N3542

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 313 OF 2007

THE STATE

V

KEVIN LOMBOI WAKS

Kimbe: Cannings J
2008: 20, 21, 22 August,
8, 9, 10 October,
11 December

VERDICT

CRIMINAL LAW – trial – wilful murder – aiding another person in committing an offence – Criminal Code, Section 7(1).

The accused was indicted for wilful murder. It was the State’s case that he joined with another man in holding the deceased and bringing him to a place where a dance party was taking place, and that they jointly aided and enabled a third man to stab the deceased, killing him instantly. The State invoked Section 7(1) of the Criminal Code, which says that not only the person who actually does the act constituting an offence, but anyone who aided or enabled that person to commit the offence, is deemed to have taken part in committing the offence and is guilty of the offence. The accused denied involvement in killing the deceased and said he was not at the party.

Held:

1)	To prove that an accused person who is alleged to have aided or assisted in a killing is guilty of wilful murder, the State must prove that:

•	someone wilfully murdered the deceased, ie killed him, unlawfully, intending to cause his death; and

•	the accused did some act for the purpose of enabling or aiding the person who wilfully murdered the deceased.

2)	If the State cannot prove that the deceased was wilfully murdered but can show that he was the victim of a murder or manslaughter, and that the accused aided or enabled the killer, the accused would be guilty of murder or manslaughter as the case may be.

3)	In the present case, the evidence was sufficient to show that some person unlawfully killed the deceased but the State failed to show that the accused aided or enabled anyone in killing the deceased.

4)	The State failed to prove its case and the accused was found not guilty of wilful murder and not guilty of any other offence.

Case cited 

The following case is cited in the judgment:

Linden Alphonse v The State (2008) N3533

Abbreviations

The following abbreviations appear in the judgment:

CID – Criminal Investigation Division
cm – centimetres
Const – Constable
CR – criminal case
Det – Detective
DJ – disc jockey
K – Kina
kg – kilograms
km – kilometre
N – National Court judgment
No – number
v – versus

TRIAL

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

Counsel
F Popeu, for the State
R Awalua, for the accused

11 December, 2008 

1. CANNINGS J: Kevin Lomboi Waks, the accused, is a young man, aged in his early 20s, from Bariai in the Cape Gloucester area of West New Britain. He is charged with the wilful murder of a Kerema man, Joe Mafereka, who was living in the area after marrying a local woman. The offence is alleged to have been committed at a dance party at Namarmanga village, in the Cape Gloucester area, in the early hours of Friday 29 September 2006. It is alleged that the accused joined with another young man, Mark Talane, in bringing Joe Mafereka – also known as "Kauboi" – into the place where the party was taking place, where they set him up to be stabbed in the back by a third man, Linden Alphonse, the wound killing him almost instantly.

2. Linden Alphonse is said to be a Kandrian man; not the same Linden Alphonse (a Sepik man) recently dealt with by this court in another case (Linden Alphonse v The State (2008) N3533).

3. The State does not allege that the accused was the one who stabbed the deceased but alleges that he aided and enabled the man who stabbed him. Therefore, the State argues, he is criminally liable under Section 7(1) of the Criminal Code. Section 7 says that not only the person who actually does the act constituting an offence, but also anyone who aided or enabled that person to commit the offence is deemed to have taken part in committing the offence and is guilty of the offence.

4. The State’s case relies on the oral evidence of two witnesses. First, one of the ‘DJ masters’ at the dance, Patrick Talane who says he saw what happened. Secondly, the investigating police officer, who says he took a confessional statement from the accused a week after the incident.

5. The accused denies all involvement in killing the deceased. He says that he was not at the dance. He admits being in the vicinity of the dance but says he stayed at a nearby house, telling stories with friends.

THE ISSUES

6. To prove that the accused is guilty of wilful murder, the State must prove that:

•	someone wilfully murdered the deceased, ie killed him, unlawfully, intending to cause his death; and

•	the accused did some act for the purpose of enabling or aiding the person who wilfully murdered the deceased.

7. If the State cannot prove that the deceased was wilfully murdered but can show that he was the victim of a murder or manslaughter, and that the accused aided or enabled the killer, the accused would be guilty of murder or manslaughter as the case may be.

