N3922

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 291 OF 2007

THE STATE

V

MELCHIOR KAPUS, ESSAU KAPUS, JESSIE WUS,
DERICK KAPUS, CARLSON KONSI, GERARD SAPI,
IVAN SAPI & WEBSTER BIEO

Madang: Cannings J
2009: 13, 14, 15, 16, 20, 21, 22, 24 July,
2 October,
2010: 16 February

VERDICTS

CRIMINAL LAW – trial – murder – Criminal Code, Section 300(1)(a) – death allegedly resulting from group attack by eight accused – general denial – whether any of the accused killed the deceased – whether intention to do grievous bodily harm – whether alternative verdict of manslaughter should be entered – whether any of the other co-accused aided or assisted the person who committed the offence – Criminal Code, Section 7.

Eight young men were charged with the murder of their 52-year-old male relative. The State alleged that three of the accused directly killed the deceased by punching him and hitting him with objects, intending to cause him grievous bodily harm, while the other five enabled and aided them. The first three accused were alleged to be guilty of murder under Section 300(1)(a) of the Criminal Code. The others were alleged to be guilty by virtue of Section 7 of the Criminal Code, in that they enabled or aided those who committed the offence. All accused denied killing the deceased. Two said that, though they were present when one of them was assaulted by the deceased, they did not assault him. Five said that they were watching a movie at a video house. One said that he was at his house after having fought with the deceased’s son.

Held:

(1)	There are two elements of murder under Section 300(1)(a): that the accused killed the deceased and that he intended to cause grievous bodily harm to the deceased (or some other person).

(2)	Three of the accused killed the deceased but the State failed to prove an intention to do grievous bodily harm; and, the killing being unlawful, an alternative verdict of manslaughter was entered against each of those three.

(3)	The State failed to prove that any of the other five enabled or aided commission of the offence and they were acquitted.

Cases cited

The following cases were cited in the judgment:

The State v Jeffery Bijuma (1989) N765
The State v Raphael Kuanande [1994] PNGLR 512
The State v Ruben Kou Gasawa & Ors (2009) N3800

TRIAL

This was the trial of eight accused charged with murder.

Counsel

M Ruarri, for the State
N Los, for the accused

16 February, 2010

1. CANNINGS J: There were some incidents at the Biliau Maus Rot settlement on the outskirts of Madang town at around 6.00 to 7.00 pm on Friday 15 September 2006. Altercations between some of the residents occurred. One of the residents involved, John Sindat, died that night. He was 52 years old, married with three children, and had a steady job with United Pacific Drillers. Eight young men who are also residents of the settlement have been indicted for his murder: Melchior Kapus, Essau Kapus, Jessie Wus, Derick Kapus, Carlson Konsi, Gerard Sapi, Ivan Sapi and Webster Bieo. They were aged 14 to 20 years at the time. At the time of the trial they were aged 17 to 23. The youngest, Derick Kapus, was 17, and therefore a juvenile. He has agreed to be tried together with the other accused who are now adults. They all pleaded not guilty so a trial has been conducted.

2. Biliau Maus Rot is a long-established settlement. Most of the residents of the settlement come from the Pagwi area in the Ambunti District of East Sepik Province, particularly from Aibom, Maringe and Sotmeri villages, and have the same Tok Ples. The accused men are related to the deceased. All of the State witnesses and the defence witnesses are related and well known to each other.

3. The State’s case is that the incident in which the deceased was killed happened after an earlier altercation between one of the deceased’s sons, Jeremiah Sindat, and one of the accused, Jessie Wus. The State says that this led to a second incident in which the primary assailants were the three accused who are brothers – Melchior Kapus, Essau Kapus and Derick Kapus – and that they attacked the deceased with various weapons. The State says that they were aided and assisted by the other five accused, and that the injuries they inflicted led to the deceased collapsing and dying shortly afterwards. Melchior Kapus, Essau Kapus and Derick Kapus are alleged to be guilty of murder under Section 300(1)(a) of the Criminal Code. The other five are alleged to be also guilty of murder by virtue of Section 7 of the Criminal Code.

ELEMENTS

4. Section 300(1)(a) of the Criminal Code 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.

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

•	the accused killed the deceased; and
•	the accused intended to do grievous bodily harm to the deceased.

6. They are the two elements of the offence of murder. If the court is not satisfied that the second element is proven, but that the killing was unlawful, an alternative verdict of manslaughter can be entered under Section 539.

7. Section 7(1) (principal offenders) of the Criminal Code is the provision on which the State relies to argue that the five accused other than the Kapus brothers should also be convicted of murder. It 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.

