N4082

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1295 OF 2006

THE STATE

V

SETH UJAN TALIL

Madang: Cannings J
2010: 10, 11, 13 May, 22 July

VERDICT

CRIMINAL LAW – trial – wilful murder, two counts – Criminal Code, Section 299(1) – enabling or aiding others to commit the offences – whether offences committed in prosecution of a common purpose – Criminal Code, Sections 7, 8.

The accused was charged with two counts of wilful murder. It was not alleged that he actually killed the two deceased but that he aided others who did and is therefore deemed to have taken part in committing the offences and is guilty under Section 7(1)(b) of the Criminal Code. Furthermore, that he is deemed by Section 8 of the Criminal Code to have committed the offences as he was prosecuting a common purpose in conjunction with others and the offences committed were a probable consequence of the prosecution of that purpose.

Held:

(1) Two offences of wilful murder were committed at a gathering at which the accused was present.

(2) The accused did acts at that gathering for the purpose of enabling and aiding others to commit those offences; and he aided the persons who committed the offences. He is deemed by Section 7(1)(b) of the Criminal Code to have taken part in committing them.

(3) The accused formed a common intention to prosecute an unlawful purpose (attacking the two deceased persons and members of their group with the intention of killing them) in conjunction with a number of other people and in the prosecution of that purpose two offences of wilful murder were committed; and those offences were of such a nature that their commission was a probable consequence of the prosecution of the unlawful purpose. The accused is thus deemed by Section 8 of the Criminal Code to have committed wilful murder.

(4) The accused was accordingly convicted, by force of Sections 7(1)(b) and 8 of the Criminal Code, of two counts of wilful murder under Section 299(1) of the Criminal Code.

Cases cited

The following cases are cited in the judgment:

R v Potosi (1973) No 730
The State v Nataemo Wanu [1977] PNGLR 152

TRIAL

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

Counsel

A Kupmain, for the State
A Meten, for the accused

22 July, 2010 

1. CANNINGS J: The accused, Seth Ujan Talil, is charged with the wilful murder of two brothers, Gunai Dodo and Gulali Dodo, at a mediation gathering at Gonoa village in the Madang District on 19 January 2006. The State does not allege that the accused actually killed the two deceased but that he aided those who did and was acting with a common purpose in conjunction with them. The State relies on Sections 7 and 8 of the Criminal Code to argue that the accused should be deemed to have committed the offence of wilful murder in respect of each of the deceased.

ISSUES

2. The primary issues are:

1.	Was the offence of wilful murder committed in relation to Gunai Dodo and/or Gulali Dodo?

2.	Is the accused guilty under Section 7 of the Criminal Code?

3.	Is the accused guilty under Section 8 of the Criminal Code?

1 	WAS THE OFFENCE OF WILFUL MURDER COMMITTED IN RELATION TO GUNAI DODO AND/OR GULALI DODO?

3. It is necessary to address this issue first as the accused will only be liable under Sections 7 or 8 if an offence has actually been committed by someone. Determination of this issue requires:

•	a summary of evidence for the State;
•	a summary of evidence for the defence;
•	a preliminary assessment of the State's case;
•	a summary of defence counsel's submissions;
•	an assessment of defence counsel's submissions; and then
•	a final determination of the issue under consideration.

EVIDENCE FOR THE STATE

4. Two witnesses gave evidence and their police witness statements were also admitted into evidence. The other significant evidence was a post-mortem report and related documents for each deceased, a medical report on the injuries received by one of the State witnesses and the accused's record of interview.

5. The first witness was Salau Sorum. He comes from Gonoa village and is married with children. He said that the death of the two deceased stemmed from the death of a schoolgirl, Seron Ekeng, in 2005. He believes, after talking to medical staff involved in her treatment, that she committed suicide. However, a number of people suspected that sorcery was involved and two mediations were held at Gonoa which the alleged sorcerers, who included the two deceased, were required to attend.

6. The first mediation was on 10 December 2005 but was not properly conducted as the five suspects were not given a chance to say anything. The proceedings were stopped and arrangements made for another mediation.

