 1.

TABLE 1: EVIDENCE OF STATE WITNESSES

No	Name	Friday night	Saturday morning	
1	Dori Lapu	Saw Vincent Matana and Stanley Bito damaging his (Dori's) house.

His in-laws might have stoned the houses of the accused and killed chickens.	Paul Gambu and the 11 others came to his house, to fight – Paul tried to fight him but he refused – then Paul assaulted Babai and twisted Peter Nale's neck and left, leaving the others to cut Peter Nale and shoot stones at him.

His (Dori's) group was not armed.	
2	John Chigomuri	Saw Vincent Matana and Stanley Bito breaking louvres in Dori's house.

Later he saw Vincent, Stanley, Paul Gambu and Joe Gima – breaking the house.	No evidence.	
3	Sila Olema	She saw Vincent Matana breaking louvres in Dori's house.

Joe Gima Laore was with Vincent.	Paul Gambu and the 11 others came to Dori's house to fight – Paul tried to fight Dori but he refused – Paul then assaulted Babai and then twisted Peter Nale's neck – Vincent got Peter Nale's bushknife and cut him with it – then they started throwing stones and she left.	
4	Babai Miagalo	He was not at Nakokoranga – he was at the main village.	Paul Gambu and his group ran towards Dori's house, shouting and holding weapons – Paul tried to fight Dori but he refused – then Paul asked for him and assaulted him (Babai) karate-style and injured him and he ran away.	
5	Joe Mamae Lapu	He went to Dori's house as he heard that some of the accused had damaged it.

His group did nothing to the Mulage houses and did not kill any pigs or chickens.	Paul Gambu led his group to Dori's house, ready to fight – Paul tried to fight Dori but he refused – Paul called for Babai then assaulted him karate-style – then four of Paul's group chased him (Mamae) and he ran away – did not see what happened to Peter Nale.	

122. In a nutshell:

•	On Friday night, Vincent Matana and Stanley Bito damaged Dori Lapu's house, assisted by Paul Gambu; and Peter Nale, Dori Lapu and their lain did not damage or attack the Mulage houses.

•	On Saturday morning, Paul Gambu led his group to fight with Peter Nale and his lain. They were the aggressors and staged a mob attack on Peter, killing him.

The defence witnesses

123. First, I will summarise the evidence of the accused, in table 2. Then, in table 3, the evidence of the other defence witnesses is summarised.

TABLE 2: EVIDENCE OF THE 12 ACCUSED

No	Name	Record of interview	Oral evidence/statement	Comments	
1	Paul Gambu Laore	On Friday night, Peter Nale and others attacked the houses of the accused.

On Saturday morning he was present – Peter Nale and brothers were armed – they talked peace but when he mentioned Babai's name they attacked him – Peter Nale said he would kill him – he ran away.	Sworn evidence.

On Friday night, Peter Nale and others attacked the houses of the accused.

On Saturday morning he was present – Peter Nale and brothers were armed – they talked peace but when he mentioned Babai's name they attacked him – Peter Nale said he would kill him – he ran away.	His evidence is consistent:

On Friday night, their houses were attacked. On Saturday morning, he was unarmed, ran away when attacked.	
2	Vincent Matana Laore	He declined to answer questions regarding Friday night.

On Saturday morning he was present – Paul Gambu was sorting out the problem but when he called for Babai, Babai came out, angry – that made the others angry and Peter Nale ran towards Paul Gambu to cut him, so he disarmed Peter Nale, then fearing for his safety, cut him with the bush knife.	Sworn evidence.

Denied damaging Dori Lapu's house on Friday night – says that on Friday night he was asleep in the haus boi when it was attacked.

On Saturday morning he was present – Paul Gambu was sorting out the problem but when he called for Babai – Babai came out, angry – that made the others angry and Peter Nale ran towards Paul Gambu to cut him, so he disarmed Peter Nale then, fearing for his safety, cut him with the bushknife.	His evidence is consistent as to what happened on Saturday morning:

He tried to get the bushknife off Peter Nale when Peter attacked Paul Gambu – admits cutting Peter Nale.	
3	Emmanuel Kita Laore	Nothing to say about Friday night.

Denied being present on Saturday morning.	Unsworn statement.

Was with his family on Friday night.

Denied being present on Saturday morning.	His evidence is consistent: no involvement in Saturday's incident.	
4	Joe Gima Laore	Nothing to say about Friday night.

Present on Saturday morning – saw what happened – no involvement other than taking Paul Makele to aid post when he got injured.	Unsworn statement.

Nothing to say about Friday night.

Present on Saturday morning – saw what happened – no involvement other than taking Paul Makele to aid post when he got injured.	His evidence is consistent: minimal involvement in Saturday's incident.	
5	Steven Dakoa Mulage	Peter Nale and others damaged the Mulage houses on Friday night.

Present on Saturday morning – saw what happened – he ran away at the same time Paul Gambu ran away.	Sworn evidence.

Peter Nale and others damaged the Mulage houses on Friday night.

Present on Saturday morning – saw what happened – he ran away at the same time Paul Gambu ran away.	His evidence is consistent: minimal involvement in Saturday's incident.	
6	Paul Makele Laore	On Friday night he went to see his family after leaving the ship late.

Present on Saturday morning – became involved when he and Lawrence tried to hold Peter Nale's hands, after Peter attacked Paul Gambu – then Umbiruai Koroi cut him with an axe, on his head, knee and shoulders.	Sworn evidence.

On Friday night he went to see his family after leaving the ship late.

