N4208

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOS. 470, 469, 471 472 OF 2005

THE STATE

V

BOAS KAPAI, JAMES MANGEKO, LIVAI AUSOMB & LESTER LIVAI

Wewak: Sagu AJ
2009: 27,28,29,30 April, 1 May

VERDICT

CRIMINAL LAW – Trial – Wilful Murder – Criminal Code, Section 299 – Killing by Ambush-Co-Accused – Identification Evidence – Alibi – Quality of Evidence - Prolong Land Dispute - Parties members of same clan 

EVIDENCE – Admissibility –Dying Declaration – Statement by the deceased immediately after being shot and two hours prior to death in village 

Facts

Four men were indicted jointly for the willful murder of one Dion Waikole, a male adult. It was undisputed that the deceased died from injuries suffered from a gun wound to the left side of his lower abdomen area. The State produced two eye witnesses who were present at the crime scene. Each of the four accused gave sworn evidence plus two other witnesess and relied on an alibi.

Cases Cited:

John Beng –v- The State [1977] PNGLR 115
Biwa Geta v The State (1988) N655
Luingi Yandasingi v the State [1995] PNGLR 268
St. v. Alex Kango (2006) N3083
State v Emmanuel Bais & Felix Fimberi (2003) N2416 
The State v Peter Malihombu (2003) N2365 
The State v. Allan Mainde (2004) N2679 

Counsel

Mr. Umpake, for the State 
Mr. Mawasi, for the Accused 

1 May, 2009

1. SAGU AJ. The four accused, BOAS KAPAI, JAMES MANGEKO, LIVAI AUSOMB and LESTER LIVAI pleaded Not Guilty to the charge that they jointly at Bangus village, Ambunti, East Sepik Province wilfully murdered one Dion Waikole, an adult male contrary to section 299(1) Criminal Code Act. 

INDICTMENT
2.	The State alleged that on the 20th day of October 2004 between 8am and 9am, the four accused armed with a shot gun set up an ambush in Joshua's cocoa garden and shot the deceased Dion Waikoli who was travelling with his wife Lynda, Joshua Waikoli the deceased's brother, Margret Waikole the deceased's sister, Lemeck and the deceased young daughter Judith on the way to their vanilla garden. The four accused persons had hidden themselves under the leaves of a bended tree branch. The deceased and the state witnesses noticed that the leaves of the bended tree branch moved in front of them but more towards the left side about 45 degrees. The deceased and his group saw Boas and the three co-accused persons. The accused Boas fired the gun at the same time wounding Dion who was walking along the track first. Dion received injuries to his left abdomen which caused his death. The incident arose out of a prolonged land dispute between the deceased family and family of the accused persons who are all from the same sub clan in the village.
3.	The State further alleged that the other three equally aided and abetted the commission of the offence by their presence together with a common intention to kill the deceased.

EVIDENCE

INTRODUCTION 

4.	The State's evidence consisted of oral evidence of two witnesses Lynda Waikole the widow of the deceased and Joshua Waikole, the deceased brother who both gave sworn oral evidence. The State also tendered by consent the following documentary evidence:

The Medical Report by Community Health worker at Maprik Health Centre dated the 20/10/2004 at 3.30pm and Boas Kapai's Record of Interview dated 1st December 2004 both the Pidigin and the English versions through and during his cross-examination by the state.

5.	The Defence called six witnesses, the four accused gave sworn oral evidence and 2 other alibi witnesses.

STATE EVIDENCE 

ORAL TESTIMONY OF LYNDA WAIKOLE WIDOW OF THE DECEASED

6. Lynda Waikole testified that she is the wife of Late Dion Waikole and she lives in Bangus Village that her husband's name is Dion and he no longer lives. She knows the four accused very well. 

The four accused are very closely related to the Waikole family. Waikole comes from the 1st grand parent, James Mangeko from the 2nd grand parent and Livai Ausomb from the 3rd grand parent. 

7.	The Waikole famiy and the Livai family have had a long outstanding land dispute which is not settled and current. Prior to the date of the event they all live in the same village.