7. On the day of the second mediation, 19 January 2006, he went with the suspects to Madang town police station to pass on legal advice received from Narokobi Lawyers. The accused's mother, Anilo Ujan Talil, was also there. They met with Snr Sgt Frank Kikoli who told them that the second mediation would go ahead later that day. They were then driven to Gonoa and arrived there between 2.00 and 3.00 pm. The Madang Police Station Commander, Jim Namora, was there, with other police and local community officials. An announcement was made about the purpose of the mediation and one of the community leaders, Peter Baki, sought an explanation as to why the suspects were late. The explanation was provided that the suspects were at the police station. Anilo spoke on behalf of them but was told that that was not a good excuse. The crowd became agitated and the accused shouted "Kill her too!" – referring to his mother. The witness was five metres away from the accused when he heard him say that. Peter Baki was angry that the suspects had involved lawyers. Then the young men, including the accused, who had been at the back of the mediation area, started moving forward towards the suspects who were sitting at the front surrounded by the crowd. The young men had weapons including knives and sticks. The accused had a bush knife.

8. He saw a man from Karkar, Dumu, stab Gunai Dodo on his shoulders. He saw another man, Loko, pick up a piece of wood, and swing at him (the witness), shouting 'He's one of them. Kill him too!" He had asthma at the time and feared for his life so he ran to the road and waved down a truck belonging to the Jant Company, and he went straight to the police station, saw Snr Sgt Kikoli and told him what had happened.

9. In cross-examination he identified a witness statement which he had given to the police soon after the incident. He acknowledged that some of the things in his oral evidence were not in the police statement. He cannot remember when he made the police statement. Asked as to who the accused was referring to when he shouted "Kill her too!", he said the accused was only referring to his mother. He did not hear the accused shout those words in relation to either of the deceased. He did not see the accused strike either of the deceased but he believes that the accused was involved in killing them.

10. The second State witness was Kadin Gunai. He is the first deceased Gunai Dodo's son and the second deceased Gulali Dodo's nephew. He is from Gonoa and was 22 years old when his father and uncle were killed. He was one of the group of five alleged sorcerers suspected of killing the schoolgirl, Seron, who died in late 2005. The other suspects were his father and uncle and his brother, Mainau Gunai, and his cousin-brother, Kenei Jeje.

11. There was an initial attempt at mediation at Gonoa on 10 December 2005 but the suspects were chased away by a group which included the accused and others he named as Guyur and Rodney.

12. He was present at the second mediation, also at Gonoa, on 19 January 2006. He and his father, uncle and brothers attended as they had been asked to attend. The crowd was not happy with him and his group as they had come late and it was not long before the accused and Guyur and Rodney and others moved in, armed with bushknives. The accused raced towards him (the witness) and chopped him on the head and as he lifted his hand to defend himself, on his hand (which is now useless). He still bears the scars on his head.

13. In cross-examination he explained that the deceased schoolgirl, Seron, was from Gonoa. He is not related to the accused. He identified a witness statement which he had given to the police soon after the incident. He acknowledged that some of the things in his oral evidence were not in the police statement.

14. The post-mortem reports and related documents were prepared by Dr Steven Toraso, Government Medical Officer, at Modilon General Hospital.

15. As to Gunai Dodo, Dr Toraso reported that the deceased was aged in his 40s, with a height of 165 cm and weight of 62 kg. The cause of death was "haemorrhagic shock" due to "multiple knife and axe wounds". Significant, abnormal findings were:

Sustained deep knife wound to right lower jaw, slashing through to the mandible, fracturing it and exposing severed large neck vessels. Deep wound to right forearm. Open fracture to ulna/radius and severed vessels.

Axe wound to right tip of shoulder blade, 8 cm x 12 cm, very deep.

Axe wound to back, below neck, transverse to the spinal column, 8 cm deep.

Knife wound to chest wall x 3.

