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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO 697-700 OF 2008
THE STATE
V
KAIT LONU, MULIDE JUDAH, AMOS JUDAH, LANCE JUDAH, DOUGLAS GEMO,
PETER BIUL, ALFRED BESEK & JOHNDIK MODO.
Madang: Kawi J
2010: 7th 8th 9th July
CRIMINAL LAW - Practice and procedure - indictment on charge of murder- not guilty plea - one accused raised self defence as a defence - Full Trial conducted - sworn evidence by three accused - unsworn statements from dock by seven accused - Effect of making a statement from the dock as compared to giving sworn evidence - Weight to be given to the unsworn statement – s300 (1)(a) Criminal Code Act
Facts:
Ten (10) men were indicted for murder under section 300(1)(a) of the Criminal Code. They all pleaded not guilty and a full trial was conducted. One of the accused raised self defence as a Defence. In the circumstances:
Held:
(1)All the accused persons were each and severally and collectively prosecuting an unlawful common purpose. They were each and severally bound by the actions of one and other and are collectively responsible for the criminal actions of each other pursuant to sections 7 and 8 of the Criminal Code.
(2) Where some witnesses gave sworn evidence while others made an unsworn statement from the dock. The proper course to take is that the trial Judge should take the prisoner's unsworn statement as prima facie a possible version of the facts then and consider it together with the sworn evidence, giving it such weight as it appears to be entitled to in comparison with the facts clearly established in evidence. In this case on comparison with the unsworn statements, the court finds that there are many inconsistencies between the sworn evidence and the unsworn statements. Accordingly the court gives more weight to the sworn evidence as it is. Accordingly all the 10 accused persons are found guilty as charged and convicted of murder under section 300(1)(a) of the Criminal Code.
Counsel
M. Mwawesi, for the Accuseds
N. Goodenough, for the State
7th July, 2011
1. KAWI J: Kait Lonu, Mulide Judah, Amos Judah, Lance Judah, Douglas Gemo, Peter Biul, Alfred Besek and Johndik Modo are all co-accused. They hail from Feiog Village in the North Ambenob Area of Madang Province.
2. They all stand charged that on the morning of the 3rd of January 2008, they armed themselves with sticks and knives, which included grass knives and murdered one Kau Selep by cutting him with a knife on his left calf resulting in the deceased loosing a lot of blood and dying in consequence thereof. They were then all charged with murder under Section 300(1)(a) of the Criminal Code.
ARRAIGNMENT
3. Each of the co-accuseds were arraigned separately, and here is their plea to the charge when it was put to them:
(a) Kait Lonu - Not Guilty
(b) Keddy Lonu - Not Guilty
(c) Mulide Judah - Not Guilty
(d) Amos Judah - Not Guilty
(e) Douglas Gemo - Not Guilty
(f) Lance Judah - Not Guilty
(g) Peter Biul - Not Guilty
(h) Johndik Modo - Not Guilty
TRIAL
4. This was a joint trial of eight (8) young men, all co-accused and charged with murder under Section 300(1) (a) of the Criminal Code. They are alleged to have murdered one Kau Selep by cutting him on his left calf which resulted in him loosing a lot of blood, and then died in consequence thereof .
5. The State alleged and called five (5) witnesses to prove that on the 3rd of January 2008, the eight (8) accused persons plus a Solu Modo went from their Village of Feiog to the neighboring Village of Korog to pick upon alleged trouble maker, one Wilfred Masol.
6. They were all armed with knives, including grass knives and sticks when they went to Korog Village. Their search in Korog to locate and apprehend Wilfred Masol, proved futile.
7. In the process of searching, they were making a lot of noise and shouting which attracted the attention of the deceased, Kau Selep who came out of his house to investigate what was happening. Other villages were also disturbed and attracted to the noise. When he got to the place where the noise was coming from, he was attacked and badly assaulted. During the attack, he sustained a knife cut to his left calf. He bled profusely and died from the heavy loss of blood.
8. The State called five (5) witnesses to identify the accused persons and how they attacked the deceased, the weapons and missiles each of them were carrying. Here is a summary of the evidence of the five (5) state witnesses.