8. The State relies in particular on Sections 7(1)(b) and (c), the argument being that the five accused other than the Kapus brothers each did acts for the purpose of enabling the Kapus brothers to murder the deceased and that they each assisted them in committing the offence.

ISSUES

9. None of the accused rely on any specific defence such as accident, compulsion, insanity, provocation or self-defence. Each accused says that he did not kill the deceased. So the first issue is whether any of them killed the deceased. If so, was there an intention to do grievous bodily harm? If yes, a conviction for murder will be entered. If no, an alternative conviction for manslaughter will be considered. If the conclusion is reached that any of them is directly guilty the next issue will be whether any of the others enabled or aided commission of the offence.

10. The primary issues therefore are:

1	Did any of the accused kill John Sindat?

2	Was there an intention to do grievous bodily harm?

3	Should an alternative conviction for manslaughter be entered?

4	Did the other accused enable or aid commission of an offence?

5	Should any of the accused be convicted of an offence?

1 	DID ANY OF THE ACCUSED KILL JOHN SINDAT?

11. Determination of this issue requires:

•	a summary of the evidence for the State;
•	a summary of the evidence for the defence;
•	a summary of the site visit;
•	a preliminary assessment of the State’s case;
•	a summary of the defence counsel’s submissions;
•	an assessment of the defence counsel’s submissions; and then
•	a final determination of the question whether any of the accused killed the deceased.

Evidence for the State

12. It consisted of:

•	medical evidence: a post-mortem report and oral evidence by the doctor who conducted the post-mortem;
•	photographs of the deceased’s body;
•	a hydraulic hose allegedly used as a weapon by one of the accused against the deceased;
•	oral evidence by six people who witnessed or were in the vicinity of where the incident occurred.

Medical evidence

13. A post-mortem examination was conducted by Dr Vincent Atua at Modilon General Hospital on 27 September 2006 and he prepared a post-mortem report. The cause of death was "head injury".

14. Significant, abnormal findings were:

Multiple bruises and haematoma over the chest, face and flanks.
No blood seen in chest or abdomen.
Blood seen in nose and both ears.

15. Dr Atua gave oral evidence. He confirmed that the cause of death was a blow to the head. There were bruises over the mouth and forehead and these would have been caused by a blunt, heavy object. There were no lacerations. The bleeding from the ears indicated that the deceased suffered a blow to the head of significant force. The wounds to the side of the body were not fatal, as evidenced by the lack of bleeding in the chest and abdominal cavities.

Photographs

16. Seven photographs of the deceased’s body, depicting head injuries and injuries to the side of his body, were admitted into evidence. Three photographs of the spot in the settlement where the deceased collapsed were also admitted.

Hydraulic hose

17. It is 70 cm long and 2 cm in diameter, made of hardened rubber.

Oral evidence of six witnesses who were at or in the vicinity when the incident occurred

18. All these witnesses were living at Biliau Maus Rot at the time. They all are long-term residents and know the eight accused well.

19. (1)	Jeremiah Sindat is the deceased’s son. He was about 12 years old at the time of the incident. At about 6.00 to 6.30 pm he had a fight with one of the accused, Jessie Wus. He said Jessie fought him for no reason. He swung a dog lead at his face and his face became swollen. It was very painful. He fell to the ground then Jessie went and got his boys [the witness named four of the accused] and then they fought his father. He did not see who fought his father or how they killed him.

20. (2)	John Apa Tumakuru is the deceased’s cousin-brother, aged in his 40s. He has lived at Biliau Maus Rot for 30 years. He works in town at a stationery store. His house is close to John Sindat’s house. He saw John Sindat when he came home from work at about 4.30 pm. At about 6.30 pm he heard a commotion emanating from Gideon’s house, near the betel nut market, and his daughter told him that there had been a fight between Jeremiah Sindat and Jessie Wus. He went to see what was happening, as did a number of others including Morgan Gawi and Danny Kami. John Sindat entered the scene, accompanied by his wife, Robina Sindat, and John said to the crowd that had gathered in front of Gideon’s house: ‘Who fought my son?’

21. Melchior Kapus came out from the crowd and said ‘You want to fight?’ He approached John, grabbed his shirt and pulled it over his head. John was bending down and Melchior and his boys started hitting him. Melchior was the first to do so. All the accused except Webster Bieo, were involved. Two of their mothers were present, shouting ‘Fight him, kill him!’