8. The principal issues of law before the court therefore are:

•	Did some person unlawfully kill the deceased, in circumstances amounting to wilful murder, murder or manslaughter?

•	Did the accused aid or enable the person to commit the offence against the deceased?

9. If the State proves beyond reasonable doubt that the answer to both of those issues is yes, the accused will be found guilty. If it cannot prove both, the accused will be acquitted.

10. Before addressing those legal issues, the court must address the critical question of fact arising from the conflicting evidence:

•	Was the deceased killed in the circumstances alleged by the State?

WAS THE DECEASED KILLED IN THE CIRCUMSTANCES ALLEGED BY THE STATE?

The State’s case

11. Patrick Talane is the key State witness. He was one of the DJ masters at the dance at Namarmanga. He lives at Auwarea village. He said he arrived at Namarmanga about 6.00 pm. He went straight to the place where the dancing area had been set up. He helped others get the equipment ready, including Kinny Rai and Junior Taumai. As soon as they started playing the first song around 7.00 pm, children paid their gate fees and came in. After a while the adults came in.

12. The dance was running smoothly until about 2.00 am when Kinny fought with a fellow called Francis. The fight finished and then Francis came back and broke the light that was shining down on the DJ area. There was another light, however, shining in from Raphael Mondo’s house, a short distance away.

13. Soon afterwards Linden Alphonse came over to the DJ area. He stood there for a while but did not talk to anybody. He started cutting down the coconut fronds which were used to enclose the dancing area. He created an opening big enough for three people to get through. Then Kevin Waks and Mark Talane (the witness’s half-brother) came through that opening. They were holding on to Kauboi.

14. Linden Alphonse was still inside and he stabbed Kauboi in the back with a knife. They then pushed Kauboi into the DJ area where he fell. Kevin and Mark ran away. Linden Alphonse showed people his knife so they pretended that they did not see anything or know anything. Soon afterwards a fellow called David came up to ask for one of his cassettes and he bumped into Kauboi, who was lying on the ground. People saw that there was blood on Kauboi’s hands and they called out that Kauboi was dead.

15. They lifted him, washed him with water but nothing happened and then they took him to Raphael Mondo’s house. By this time it was 4.00 am.

16. Patrick said that his village is 2.5 km away from Namarmanga. He knows Linden Alphonse well and he also knows the accused Kevin Waks well. They are both from the Gloucester area.

17. They were able to continue operating the sound equipment as the fluorescent light coming from Raphael Mondo’s house was sufficient. It was hanging on the veranda. It was high enough to shine into the DJ area.

18. When Kevin and Mark were holding Kauboi they were only about 1.5 metres away. The light coming from Raphael Mondo’s place enabled him to see what happened to Kauboi. Kevin and Mark held one hand each until Linden Alphonse stabbed him. There was nobody else immediately surrounding them. The dance was still going on. The music was playing. The patrons were dancing away from where the incident took place.

19. In cross-examination, Patrick Talane denied that he was ever a suspect in the police investigation. He denied that the police wrote his statement for him and told him what evidence to give in court. He denied that the police threatened him. He was adamant that he saw the accused at the dancing area holding on to the deceased.

20. Asked to give further details about how the accused and Mark Talane got hold of the deceased, Patrick Talane said that he saw both of them get him from inside the gate at the entrance to the dancing area. Then they took him outside. They took him to the place where Linden Alphonse had cut the coconut fronds. They brought him into that opening and that’s where they killed him. He was able to see what was happening because of the gap in the fence that Linden Alphonse created when he cut the coconut fronds.

21. The DJ area was not on a stage. Their equipment was on a platform but the DJs were standing on the ground.

22. When he saw Linden Alphonse cutting the coconut fronds, he could not tell what he was intending to do. He was concentrating on playing the music. Linden never talked to them. Asked why Linden Alphonse and the accused and Mark Talane would want to kill anybody in a public place, Patrick replied that they were all drunk when they did it.

23. Asked why he did not get cross with Linden Alphonse for cutting a hole in the fence, Patrick replied that he was too busy playing the music. He saw what Linden did but he did not do anything about it.