8.	She recalls on the 20th October, 2004 between 8am to 9am in the morning Dion Waikole (deceased), herself, Margret the deceased sister, Joshua Waikole the deceased brother, and Lemeck and her young daughter were on the way to their vanilla garden to pollinate the beans. They were walking in a single file in the following order, Dion, Lynda, Joshua, and Margret Lemech along the track. When they approached Joshua's cocoa garden she heard a noise from the bush and looked and saw the leaves from a bended tree branch move in front of her and slightly to the left about 15 metres away from them. At the same time a gun shot was fired and the bended tree branch was let loose and the branch took its position on the tree leaving the accused in full view. She immediately saw the four accused, Boas Kapai, James Mangeko, Livai Ausomb and Lester Livai. There was nothing else obstructing her view. The tree branched was bended down by the accused to concealed themselves while they waited for them to arrive. 

9.	When the bended tree branch was let loose she saw Boas hold the gun and pointing at them, fired the gun shot at Dion wounding him who was in front of them. Dion shouted "Boas sutim me" which in English "Boas has shot me" and fell back onto her. While hanging onto her the deceased stated: "Boas, James, Livai and Lester have shot me with a gun". The distance between the gunman and them were 15 meters. The four men ran away. Dion was shot on the left abdomen and lost a lot of blood. The cocoa trees were knee high and she said the place was clear, the sun was up and the day was fine and bright. They took Dion to the house in the village and he said to all of those who had gathered around him;

" Boas, James, Livai and lester had shot him". 

 He died on the same day from excessive loss of blood. Prior to the incident there had been a prolong land dispute between Livai Family and Jonathan Waikola family. These two families are from the same clan living in Bangus village. This land dispute is current and pending. Dion is Johanthan's son.

10.	Lynda's witness story flowed well, the defence did not break her, her demeanor was good, she was calm and collected and gave an account of what she saw. When the Defence in Cross examination asked: 

" If Lemeck came and told the court that you did not see who killed your husband what do you say" 

She responded without hesitation and confidently replied. "He is Dions family member, he will tell the truth. " 

ORAL TESTIMONY OF JOSHUA WAIKOLE

11.	He is the deceased step brother and they share the same father but different mothers. This witness travelled with the deceased on that fatal day. He was walking about 1.5 meters behind the deceased and his wife Lynda. His story confirms that of Lynda's story. It was a fine morning on the 20th October 2004. As they were walking through his newly planted cocoa garden about a knee high tall, he saw the leaves of a bended tree branch move and suddenly the bended tree branch was released and he saw Boas fire the gun at Dion, the deceased who was walking in front. The other three co-accused James Mangeko, Livai Ausomb and Lester Livai were there together with Boas when he fired the gun. The shot hit Dion, the deceased and as he fell back onto his wife he said these words: 

"Boas, James, Livai na Lester sutim me long gun" which in English means Boas, James, Livai and Lester have shot me with a gun". 

12.	The four accused ran away and he gave chase with his bush knife in his hands when the deceased called to him to stop the chase as the accused had gun with them as against his bush knife and further that Dion was already wounded. So Joshua retreated. The community had by this time gathered in the deceased house to see and the deceased told them that the four accused who are now in Court shot him with a gun. 

13.	The deceased suffered pellet wounds to his ribs and lower stomach area and suffered excessive loss of blood and died as a result. 
 
14.	The witness further stated that the murder was reported on the day but police did not come quickly to the village. They came three (3) weeks later with the Maprik police. At the relevant time the four accused had been living in Bangus village with them until the day after the incident that they moved away. The deceased family and the accused family are all from the same family having come from the same sub-clan and they live in the same village.

MEDICAL REPORT

15.	The medical report dated 20th October 2004 was tendered by consent. This report shows that the deceased suffered multiple pellet shots on his body on the generalized abdomen and spread penetrating everywhere in his healthy abdomen. The pellet wounds completely destroyed his general internal abdomen tissues which resulted in excessive loss of blood causing his death. 

16.	Record Of Interview (ROI) of Accused Boas in pidgin and English version were tendered by the State through cross- examination. 

EVIDENCE OF DEFENCE

17.	The defence called six (6) witnesses being all four accused giving sworn evidence for themselves and two (2) other Alibi Witnesses. The accused, Boas Kapai is Livai's nephew being the son of his sister while Lester is Livai's son. James Mangeko is one of their immediate family members from the other grandfather.

18. They all have alibi evidence and almost identical stories except for the 6th witness Waris who had a little bit more to say.

