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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR. NO. 293 OF 2010
THE STATE
V
KENNY WESLY
Kokopo: Maliku AJ
2011: 08th, 09th August & 12th March
CRIMINAL LAW: Multiple Wilful Murder – Eight counts of Wilful Murder Section 299 of the Criminal Code Act.
CRIMINAL LAW: Not guilty pleas on Eight counts of Wilful Murder – Trial – Evidence by accomplice – Reliability and Credibility of evidence of accomplice – Findings of guilty after a trial on Eight Counts of Wilful Murder.
Cases cited:
The State v Titeva Fineko [1978] PNGLR 262
Jaminan v The State (No 2) [1983] PNGLR 318
State v Robert Wer [1988-89] PNGLR 444
The State v Hahuahori (2000) N 2185
Counsel:
Mr Lukara Rangan, for the State
Mr Philip Kaluwin, for the Accused
VERDICT
12th March, 2012
Count one:
Kenny Wesley of Malaguna No.1 village, Rabaul, East New Britain Province stands charged that he on the 26th of September 2007 at sea between Kokopo and West Coat Namatanai wilfully murdered one Ria Alphonse.
Count two:
Kenny Wesley of Malaguna No.1 village, Rabaul, East New Britain Province stands charged that he on the 26th of September 2007 at sea between Kokopo and West Coast Namatanai wilfully murder one Ishmael Tibo.
Count three:
Kenny Wesley of Malaguna No.1 village, Rabaul, East New Britain Province stands charged that he on the 26th of September 1007 at sea between Kokopo and West Coast Namatanai wilfully murdered one Anastasia Bolagas Maguri.
Count four:
Kenny Wesley of Malaguna No.1 village, Rabaul, East New Britain Province stands charged that he on the 26th of September 2007 at sea between Kokopo and West Coast Namatanai wilfully murdered one Eremas Bokot Maguri.
Count five:
Kenny Wesley of Malaguna No.1 village, Rabaul, East New Britain Province stands charged that he on the 26th of September 2007 at sea between Kokopo and West Coast Namatanai wilfully murdered one Bustaman August.
Count six:
Kenny Wesley of Malaguna No.1 village, Rabaul, East New Britain Province stands charged that he on the 26th of September 2007 at sea between Kokopo and West Coast Namatanai wilfully murdered one Reagan Kiapmur.
Count seven:
Kenny Wesley of Malaguna No.1 village, Rabaul, East New Britain Province stands charged that he on the 26th September 2007 at sea between Kokopo and West Coast Namatanai wilfully murdered one ToValaun Lauvo.
Count eight:
Kenny Wesley of Malaguna No.1 village, Rabaul, East New Britain Province stands charged that he on the 26th of September 2007 at sea between Kokopo and West Coast Namatanai wilfully murdered one Matilda Maivon.
The accused had pleaded not guilty to all counts.
Statement of John Kapolis dated 27/12/2007 – Ex A
Statement of Wama Tame dated 03/10/2007 – Ex B
Statement of ToLiman Tito dated 11/12/2007 – Ex C
Record of Interview of Kenny Wesley in Pidgin and English version dated 04th /02/2010 – Ex D
Statement of Esther Butinga dated 04/02/2010 – Ex E
This evidence was also not disputed by defence.
Statement of Ukies Kibale dated 05/02/2010 – Ex F
The defence did not challenge this piece of evidence.
Medical Report of victim Ishmael Tibo by Health Extension Officer (HEO) John Maddack dated 05/10/2007 – Ex G
Post Mortem of Anastasia Bolagas Maguri by Doctor Alex Wangnapi dated 05/10/2007 –Ex H
Head and neck: scalp peeled off, no hair. All skin peeled off from back and front of her body.
Chest and abdomen: all skin peeled off back and front. Both breasts skin peeled off. Abdomen distended and skin peeled off too.
Genitalia: in decaying stage, hair peeled off.
Limb: lower and upper limbs intact.
The Medical Certificate of Death of Ishmael Tibo dated 24th/10/2007 – Ex I
The Issues
I have enlarged the above question which is the issue for this Court to consider in the following:
The central issues in contention are:
to be the central issues in contention before me. These are:
The Elements:
Evidence by Accused
Q: Between 2005 and 2010 you escaped from CIS?