Present on Saturday morning – helped Paul Gambu talk to Peter Nale – Peter Nale attacked Paul Gambu, who ran away – Lawrence and Vincent came in – he punched Dori Lapu – then Umbiruai Koroi cut him with an axe, on his head, knee and shoulders.	His evidence is consistent: got involved in Saturday's incident and was injured by Umbiruai Koroi.	
7	Lawrence Lumbolumbo Mulage	Gave story about incident on 7 March 2005 when Peter Nale, Dori Lapu and others argued with the Mulages, following the return of Old Man Mulage and Paul Makua.

On Friday night, Dori Lapu and others damaged their houses.

Present on Saturday morning – got involved by trying to hold Peter Nale – Peter's knife cut his hand and he ran away.	Sworn evidence.

Gave same stories about incident of 7 March 2005 and Friday night's incident.

Present on Saturday morning – got involved by trying to hold Peter Nale – Peter's knife cut his hand and he ran away.
	His evidence is consistent: got involved in Saturday's incident and was cut on the hand with Peter Nale's bushknife.	
8	Raphael Tapele Mulage	Heard people throwing stones at his house on Friday night.

Arrived late at the scene on Saturday morning – saw Kaue Tupi cut Peter Baluae's hand.	Unsworn statement.

Heard shouting and noises at his house on Friday night – but was not there.

On Saturday morning, he arrived at the scene after fighting had started – saw Kaue Tupi stab his brother with a knife – he and two other brothers took the injured brother to the hospital.	His evidence is consistent:

heard the commotion on Friday night but was not present;

arrived late for Saturday's incident and had no involvement – just saw one of his brothers, Peter Baluae, injured.	
9	Peter Baluae Mulage	Nothing to say about Friday night.

Present on Saturday morning – saw what happened – after Peter Nale attacked Paul Gambu, Kaue Tupi ran towards him and cut him with a pocket knife.	Sworn evidence.

Nothing to say about Friday night except that he was at Penata.

Present on Saturday morning – saw what happened – after Peter Nale attacked Paul Gambu, Kaue Tupi ran towards him and cut him on the hand with a pocket knife.	His evidence is consistent:

Present on Saturday morning, had minimal involvement but was injured.	
10	Stanley Bito Ranga	Gave story about incident on 7 March 2005 when Peter Nale's relatives argued with the Mulages, following the return of Old Man Mulage and Paul Makua – threatened to kill one of them.

On Friday night, they damaged their houses.

Present on Saturday morning – saw Paul Gambu run away when attacked by Peter Nale – so he (Stanley) also ran away.	Unsworn statement.

Gave same story re incidents of 7 and 25 March 2005.

Present on Saturday morning – saw Paul Gambu run away when attacked by Peter Nale – so he (Stanley) also ran away.	His evidence is consistent: minimal involvement in Saturday's incident.	
11	Paul Makua Kita	Nothing to say about Friday night.

Denied being present at Saturday morning's incident.	Unsworn statement.

Nothing to say about Friday night.

Denied being present at Saturday morning's incident.	His evidence is consistent: not present at Saturday's incident.	
12	Leo Mulage	Nothing to say about Friday night.

Denied being present at Saturday morning's incident.	Nothing to say about Friday night.

Denied being present at Saturday morning's incident.	His evidence is consistent: not present at Saturday's incident.	

124. The version of events each accused gave in his police interview is generally consistent with the version given in court. And there are no major inconsistencies between the evidence each gave in court.

125. As to Friday night's events:

•	six gave evidence of their houses being attacked by Peter Nale, Dori Lapu and their lain –

•	Paul Gambu Laore (in the house when attacked);
•	Vincent Matana Laore (asleep in the haus boi when it was attacked);
•	Steven Dakoa Mulage (in the house when it was attacked);
•	Lawrence Lumbolumbo Mulage (asleep in the haus boi when he heard stones on the roof);
•	Raphael Tapele Mulage (heard shouting and noises at his house, but was not there); and
•	Stanley Bito Ranga (Peter Nale's lain came into the house and robbed it).

•	the other six had little or nothing to say about the events of Friday night –

•	Emmanuel Kita Laore (with his family);
•	Joe Gima Laore (not present);
•	Paul Makele Laore (with his family);
•	Peter Baluae Mulage (at Penata);
•	Paul Makua Kita (not present); and
•	Leo Mulage (not present).

126. Their evidence of involvement in Saturday's incident can be put into these categories:

•	Three say they were not present:

•	Emmanuel Kita Laore (in the garden);
•	Paul Makua Kita (in the same garden); and
•	Leo Mulage (at the beach).
 
•	Four admit to, in effect, being at the centre of the incident:

•	Paul Gambu (went to talk peace and had to run away before being killed);
•	Vincent Matana Laore (cut the deceased);
•	Paul Makele Laore (helped Paul Gambu talk peace, got injured); and
•	Lawrence Lumbolumbo Mulage (tried to get knife off Peter Nale, got injured).

•	The remaining five say they were present but had minimal involvement:

•	Joe Gima Laore (did nothing other than taking Paul Makele to aid post);
•	Steven Dakoa Mulage (ran away when Paul Gambu ran away); Raphael Tapele Mulage (came late and helped take Peter Baluae to the hospital);
•	Peter Baluae Mulage (did nothing and got injured); and
•	Stanley Bito Ranga (ran away when Paul Gambu ran away).

127. Now, for the evidence of the three other defence witnesses.

TABLE 3: NON-ACCUSED DEFENCE WITNESSES
No	Name	Friday night	Saturday morning	
1	Tupi Divu	The Mulages broke louvres at Dori Lapu's house.