First Defence Witness- BOAS KAPAI

19.	The accused Boas Kapai gave sworn evidence that on the 20th October 2004 he was at Ambunti Station and he does not know about the killing of the deceased. At the relevant time, himself, James Mangeko, Liviai Ausomb, Lester Livai and Ronald Mathew were all at Ambunti Government Station at the place where they sell wet Cocoa. They started at 8am until 1pm. From 1pm he was at his house. He heard about the death of Dion on the same day around 1 pm when police came to check them up in the house in which all four accused persons were. Police told them to stay put until they have carried out an investigation and will come back to them. He said the family of both the deceased and accused are all from the same clan and all from Bangus village. Livai Ausomb is the maternal uncle. He says he is not responsible for the death of the deceased as he was in Ambunti station at the material time.

 20.	In cross-examination the following questions and answer transpired:-

Q. 	How long have you lived in Ambunti?
A.	5 years 2004 to now. There are others from my village too. I live in my house in Ambunti
Q. 	Do you go to Bangus village to make garden some times?
A.	No. (and says further he does not have a house in Bangus village). 

21.	Witness was taken through his ROI and contradicts himself that police did not report him accurately. He had come to Ambunti 2 weeks ago in answer to question 21(ROI conducted 1.12.04: Q. 21).

Second Defence Witness- JAMES MANGEKO 

22.	James Mangeko says all accused except for Livai Ausomb were in Ambunti and confirms Boas on the Alibi story. He says at the relevant time they were at Rick Tom's Cocoa Fermentry buying and selling wet cocoa beans. They finished work at 1pm. He had a semi permanent house in Bangus which was destroyed by the deceased relatives after the deceased died. He had moved to Ambunti station thereafter. 

23.	This witness was not at ease, it appeared that he was being assisted by his co-accused Boas Kapai across the court room and those sitting in the gallery to the extent where the Defence Counsel intervened to have those at the public gallery excluded from the court room. I further directed the witness to direct his attention to the bench during his evidence. His demeanor was not good. He was nervous and quite unsure of himself at times. He was shaking and sweating much.

24.	He is the second cousin to the State witness Lynda and agrees Lynda would not accuse him out of respect but that she has and therefore she does not respect him as a cousin sister . He says he is not responsible for the death of Dion. He learnt about the death when they went to put a report to the police in Ambunti. He says he has no grudges against the deceased but the Livai family and Jonathan family have disputes over land.

 Third Defence Witness- LESTER LIVAI 

25.	Lester Livai gave the same evidence as Boas Kapai and James Mangeko that at the relevant time they were at Ken Rek Tomb's cocoa fermentry . But adds that the reserve constable spotted them around 8am working at the cocoa fermentry when he went to the store for his cigarette. He also says that Sgt. Kevin Nigni, Joseph Bara and Kei Swi also saw them. But agrees that they went in search of the gun. 

Fourth Defence Witness- LIVAI AUSOMB 

26.	Livai Ausomb gave an account of where on that day he was talking to a Moses at about 8am on land matters concerning Ambunti High School and Waris had spotted him that morning. This witness confirms the existence of the prolonged land dispute between the family and that of the deceased Dion Waikole family. A preventive order was taken out by them but was later set aside so there were no problems. However, he did not provide the settlement order.

Fifth Defence Witness – RONALD MATHEW 

27.	This witness gave the same evidence as above. However, he did not know about the death of Dion until Maprik police came to arrest the accused. Yet the others have said this witness was among them when the police came to check Livai's gun in the house where they were all staying. He has said that when the accused persons came out on bail he was asked to come and give this statement in support of them when they were applying for bail in 2006. 

Sixth Defence Witness – WARIS WINGAWI 

28.	This witness says he was there at the Ambunti police station when Jonathan and Margaret came to lay complaint against the accused for the murder of Dion around 12.00pm on the day of the incident. Later he went to Bangus village to investigate and avoided talking to the key witnesses there and fails to bring the bullet evidence. Although he is an axillary policeman and subject to instruction from a regular policeman at no time did he suggest for the key witness to be interviewed. No arrests were made even when Margret who was an eye witness came to lay the complaint at the police station. He went to Bangus village 3 weeks later and visited the crime scene guided by some-one else who was not an eye witness. I find this behavior to be very strange for an auxiliary policemen. I am of the impression that he had already formed an opinion that the accused were not to be blamed even before investigation were conducted for reasons known only to him.