A: No
Q: Are you sure that you were remanded at CIS in 2005?
A: Yes I am sure
Q: Do you agree that you were at large between 2005 and 2010?
A: I was admitted to the Hospital and it was said that I had escaped.
Q: Which hospital?
A: Nonga Hospital. It was in the beginning of 2007
Q: When you were taken to Nonga Hospital in the beginning of 2007 you ran away and never returned?
A: Yes it's correct.
Q: How long were you at large before re arrested?
A: Eight (8) months.
Q: Allan David's evidence is that you were involved in the killing of the eight people because you were still at large: Is it correct?
A: Yes I was at large but I don't know about that.
Q: What do you say?
A: I mean I don't know Allan David.
Reasons for which Allan David should not be believed:
Reason 1:
Q: Yes and is it not true that you were actually belted up over there?
A: They did not actually assault me, they just slapped me and came and locked me up at Rabaul Checkpoint, pardon me, your honour.
51. As regard to the witness being threatened I have also read page 19 of the Transcript (Ex D1) and noted the following questions:
Q. Allan, look at me. I want you to tell the Court the name of the policeman who hung you over the bridge and threatened to shoot you in Kavieng, New Ireland?
A. I am not too certain of this policeman but he is of a light skin appearance.
Q. He put the pistol on your head and threatened to shoot you and throw you to the crocodiles down at the beach, is that right?
A. That is true your honour.
52. In the present trial the witness was asked the following question:
Q. You were held over a river by the police to tell them what happened- is that true?
A. No it's not true.
53. I accept that there is inconsistency here by the witness in regard to him being threatened by being held over the river and thrown to the crocodiles.
54. Reason 2: He denied that he had lived with the Investigator for three years which we say he admitted in his evidence in the first trial. This can be found on pages 25-26 of Ex D1.
55. I have read the Exhibit D1 at page 25 and noted that the witness was asked the following question: "Whose house are you living in?" The witness answered that question as follows: "I am living in my house next to Kibale, your Honour." Again at page 26 of the Ex D1 I noted the witness was asked the following question: "So is it correct that from 2007, 2008, 2009 you were living with Ukis Kibale at Kurakakaul?" The witness answered as follows: "In 2009 I went back to Kavieng your Honour and I came back in 2010."
56. In the present trial the witness Allan David was asked as follows:
Q: When you were taken to Kokopo you were put in the cell?
A: Yes.
Q: Were you released from the cell
A: Yes.
Q: Where did you go to stay?
A: At Kurakakaul
Q: Is that at North Coast- Is that correct?
A: Yes.
Q: Is it true that from 2007 to 2009 you were at Kurakakaul?
A: Yes it's correct.
Q: You stayed with a Policeman at Kurakakaul?
A: Yes it's correct.
57. I find no inconsistencies here as submitted by counsel for the accused. The witness had not denied living at Kurakakaul from 2007 to 2010 according to the question put to him in the present trial. He had maintained this in the present trial. In regard to question No 20 in page 25 Ex D1 that question in my view is referring to whose house the witness is living in at present and not in 2007 to 2010 in which the witness had correctly responded to by saying: "I am living in my house next to Kibale, your Honour."
58. Reason 3: In the first trial he admitted that when he crossed over to the West Coast of Namatanai he had a swollen leg. In this trial he denied it.
59. Having analysed the evidence as regard to this suggested inconsistency it is too remote to cause any doubts in my mind even if I accept that he had a swollen leg. The swollen leg was encountered by Allan David after the killing episode was completed and is something which was physical on his body.
60. Reason 4: In the first trial and this trial he said he knew Gregory very well. This can be seen on page 10 of Ex D1. He maintained this in this trial however he was unable to state where Gregory works even though he gave evidence which he described his relationship with Gregory and Martin Bigit. He also in his evidence told the Court that one of the deceased on the Palex boat was a niece to Gregory Kiapkot however despite his knowledge of Gregory and the deceased which he told the Court to be a niece to Gregory he was still not able to tell the Court where Gregory works.