Later, Peter Nale and his lain damaged the Mulage houses, cut pigs and damaged their poultry house.	Was present at Nakokoranga – Paul Gambu went to Dori Lapu's house to talk peace –when Babai came out of the kitchen house, Peter Nale and his brothers attacked – Vincent tried to remove the knife from Peter and swung the knife, cutting Peter, to defend himself.	
2	Peter Kapi	Observed that the Mulage houses were damaged – Babai, Dori Lapu and Peter Nale were in the vicinity, using offensive and threatening words regarding Paul Gambu and his lain.	Was present at Nakokoranga – Paul Gambu went to Dori Lapu's house to talk peace –when Babai came out of the kitchen house, Peter Nale and his brothers attacked – he saw Lawrence and Peter Baluae being injured.	
3	Luke Tupi 	No evidence.	Arrived after Peter Nale was injured – saw his father, Tupi Divu, ask Vincent Matana for the knife – helped look after Peter Nale before he was taken away for treatment.	

128. In a nutshell the defence case is:

•	On Friday night, none of the accused damaged Dori Lapu's house; and Peter Nale, Dori Lapu and their lain did attack and damage the Mulage houses and chase the occupants away.

•	On Saturday morning, Paul Gambu approached Peter Nale and his lain to talk peace. Babai Miagalo incited the others to fight and Peter Nale attacked Paul Gambu with his bushknife, leading to the fight in which Peter Nale and three of the accused were injured.

THE ISSUES

129. Recall that early in this judgment, I identified eight key issues:

1	What created bad blood between the two groups?
2	What happened on the night of Friday 25 March 2005?
3	Which of the accused were present on Saturday 26 March 2005?
4	What happened on Saturday 26 March 2005?
5	Who killed the deceased?
6	Did any of the accused aid the person(s) who killed him?
7	Do those who killed the deceased have any defences available?
8	Is this a case of wilful murder or should an alternative verdict be entered?

ISSUE 1: WHAT CREATED BAD BLOOD BETWEEN THE TWO GROUPS?

130. State witness Babai Miagalo denied knowledge of any ongoing disputes between the two groups. This was very difficult to believe as other State witnesses, Dori Lapu and John Chigomuri, acknowledged that there was tension between the groups in early 2005 as some of the Laore-Mulage lain had been arrested by the police on suspicion of committing a break and enter offence. A number of the accused also gave evidence about what happened in that period. Old man Mulage and accused No 11 Paul Makua Kita had been arrested, taken to Kimbe and put in the cell. They were soon released and returned to Bali in controversial circumstances. One of Dori Lapu's pigs went missing in this period.

131. There is thus ample evidence of considerable tension between the two groups existing in the weeks leading up to 25-26 March 2005. An argument developed on or about 7 March 2005 following the return from Kimbe of old man Mulage and Paul Makua Kita. The Lapu family was not happy that they had been released by the police. The first defence witness, Tupi Divu, said that the problems between the two groups have existed for many years. It started with their grandparents and followed to the present generation. That evidence was not contradicted by the State. A number of the accused gave similar evidence: Paul Gambu Laore referred to election-related incidents in 1997, 2000 and 2002. Vincent Matana Laore explained that the problem had started with the fathers of the groups; it was Lapu against Laore and Mulage, and that was because Lapu had killed a man. I conclude that there has been a series of disputes and fights between the two groups over a number of years. There was considerable tension in early 2005.

ISSUE 2: WHAT HAPPENED ON THE NIGHT OF FRIDAY 25 MARCH 2005?

132. Two things are alleged to have happened:

•	Dori Lapu's house was damaged;
•	the Mulage's houses were damaged.

133. In support of the argument that Dori's house was damaged is:

•	the detailed evidence of Dori himself;
•	the evidence of John Chigomuri, who said he saw Vincent Matana and Stanley Bito damage the house – he counselled them against continuing but they did continue and yelled obscenities at Dori;
•	Joe Mamae Lapu's evidence, which is consistent with Vincent Matana being responsible.

134. The allegations were not strongly refuted by Vincent Matana or Stanley Bito. Stanley chose to make an unsworn statement. His story about Friday night was far less impressive than his version of the events of Saturday morning. John Chigomuri came the closest to the description of a neutral witness in this case and his evidence was credible. The weight of the evidence therefore favours a finding that Vincent Matana and Stanley Bito did raid Dori Lapu's house early on Friday night 25 March 2005.

135. As to whether Peter Nale, Dori Lapu and their lain raided the Mulage houses later in the night, Mr Popeu argued that it would not be proper to make a finding to that effect as details of the allegations were not put to the State witnesses in cross-examination. He was arguing on the basis of the rule in Browne v Dunn ((1893) The Reports 67) that the central planks of the defence case must be put to the State witnesses. Mr Popeu is right, to some extent, in that not all of the State witnesses were questioned in detail on this allegation. However, the rule in Browne v Dunn requires that the gist of the proposed defence be put to the State witnesses; not that every detail be put to them. The requirements of the rule vary according to the circumstances of the case and are lessened if, in fact, prior notice of the defences or the accused's version of events has been given to the State in some other form, eg in a record of interview that has been admitted into evidence (Cosmas Kutau Kitawal & Christopher Kutau v The State SCRA Nos 51 & 52 of 2002, 22.02.07). Dori Lapu was asked in cross-examination by defence counsel Mr Linge whether his group had killed chickens and stoned the houses of the accused persons on Friday night. Dori responded that that "might" have happened, and that his in-laws, but not his brothers, "might" have destroyed crops and other things. The other key State witnesses, John Chigomuri, Babai Miagalo and Joe Mamae Lapu were asked about the events of Friday night and certainly had the opportunity to deny involvement in or knowledge of the attacks on the Mulage houses. The allegation that Peter Nale and his lain had attacked the Mulage houses was made in a number of the records of interview: Paul Gambu (exhibit A); Steven Dakoa (exhibit E); Lawrence Lumbolumbo (exhibit G) and Stanley Bito (exhibit J), all said to the police that Peter Nale and his lain had raided their houses on Friday night. It was a significant allegation and it formed part of the defence case from the beginning. The records of interview were admitted into evidence before the State witnesses gave their evidence. In these circumstances I do not find any breach in the rule in Browne v Dunn. If there has been a breach, it is not significant and the State has not been prejudiced in the conduct of the prosecution.