22. Then he (John Apa) and Morgan Gawi managed to separate Melchior and the others. John Sindat got up and walked only a few metres before he had trouble breathing, then he collapsed face-first. He was taken to a tap and washed but he was not responding so he was taken to Modilon Hospital. It was not long before word came back that he was dead.

23. Asked if any of the accused used weapons against the deceased, John Apa said that it was getting dark and he could not tell if they were holding anything.

24. In cross-examination John Apa denied that most of the accused were not present. He was adamant that all of them except Webster were present and involved in the attack. He denied that he or John Sindat struck Melchior with a piece of timber or attacked him in any way.

25. (3)	Brian Sindat is the deceased’s eldest son. He is in the same age bracket as the accused. He was at home with his mother and father. At about 6.30 pm they heard a commotion in the middle of the community so they went to see what was happening. He saw that the Kapus brothers had been fighting with his little brother, Jeremiah. Then the Kapus brothers started fighting his father.

26. Melchior pulled his father’s shirt over his head and then used a hydraulic hose to hit him, once, on the side of his torso. Then Essau hit him on the jaw with a tommyhawk. Derick hit him with his hands. The hose and the axe were the only weapons he saw used. Melchior dropped the hose after he hit his father with it and he (Brian) picked it up. The axe disappeared that evening and has never been found. He did not see any of the other accused fight his father.

27. In cross-examination Brian Sindat denied that his father or anyone on his side attacked Melchior. It was a one-sided fight. None of the Kapus brothers was injured. It was getting dark but still light enough to see what was happening.

28. (4)	Morgan Gawi is aged in his 40s. He is employed by Air Niugini as a senior porter at Madang Airport. He knows all of the accused. 29. He is related to all of them. All of them except Carlson Konsi and Webster Bieo have lived all their life at Biliau Maus Rot. Carlson came from Rabaul and Webster came from the village in the last few years.

30. He was in his house with his father. It was between 6.00 and 6.30 pm that he heard a noise from the middle of the settlement. People were arguing and the noise was getting louder so he went to investigate. He found two groups of boys on the road that runs through the middle of the settlement. The eight accused were in one group and they were standing against another group that included Jeremiah Sindat. He stood in the middle of the two groups, trying to find out what they were arguing about.

31. John Sindat asked ‘Who hit my son?’ Melchior Kapus came forward and threw his own shirt on the ground – indicating that he was ready to fight. Melchior grabbed John’s shirt tail and pulled it up over his head. When John’s face was covered Derick Kapus, who was armed with a small, iron axe, ran around the back and swung the axe four times against John’s neck and back. Melchior was still holding John from the front. Essau was there too, running around at the outside of his brothers only one metre away, encouraging them and shouting ‘Fight him! Fight him!’ The other accused were standing five metres away, looking on. He could not see if any of them other than Derick had weapons.

32. He (Morgan) ran in and tried to stop them attacking John. He pulled Derick to one side and John Apa slapped Melchior, which caused Melchior to release John.

33. John was able to stand and straighten his shirt and tell Melchior and his group ‘You are lucky you are fighting in a group’. He stood for 10 or 15 seconds before he fell face-first onto the road. He (Morgan) turned him over and saw that there was blood coming from his nose, mouth and ears. He was unconscious so they rushed him to hospital but by the time they got him there he was dead.

34. In cross-examination Morgan Gawi said that Derick swung the axe on to the back of the deceased’s head, between the base of the skull and the neck. He saw this clearly, he said. Though the sun had gone down it was not completely dark and there was light provided by kerosene lamps. He did not see John Sindat use a stick against Melchior or anyone else.

35. (5)	Robina Sindat is the deceased’s widow. She is also a long-term resident of Biliau Maus Rot. She knows all of the accused. She was in the house with her husband at about 6.30 pm. John Apa’s daughter, Amanda, rushed in and told them some boys were fighting Jeremiah so she went to the scene of the fight, followed by her husband. It was 40 metres away.

36. Jessie Wus had been fighting her son, Jeremiah, and Jessie came back from his house with a group of boys. Melchior Kapus ran out of the group holding a hydraulic hose and used it to hit her husband on the right side of his body, near the ribs. He whipped him once, strongly. Her husband was holding a small hibiscus stick about one metre long and five centimetres wide but did not have a chance to use it. Melchior grabbed his shirt and pulled it over her husband’s head. As he was bending down Derick came around the back and swung an axe at her husband on the back of his neck, four times. Melchior and Essau Kapus were holding on to him. She was also holding on to him. The other four accused were in the crowd that was shouting ‘Kill him! Kill him!’ Then her husband removed her hands and stood and went into convulsions, fell to the road and died.