24. Asked why the organisers would not have done anything about Linden cutting the fence, Patrick responded that by the time it happened, it was late and it was already free entry into the dance.

25. When the accused and Mark Talane brought Kauboi in they held him as if they were friends. They were persuading him to have more beer. He did not hear what they were saying to Kauboi. He saw them taking him outside. Later they brought him in through the gap in the fence that Linden Alphonse had cut.

26. He saw the two of them take Kauboi out through the gate. He did not see which way they went but the next time he saw them, they were coming through the gap that Linden Alphonse had cut.

27. Kauboi struggled when Linden Alphonse was about to stab him, but he was overpowered. Kauboi was only of medium build. Kauboi did not scream. He was drunk. He tried to free his hands to run away but it was too late.

28. He does not know of any dispute that existed between Kauboi and the three people who killed him.

29. When he saw what the three of them did to Kauboi, he did nothing about it. He let the dance continue as Linden threatened him with his knife. There was only himself and Cosmos Boni, a young man aged in 20s, in the DJ area. They were both afraid to do anything. It was the first time they had seen anything like that happen. They were scared. They did not say anything. They kept playing the songs as there were still people dancing. Linden Alphonse did not run away. He was armed with the knife and he could see that they were scared. He just stood there until David bumped into Kauboi’s body. That’s when he (Linden) went away.

30. The other person to give oral evidence for the State was First Constable Fidelis Gabe. He led the police investigation. He is based at the Buluma CID office. He was dispatched by the Provincial Police Commander to Gloucester on 11 October 2006 to investigate the murder of Joe Mafereka.

31. He and four other officers arrived at Gloucester on 12 October. On 13 October they conducted a raid at Alaido village where they apprehended the accused. They took him to Gloucester and continued the investigation there. They acted on reliable information that he was involved in the murder. He voluntarily admitted what he did regarding the death of Joe Mafereka and made a confessional statement. First Const Gabe said that he wrote down what he said and he passed it to him and he signed the statement. This was after he had been formally cautioned. The statement was taken at the Gloucester government station.

32. In cross-examination First Const Gabe denied that the accused was among a number of people arrested in the raid at Alaido. The accused was the only person arrested. He denied hitting the accused with a guava branch in order to extract the statement. He was relying on information provided by Patrick Talane.

33. He took down the statement in Tok Pisin and it was later translated into English.

34. The confessional statement was admitted into evidence after I overruled an objection to its admission. The statement explains the circumstances in which the accused came to be at the dance. It continues:

Whilst dancing, Mark Talane of Bambak village approached me and told me to follow him out of the dancing place and we walked towards the corner of the perimeter fence and stood there. After standing for some time, I saw Joe Kauboi Mafereka walking towards us from the opposite corner of the perimeter fence. As he came closer to us I saw Linden Alphonse rushed out from inside next to the DJ master by forcefully ripping off the sago and coconut leaves. Linden Alphonse confronted us and threatened Mark Talane and myself by telling us not to run away and continued on saying if we run away, he would kill us. Linden Alphonse continued threatening us and demanded us to grab hold of Joe Mafereka so he would kill him. So I quickly grabbed Joe Kauboi Mafereka’s right hand while Mark Talane grabbed hold of his left hand.

Next, Linden Alphonse placed his left hand over the deceased mouth and in his right hand was a small metal knife. Joe Kauboi Mafereka noticed that he was in danger and tried to escape but he couldn’t because we were holding him tightly. Linden Alphonse quickly stabbed Joe Kauboi on the left side of his shoulder below his shoulder blade. We were still holding onto Joe Kauboi Mafereka as he struggled to breathe until he died. Linden Alphonse then demanded us to carry the body of Joe Kauboi Mafereka into the perimeter picket fence as he stood guarding us. We brought the deceased into the dancing place through a gap broken by Lindon Alphonse and placed him on the ground secretly in a sleeping position. After that we walked out through the main gate. All this happened after the light was broken by the youths of Alaido village namely Francis Kamboi. I walked over to Alaido village and stayed there until Police came and arrested me.