(a) MASOL GUMUDA
9. He is the father of the alleged trouble maker, Wilfred Masol. He identified the following accuseds and the weapons they were carrying on the 3rd of January 2008. The accused persons are all his relatives and he could easily identify them:
Name of Accused Weapon carried
Kait Lonu - Grass knife
Mulide Judah - Knife and stick
Keddy Lonu - Knife and stick
Peter Biul - Knife and stick
Johndik Modo - Knife and stick
Amos Judah - Knife and stick
Alfred Besek - Iron rod spear
(b) WILFRED MASOL
10. The next state witness is the alleged trouble maker, Wilfred Masol. This witness did not see any of the accused assaulting or attacking the deceased. He did however, confirm that his house was surrounded by "the boys who came to kill me." He does not say who the boys were, and neither could he see them attacking the deceased. He tells of the previous day incident in which he slapped Peter Biul, who has assaulted his cousin brother.
11. Mulide Judah was identified as the person who had promised to "come and get Wilfred" in the morning to settle this problem.
(c) GAIB GUMUDA
12. The next state witness Gaib Gumuda, confirmed seeing all the accused person cutting his brother Masol Gumudi's leg. He saw that all the accused persons were armed and carrying knives and sticks when they were looking for Wilfred Masol.
(d) ANDEP MARTIN
13. Witness Andep Martin whose house is about 8-10 meters away from Wilfred Masol's house, confirmed seeing all the accused persons that morning surrounding Wilfred Masol's house and shouting for him to come out. He is related to all accused persons and could easily identify them. They were all armed with knives, sticks and grass knives.
14. She says that the accused Douglas Gemo did not arm himself with any weapon or missile, but he was in their midst when they attacked Kau Selep and he fell down onto the ground. As he lay on the ground they continued to cut him and kick him. Upon seeing that he was dying, the accused persons withdrew and returned to the village.
15. Andep Martin and other villagers carried Kau Selep up to Andep's house from where they tried to rush him to the hospital. But it was too late, as he had already died from massive loss of blood. Andep Martin did not see who in particular swung the knife that cut Kau Selep and make him fall to the ground. Further he denied seeing Kau Selep arming himself with a spear and attacking anyone of the accused persons, including Solu Modo or Peter Biul.
(e) EVA KAU SELEP
16. The last state witness was Eva Kau Selep, the daughter of the deceased. She gave evidence of herself and her brother Stanley accompanying her father to investigate where the noise and shouting was coming from. She identified all the accused persons together with one, Solu Modo, because they were all from the neighboring Feiog Village.
17. All the accused persons armed themselves with knives, grass knives and sticks. She identified Lance Judah as the person who cut Stanley Kau Selep, her brother on the head. This forced Stanley to run away from the scene of the noises and the shouting.
18. She identified Johndik Modo as the accused who cut his dad the late Kau Selep on his leg, making him fall to the ground. She also saw Lance Judah cut his dad on his back as he lay on the ground. Others who cut his dad as he lay on the ground are Peter Biul, Mulide Judah and Alfred Besek.
19. Eva Kau Selep also gave evidence that her late father never armed himself with a spear when they came together to investigate the source of noises and shouting. She stated that her late father never assaulted either Peter Biul or Solu Modo. She emphasized that her late father came unarmed and she and her brother Stanley accompanied their father. She further identified the accused Johndik Modo as the person who cut his father with a knife on his right leg.
20. At the close of the case for the prosecution, the Court explained to the accused persons the options available to them which they can exercise. This includes changing their Not guilty pleas to guilty pleas, making a no case to answer submissions, making a statement from the dock, making an unsworn statement from the dock and giving sworn evidence.
21. After consultations with their counsel, a number of the accuseds elected to give sworn evidence, while a number of them opted to make an unsworn statement from the dock.
22. Those who elected to give sworn statement are:
(a) Kait Lonu
(b) Mulide Judah
(c) Peter Biul
23. Those who elected to give a statement from the dock are:
(a) Douglas Gemo
(b) Keddy (Peter) Lonu
(c) Lance Judah
(d) Johndik Modo
(e) Amos Judah
(f) Alfred Besek
(a) KAIT LONU - DEFENCE CASE: THOSE WHO GAVE SWORN EVIDENCE.
24. The first defence witness who gave sworn evidence did confirm that they were at Korog Village that morning to apprehend the trouble maker identified as Wilfred Masol. He however denied them being armed. He was at the back of Wilfred's house and could not see which accused in particular attacked and cut Kau Selep. He says that his view was blocked first by the house, then by flowers on the road. He further stated that when he finally got around to where the deceased was, only Peter Biul was standing beside the deceased, who by then was lying on the ground and bleeding.