136. Defence witnesses Tupi Divu and Peter Kapi plus a number of the accused gave detailed oral evidence of how Peter Nale, Dori Lapu and others raided the Mulage houses and chased them away on Friday night. This was credible evidence, made more believable by the finding that earlier in the evening Vincent Matana and Stanley Bito had raided Dori Lapu's house. I do not accept Dori Lapu's evidence that all he did upon finding his house had been damaged, was to cry. It makes much more sense to believe that a man in his position, given the recent tension that had developed between the two groups, would have gathered his relatives and supporters and vented his anger against those responsible for damaging his own house by damaging their houses. It was a revenge attack.

ISSUE 3: WHICH OF THE ACCUSED WERE PRESENT ON SATURDAY 26 MARCH 2005?

137. The State's case is that all twelve accused were present. The defence case is only nine were present. Emmanuel Kita, Paul Makua and Leo Mulage are said to be elsewhere at the time. At this point I need to say something about the credibility of the key State witnesses. As a group, they were not highly impressive. Dori Lapu shifted ground and was evasive in answering many questions. Babai Miagalo was also evasive and his demeanour was not that of a witness of truth. Likewise with Joe Mamae Lapu. The close similarity between the evidence of Babai and Mamae, in particular their description of the karate style manoeuvre that Paul Gambu put on Babai, describing it as being 'like lightning', gave the impression that their evidence had been manufactured and stage-managed. The evidence of these witnesses that none of them was armed other than Peter Nale who was holding a bush knife but did not intend to use it, was not believable in light of the events of the past few weeks and in particular the previous night.

138. Sila Olema, who lives next door to Dori Lapu and gave evidence of what happened, was a less unimpressive witness. Her demeanour was forceful and her evidence on the face of it was credible. However, she gave the distinct impression of being a one-sided witness in favour of the Lapus. It was difficult to believe that a young mother in her position would go to the exact place where a fight was brewing and stay there for a considerable period just to see what was going to happen rather than take care of her children. Ultimately I was left to conclude that she was also an unreliable witness.

139. This is not to say that the defence witnesses were reliable. The defence counsel tried to portray Tupi Divu, Peter Kapi and Luke Tupi as independent witnesses but I accept Mr Popeu's submission that none of them deserve that title. There were no independent or neutral witnesses in this case. The three accused who say they were not present did not produce any alibi evidence and only made unsworn statements as to their whereabouts. There is no evidence that they were present other than the generalisations of the State witnesses that all twelve accused were present. It is acknowledged that the State witnesses actually named and identified each of the accused. But they gave no specific evidence of what they did. The version of events given in court by Emmanuel Kito, Paul Makua and Leo Mulage is consistent with their records of interview. The State has failed to prove that they were present and I conclude that they were not present and had no involvement in the incident on Saturday morning. I find that the remaining nine accused were present and their own evidence supports that finding.

ISSUE 4: WHAT HAPPENED ON SATURDAY 26 MARCH 2005?

140. There are two entirely different versions of events. On the one hand four State witnesses gave evidence that Paul Gambu led his group to fight with Peter Nale and his lain, that they were the aggressors and sparked the violence that occurred. The defence case on the other hand is that Paul Gambu approached Peter Nale and his lain to talk peace. Babai Miagalo incited the others to fight. Peter Nale attacked Paul Gambu with his bush knife, leading to the fight in which Peter Nale and three of the accused were injured.

141. The four State witnesses were Dori Lapu, Sila Olema, Babai Miagalo and Joe Mamae Lapu. They gave generally consistent evidence that Paul Gambu and his group came to fight and were in an aggressive mood. Paul Gambu was the leader of the group and tried first to fight Dori who refused and then Paul assaulted Babai. Dori and Sila gave evidence that Paul then assaulted Peter Nale by twisting his neck and banging his head into Dori's house-post. Babai and Mamae both say that they ran away after Paul assaulted Babai. Dori and Sila gave evidence of Peter Nale being cut with his own bush knife by Vincent. There are some parts of the State witnesses' evidence that are readily believable. First it is easy to accept – despite the evidence of Paul Gambu and the other accused – that the accused came to Dori Lapu's house prepared to fight. It is understandable that they would be angry as their houses had been damaged the previous night; and Friday night's incident had followed a period of some tension between the two groups. Secondly it is believable that Paul Gambu approached Dori Lapu aggressively and invited him to fight. Paul Gambu, in fact, says this in his own evidence. He says that he invited Dori Lapu and Peter Nale to fight him and even kill him. Thirdly it is believable that Paul Gambu assaulted Babai. Paul Gambu did not deny that he had karate skills (as alleged by the State witnesses). He said in his own words that he tripped Babai, which amounts to an assault.