61. I accept the submission by counsel representing the State that this is immaterial for the Court to worry about. I accept that the witness had known Gregory Kiapkot very well through their marijuana dealings. As regard to the issue of where Gregory had worked is not of significance to cause any doubts in my mind in regard to the killing of the eight people on board the Palex boat on the 26th of September of 2007. I accept that one of the deceased on the Palex boat was a niece of Gregory Kiapkot as there is no evidence to the contrary.
62. Reason 5: That in the first trial he said he called the Police to come and get him. This is contained on page 32-33 of ExD1. In this present trial he says he went to the Police on his own accord.
63. In the first trial the witness was asked the following question:
Q. Witness, I put to you that you never surrendered to the police but you were apprehended at Kavieng – sorry, Namatanai? What do you say?
A. They rang the police in Namatanai to apprehend me at Bimun.
Q. Who rang the police?
A. The pastor.
Q. How did the pastor know that you were involved in this incident?
A. Some people told the pastor and then they directed him to go and report to the police and the police came and arrested me.
64. In the present trial the witness was asked amongst other questions the following questions:
Q. In your statement to the police and what you have told the Court you went to the police on your own, and now you are saying the police apprehended you?
A. I reported to the police and then went to Bimun village where I was apprehended later by the police.
Q. Were you apprehended before you told the police of what happened?
A. I had informed the police before I was apprehended.
Q. You, yourself went to the police and told them about what happened?
A. Yes.
Q. Did anyone else tell you to surrender to the Police?
A. I surrendered voluntarily to the police with the help of a United Church pastor.
Q. What caused you to tell the pastor about this trouble?
A. I was afraid to see such thing.
Q. What caused the pastor to suspect you?
A. The pastor saw that I was troubled, not steady and in fear so he called me and talked to me.
65. I accept that there is inconsistency on the evidence of Allan David as regard to what he said in the first trial and in the present trial of how the matter was reported to the police and who reported it. It is evident from the evidence that the matter was reported to the police by a United Church pastor which then led to Allan David apprehended at Bimun village.
66. Nevertheless I am of the view that it is not sufficient to cause doubts in my mind against the evidence that the accused did take part in the killing of the eight people on board the Palex boat on the 26th of September in 2007.
67. Reason 6: That Allan David saw Gregory swinging his bush knife on the passengers on board the Palex boat. There was also no evidence that Anastasia Bolagas, one of the deceased who was seated close to Gregory Kiapkot when swinging his bush knife received knife injuries. Logically because she was sitting close she should have been cut yet her medical report does not show any cut from a knife.
68. The evidence from the witness Allan David is that the swinging of the knife by Gregory occurred when the boat in which he was had left the Palex boat and the 40 horse powered boat and was at the distance he had estimated as some distance away. He told the Court that when he looked back toward the Palex boat he saw Gregory Kiapkot swinging a knife at the passengers.
69. As regard to whether Anastasia who was a deceased was cut or not the evidence by witness Allan David does not say so because he did not say so during his evidence in chief and during the cross examination. His evidence is simply that he saw Gregory swing the knife at the passengers at a distance he described as some distance. The witness did not say in his evidence that Anastasia Bolagas received knife injuries. However on examination of the deceased by Doctor Alex Wangnapi the followings were established:
Head and neck: scalp peeled off with no hair.
Body: all skin peeled off from back and front of her skin.
Chest: all skin peeled off back and front. Both breasts skin peeled off.
Abdomen: distended and skin peeled off too.
Genitalia: in decaying stage, hair peeled off.
Limb: lower and upper limbs intact
70. Incision were made through the left chest and left lung both upper and middle lobe were dissected and put into a bucket of water to determine if the lung was wet and chocked with water from drowning.
71. The lung however were filled with air, because as soon as the lung lobes were cut off there were air released from the lung lobes and this were confirmed by the lung lobes floating in the water rather than any part of the lung showed sign of sinking.
72. These signs suggest that the deceased did not die from drowning but she died from other cause before her body was submerged into the sea. There is no inconsistency on the evidence of the witness.