35. As for medical evidence, there was no post-mortem report; only a statement by Mark Gori, health extension officer at Gloucester Health Centre. He states that the estimated age of the deceased was 36 years. Mr Gori examined the deceased’s body at 9.00 am on 29 September. He states:

On physical examination (29/9/06) the body laid flat and still without any movement, skin very cold with no signs of breathing. Head, neck, face, limbs, no signs of injuries or fractures. Abdomen there was no signs of swellings. Nose and mouth was full of old blood. At the back laterally just below the left scapula there was a wound or opening between the 4th and 5th ribs penetrating through. The wound was 2 cm width and 15 cm depth. From the direction of the penetrating object it was going directly to the lungs.

From the examinations performed of the deceased, I believe that Joe Kauboi died of severe shortness of breath due to the internal bleedings and sudden collapse of lungs causing his death.

Defence case

36. Kevin Lomboi Waks gave sworn evidence. He was the only defence witness. He said that he came to Namarmanga on the night of the incident and stayed there overnight. He never went to the dance. He stayed all night at Raphael Mondo’s house, telling stories with friends. He heard fighting at one stage and then heard that there has been a death. Raphael Mondo’s house is 60 metres away from the dancing area.

37. He and five others, including Patrick Talane, were arrested following the incident. He was assaulted by the police. He alleged that those who assaulted him included Fidelis Gabe, Joe Tamore and Peter Wende.

38. In cross-examination, he said that he was about 21 years old in 2006, when the incident occurred. The dance at Namarmanga was hosted by Raphael Mondo. It was attended by many young people from neighbouring villages. He intended to go to the dance but when he got there he was not in the mood so he just went to Raphael Mondo’s house. He was telling stories there until news came through that there had been a death. Raphael Mondo is a big man in the village. He was also in his house and let his boys look after the dance.

39. The accused said that he does not know Patrick Talane, and Patrick Talane does not know him. Though soccer tournaments are held in the area, the young people do not know other young people from other villages. They only know those to whom they are related. He does not know Mark Talane.

Assessment of evidence

40. The first observation I make concerns the accused’s evidence. He was not an impressive witness. He seemed intent on giving calculated answers in ways that he thought were necessary to remove himself from being connected with the death. It is hard to believe that having made the trip to Namarmanga and knowing that there a dance happening very close to where he was staying, he would make no attempt to attend the dance. It is even harder to believe that he would stay at a house a short distance away from the dancing area and tell stories and have what he described as a "coffee night" and not go to the dance. He is a young man living in a remote location and it is reasonable to be expected that he would want to attend a social function of this nature on the odd occasion when it occurred in his locality.

41. If it were true that he was not at the dance, and that he remained at all times at Raphael Mondo’s house, that would have been a perfect alibi. But there was little evidence to support that alibi. I conclude that the accused was at the dance.

42. I found his evidence that young people from different villages in the Bariai area do not know each other very difficult to believe.

43. Having said that, I remind myself that the accused bears no onus of proving his innocence. Even if I am satisfied that he was lying about his presence at the dance and his involvement in the incident which led to Joe Mafereka’s death, it is the State which at all times bears the onus of proving the facts; and the standard of proving those facts is: beyond reasonable doubt.

44. I was not generally impressed with Patrick Talane’s evidence. He was not a particularly impressive witness in the way that he answered questions, particularly questions in cross-examination. He was not a witness who was obviously telling the truth. On the other hand his demeanour was not so unimpressive that it could be said that he was blatantly lying about what happened.

45. Mr Awalua submitted that Patrick Talane may have been mistaken about who he saw assisting Linden Alphonse, especially as the lighting in the dancing area was poor due to the light being broken following a fight earlier in the evening. So this might be a case of wrong identification.

46. I have not ruled that out as a possibility but what I think is a more telling point about Patrick Talane’s evidence is that substantial aspects of it just do not ring true. It seems almost unbelievable that a person could be stabbed while a dance was going on and that nothing would be done about it until somebody happened to come along shortly after the person had fallen and bumped into his body. It seems incredible that the main perpetrator of the killing – said to be Linden Alphonse – would be able to cut a gap in the fence without anyone causing a fuss and then would be able to stand there unchallenged while two of his friends brought in a person through the hole in the fence that he had created and then he could stab him in full sight of at least two people without a disturbance being caused.