37. Her son, Brian, who was also present and her brother, Morgan Gawi, pulled her husband to a tap and washed him but he did not respond so he was taken to hospital. He was dead on arrival. He did not have any health problems before the incident.

38. In cross-examination Robina Sindat said that it was getting dark but there was sufficient light to see what was happening. Her husband was a tall, well-built man. Her son, Brian, was present and tried to stop Melchior. Derick swung the axe at her husband’s mouth and forehead and also at the sides of his head. Melchior’s intentions were not to stop any argument. He came to fight. She regards Melchior, Essau, Jessie and Derick as the ones who killed her husband. The other four accused came later.

39. (6)	Donny Kami is a schoolteacher by profession, aged in his early 50s. He is deputy principal of the Adventist High School in Manus Province. He has lived at Biliau Maus Rot since 1964. He still has a house there. He was on leave in 2006 when John Sindat was killed. At 6.00 pm he walked to the main road to wait for his wife who was expected home from the market soon. He waited for a while but she did not arrive so he decided to go to the nearby video house. He was only inside for three minutes when he heard a commotion outside. People were quarrelling and swearing. He heard Jessie Wus’s voice so he came outside to see what was going on. He saw that there had been a fight between Jessie and Jeremiah Sindat. Jeremiah was sporting a swollen eye. Jessie had a number of boys, including the Kapus brothers, supporting him but John Apa and Morgan Gawi and Dennis Lau were able to stop further fighting.

40. Then John Sindat and his wife Robina entered the scene from behind him. John questioned Jessie’s group about who had assaulted his son. As soon as he asked that question, they reacted. Melchior took off his shirt and hit it on the ground. He and the others rushed towards John. Melchior pulled John’s shirt over his head, forcing him to bend forward. John was attacked by the mob but it was the Kapus brothers who were hitting him hardest. Melchior hit him on the side of his body with a hydraulic hose. It was a very strong blow and it made a loud thwack. He did not see exactly what Essau did. Derick was hitting him. Eventually John Apa, Morgan and Dennis were able to push away the attackers. John Sindat shouted at them and momentarily appeared OK. He (Donny) talked to him, to comfort him, and told him to forget about it and go home. But he did not respond. He just stood there for a few seconds, then went into convulsions and collapsed. Blood was coming out of his mouth, nostrils and ears. His eyeballs looked set to pop out. He stopped breathing. They took him to the hospital but he was already dead.

41. In cross-examination Donny Kami denied that it was too dark to see what was happening. He did not bear any grudges against the accused. They are all his family members. John Sindat did not look like he had been drinking.

42. Donny refuted the suggestion that Melchior was attacked by John but agreed that John had a stick. He did not get a chance to use it, however. He was overpowered by the mob.

Evidence for the defence

43. The three Kapus brothers gave sworn evidence. Each of the other accused made unsworn statements from the dock. Three other witnesses gave sworn evidence.

44. (1)	Melchior Kapus said that at 6.00 pm he was with Webster Bieo and a friend, Christine, at someone else’s house. Christine was cooking some cat. John Sindat came along with a friend and they were both drunk, but friendly. Melchior then went to his own house to eat, then he went to his Aunty Rosie’s house where his mother, Nancy Kapus, told him that there was a problem as Essau had hit Derick, who had been caught smoking. Melchior followed his mother to the road that runs through the settlement. They heard a commotion so he went closer and saw that Jeremiah Sindat was swearing at Jessie’s sisters, Jacinta and Karen Wus.

45. John Sindat came in, saying ‘Who? Who?’ He was carrying a big log and came straight towards him (Melchior) and hit him with it three times. John Apa, Danny Kami and Dennis Lau were there also. Danny hit him in the side with a log. He tried to run away but John Apa hit him on his right eye and he fell to the ground, counting stars. His mother helped him up and then he looked at the big men present and questioned them on what he had done to make them do that to him. Only John Sindat answered – by swearing at him – then his mother intervened and took him home.

46. On the way home he saw Essau, who he blamed for causing him to be hit by the big men, so he hit Essau. His mother intervened again and they went home. About 40 minutes later he heard that John Sindat had died at the hospital. He does not know how that happened.

47. In cross-examination Melchior Kapus said he calls John Apa ‘father’ as his biological father, Daniel Kapus, is deceased. He calls Danny Kami ‘grandfather’. He has not had any problems with these people before. His shoulder was very painful after John Sindat hit him. It continued to be painful after he and the others were locked up in the Yomba police cell but he was unable to get a medical report.