73. Reason 7: That Allan David stated that the operator of the Palex boat was shot with a factory made shotgun. This is inconsistent with the Medical Report of Ishmael Tibo the operator of the Palex boat - Exhibit "G". That Medical Report does not show any gunshot wounds. This Medical Report was compiled by Doctor Wangapi. If there was any gunshot wounds that report would have shown it. We submit that obviously Allan David lied to this Court.
74. The Medical Report of Ishmael Tibo was conducted by Health Extension Officer (HEO) John Maddack, and not by Doctor Wangapi as submitted by Counsel for accused.
75. This Medical Report establishes a proper systematic examination was not possible and a post mortem was also not possible due to the fact that parts of the body were in decomposing state. There was however evidence of smashed scalp more prominent on the occipital extending to the right temporal region and a sharp penetrating wound on the left lateral aspect of the neck and the right lateral aspect chest below the exilla.
76. I am mindful of the fact that the witness is not a Medical person. He told the Court of what he saw done to the deceased Ishmael Tibo on board the Palex boat which he said led to his death instantly on the 26th of September 2007. This issue in my view is one that should have been raised properly with the Health Extension Officer- Mr John Maddack who conducted the examination of the body of Ishmael Tibo so as to ascertain whether there were gun wounds and how he came to the conclusion of the cause of death spelt out in the exhibit marked Ex I.
77. Despite a proper systematic examination and post mortem not conducted on the body of Ishmael Tibo due to the reason stated in the Medical Report. I accept that there was smashed scalp which was more prominent on the occipital extending to the right temporal region and a sharp penetrating wound on the left lateral aspect of the neck and the right lateral aspect chest below the exilla which in my view could have been inflicted with a sharp instrument or object including a factory made gun bullets.
78. The defence counsel also argued that Allan David says they had walked from the Matupit Island Point to the New Rabaul Market. He submitted the shortest route that they could have gone to was through Atam then to the New Rabaul Market but instead they turned right and walked away from the New Rabaul Market. This is not logical. He says it took them about 3 hours from the Matupit Island Point to the New Rabaul Market. That cannot be believed because if they followed the coast it could have taken more because it is not straight line. The evidence from the accused is to walk from the United Church Building on Matupit Island would take two and a half hours on a straight line to New Britain Lodge. The evidence of Allan David cannot be believed.
79. The Counsel for the accused had not only tried to convince the Court that the witness had taken a wrong route but had attempted to reconstruct the evidence as regard to the route the witness Allan David and Martin Bigit took from the Matupit Point to the New Rabaul Market. To suggest to the Court by counsel the appropriate or the right route that should have been taken by the witness and Martin Bigit from Matupit point was through Atam and then to the New Rabaul Market is not accepted. The accused had never walked from the Matupit Island Point following the route taken by the witness Allan David and Martin Bigit. Furthermore this argument is made upon no evidence by accused of walking from the Matupit Island Point to the New Rabaul Market.
80. As regard to the length of time it took the witness Allan David and Martin Bigit to arrive at their destination so as to catch a bus to Kokopo it was estimated by the witness hence he told the Court that he did not have a wrist watch to enable him properly tell the correct time which I accept.
81. The evidence of the accused that it would take two and half hours from the Matupit Island to the New Britain Lodge is true for him. The turning right and walking away from the New Rabaul Market by the witness and Martin Bigit as submitted by counsel for accused was a choice for them to make taking into account that they were running away from a killing of human beings in the open seas between Duke of York and the West Coast of Namatanai. There is no inconsistency here.
82. Reason 8: There is no reason why they should be dropped off at Matupit Island Point. We submit that logically they would have gone with others to share the loots, what was stolen from the Palex boat. It would mean that Allan David and Martin Bigit never benefitted from the stolen items even though they were parties to the whole episode.
83. I do not find any wrong here. The witness told the Court that they were dropped off at the Matupit Island Point. The sharing of the loots was for Allan David and Martin Bigit to consider. They decided against the sharing of the loots from the Palex boat.
84. I accept the witness's evidence that he and Martin Bigit were dropped off at the Matupit point on the 26th of September in 2007 after he had witnessed the killing of Ishmael Tibo and the crew Ria Alphonse.
Evidence from an Accomplice
85. Counsel for the accused had further submitted that the evidence before the Court now is that of an accomplice. He submits the law on evidence of accomplice is that: evidence from an accomplice can be accepted however, it is very dangerous and can only be allowed after very close scrutiny.