(b) MULIDE JUDAH
25. The second defence witness who gave sworn evidence is Mulide Judah. He gave evidence of all eight (8) accused persons going to Korog Village in the morning of the 3rd January 2008, to hunt for and apprehend a trouble maker, one Wilfred Masol. He went up to the kitchen and was calling out for Wilfred Masol to come out of the house and be apprehended.
(c) PETER BIUL
26. Defence witness Peter Biul also gave sworn evidence. He admitted that all eight (8) accused persons were in Korog Village on the 3rd January 2008 to look for one alleged trouble maker, Wilfred Masol and apprehend him.
27. While at Korog Village, he and Solu Modo were standing together on the side of Masol Gumuda's house. The deceased Kau Selep then approached them carrying an iron rod spear normally used to hunt pigs. When Kau Selep approached the two, he attacked them with the spear. He used the iron rod spear to hit his head but Solu Modo was hit on his forehead felling him to the ground in the process. Solu Modo was left unconscious. Kau Selep then lifted the spear in an attacking position to drive the spear into Solu Modo who was lying on the ground. When Peter Biul saw the deceased about to spear his friend Solu Modo, he swung his bush knife and cut the deceased Kau Selep on the right leg. Kau Selep then fell to the ground himself.
(d) SOLU MODO
28. The fourth defence witness Solu Modo gave evidence on oath. He gave evidence of going to Korog Village on the morning of the 3rd January 2008 with Kait Lonu, Mulide Judah, Lance Judah, Johndik Modo, Keddy Lonu, Douglas Gemo and Peter Biul. He gave evidence to corroborate the evidence of accused Peter Biul. His evidence was that both him and Peter Biul were standing on the roadside when Kau Selep, approach them by himself armed with a spear.
29. He hit Solu Modo very hard on the nose causing him to fall down on the road unconscious. He could not remember anything else since by then he was unconscious. The hit from Kau Selep knocked him to the ground and broke his nose.
30. In cross-examination, he stated that all of them were not armed with any weapons or missiles. The only person who was armed was Peter Biul who was holding a knife and Lance Judah who was holding a stick. He further said in cross-examination that "the truth is that we fought Kau Selep and he died from the attack."
DEFENCE EVIDENCE: -THOSE WHO GAVE UNSWORN STATEMENTS
(a) DOUGLAS GEMO
31. Witness Douglas Gemo made an unsworn statement from the dock. He confirmed being at Korog Village on the morning of the 3rd January 2008. He said that he was in the house blocking off an entrance to the house to apprehend Wilfred Masol if he tried to escape. He stated that from where he was standing, the flowers and the house blocked his view and he could not see what was happening. He only heard that Kau Selep was cut with a knife and was lying on the main road bleeding. After this incident the boys then withdrew and went back home.
(b) LANCE JUDAH
32. Lance Judah, another witness who gave unsworn statement, stated that in the morning of the 3rd January 2008, he went to Korog Village to apprehend Wilfred Masol, who had cut Peter Biul the previous day. He armed himself with a stick. He accompanied the others whom he identified as Kait Lonu, Johndik Modo, Solu Modo, Peter Biul, Keddy Lonu, Lance Judah, Mulide Judah, and Douglas Gemo. He stated that he went and stood at the back of the extended kitchen of Wilfred Masol's house. He was there and did not see what was happening on the road. Then he heard one of the boys call him out to withdraw and go back to Feiog Village which they all did.
(c) KEDDY (PETER) LONU
33. Keddy Lonu (also known as Peter Lonu) is another of the accused persons who elected to give a statement from the dock. He told the Court that on the morning of the 3rd January 2008, himself and all the 7 other co-accused walked down to Korog Village to look for Wilfred Masol who is accused of cutting and injuring Peter Biul. When they came to Wilfred Masol's house, they scattered and surrounded the house in case he (Wilfred Masol) escapes to safety.
34. He admitted arming himself with a stick which he says he carried for his own protection, in case he was attacked by Wilfred Masol, whom he identified and described as a "hero of Korog Village."
35. He was never stationary on one location, but was moving around to make sure that all possible escape routes were plugged with human guards and Wilfred Masol is apprehended there and then.
36. By the time he walked into the road, he saw Kau Selep lying on the road. All the boys were standing some meters away from where the deceased was. They all called each other to withdraw and together they all walked home.