142. Is it equally believable that, as well as being angry, Paul Gambu came to talk peace? Mr Popeu argued no – it is illogical to think that he would be going to talk peace, given what had happened the night before. Whichever version of events is accepted about Friday night, there was a lot of tension, so it is inconceivable that Paul Gambu was in the frame of mind to talk peace. There was evidence that he had karate skills and there is evidence that he used them to start the fight, Mr Popeu submitted. However, I consider that there was strong evidence that these sorts of incidents happened when Paul Gambu was away and he has been required when he comes back from Rabaul to make peace. It is readily believable, he being an educated and senior man and regarded as a big man amongst the two groups, that he was both angry and looking to broker peace between the two groups. What happened after Paul Gambu assaulted Babai next is much more contentious.

143. Did Paul Gambu assault Peter Nale, twisting his neck and banging him into the house-post? Or was it Peter Nale who made the first move, charging towards Paul with his bushknife and yelling 'Klia! Bai mi kilim em'? There is an edge of unbelievability about each version of events.

144. As for the State's version it is hard to believe that Paul Gambu, having just assaulted Babai, would be able to quickly move to Peter, twist his neck and bang him into the house-post without Peter Nale's group doing anything to stop him. Dori Lapu's evidence at this point – that he stood by with his arms folded while the others just watched on as there was nothing they could do because they were unarmed – I found incredible. Likewise, with Sila Olema's. It is not believable. I say the same thing about the evidence of Babai Miagalo and Joe Mamae Lapu. Babai says that after he was assaulted by Paul he just went home to sleep. A number of witnesses gave evidence that Babai was the one who caused the fight. He is the main trouble-maker who has been at the centre of previous disputes. That evidence was not undermined successfully. When he gave evidence he did not give the impression of being someone who would run away from a fight. I find it difficult to believe therefore that he would have run away. Likewise with Joe Mamae Lapu. He is the deceased's brother and it would only be natural for him to stay and support the deceased if in fact he were being assaulted in the manner alleged. The State witnesses' evidence that the Lapu group was unarmed is not credible in view of the uncontradicted evidence that three members of the Laore-Mulage group were stabbed and taken for medical treatment. There were inconsistencies between the evidence of the various State witnesses particularly about whether Paul Gambu's group was armed or unarmed. Some said they left their weapons at one of the Mulage houses. Some said that they came fully armed. Other than the evidence about what Paul Gambu and Vincent Matana did to the deceased, the State witnesses' evidence about what the others did was vague and scanty. This all makes the State's version of events difficult to believe.

145. As for the defence version, it is also difficult to accept in its entirety. It is hard to understand how, according to the evidence, Paul Gambu could be one minute talking peace and resolving things with Dori Lapu and Peter Nale, and the next minute, simply because he called for him, Babai came running out of the kitchen house, inciting the others to fight. Thus the peace meeting was transformed instantly into an armed attack on Paul Gambu by Peter Nale.

146. Despite those reservations I am more inclined to believe the defence version of events, which is that Peter Nale was the aggressor, and that he charged at Paul Gambu with his bushknife, threatening to cut him. I conclude that the fight erupted upon Peter Nale charging at Paul Gambu with the bushknife. I reject the evidence of Dori Lapu and other State witnesses who said that the Lapu lain did nothing other than run away. Three of the accused suffered serious injuries: Paul Makele suffered axe wounds to his head, knee and shoulder requiring 18 stitches. Lawrence Lumbolumbo was cut on a hand and required 11 stitches. Peter Baluae also suffered a hand wound requiring 27 stitches. It was a vicious fight and clearly the deceased's lain was armed. There is strong evidence that a lot of stones were thrown and it is not credible to believe that all were thrown by only one side of the fight. In light of the above findings I have drawn the following conclusions about the degree of involvement of each of the nine accused who were present:

147. Paul Gambu – I accept with some reservations that he ran away upon being attacked by Peter Nale. Paul Gambu was a generally impressive witness although as I said earlier I am not prepared to conclude that any of the witnesses who gave evidence in this case was wholly truthful. He gave a credible account of how he feared for his life and how he ran away to avoid being killed.

148. Vincent Matana Laore – has admitted that he was the one who cut the deceased with the deceased's bush knife.

149. Joe Gima Laore – I accept his evidence that he had a minimal involvement in what happened and did not get involved in the fight.

150. Steven Dakoa – I accept his evidence that he ran away when Paul Gambu ran away.

151. Lawrence Lumbolumbo – was involved in the fight. He tried to get the knife off Peter Nale and got injured in the process.

152. Paul Makele – got injured in the fight after helping Paul Gambu talk peace.

153. Raphael Tapele – I accept his version of events which was that he came late and helped take Peter Baluae to the hospital.

154. Peter Baluae – was injured in the fight and although he says that he did nothing, I find that difficult to believe. I consider that those who were injured, were injured for a reason, and that was that they were actively involved in the fight.

155. Stanley Bito – I accept his evidence that he ran away when Paul Gambu ran away.

ISSUE 5: WHO KILLED THE DECEASED?

156. This is where I address the first element of the offence of wilful murder: that the accused killed the deceased. There is a definition of killing in Section 291 of the Criminal Code which states:

Subject to the succeeding provisions of this Code, any person who causes the death of another, directly or indirectly, by any means, shall be deemed to have killed the other person.