Issue of Identification

29.	All the accused persons raised the Defence of Alibi through a Notice of Alibi and have led evidence that, at the time of the alleged offence, they were at Ambunti Government Station. So the Key issue that came to trial before me was one of identification.

RELEVANT LAW

Principal of Identification 

30.	When considering the identification of an accused to a crime, it is trite law of the need to warn myself as the tribunal of fact to be mindful of the inherent dangers, and the possibility that a mistaken witness could be convincing and I caution myself to that danger.

31.	The Principle of Identification was settled by the Supreme Court in the often cited case of John Beng –v- The State [1977] PNGLR 115 where Counsel for the State has quite rightly drawn my attention to. This court held that:-

"In proceedings where evidence of identification is relevant, the Court should be mindful of all the inherent dangers, the need for caution before convicting in reliance on the correctness of identification, the possibility that a mistaken witness could be a convincing one and that any number of such witnesses could all be mistaken; the Court should examine closely all the circumstances in which the identification by each witness came to be made bearing in mind that recognition may be more reliable than identification of a stranger, but that even where the witness is purporting to recognize someone he knows mistakes can be made.

When the quality of the identification evidence is good the matter should proceed to a verdict, when the quality of identification evidence is poor, unless there is other evidence which goes to support the correctness of the identification, an acquittal should be entered."

32.	I will apply the principles set out by the Supreme Court in John Beng (supra) and Biwa Geta v The State [1988-89] PNGLR 153 as I have quoted above. I have considered the inherent dangers of relying on the correctness of identification to support a conviction and caution myself, as the tribunal of fact, accordingly. I am conscious of the possibility that an honest witness might be mistaken as to who they saw.

33.	In assessing the identification evidence provided by Lynda and Joshua, I must ask myself and decide that the quality of the identification evidence is of a high standard. In the above case, Kearney J went further in discussing the quality of the identification evidence and said the following;

"What opportunities the person identifying had to form a judgment of the identity of the person who committed the crime…position of the parties, their lighting, the opportunities to form a judgment and generally the circumstances in which the identifying witness formed his judgment as to identification." 

34.	This was further held in the Supreme Court case of Luingi Yandasingi v the State [1995] PNGLR 268; SC 474 where Amet CJ, Kapi DCJ and Los .J on 6 December 1994 said that the quality of identification is established by the following:

"a.	whether the witness knew the accused before the event in question;
b.	the lighting conditions at the time;
c.	the distance between the witness and the accused at the time of the event in question;
d.	was there any object which may have obstructed the view of the accused."

35.	It really comes down to the credibility of the witnesses and as to whom the court should believe. In assessing credibility of the witness, I ask myself are there any inconsistencies and what is the demeanor of the witnesses. The State v Emmanuel Bais & Felix Fimberi (2003) N2416; The State v Peter Malihombu (2003) N2365 and The State v. Allan Mainde (2004) N 2679.

STATE WITNESSES LYNDA WAIKOLA AND JOSHUA WAIKOLA 

36.	They both say there were present when their husband and brother was shot and that they saw who shot him. It was a bright morning, they recognized the accused whom they knew very well, as they are members of the same family clan, who have been living in the same village for many years. Lynda was right behind the deceased, and saw and recognized the familiar faces of the accused who were members of her clan who reside in the same village, Bangus. There is no reason why Lynda would lie which is supported by accused James Mangekos evidence. Furthermore, Witness Joshua gave chase when the four accused ran away until the deceased called out to him to retreat. There is no reason why this witness should lie.

37.	Mr. Mawase attacked their evidence being too incredible to be believed as no person after committing an offence would expose themselves to be dealt with as the State witness claim. However, they adequately described how the assailant who had been hiding and concealing under cover of the leaves on the bended branch of the tree. It was inevitable for the accused to let go of the tree in order to escape which they did. Upon the release of the tree branch it sprung up to it's normal position on the tree as the branch was not broken. All the accused were there together and one could have held down that tree branch to provide cover to conceal them and after the gun was fired the tree branch was released as they escaped and the tree branch took its' normal position. There is nothing unusual or too incredible about that.