48. He denied striking John Sindat, pulling his shirt over his head or hitting him with the hydraulic hose. No one fought John Sindat. All the stories told by the State witnesses about an axe being used and the accused fighting John Sindat are false. John Sindat was the aggressor.

49. (2)	Essau Kapus said he did not fight with anyone that night. He had gone for a walk with Ivan Sapi to buy cigarettes for Jessie’s father and they went to the video show and were watching a movie when he got word that some big men were fighting Melchior. He and Ivan rushed out to the road and saw Melchior standing with their mother and Derick. He asked what was going on and then Melchior hit him, saying ‘it’s because of you that those big men fought me’. Their mother got cross with them and took them home. He had something to eat and it was not until later that night that he heard that John Sindat had died.

50. In cross-examination Essau Kapus said that he did not see Jessie Wus or Carlson Konsi that night. He was with Ivan and he also saw Gerard Sapi at the video show.

51. (3)	Derick Kapus was with a group of boys smoking when Essau saw him and told him he was too young to smoke, and hit him. He told his mother and she went to get Melchior to sort out the problem.

52. He met up with his mother and Melchior on the road. They heard shouting and came upon Jeremiah Sindat arguing with Jacinta Wus. Melchior stopped them from arguing. John Sindat came along, carrying a log, saying ‘Who? Who?’, then hit Melchior with the log, three times on the shoulder. Melchior fell to the ground. Morgan Gawi was there, itching to fight, and Melchior said ‘What have I done to you big men to cause you to fight me?’ Danny Kami came in and hit Melchior with a stick. John Apa also hit Melchior. Their mother assisted Melchior and they headed home. On the way, Melchior punched Essau, for placing him in the situation where he was attacked by John Sindat and the others.

53. In cross-examination Derick Kapus denied hitting John Sindat with an axe. He denied that any of the accused fought with John Sindat or were encouraging anyone to fight him.

54. (4)	Jessie Wus said that earlier in the day he gave his bike to his brother, Darren Wus, to fix but Jeremiah Sindat got hold of it and was riding it around and removed some parts. When he saw Jeremiah in the afternoon he confronted him and hit him. They went their separate ways and he (Jessie) went to his house. He had nothing to do with John Sindat’s death and does not know how he died.

55. (5)	Carlson Konsi said he was watching a video. He does not know how the fight started or finished.

56. (6)	Gerard Sapi said he was watching a movie at Sep Wani’s video house. Karen came in and told people that some of the big men were fighting Melchior. The movie was interesting so he stayed inside. He did not come out until the fight was over. He does not know how it started or finished.

57. (7)	Ivan Sapi said he was with Essau Kapus and they went to buy betel nut and cigarettes for Terence Wus. On the way back Essau saw Derick smoking so he hit him, then they continued on to the video house. They went inside and then Karen came in and said that the big men had fought Melchior. They went out and found Melchior who was cross with Essau and hit him. John Apa came from the side and swung his hands at him (Ivan). He (Ivan) said to Melchior ‘these people want to fight us for no reason so let’s go home’. Then they all went home.

58. (8)	Webster Bieo said he was with Melchior at an aunty’s place. His aunty was cooking a cat. John Sindat and his friend, John Dangan, came along and they talked. Then he and Melchior went their separate ways. He (Webster) went to Sep Wani’s video house and watched Rambo II. They were going to watch another movie when Karen came in and said some big men were fighting Melchior on the road. He and others came out but the fight was over. His aunty told them to go home, and they did. How the fight started and finished, he does not know.

59. (9)	Nancy Kapus is the biological mother of the Kapus brothers. The other five accused are also closely related to her. She treats them as sons or nephews. She was in the house when Derick came in and told her that Essau had fought him. So she and Derick went to look for Melchior. They found him on the road where he had just broken up an argument between Jeremiah Sindat and Jacinta and Karen Wus. Then John Sindat came along, He was angry and carrying a big stick and saying ‘Who? Who?’ and then he attacked Melchior three times with the stick. Danny Kami also had a stick and struck Melchior on the side, then John Apa hit him over the eye. Melchior fell, counting stars. She went in to save her son and grabbed him and took him away. John Sindat said ‘Your sons are small boys, when the sun rises I am going to kill one of them! It was only her, Melchior and Derick facing up to the big men. None of the other accused were there.

60. On the way home, Melchior was cross with Essau, blaming him for the big men fighting him, so he hit Essau before she and Ivan moved in and stopped him. She did not see anything happen to John Sindat. She was at home when she heard that he had died.