157. The question to be asked is: did any of the accused cause the death of Peter Nale, directly or indirectly? At this point it is necessary to consider the medical evidence. Dr Nale concluded that the direct cause of death was the heavy loss of blood caused by the leg wounds. Those wounds were inflicted by Vincent Matana who is therefore susceptible to a finding that he directly caused the death of the deceased. I am not yet making a finding that he killed the deceased as there is a causation issue raised by defence counsel that needs to be considered before a conclusion can be reached.

158. As well as the leg wounds, the deceased suffered other serious injuries to his head (dislocated left jaw and a deep rugged wound 3 cm x 2 cm x 1 cm), neck (extremely swollen) and chest (fracture of sternum/clavicle). Those injuries were not the direct cause of death. But the reasonable inference to draw is that whoever inflicted them contributed to the death of the deceased in a significant way. They indirectly caused the death of the deceased.

159. No one has suggested that the injuries were the result of anything other than the fight on Saturday morning. Vincent gave evidence that Dori Lapu was throwing stones at him and Peter Nale when they were struggling over the bushknife and Dori missed Vincent on three successive occasions and struck Peter. I find that extremely difficult to believe. It is more reasonable to infer from the evidence that the wounds Peter Nale suffered were caused by other members of the Laore–Mulage group involved in the fight. They are, in light of the findings I made earlier about the degree of involvement of each of the accused in the incident:

•	Paul Makele;
•	Lawrence Lumbolumbo; and
•	Peter Baluae.

160. Those are the accused who are, in addition to Vincent Matana, susceptible to a finding that they killed the deceased.

161. I now have to consider the argument that there was an intervening cause of death or a break in the chain of causation between infliction of the injuries and death. The defence counsel argued that there was a substantial delay in getting Peter Nale to the health centre at Makiri for treatment. The incident happened at 8.00 am and the evidence suggests that he did not arrive at the health centre until at least 1.00 pm and perhaps as late as 3.00 pm. It took around five hours to get him to the health centre. According to Dr Nale if the most direct route had been taken and he had been treated quickly it would have taken an hour and half to get him to the health centre and his life could have been saved. Dr Nale gave firm evidence to that effect. No good explanation for the delay was given by any of the witnesses. Dori Lapu was, as with much of his other evidence, evasive when quizzed as to why it took so long to take his brother to the health centre. Perhaps there was still considerable tension and people were scared to get involved or continue to be involved. Whatever the reason, the delay in getting treatment is significant in view of Dr Nale's evidence. However, the definition of killing in Section 291 is very broad. If an accused injures a person and those injuries directly or indirectly result in the death of the person, the accused will be deemed to have killed the person unless something not reasonably foreseeable intervenes between the acts or omissions of the accused and the death of the deceased. Something entirely out of the ordinary or completely unexpected would have to occur for it to be regarded as a supervening event or a break in the chain of causation (Government of PNG v Moini [1978] PNGLR 184; Omben Kumbe v MVIL (2005) N2860). A delay in getting medical treatment on Bali Island is not something that I consider to be unforeseeable, especially given all the circumstances in which the injuries were sustained.

162. I find that the State has proven beyond reasonable doubt that:

•	Vincent Matana directly killed Peter Nale; and
•	Paul Makele, Lawrence Lumbolumbo and Peter Baluae indirectly killed him.

163. The State has proven beyond reasonable doubt that the first element of the offence of wilful murder exists against those four accused.

ISSUE 6: DID ANY OF THE ACCUSED AID THE PERSON(S) WHO KILLED HIM?

164. I have concluded that Vincent Matana was the one who directly killed the deceased and the three other accused indirectly killed him. I will now make an alternative finding in relation to those other three, and consider the question of criminal liability of the remaining five, having regard to Section 7(1) (principal offenders) of the Criminal Code, which states:

 	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)	any person who counsels or procures any other person to commit the offence.

165. I am satisfied that even if Paul Makele, Lawrence Lumbolumbo or Peter Baluae are deemed not to have killed the deceased, they were involved in the fight against the deceased's group and in the course of that fight the deceased suffered serious injuries. They were doing acts for the purpose of enabling and aiding Vincent Matana. They are criminally liable to the same extent as Vincent Matana under Section 7(1)(b) of the Criminal Code.

166. As for the remaining five accused who were present but did not kill the deceased, I am not satisfied that there is sufficient evidence that they enabled or aided those who killed the deceased or that they can for any other reason be criminally liable under Section 7(1). Mere presence at the incident in the company of their lain is not sufficient (The State v Stanis Gala (2005) N2846). Section 8 (offences committed in prosecution of common purpose) of the Criminal Code does not apply to any of the accused as this was a group fight, started by the deceased, and the fight itself was not an unlawful purpose.

ISSUE 7: DO THOSE WHO KILLED THE DECEASED HAVE ANY DEFENCES AVAILABLE?

167. Mr Tanewan, the defence counsel for the four accused who killed the deceased, argued that there are three defences available to them:

•	self-defence;
•	aiding in self-defence;
•	extraordinary emergency.

Vincent Matana

168. I will deal with him first.

Self-defence

169. The argument is that when Vincent was struggling with Peter Nale over the bushknife and managed to pull it from Peter, he tried to run away but Peter held him from behind, by the belt and the left hand. He swung the knife with his right hand as he saw Mamae Lapu and Dako Lapu running towards him with knives intending to cut him. At that moment he saw there was no way for him to go and started swinging the knife to make Peter afraid. He bent to the right and swung the knife around Peter. Mamae Lapu and Dako Lapu were seven metres away running towards him. He did not realise that the knife had cut Peter on the leg until Peter let go. He therefore acted in self-defence, which is a complete defence under Section 269 (self-defence against unprovoked assault), which states:

(1)	When a person is unlawfully assaulted and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make an effectual defence against the assault, if the force used is not intended to cause, and is not likely to cause, death or grievous bodily harm.