38.	Both witnesses gave consistent and credible evidence. They did not flinch under cross-examination. Their demeanors were sound. Their answers to questions were precise and to the point. The fact that the witnesses being the deceased wife and brother do not make them unreliable witnesses; on the contrary their interest would lie in seeing justice done, and that means seeing that the persons who killed her husband, his brother were convicted. I have no reason not to accept their evidence. 

39.	The body was examined by the HEO of the Ambunti Health centre in the afternoon the day of the murder. Secondly, Johnathan and Margret identified the four (4) accused persons as the prime suspects in the hours immediately after the incident when they came and laid a complaint at the Ambunti police Station. This evidence is from Defence witness Waris, the auxiliary police.

DEFENCE WITNESS.

40.	Boas Kapai, he was not consistent with his oral evidence, he had a prior inconsistent statements in his ROI. He said he had been in Ambunti a long time but in his answer to questions in the ROI conducted on the 1/12/04 in Q.21 that he came down from Bangus village two (2) weeks ago which was sometimes in the middle of November 2009. He also says Livai was working with them at the Cocoa Fermentry in the morning until the afternoon which is contradicted by the other defence witnesses. His demeanor was not good. He was evasive and paused for long a few times and appeared shaky a few more times and was very uneasy. I find it difficult to believe him.

41.	James Mangeko's demeanor was not good for reasons I have already discussed. I have also had difficulty in believing Waris and Ronald as I have discussed earlier above as their demeanors' were also not very good and inconsistent.

42.	I accept that the cocoa trees in the cocoa garden were knee high as I have not believed the Waris story. There is no evidence of any obstruction in front of the State witness. 

Deceased Dying Declarations

43.	Finally I will discuss the dying declarations that the deceased uttered immediately after he was shot in the garden in front of his wife, brother and sister and two hours before he passed away in the village in front of the village people who had gathered around him where he told them who had shot him the following words:-

"Boas, James, Livai and Lester sutim me long gun" which in English means Boas, James, Livai and Lester have shot me with a gun". 

44.	Dying declarations are admissible evidence provided that it satisfies Section 20 of the Evidence Act. This Section provides:- 

"20. Dying Declaration

A statement made orally by a person before his death relating to the circumstances resulting in his death is admissible in any legal proceeding if –

(a) at the time the person made the statement he believed, or may be reasonably supposed by the court to have believed, that his death was imminent, whether or not –

(i) he entertained at that time any hope of recovery; or 
(ii) he thought that legal proceedings might eventually; and 

(b) at the time the person made the statement he would have been a competent witness in the legal proceeding; and

(c) The person making the statement could, if he had not died, have given direct oral evidence in the proceedings of the matter in the statement."

45.	This section provides an exception to the hearsay evidence rule, where statements of dying declarations of deceased persons may be admissible. In State v Alex Kango (2006) N3083, Kirriwom J demonstrate this when he accepted into evidence the dying declaration of the deceased made seven hours earlier to his death as to who had stabbed him to the witness who attended to the deceased soon after the stabbing. In this case there is no evidence before me disputing the statements of the deceased. 

46.	The accused are not strangers. They are the deceased cousins and nephew with whom his family and their family have had a prolonged land dispute in the village. The deceased was the first person walking along the track when he was shot and he saw and recognized them. He uttered the names of the accused persons immediately after he was shot followed by another declaration at the village, two (2) hours prior to his death. He believed his death was imminent and he would have been a key witness had he been alive. His dying declaration satisfies the criteria under section 20 above and I accept it into evidence. 

47.	Further more since I have rejected all four accused alibi evidence it follows to strengthen the case for the prosecution. 

48.	 I am therefore satisfied beyond reasonable doubt that the states identification evidence by the deceased wife and brother is sound. It is supported by the other evidence for both the state and defence which establishes that the accused had a motive over the land dispute to kill the deceased.

49.	I am also satisfied beyond reasonable that accused Boas Kapai was the gunman who actually fired the fatal gun shot that killed Dion Waikole and I return a verdict of guilty as charged under section 299 of the Criminal Code Act.

50.	I am also satisfied beyond reasonable doubt that accused, James Mangeko, Livai Ausomb and Lester Livai were present and assisting Boas Kapai and that they all acted in concert together to kill Dion Waikole and find them each and severally guilty as charged under section 299(1) of the Criminal Code Act.

_____________________________________
Acting Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defence