61. In cross-examination she maintained that John Sindat was the aggressor and that neither Melchior nor Derick struck him at any time. John Apa and Danny Kami also struck Melchior.

62. (10)	Jacinta Wus is Jessie Wus’s sister. A primary school teacher, she was on a term break on the day of the trouble. She is the same age as Melchior Kapus. In the late afternoon she was playing bingo at Gideon Koi’s place. She was with her younger sister, Karen. They heard Jeremiah Sindat swearing on the road. Eager to find out what was happening, they left the bingo and saw Jeremiah swearing at their young brother, Jessie Wus. They ended up swearing back at him and before long an angry mob arrived on the scene, including John and Robina Sindat, John Apa, Morgan Gawi and Danny Kami. Melchior tried to stop people swearing and told them to go home. But Robina hit Karen on the head with a torch. Karen ran away. Then John Sindat, who had a log, hit Melchior over the shoulder with it, three times. On the last occasion a bit of the log broke off and hit her (Jacinta) and she ran away. The only people supporting Melchior were his mother and his brother Derick.

63. She heard the news at 9.00 pm that John Sindat had died. She does not know the nature of his death.

64. (11)	Rachel Konsi is Carlson Konsi’s sister. She is 35 years old. She said that she and Gerard Sapi were in her uncle Sep Wani’s video house. Carlson was there helping to operate the video. Webster came in, and later Ivan and Essau. After the first movie finished, Karen Wus came in and said that ‘they are fighting Melchior’. She (Rachel) was not overly concerned and stayed in the video house until about 9.00 pm when news came through that John Sindat had died. Carlson was with her all the time and assisted her in closing down. She did not see the altercation between John Sindat and Melchior.

Site visit

65. The court party, including the eight accused, visited Biliau Maus Rot settlement on the afternoon of Wednesday 22 July 2009, after the close of the defence case and before presentation of submissions. It is located on the outskirts of Madang town, just off the North Coast Road. There is an old, narrow, gravel road running for 300 metres through the middle of the settlement, from its junction with the North Coast Road and in the direction of Bilia village and Madang Airport. Houses are on each side of the road. The video house and betel nut market are at the North Coast Road end of the settlement, on the left of the old road. About 30 or 40 metres to the right of the road at that point are the houses of John Sindat, John Apa, Morgan Gawi and Danny Kami. The houses of the Kapus brothers and most of the other accused are at the Bilia end of the settlement, on the left side, about 250 metres from John Sindat’s area. A Seventh-Day Adventist Church and School are at the Bilia end of the settlement on the right side of the road.

66. The place on the road where the altercation took place between Jeremiah Sindat and Jessie Wus was observed, as was the location of the altercation between John Sindat and Melchior Kapus and others. Other points of interest were the spots where John Sindat collapsed, where the cat was cooked and where the water tap was used to try to revive John Sindat.

Preliminary assessment of the State’s case

67. The medical evidence reveals that the deceased did not die a natural death. I reject the defence counsel’s suggestion that the deceased might have died accidentally, for example by falling. His death was caused by severe blows to the head. He also suffered other injuries but these were superficial and were not the cause of his death. It cannot reasonably be concluded that the head injuries were self-inflicted or accidental or were inflicted in any way other than an attack by a person, probably with, as suggested by Dr Atua, a blunt, heavy object. The person(s) who inflicted those injuries directly killed the deceased.

68. The State has adduced evidence from three eyewitnesses that an axe was used to attack the deceased’s head but the evidence is not consistent as to who wielded it. Two witnesses said it was Derick Kapus. Another said it was Essau Kapus. No witness said it was anyone else. As for Melchior Kapus there is a lot of evidence that he led the attack on the deceased by overpowering him and pulling his shirt over his head and then whipping him with a hydraulic hose, but no evidence that he attacked the deceased’s head. 

Defence counsel’s submissions

69. Mr Los submitted that the State had fallen short of proving that any of the accused killed the deceased. The evidence against the five accused other than the Kapus brothers is weak, he submitted. As for the Kapus brothers, the evidence against them is inconsistent. It is also unreliable as the State witnesses had a motive for lying and given the time of day could easily have been mistaken as to who was involved in the altercation with the deceased. The court should accept the defence case that the deceased was the aggressor and that none of the accused attacked him in any way.