(2)	If—

(a)	the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm; and
(b)	the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous bodily harm,

it is lawful for him to use such force to the assailant as is necessary for defence, even if it causes death or grievous bodily harm.

170. Vincent is relying on Section 269(2), which means that the court must be satisfied that the following five elements exist:

1	the accused was unlawfully assaulted; and

2	the accused did not provoke the assault; and

3	the nature of the assault was such as to cause reasonable apprehension on the part of the accused that he would die or suffer grievous bodily harm; and

4	the accused believed on reasonable grounds that he could not otherwise preserve himself from being killed or suffering grievous bodily harm; and

5	the accused used such force as was necessary for his defence.

171. If all those elements exist the force used by the accused is lawful even though it has caused the death of the assailant (The State v Takip Palne of Dumbol [1976] PNGLR 90 and Tapea Kwapena v The State [1978] PNGLR 316). Once the accused puts evidence of self-defence the onus rests on the prosecution to disprove the defence. The leading case is R v Nikola Kristeff (1967) No 445, pre-Independence Supreme Court, in which Frost J stated:

As to onus of proof, so far as the defence of self-defence and provocation are concerned, there is no onus on the defence to establish these defences. Once a ground is disclosed by the evidence upon which a plea of self-defence may arise, or provocation, it is essential to a conviction of murder that the jury shall be satisfied beyond reasonable doubt that one or the other of all of the ultimate facts which establish those pleas are not present.

172. That principle has been applied in many subsequent National Court cases. For example in The State v David Yakuye Daniel (2005) N2869 (the killing by a man of his wife at Kandrian, WNBP) the State disproved all the elements of the defence of self-defence and the accused was convicted of murder. In The State v Lenny Banabu (2005) N2871 (the killing by a man of his neighbour at Buvussi, WNBP) the State was unable to disprove any of the elements: the defence applied, it was a complete defence and the accused was acquitted of wilful murder. There is sufficient evidence before the court for Vincent to legitimately raise self-defence. Whether it is a valid defence depends on whether the prosecution can discharge the onus of proving beyond reasonable doubt that one or more of the elements of this defence did not exist. I will restate the elements of the defence by posing five questions:

1	was Vincent unlawfully assaulted?

2	did Vincent not provoke the assault?

3	was the nature of the assault such as to cause Vincent reasonable apprehension that he would die or suffer grievous bodily harm?

4	did Vincent believe on reasonable grounds that he could not otherwise preserve himself from being killed or suffering grievous bodily harm?

5	did Vincent use only such force as was necessary for his defence?

173. The prosecution must prove that the answer to one or more of these questions is 'no'. If it cannot do this, all elements are presumed proven and the defence of self-defence will operate.

174. I consider that the first four questions should be answered yes. The fifth element requires the court to apply an objective test as well as a subjective one. That is, the question to ask is whether the accused had an honest and reasonable, though mistaken, belief that the force he used was necessary for his defence (R v Kaiwor Ba [1976] PNGLR 90). The State has adduced evidence that Vincent swung the bushknife at Peter Nale so severely that he almost cut his right leg off. Vincent's evidence is that Peter was not as strong as he was when they first started to struggle over the bushknife. Though he says he had two other people bearing down on him with knives, I conclude that Vincent's response to the situation was overly vicious. He used much more force than was necessary. He might – though even this is difficult to accept – have had an honest belief that he had to almost cut off the deceased's leg to defend himself. But that was not a reasonable belief. The prosecution has discharged the onus of disproving this final element of the defence. Question 5 is answered No. The State has disproved this element beyond reasonable doubt. Therefore the defence of self-defence does not apply.

Aiding in self-defence

175. This defence is created by Section 271 (aiding in self-defence) of the Criminal Code, which states:

Where it is lawful for a person to use force of any degree for the purpose of defending himself against an assault, it is lawful for any other person acting in good faith in his aid to use force of a like degree for the purpose of defending him.

176. The argument is that Vincent rushed in to assist his brother, Paul Gambu, who was under attack from Peter Nale and others. For this defence to apply, Vincent must be found to have:

•	acted in good faith;
•	to aid a person (Paul Gambu);
•	for the purpose of defending that person against an assault; and
•	used the degree of force that would have been lawful for Paul Gambu to use for the purpose of defending himself.

177. The first three elements of this defence exist but not the fourth. I consider for similar reasons I gave for rejecting the defence of self-defence that the State has proven beyond reasonable doubt that Vincent used more force than would have been lawful for Paul Gambu to use. Therefore this defence does not apply.

Extraordinary emergency

178. This defence is created by Section 26 (extraordinary emergencies) of the Criminal Code, which states:

Subject to the express provisions of this Code relating to acts done on compulsion or provocation, or in self-defence, a person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise.

179. The argument is that Vincent was faced with a sudden and extraordinary emergency. He raced in to assist his brother who was being chased by a man wielding a bushknife. He struggled with that man, got the bushknife from him but the man would not let go. Then he found two of the man's supporters bearing down on him with knives. An ordinary person possessing ordinary power of self-control caught in those circumstances could not reasonably be expected to act other than he did – to swing the bushknife to make the man let him go.