16. As to Gulali Dodo, Dr Toraso reported that the deceased was aged 35, with a height of 155 cm and weight of 60 kg. The cause of death was "haemorrhagic shock" due to "multiple knife and axe wounds". Significant, abnormal findings were:

1.	Knife wound right neck traverse to spine 10 cm deep, severing the blood vessels.

2.	Knife wound across left face, 5 cm deep x 15 cm long.

3.	Linear sagittal cut through mid-sternum involving bone.

4.	Multiple (8) stab wounds 5 cm to 2 cm long – in anterior abdomen and lateral left chest wall.

5.	Deep laceration 5 cm below elbow.

6.	Deep laceration 7 cm x 5 cm across dorsum left wrist down to bone and tendons.

7.	Dismembered penis.

8.	Dismembered penis placed in mouth of victim.

9.	Linear cuts to right heel and big toe.

10.	Fracture skull 6 cm x 10 cm from axe wound, exposing brain tissues.

11.	Deep laceration 7 cm x 5 cm right elbow and right wrist, fracturing both ulna/radius bones.

17. The medical report regarding Kadin Gunai was prepared by Dr Sammy Thomas of Modilon General Hospital. It stated:

Kadin suffered a fractured skull, lacerated left forearm, fractured ribs on left side and multiple knife wounds on 19/1/06. He was admitted to Modilon Hospital on the same day. His wounds were very life threatening. However, he recovered well. He is now well but has permanent paralysis of his left hand.

Record of interview

18. The accused was interviewed on 3 May 2006. He admitted being present at the mediation at Gonoa on 19 January 2006. He agreed that the subject of the mediation was the death of Seron Ekeng who was allegedly murdered by sorcery and that there were five suspects present, including the two deceased, and that a fight broke out and that he was holding a bush knife. He denied being involved in the fight, or chasing or stabbing either of the deceased. He did not witness the death of either Gunai or Gulali Dodo but agreed that they were killed at the gathering. He also agreed that Kadin Gunai was seriously injured and had to be rushed to Modilon General Hospital. He denied having any intention of killing anyone at the gathering. He said that he had evidence that the five suspects had been involved in the killing of Seron Ekeng.

19. That was the State's case.

EVIDENCE FOR THE DEFENCE

20. The accused exercised his right to remain silent and no evidence was presented on his behalf.

PRELIMINARY ASSESSMENT OF THE STATE'S CASE

21. The State presented two witnesses who were present at the gathering on 19 January 2006, neither of whom saw the accused wound either of the deceased. However, it is not disputed that the two deceased were attacked at the gathering and died as a result of the injuries received. It is also not disputed that the accused was present at the gathering. What is in dispute is what involvement, if any, he had in any acts of violence against the two deceased or any other person.

DEFENCE COUNSEL'S SUBMISSIONS

22. Mrs Meten submitted that the State had not proven that the accused killed either of the deceased or that the accused was in the vicinity of the place where they were killed. There is a paucity of evidence as to what the accused actually did. Kadin Gunai should not be regarded as a credible witness and it is likely that his evidence has been fabricated. Others were responsible for fuelling the violence – not the accused. There was no evidence that the accused had any intention to kill the deceased. If he is found to have had at any time such an intention, he withdrew from the group before the intention was put into effect.

ASSESSMENT OF DEFENCE COUNSEL'S SUBMISSIONS

1	No evidence that accused killed the deceased

23. This is correct but the State's case does not depend on the proposition that the accused killed either of the deceased. What is significant is that there is evidence that the two deceased were killed by some person(s) at the gathering at which the accused was present.

2	Accused not in the vicinity of the deaths

24. I reject this submission. By his own admission in the record of interview the accused was present at the gathering. The evidence of the two State witnesses also puts him at the gathering, behaving in an aggressive manner.

3	Paucity of evidence as to what the accused did

25. I also reject this submission. There is significant evidence from both State witnesses that the accused was present and behaving aggressively and was a member of the group of young men who moved in on the five suspects and that he was armed with a bushknife. There is direct evidence from Kadin Gunai that the accused acted together with others with malicious intent. I consider that Kadin Gunai was a credible witness. His demeanour in the witness box was sound. He is to be regarded as a witness of truth. I accept his evidence that the accused attacked him with a bush knife, causing him life threatening injuries and maiming him permanently. The severity of the accused's attack on Kadin Gunai is clearly apparent from Dr Thomas's medical report.

4	Others responsible for fuelling violence

26. This may be so but it does not detract from the natural inference to be drawn from the evidence that the two deceased were violently attacked at the gathering and that the accused was a member of the group which attacked the deceased.