Assessment of defence counsel’s submissions

1	Evidence against five accused other than the Kapus brothers is weak

70. This is correct. Of the five eyewitnesses, three (Brian Sindat, Morgan Gawi and Robina Sindat) said that they did not see these accused or that if they did see them they were just looking or came later. Only John Apa said that they were directly involved in the attack.

2	Evidence against Kapus brothers is inconsistent and unreliable

71. As for Melchior the evidence was consistent that he was the one who challenged John Sindat to fight and that he overpowered him by pulling his shirt over his head. As for Essau and Derick, Brian Sindat said that it was Essau who swung an axe on the deceased’s face, whereas Morgan Gawi and Robina Sindat identified Derick as the one who swung the axe and the wounds were to the back of the head rather than the face. Neither John Apa nor Danny Kami gave evidence of an axe being used. However, I do not infer from these apparent inconsistencies that the evidence of the State witnesses is unreliable. It is clear that there was an altercation of some sort, at least between Melchior and John Sindat. Tensions were high and events were happening quickly. The witnesses were looking at things from different angles. It was getting dark. They might have seen different things. I do not dismiss the evidence of any of the State witnesses outright. None of them gave obviously false evidence. None of them seemed to be deliberately lying. The evidence against Melchior is strong, as is the evidence against Essau and Derick.

3	State witnesses had a motive for lying

72. Mr Los attempted to mount an argument that the State witnesses were tribal enemies of the accused but there was no credible evidence of this and I reject this submission. In fact the striking feature of the evidence is that all the State witnesses are related to the accused. They were giving evidence against their own people. They would presumably want to see that those who were responsible for killing John Sindat are brought to justice. The relationship between the State witnesses and the accused therefore gives the State witnesses a motive for telling the truth rather than lying.

4	Too dark to see

73. Mr Los challenged each of the State witness’s ability to identify who was involved in view of the time of day at which the incident happened. They all maintained that though it was getting dark – it was between 6.00 and 7.00 pm – they could see what was happening. I thought this was a satisfactory explanation. The witnesses were identifying people who were well known to them, not strangers.

5	Deceased was the aggressor

74. This evidence came consistently from the defence witnesses and it certainly cannot be ruled out as a possibility that John Sindat was armed with a stick – or a huge log as Melchior described it. Danny Kami said that the deceased had a stick – something like a walking stick – but did not get a chance to use it. 

75. Given the demeanour of the defence witnesses – which I thought was not as impressive as the State witnesses – I conclude that the truth lies somewhere in the middle: John Sindat was armed with a big stick, he tried to use it against Melchior but was overpowered and was struck in the head with the axe and beaten up. I reject the defence evidence that Melchior (if he was struck over the shoulder as claimed) did nothing other than go home. This is not believable.

Final determination of whether any of the accused killed the deceased

76. There is a definition of killing in Section 291 of the Criminal Code:

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.

77. Despite some inconsistencies in the evidence, I conclude that the State has proven beyond reasonable doubt that the persons who inflicted the fatal wounds to the deceased’s head were Essau Kapus and Derick Kapus. They did so by using a tommyhawk and by punching the deceased in the head. I conclude that they directly caused the death of the deceased. 

78. I find that Melchior Kapus whipped the deceased with a hydraulic hose on the side of his body. Though the wounds inflicted were not fatal they contributed to the overpowering of the deceased, which had begun when Melchior pulled his shirt over his head, making him vulnerable to a lethal attack. Melchior Kapus indirectly caused the death of the deceased.

79. I determine therefore that Melchior Kapus, Essau Kapus and Derick Kapus killed John Sindat. It has not been proven that the other five accused killed him. 

2 	WAS THERE AN INTENTION TO DO GRIEVOUS BODILY HARM TO JOHN SINDAT?

80. It is at this point of a murder trial that the Court is required to consider an accused’s state of mind. As Injia AJ, as he then was, highlighted in The State v Raphael Kuanande [1994] PNGLR 512 the relevant time at which to assess the accused’s state of mind is when he committed the act that constitutes or is an element of the offence:

Intention is a matter which goes to the state of mind of the accused at the time he acted. It may be proven by direct evidence of the accused’s expression of intention followed by the act itself or by circumstantial evidence. In either situation, it is necessary to examine the course of conduct of the accused prior to, at the time and subsequent to the act constituting the offence. [Emphasis added]

81. Given all the circumstances in which the altercation took place – especially the lead-up to it – it can be described as a spontaneous incident, which escalated out of control after the first altercation between Jeremiah Sindat and Jessie Wus. The injuries that the deceased sustained were not immediately thought to be serious. He stood up after being attacked and said sharp words to those who had assaulted him and was encouraged by others to go home and forget about it. It was only when he collapsed and blood was seen coming out of his ears, mouth and nostrils that the seriousness of his condition became apparent. I distinguish the facts of this case from those in a recent Wewak case, The State v Ruben Kou Gasawa & Ors (2009) N3800, where one of the accused killed the deceased by inflicting a 13 cm deep knife wound, penetrating to the heart. I concluded that the nature of the wound showed that it was a ferocious stabbing, exhibiting an intention to do grievous bodily harm. 