86. The defence relies on the case of The State -v- Titeva Fineko [1978] PNGLR 262. Counsel for the accused submits that if the Court is to scrutinize the evidence it would note that Allan David had lied under Oath and had committed the offence of perjury. As such his evidence should not be accepted by this Court.
87. During the cross examination of the accused by counsel representing the State the accused was asked several questions. Here are three questions asked by counsel representing the State to the accused:
Q. Do you know of any reasons that Allan David would come to Court and tell the Court that you were involved in the killing of the eight people?
A. I do not know why. I never met him at any one time before.
Q. Did you have any differences with Allan David before this trouble?
A. No.
Q. Do you think that Allan David had made up this story about you?
A. Yes. I believe so.
Q. Do you know the reasons he would do so?
A. I do not know.
Q. I put to you that that is not true. You were involved in the planning to kill the eight people and Allan David was one of you?
A. I do not know Allan David. I just saw him in Court now giving evidence against me.
88. The answers to the questions set out above establishes that the witness Allan David never had any differences with the accused prior to these offences were committed nor did he have any reasons to make up this serious allegation against the accused. The accused did not give evidence to the contrary except to say during cross examination that he believed that Allan David had made up these allegations which are serious in nature against him.
89. The accused is not telling the truth here but is lying about the story being made up against him by Allan David. Having said that I conclude that Allan David is a truthful witness and that I accept his evidence despite he is an accomplice because I find from the evidence that Allan David never had any differences with the accused prior to the commission of these very serious offences and the accused had not satisfied me that the witness Allan David did make up these allegations about him..
The involvement and the role played by accused in the commission of the offences.
90. The evidence regarding the involvement and the role played by the accused in the commission of these offences is very clear. It began in the afternoon at the Vuvu-Madiring beach on the 25th of September 2010 in the afternoon and continued on to the 26th of September2010 and ended with the killing of the remaining six live passengers on board the Palex boat in the open seas between the Duke of York Islands and the West Coast of Namatanai.
91. The accused was with Gregory Kiapkot, Martin Bigit, Alex (the Sepik man), Anton Marko and ToBung Paraide and the witness Allan David at the Vuvu-Madiring beach on the 25th of September and there remained with them to the 26th of September and there collectively participated in the discussion that arose from the revelation of a plan to kill the passengers on the Palex boat by Gregory Kiapkot at the Vuvu - Madiring beach. He made no attempts to disassociate himself after hearing of the plan to kill the passengers on the Palex boat on the 26th of September of 2007. He spent the night of the 25th of September with Allan David and the other co accused at Vuvu-Madiring beach and together with Allan David and the other Co-accused consumed liquor. He was part and parcel of the plan to kill the eight passengers on board the Palex boat.
92. On the early part of the morning on the 26th of September he was still at the Vuvu-Madiring beach and got into the 40 horse powered boat with Gregory Kiapkot and Peter Taul and travelled to the Duke of York Islands ahead of the witness Allan David and the other co accused who later followed in the 75 horse powered boat also heading to the Duke of York Islands where they met up with the accused, Gregory Kiapkot, and Peter Taul who were then joined by Botchia Agena.
93. The accused remained in the 40 horse powered boat after the picking up of Botchia Agena. It is at this point of time that the two boats travelled together to the open seas between Duke of York Islands to await the Palex boat which was then passing through the Duke of York Islands into the open seas between the Duke of York Islands and the West Coast of Namatanai heading toward Ratubu village.
94. The accused while at the sea between Duke of York Islands and the West Coast of Namatanai with the co accused in the 40 horse powered boat participated in the act of blocking the Palex boat at the front while the 75 horse powered boat which the witness Allan David was in blocked the Palex boat at the back preventing it from continuing on or escaping from the danger that was imminent from the defendant and the co accused persons.
95. While at the sea between Duke of York Islands and the West Coast Namatanai the accused got in the Palex boat from the 40 horse powered boat which were clung to side by side and removed the cargo from the Palex boat into the 75 horse powered boat assisted by ToBung Paraide, Martin Bigit and Alex (the Sepik man).