47. Even if it is true that a person in Patrick Talane’s position was scared, it seems incredible that they would be able to remain calm enough to just let the music keep playing and the people keep dancing.

48. Patrick Talane’s evidence is that after the stabbing took place, Linden Alphonse stood still, did nothing while the accused and Mark Talane ran away. This also seems incredible.

49. There are significant inconsistencies between the version of events in Patrick Talane’s evidence and the evidence in the confessional statement of the accused:

•	On the one hand, the confessional statement has Linden Alphonse rushing out of the hole in the fence he created and then confronting the accused and Mark Talane outside. The stabbing takes place outside. Then the accused and Mark Talane bring the deceased into the dancing area through the gap created by Linden Alphonse. Then they place him on the ground secretly in a sleeping position.

•	On the other hand, according to Patrick Talane’s evidence, the stabbing took place inside the dancing area – inside the DJ area. Linden Alphonse did not go outside at any stage and it was the accused and Mark Talane who took the deceased outside before bringing him back inside, through the gap created by Linden Alphonse.

50. Another problem with the confessional statement is that the original of the statement – said to be in Tok Pisin – is not in evidence. No explanation was given as to what happened to the original.

51. I consider that the confessional statement has very little evidentiary value. It is not necessary to make a finding on whether the accused was assaulted and forced to sign it.

52. Patrick Talane was not a particularly impressive witness and the version of events he gave is quite difficult to believe, if not incredible. It was, in these circumstances, incumbent on the State to present some corroboration of his evidence. In fact, you would expect that the other person who was said to be present with Patrick Talane – Cosmos Boni – would give evidence. But he did not. If he was not available a good explanation should have been provided to the court. It is also reasonably to be expected that there would have been evidence forthcoming from other people who were present at the dance. Why did they not give evidence? This lack of corroboration makes the key State witness’s evidence even more difficult to believe.

53. There is also a problem with First Const Gabe’s evidence. Other than saying that he was relying on information provided by Patrick Talane, he gave no indication of how it was that Kevin Lomboi Waks came to be regarded as the principal suspect. He did not say who was interviewed or what other evidence he uncovered which led to the arrest of the accused.

54. As for the police investigation generally, no indication has been given that Linden Alphonse or Mark Talane have been arrested or charged in relation to the death of Joe Mafereka. It appears that the accused has been singled out on the basis of suspicion and no reasonable steps have been taken by the police to arrest the person who is said to be primarily responsible for the death.

Conclusion: how was Joe Mafereka killed?

55. The medical evidence suggests that he was stabbed from behind and it was a deep wound which penetrated into his lungs. It looks as though he suffered a single fatal wound.

56. As to who stabbed him, I do not believe that from the evidence presented, it can be said beyond reasonable doubt that the person allegedly responsible – Linden Alphonse – was the culprit. There are too many question marks surrounding the evidence of the key State witness to say who was actually responsible. There are too many gaps in the police investigation to warrant a finding as to who directly killed Joe Mafereka.

57. It follows that I cannot be satisfied beyond reasonable doubt that the deceased was killed in the circumstances alleged by the State.

DID SOME PERSON UNLAWFULLY KILL THE DECEASED?

58. On the basis of the medical evidence and the evidence surrounding the Police investigation it can be safely inferred that some person – perhaps, but not necessarily, Linden Alphonse – unlawfully killed Joe Mafereka.

DID THE ACCUSED AID OR ENABLE THE PERSON WHO KILLED THE DECEASED?

59. The State has fallen well short of proving that the accused aided or enabled anyone to kill the deceased. The evidence of the key State witness is suspect, for the reasons I have already outlined. The Police investigation was not thorough. All of the evidence presented by the State lacked corroboration.

60. Though I consider it highly likely that the accused has given false evidence in his defence, and this gives rise to suspicion that he was involved in the death, I am not satisfied beyond reasonable doubt that he aided or enabled anyone in any manner to kill Joe Mafereka.

VERDICT

61. Kevin Lomboi Waks is found not guilty of wilful murder and not guilty of any other offence.

Verdict accordingly.

Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the accused