180. There are two problems with this argument. First, the fight between the two groups was something that was readily foreseeable. It had been brewing for a few weeks and Friday night's incidents triggered the fight. The nine accused who were present on Saturday morning, including Vincent, should have known – despite Paul Gambu being willing to talk peace – that a fight might break out. The situation in which Vincent found himself was not a sudden or extraordinary emergency. Secondly, even if the circumstances are regarded as amounting to a sudden or extraordinary emergency, the State has proven beyond reasonable doubt that Vincent acted unreasonably. He acted with extreme viciousness. Therefore this defence does not apply.

Conclusion re Vincent Matana

181. He has no defence.

Paul Makele, Lawrence Lumbolumbo and Peter Baluae

182. They do not come as close as Vincent Matana did to being protected by any of the three defences he claimed. As to self-defence, though there is evidence that they were assaulted by some members of the Lapu group, there is no evidence that Peter Nale assaulted or threatened them; and there is no evidence that they had to assault Peter Nale in order to defend themselves. As to aiding in self-defence, their evidence is vague as to who they were actually aiding. As to extraordinary emergency, I find that this defence is not available for the same reasons I gave for rejecting that defence for Vincent Matana. Therefore none of them has a defence.

Conclusion re defences

183. None of the three defences relied on have been made out. This means that the killing of the deceased was not justified or excused by any law. It was an unlawful killing. The State has proven beyond reasonable doubt that the second element of the offence of wilful murder exists against Vincent Matana, Paul Makele, Lawrence Lumbolumbo and Peter Baluae.

ISSUE 8: IS THIS A CASE OF WILFUL MURDER OR SHOULD AN ALTERNATIVE VERDICT BE ENTERED?

184. This is where the third and final element of the offence of wilful murder must be addressed: that the accused intended to cause the death of the accused. I am not satisfied beyond reasonable doubt that Vincent Matana, Paul Makele, Lawrence Lumbolumbo or Peter Baluae intended to kill Peter Nale or anyone else. This was a group fight, a violent altercation triggered by events the previous evening. Though the fight was a likely event, given everything that had happened in the preceding weeks, it was not a planned event. The accuseds' lain did not start the fight so the State has fallen short of proving that any of the four of them had an intention to kill. They cannot be guilty of wilful murder.

185. I now have to consider whether an alternative verdict should be entered in light of Section 539(1) (charge of murder or manslaughter) of the Criminal Code, which states:

On an indictment charging a person with the crime of wilful murder, he may be convicted of the crime of murder or of the crime of manslaughter but not, except as is expressly provided in this Code, of any other offence other than that with which he is charged.

Vincent Matana

186. I will consider him first as, of the four who have been found to have killed the deceased, he was the one who directly killed him and he is the one most susceptible to a conviction for murder. I say that because of Section 300(1)(a) (murder) of the Criminal Code, which states:

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

if the offender intended to do grievous bodily harm to the person killed or to some other person.

187. There is clearly an argument that Vincent intended to do grievous bodily harm to Peter Nale, given the viciousness of his actions. However, on this issue, given all the circumstances, Vincent will get the benefit of the doubt. I conclude, as Barnett J did in The State v Jeffery Bijuma (1989) N765, that there was no conscious intention to cause grievous bodily harm. None of the other circumstances prescribed by Section 300(1) exist. Therefore Vincent is not guilty of murder.

188. I now have to consider whether a verdict of guilty of manslaughter should be entered under Section 302 (manslaughter) of the Criminal Code, which states:

A person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder or infanticide is guilty of manslaughter.

Penalty: Subject to Section 19, imprisonment for life.

189. I am satisfied that the elements of manslaughter have been proven beyond reasonable doubt. For reasons given earlier Vincent killed the deceased and killed him unlawfully and in circumstances that do not constitute wilful murder or murder (or infanticide).

Paul Makele, Lawrence Lumbolumbo and Peter Baluae

190. Given all the circumstances in which the death occurred, which was the result of a fight between two groups, I am not satisfied that any of them intended to do grievous bodily harm to Peter Nale. I am not satisfied that the fight can be regarded as the prosecution of an unlawful purpose. I am not satisfied that any of the other circumstances giving rise to the offence of murder existed in this case. I am, however, satisfied, for the same reasons given for Vincent Matana, that they unlawfully killed the deceased under circumstances that do not constitute wilful murder or murder (or infanticide). The elements of manslaughter have been proven beyond reasonable doubt.

VERDICTS

(1)	Paul Gambu Laore – not guilty of wilful murder or any other offence; acquitted.

(2)	Vincent Matana Laore – not guilty of wilful murder; guilty of manslaughter.

(3)	Emmanuel Kita Laore – not guilty of wilful murder or any other offence; acquitted.

(4)	Joe Gima Laore – not guilty of wilful murder or any other offence; acquitted.

(5)	Steven Dakoa Mulage – not guilty of wilful murder or any other offence; acquitted.

(6)	Paul Makele Laore – not guilty of wilful murder; guilty of manslaughter.

(7)	Lawrence Lumbolumbo Mulage – not guilty of wilful murder; guilty of manslaughter.

(8)	Raphael Tapele Mulage – not guilty of wilful murder or any other offence; acquitted.

(9)	Peter Baluae Mulage – not guilty of wilful murder; guilty of manslaughter.

(10)	Stanley Bito Ranga – not guilty of wilful murder or any other offence; acquitted.

(11)	Paul Makua Kita – not guilty of wilful murder or any other offence; acquitted.

(12)	Leo Mulage – not guilty of wilful murder or any other offence; acquitted.

Verdicts accordingly.
____________________________________________________________
Public prosecutor: Lawyer for the State
Linge & Associates: Lawyers for the 1st accused
Paul Paraka Lawyers: Lawyers for the 2nd to 12th accused