96. That when 75 horse powered boat with the cargo removed from the Palex boat left for Rabaul with the witness Allan David, Martin Bigit, and Peter Taul the accused Wesley Kenny remained in the 40horse powered boat with Gregory Kiapkot, Anton Marko and Botchia Agena.
97. The Palex was then operated by Botchia Agena while the 40 horse powered boat was operated by Anton Marko heading toward the West Coast of Namatanai side by side each other with the accused in the 40 horse powered boat.
98. There were two dead bodies in the Palex boat at that point of time. These were the bodies of Ishmael Tibo the operator, and Ria
Alphonse the crew. These bodies became deceased in the presence of the accused after the blocking of the Palex boat at the front
by the boat the accused was in and at the back by the boat the witness Allan David was in. There were six passengers still alive
when the Palex boat was slowly taken away into the open seas between Duke of York Islands and the West Coast of Namatanai with the
accused in the 40 horse
powered boat operated by Anton Marko while the Palex boat was operated by Botchia Agena.
99. It is concluded by this Court from the evidence that these six passengers were wilfully murdered on the 26th of September between Duke of York Islands and the West Coast of Namatanai by the accused Kenny Wesley and the other co-accused that have stood trial and sentenced to death in 2011by the National Court at Kokopo.
Findings and Conclusions
100. Having accepted Allan David to be a truthful witness despite two or three inconsistencies which I accepted raised and argued by counsel for the accused during his submission on the verdict, I am satisfied that the evidence as regard to the central issues in contention before me remained unshaken or tainted by the defence throughout the trial which are:
viii. The Palex was operated by Botchia Agena and was slowly taken away by the accused, Gregory Kiapkot, Anton Marko and To Bung Paraide side by side with the 40 horse powered boat being operated by Anton Marko into the open seas between the Duke of York Islands and the West Coast of Namatanai with the two dead bodies of Ishmael Tibo and the crew and six live passengers. The live passengers in the Palex boat were Anastasia Bolagas Maguri, Eremas Bokot Maguri, Reagan Kiapmur, Bustaman August, ToValaun Lauvo and Matilda Maivon.
101. I am satisfied that the live passengers namely Anastasia Bolagas Maguri, Eremas Bokot Maguri, Reagan Kiapmur, Bustaman August, ToValaun Lauvo and Matilda Maivon were wilfully murdered by the accused with the other co accused persons in the open seas between the Duke of York Islands and the West Coast Namatanai on the 26th of September of 2007. The evidence points to the fact that they were never found alive. There is evidence that the body of Anastasia Bolagas Maguri, Reagan Kiapmur and Ishmael Tibo were retrieved from the sea and were each accorded a decent burial while the body of Eremas Bokot Maguri, Ria Alphonse, ToValaun Lauvo, Matilda Maivon and Bustaman August were never retrieved to be accorded a decent burial. These bodies became preys of the wild beasts of the sea.
102. I now turn to the elements of the charge of wilful murder which I set out above. I am satisfied there is evidence as regard to each element of the charge of wilful murder against the accused before me, being that there is evidence of the element of killing of another person, there is evidence that the killing was intended and there is evidence that the intention to kill was put into manifestation.
103. As regard to the issues before this Court in particular the central issues that are in contention before this Court I am satisfied that the accused Kenny Wesley now before me is the person that killed Ishmael Tibo, Rea Alphonse, Reagan Kiapmur, Ereman Bokot Maguri, Anastasia Bolagas Maguri, ToValaun Lauvo, and Matilda Maivon on the 26th of September of 2007in the open seas between the Duke of York Islands and the West Coast of Namatanai with the other co-accused.
104. I am satisfied that the accused falls within Sections 7and 8 of the Criminal Code Act as a principal offender and the said offences were committed in prosecution of common purpose.
Verdict and Convictions
105. Accordingly, I find the accused Kenny Wesley guilty of the wilful murder of Ria Alphonse, Ishmael Tibo, Anastasia Bolagas Maguri, Eremas Bokot Maguri, Bustaman August, Reagan Kiapmur, ToValaun Lauvo and Matilda Maivon.
106. I enter a verdict of guilty and convict the accused of each count of wilful murder.
_____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused
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