(d) JOHNDIK MODO
37. Johndik Modo also gave a statement from the dock. He said that on the morning of the 3rd January 2008, himself and all the other seven (7) accuseds went down to Korog Village to apprehend Wilfred Masol for cutting Peter Biul with a knife, the previous day.
38. He had armed himself with a stick and a sling shot. He was standing in the front of Wilfred Masol's house. He then heard some one shouting from the back of the house that there is a problem, and so they all retreated and went home.
(e) AMOS JUDAH
39. Amos Judah also gave a statement from the dock. On the morning of 3rd January 2008, he was in his house and was walking down to Korog Village. On the way, he met Alfred Besek and both of them were walking to Korog when they met the other accused boys walking back. They told them to go back to Feiog which they all did.
(e) ALFRED BESEK
40. The final defence witness who gave a statement from the dock was Alfred Besek. He was in his house on the morning of the 3rd January 2008. He wanted to go to Korog Village and walked up to the road leading down to Korog. On the way, he met Amos Judah and the two of them were walking down to Korog, when they met all the other accused persons returning from Korog. The others urged the two to turn around and they all walked back to Korog Village.
EFFECT OF MAKING AN UNSWORN STATEMENT FROM THE DOCK
41. The defence then closed its case and both counsels then made their final submissions. One of the issues that clearly arise here after some of the co-accused elected to make an unsworn statement from the dock is that it is necessary that I direct myself correctly with regard to these unsworn statements. In other words, what is the weight that I should give to the unsworn statements of the five (5) co-accused persons.
42. In Anthony David Frost v George Talbot Hale 48 Cr App R 284, it was stated that the proper direction to be given to a jury when the accused has made an unsworn statement is stated in the following terms (at page 291).
"......It is quite clear to day that it has become the practice and the proper practice for a judge not necessarily to read out to the jury the statement made by the prisoner from the dock, but to remind them of it, to tell them that, it is not sworn evidence which can be cross-examined to, but that nevertheless they can attach to it such weight as they think fit, and should take into consideration in deciding whether the prosecution have made out their case so that they feel sure that the prisoner is guilty."
43. In Samuel Peacook v R [1911-12] 13 CLR p 640-641 Grifith CJ said:
"The proper direction to be given, it seems to me, is this, that the Jury should take the prisoner's statement as prima facie a possible version of the facts and consider it with the sworn evidence, giving it such weight as it appears to be entitled to in comparison with the facts clearly established in evidence."
44. I shall therefore consider the statements of the co-accused who gave unsworn statements, in the context of the evidence as a whole, and in light of the principles mentioned above. Indeed this was the approach taken by Saldanha J in the case of The State –v- John Kasaipvaloa [1976] N80
Undisputed Facts
45. I consider the following facts are not disputed.
(a) The incident which led to the killing of one Kau Selep occurred on the 3rd January 2008 in the morning at Korog Village.
(b) The deceased was Kau Selep. He died following massive loss of blood.
(c) The accused were armed with weapons and sticks.
Disputed Facts
(a) Ten (10) accused went from Feiog Village to Korog Village.
(b) All the accused assaulted the deceased.
(c) Stanley Kau Selep, the son of the deceased was cut by Solu Modo.
(d) Johndik Modo cut the deceased.
(e) Deceased Kau Selep assaulted Solu Modo with an iron spear.
(f) Amos Judah and Alfred Besek were with the other eight (8) accused persons.
(g) Peter Biul's assault on the deceased Kau Selep was an act of self defence.
(h) Alfred Besek and Amos Judah did not go to Korog Village to fight at all.
Evidence Tendered in By Consent
46. The following evidentiary materials were tendered in by consent of both parties:
(1) Record of Interview of Kait Lonu –
Tokpisin version – State Exhibit 1(a)
English translation - State Exhibit 1(b)
(2) Record of Interview of Mulide Judah –
Tokpisin version – State Exhibit 2(a)
English translation - State Exhibit 2(b)
(3) Record of Interview of Douglas Gemo –
Tokpisin version – State Exhibit 3(a)
English translation - State Exhibit 3(b)
(4) Record of Interview of Lance Judah –
Tokpisin version – State Exhibit 4(a)
English translation - State Exhibit 4(b)
(5) Record of Interview of Keddy Lonu –
Tokpisin version – State Exhibit 5(a)
English v translation - State Exhibit 5(b)
(6) Record of Interview of Peter Biul –
Tokpisin version – State Exhibit 6(a)
English translation - State Exhibit 6(b)
(7) Record of Interview of Johndik Modo –
Tokpisin version – State Exhibit 7(a)
English translation - State Exhibit 7(b)
(8) Record of Interview of Amos Judah –
Tokpisin version – State Exhibit 8(a)
English translation - State Exhibit 8(b)
(9) Record of Interview of Alfred Besek –
Tokpisin version – State Exhibit 9(a)
English translation - State Exhibit 9(b)
(10) Medical Evidence and Report of Dr Nuli dated 16th January 2008
State Exhibit 10.
ANALYSIS OF EVIDENCE
47. This case turns out on two questions:
The State must prove beyond reasonable doubt that all the accused persons acted in concert (Section 7 Criminal Code Act).
48. All the State evidence show that all the co-accused were present in Korog village on the morning of 3rd January 2008. The State presented the following evidence of their presence.
(a) Each State witness testified that there were all present. With the exception of Masol Gumuda's testimony, where he first stated that Solu Modo cut Kau Selep, then stated in cross-examination that Solu Modo did not cut Kau Selep, all the other State's witnesses testimony was consistent in and of themselves, when compared to their Police Record of Interview. Their stories are not identical but they are uniform as to the who, what, where, when and why questions of this case. Two State witnesses namely Gaib Gumuda and Andep Martin) identified Alfred Besek as carrying an iron rod. He was the only person carrying this weapon.
49. The State witnesses' testimony is consistent with the original Police Record of Interviews. This establishes the witnesses' credibility and validates their stories.
50. Inconsistency in Peter Biul's testimony suggest that all of the accused were present. First, Peter Biul said that all the accused walked to Korog village. This suggests that he changed his answer from the truth in his mind to the story in court, intended to protect Alfred Besek and Amos Judah.
51. The Defence presented the following evidence in an to attempt to create a reasonable doubt as to Alfred Besek and Amos Judah's presence.
(i) Alfred Besek and Amos Judah's unsworn statement from the dock and the Police Record of Interview statements are consistent with one another. Right from the outset, these two co-accused have maintained their story that they were not involved in any way. They state that they met all the other accused on the road connecting their Feiog village to Korog village after the incident and all returned home together.
Presence or non-presence of Alfred Besek and Amos Judah
(ii) All the accused testified that Alfred Besek and Amos Judah were not present. The Defence evidence is all consistent in that Alfred and Amos were not present, with the exception of Kait Lonu's testimony.
ANALYSIS
52. Applying both an objective and subjective tests any reasonable person after listening to the evidence so far presented, would conclude, that all the accused persons were present. After having had the opportunity to listen to all State witnesses as well as Defence witnesses, and observing their demeanors it is the finding and therefore the judgment of this court that all the co-accused including Alfred Besek and Amos Judah, went to Korog village to search for and apprehend Wilfred Gumuda in the morning of the 3rd January 2008. Comparing the Defence evidence, the inconsistency in their statements and State witnesses, this Court finds beyond reasonable doubt that they all went together to search for Wilfred Gumuda. The court draws this conclusion considering two factors:
(a) the consistency and credibility of the State witnesses's evidence and;
(b) the inconsistency between police statements and defence witnesses stories, especially that of Kait Lonu. The accused person (Kait Lonu) essentially confirmed the State witnesses' version of the events, with his lie. His evidence shook the grounds upon which all the accused's story stands. All the co-accused know each other very well. They stand by each other. If a few of them have a problem, they all adopt and collectively own that problem. It logically follows that they all acted together by going down to Korog village to search for and apprehend a trouble maker whom they identified as Wilfred Gumuda.
53. The evidence led by both learned counsel leads this court to believe that all the accused participated in the fatal attack on Kau Selep. The following evidence was presented by the State.
(a) The State witnesses' testimonies all corroborate each other on this claim and are consistent with one and another. With the exception of who cut Kau Selep first, or whether Solu Modo cut Selep first, the witnesses' version match each other and the police statements. All say that the accused persons came to find Wilfred Masol, but could not find him. They then turned their attention to and surrounded Kau Selep. There are no material difference in their stories and the police statements.
(b) The police statements demonstrate that all of the accused participated in the attack. Even the Record of Interview statements of the accused persons show that Kau Selep was surrounded by the accuseds.
(c) The medical evidence is clear. Kau Selep's wounds indicate that more than one person was involved. Medical evidence demonstrates that Kau Selep was severely beaten and suffered at least three severe wounds. This is an indication that more than one attacker was involved.
54. The evidence of the accused's person whether sworn or unsworn given from the dock do not match one another and are not consistent with the police statements. Most of the sworn testimony states that they were armed only with sticks, but the Record of Interview and the medical evidence suggest otherwise. There is no clear picture as to where the accused were standing. Most of the attackers say that they were either standing behind the house or up in the house and the flowers beside the road blocked their view so that they could not clearly see what was happening on the road.
55. There are clearly differing accounts of how the accused heard of the attack. Finally Kait Lonu's admission in court effectively demonstrates that the Police statement is the representation of the truth. The witnesses' inconsistent testimonies do not match Police Statement because the police statements can be trusted, per Kait Lonu's admission they should be trusted over the witnesses' testimony.
56. The following evidence was presented by the Defence counsel to prove that only Peter Biul attacked Kau Selep.
(i) Peter Biul admitted that he attacked Kau Selep and he alone attacked Selep. Sworn evidence cannot be taken lightly. Peter's testimony was clear and seemingly consistent.
(ii) When Solu Modo was tried for Kau Selep's murder he appears to have been acquitted. I do not have the benefit of reading the judgment in Solu Modo's trial and so I will not be able to assess the evidence or reasons as to why he was acquitted. But the Court room testimonies are consistent within themselves. Each sworn and unsworn testimony confirms Peter Biul's version of the events, which supports the claim that only Peter Biul were involved in the attack.
(iii) When Solu Modo was tried for the murder of Kau Selep, he was acquitted. This is strong indication that the whole picture has not been revealed. Defence counsel has not made it clear as to why Modo was acquitted, but his acquittal of responsibility for Selep's death suggest a number of possibilities, one of which is that the remaining accused were not involved in anyway in Selep's death.
(iv) If Wilfred Masol's sins are considered to be adopted by his relatives, it follows that the accused would have attacked Masol Gumuda, (Wilfred's father) and not Kau Selep. First it is necessary to address Modo's acquittal. Defence made it clear that Modo was acquitted and this could mean several things:
- he was acquitted on a procedural error that does not have any real bearing on the issue of innocence or guilt of the accused;
- Modo was attacked by Kau Selep, fell unconscious and was thus not a participant in Selep's death.
- the acquittal carries with it wider implications of which we cannot be aware and may absolve or impugned the accused. The defence never stated that Modo was found "not guilty".
57. There is no hard evidence to be relied upon when discerning the nature of the accuseds participation in the attack because any conclusions to be drawn from the acquittal are highly speculative. Modo's acquittal is accommodated for by the State's evidence. Discerning the other's innocence or guilt must be rounded on the evidence of this case alone.
58. Second a reasonable person should find that all of the accused were participants in this attack. The State's case demonstrates to a reasonable mind that the most reasonable interpretation of this incident is that the accused's attack on Kau Selep was as one. The defence failed to cast aspersions on the State's case. Several pieces of evidence support this conclusion. First the medical evidence which clearly shows that Kau Selep received three (3) severe wounds and was severely beaten, is that not only hit once. The court finds that the medical evidence is consistent with State witness accounts to that claim all accused persons participated in some way. Second the claim that all accused attacked Kau Selephas a ring of truth in it. Particular attention to the Defence's Statements reveal that all the accused persons acted with a common goal and purpose. Kait Lonu for instance told the police that "when Kau Selep hit Solu Modo we retaliated." That he said we in the court's view and finding is sufficient to implicate the entire group, that set out to capture and apprehend Wilfred Masol. Peter Biul's police statement shows that Peter was frustrated because they could not find Wilfred Masol. He also claimed in court to have helped Kau Selep by "stopping the boys from causing more damage".
59. According to the defence evidence, if taken on face value, they had caused no damage to this point. It is reasonable to believe that when a band of brothers set out to fulfill one goal they work together in any difficulties that they might encounter, as they attempt to fulfill that goal. In other words, it is reasonable to believe that if one of the members of the group was acting contrary to others, each would support that member by repelling the alleged aggressor.
60. Given that it is now established that all the accused participated in the attack, a legal analysis of whether this defence can be applied in these circumstances depends on and exists within the context of all participants involvements. It is not demonstrated that Peter Biul acted alone, thus while the defence is applied to Biul, it can be equally applied to any member of that group who came to Solo Modo's (or any confronted member of the group) aid. First it must be established that this analysis assumes that Kau Selep confronted someone in some way. This is likely but not firmly certain. If the accused simply attacked Kau Selep outright, then of course no defence applies. For the sake of brevity, this analysis takes place under the most extreme assumption, that Kau Selep confronted the group by striking Solu Modo with an iron spear, as the defence claims. Section 269(2) states:
"Section 292 (2) If –
(a) the nature of the assault is such as to cause reasonable apprehension of grievous bodily harm; and
(b) the person using force by way of defence believes on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous bodily harm,
it is lawful for him to use such force to the assailant as is necessary for defence, even if it causes death.
61. Peter Biul likely fulfills Section 269(2)(a) when he allegedly saw Modo attacked, he had a reasonable apprehension of death or grievous bodily harm. His friend was allegedly struck down by a man who was angry with the group's actions, either because they were searching to hunt his relative, Wilfred Masol destroying property, or because they cut his son Stanley Kau Selep. But Peter Biul must also fulfill Section 269(2)(b) for defence to apply. He must –
"believe on reasonable grounds, that he cannot otherwise preserve Solu Modo from death or grievous bodily harm." Furthermore, he is only permitted "to use such force as is necessary for the defence."
62. The evidence from both the prosecution and defence, show that eight (8) other men were there and who could help him and protect Solu Modo from being attacked. This was an open area and the others could have seen Kau Selep attack Solu Modo. Peter Biul and his band of supporters could have "otherwise preserved Modo" after all they were all acting in concert to apprehend a trouble maker in one Wilfred Gumuda. They could have surrounded Modo and repelled any attacks from Kau Selep.
63. Biul could have struck Kau Selep only once, as he stated in his evidence; but medical evidence shows beyond any doubts at all that Kau Selep suffered many wounds. There was other means available there. Biul instead had chosen to ignore all these other possibilities and opted to use a knife to cut Kau Selep to protect Solu Modo.
64. It is the finding of this court, that Biul used force beyond what was necessary for self defence. His use of force was way beyond what was contemplated by section 269(2)of the Criminal Code. They all used force beyond what was necessary for self defence. The force which Peter Biul and his gang used was to strike Kau Selep over and over again, was excessive and unlikely after he was already on the ground. This was not necessary to preserve Solu Modo's life. Peter Biul and any other persons defending Solu Modo do not fulfill Section 269(2)(b) and therefore do not qualify for the immunity.
65. For all these reasons the court finds that the defence of self defence is not available to exonerate Peter Biul. In fact this court finds that the story of Kau Selep attacking Solu Modo with an iron spear and rendering him unconscious is highly suspicious. In fact this court finds that Kau Selep never attacked Solu Modo or any other person with a spear to harm him. The Court finds that this story is far from the truth. It was manufactured by Peter Biul and Solu Modo to simply try and exonerate Peter Biul from criminal responsibility.
66. Ultimately while the defence tried to raise a doubt as to whether Kau Selep did strike Solu Modo, which has already been addressed above, it is highly implausible. It is not reasonable to believe Kau Selep simply attacked a member of an armed gang of ten (10) young men all armed with weapons and missiles, knowing full well what the likely consequences would be. There are a number of logical possibilities. I start with the least plausible and continue to what I believe is the most plausible:
67. Scenario (1) is addressed on my discussions on self defence. Even if the most unlikely scenario occurred, the accused should be held responsible. In scenario (2) and (3), Selep was defending a person from a band of gangsters who/he had every reason to believe intended to kill either Wilfred Masol or Stanley Kau Selep. These band of gangsters were armed with knives, sticks, grass knives, and an iron spear and there were many of them (10 in all). Regardless, self-defence fails in scenario (1). It does not satisfy Section 269(2).
68. It is the judgment of this Court that accused Peter Biul attacked the deceased Kau Selep and cut him on the right calf causing him to fall to the ground. From massive loss of blood from the knife wounds inflicted upon him by Peter Biul and the other accused who all contributed one way or the other to the death of Kau Selep were all acting in concert to execute one common and criminal purpose. For without the roles played by each one to assist one and other out Kau Selep would not meet his fate.
69. By virtue of Section 7and 8 of the Criminal Code all the accused are equally guilty and convicted of the murder of Kau Selep.
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Public Solicitor: Lawyer for the Accused
Public Prosecutor: Lawyer for the State
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URL: http://www.paclii.org/pg/cases/PGNC/2010/236.html