5	No evidence of accused's intention to kill

27. I also reject this submission. The severity and manner of the accused's attack on Kadin Gunai is evidence of an intention to kill.

FINAL DETERMINATION OF FIRST ISSUE: WAS THE OFFENCE OF WILFUL MURDER COMMITTED?

28. None of the defence counsel's submissions defeat the only reasonable inference arising from the evidence that the offence of wilful murder was committed against both Gunai Dodo and Gulali Dodo. Under Section 299(1) of the Criminal Code the offence of wilful murder has three elements:

•	a person killed the deceased;
•	the killing was unlawful; and
•	there was an intention to cause the death of the deceased.

29. It is undisputed that both deceased were killed by some person(s) at the gathering. Their deaths were not accidental. There is no evidence that either killing was carried out in self-defence or was due to provocation or was for any other reason justified or excused by law. Both killings were unlawful. The post-mortem evidence shows vividly, in view of the nature and extent of the wounds suffered by each deceased, whose bodies were mutilated, that whoever killed them intended to do so. The State has proven beyond reasonable doubt that the offence of wilful murder was committed against both deceased.

2 	IS THE ACCUSED GUILTY UNDER SECTION 7 OF THE CRIMINAL CODE?

30. Section 7(1) (principal offenders) of the Criminal Code is the first provision on which the State relies to argue that the accused should be convicted of wilful 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.

31. The State relies in particular on Section 7(1)(b), the argument being that by being a member of the group that moved in aggressively on the five suspects, armed with a bushknife and attacking one of the suspects, Kadin Gunai, with the bushknife and inflicting serious injuries on him, the accused gave confidence and impetus to those who actually wounded and killed the two deceased. The accused's acts were done for the purpose of enabling or aiding the actual killers to wilfully murder the two deceased.

32. I uphold that argument. I find that the accused was not merely present (as presence alone does not give rise to criminal liability: R v Potosi (1973) No 730). The accused was involved in a group attack on the five suspects, including the two deceased. I find it proven beyond reasonable doubt that the accused was present at the scene and acted for the purpose of enabling and aiding others to wilfully murder the two deceased. He encouraged and assisted in the deliberate killing of the two deceased. In these circumstances, just as in cases such as The State v Nataemo Wanu [1977] PNGLR 152, it is proper to conclude that the accused is deemed to have taken part in committing the two offences of wilful murder and to be guilty of them.

4 	IS THE ACCUSED GUILTY UNDER SECTION 8 OF THE CRIMINAL CODE?

33. Section 8 (offences committed in prosecution of common purpose) states:

Where—

(a)	two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another; and

(b)	in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of the purpose,

each of them shall be deemed to have committed the offence.

34. For an accused to be criminally liable under this provision, the following matters must be proven beyond reasonable doubt:

(i) the accused formed a common intention with at least one other person to prosecute a purpose in conjunction with one another;

(ii) it was an unlawful purpose;

(iii) they prosecuted that purpose;

(iv) when doing so an offence was committed;

(v) the commission of the offence was a probable consequence of the prosecution of the purpose.

35. I consider that the State has proven beyond reasonable doubt that:

(i) the accused formed a common intention with a group of other persons – evinced by the group attack on the five suspects and the severity of the wounds suffered by the deceased and also by Kadin Gunai – to prosecute the purpose of killing those people present at the gathering who were suspected of killing the deceased schoolgirl – in conjunction with each other;

(ii) that was an unlawful purpose as they took the law into their own hands;

(iii) they prosecuted that purpose in that they acted together with the aim of implementing the course of action that they had agreed on (as evidenced by the group attack);

(iv) in doing so, the offence of wilful murder was committed against the two deceased;

(v) the commission of those offences was the probable (ie likely) consequence of the prosecution of that purpose.

36. There is no evidence that the accused at any stage withdrew from the group attack on the suspects or that he in any way withdrew from the prosecution of the unlawful purpose. All elements of Section 8 have been established by the State. The accused is therefore deemed to have committed the offences of wilful murder.

VERDICT

37. Seth Ujan Talil, having been indicted on two counts of wilful murder under Section 299(1) of the Criminal Code, is found guilty on both counts of wilful murder, as charged.

Verdict accordingly.

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