82. In the present case, I conclude, as Barnett J did in The State v Jeffery Bijuma (1989) N765, that in view of the nature of the wounds and the spontaneousness of the incident, there was no conscious intention by Melchior, Essau or Derick Kapus to cause grievous bodily harm. The second element of the offence of murder has not been proven.

3 	SHOULD AN ALTERNATIVE VERDICT BE ENTERED?

83. The court now has to consider whether an alternative verdict of manslaughter should be entered in light of Section 539(2) (charge of murder or manslaughter) of the Criminal Code, which states:

On an indictment charging a person with the crime of murder, he may be convicted 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.

84. Section 302 (manslaughter) of the Criminal Code states:

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

85. Manslaughter has three elements:

1	kill another person;
2	unlawfully;
3	under such circumstances as not to constitute wilful murder, murder or infanticide.

86. The first element has been proven. As to the second, Section 289 states:

It is unlawful to kill a person unless the killing is authorised or justified or excused by law.

87. There was a suggestion in the sworn evidence of the defence witnesses that Melchior acted in self-defence and that he and his brothers were provoked by the deceased. However, no defence of that nature was formally put forward. I conclude that the killing of the deceased was not authorised, justified or excused by law.

88. The third element is a formality. Therefore Melchior Kapus, Essau Kapus and Derick Kapus will be convicted of manslaughter.

4 	DID THE OTHER ACCUSED ENABLE OR AID COMMISSION OF THE OFFENCE?

89. The evidence against the other five accused is not strong. Only John Apa gave evidence that they were all involved in a mob attack on the deceased, Brian Sindat said he did not see any of them. Morgan Gawi said that they were present but just looking on. Robina Sindat said that Jessie Wus was present and that the other four came later. Danny Kami said that Carlson Konsi and Webster Bieo were present but did not single out any of the others as being present. It is unnecessary to make a decision on whether their evidence about being at the video show or at home should be accepted. I reject the prosecutor’s submission that they are criminally responsible. They did not enable or aid the commission of the offences by the Kapus brothers.

5 	SHOULD ANY OF THE ACCUSED BE CONVICTED OF AN OFFENCE?

90. The State has proven that Melchior Kapus, Essau Kapus and Derick Kapus unlawfully killed John Sindat but not under circumstances in which any of them intended to do him grievous bodily harm. They will each be convicted of manslaughter.

91. The State has not proven that the remaining accused killed the deceased or that any of them ought to be deemed under Section 7 of the Criminal Code to have taken part in committing the offence. They will be acquitted.

VERDICTS

(1)	Melchior Kapus, having been indicted on a charge of murder under Section 300(1) of the Criminal Code, is found guilty of manslaughter under Section 302 of the Criminal Code.

(2)	Essau Kapus, having been indicted on a charge of murder under Section 300(1) of the Criminal Code, is found guilty of manslaughter under Section 302 of the Criminal Code.

(3)	Jessie Wus, having been indicted on a charge of murder under Section 300(1) of the Criminal Code, is found not guilty of murder and not guilty of any other offence and is discharged from the indictment.

(4)	Derick Kapus, having been indicted on a charge of murder under Section 300(1) of the Criminal Code, is found guilty of manslaughter under Section 302 of the Criminal Code.

(5)	Carlson Konsi, having been indicted on a charge of murder under Section 300(1) of the Criminal Code, is found not guilty of murder and not guilty of any other offence and is discharged from the indictment.

(6)	Gerard Sapi, having been indicted on a charge of murder under Section 300(1) of the Criminal Code, is found not guilty of murder and not guilty of any other offence and is discharged from the indictment.

(7)	Ivan Sapi, having been indicted on a charge of murder under Section 300(1) of the Criminal Code, is found not guilty of murder and not guilty of any other offence and is discharged from the indictment.

(8)	Webster Bieo, having been indicted on a charge of murder under Section 300(1) of the Criminal Code, is found not guilty of murder and not guilty of any other offence and is discharged from the indictment.

Verdicts accordingly.

____________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused