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State v Amos (No.2) [2012] PGNC 288; N5072 (14 November 2012)

N5072

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NOS. 692 OF 2011

THE STATE

-V-

SELMON AMOS & MISIALIS AMOS (NO.2)

Kokopo: Lenalia, J.
2011: 11th, 12th 13th, 14th, 17th 18th, 19th October & 3rd November.
2012: 8th, 18th October & 14th November.

CRIMINAL LAW – Three counts of Wilful Murder – Pleas of not guilty – Trial – Evidence on trial on allegations by the prosecution – Evidence of one eye witness – All other evidence circumstantial – Decision on verdict – Criminal Code Sections 299.

CRIMINAL LAW – Wilful Murder – State evidence on trial – Defence evidence – Consideration of whether there is sufficient evidence against the two accused – Whether guilt only rational inference open – Whether unsafe and dangerous to convict – Circumstantial evidence – Overall view of the case.

Cases cited:
Papua New Guinea Cases

The State-v-Paul Kundi Rape [1976] PNGLR 96
Roka Pep (No.2) [1983] PNGLR 287
SCR No.1 of 1980 Re s.22A of Police Offences Act and s.37(4) of the Constitution [1981] PNGLR 28
The State-v-Tom Morris [1981] PNGLR 493
SCA No.1A 1981 Re Motor Traffic Act [1982] PNGLR 122
The State-v-Misari Warun [1988-89] PNGLR 327
Allan Oa Koroka-v-The State [1988-89] PNGLR 131
Garitau Bonu & Rossana Bonu-v-The State (1997) SC.528
The State-v-Garitau Bonu & Rossana Bonu [1996] PNGLR.48
The State-v-Jacob Dugura Roy (2007) N3137

Overseas cases

Woolmington -v- DPP [1935] AC 462
Barca-v-The Queen [1975] HCA 42; (1975) 133 C.L.R 82
Lend Lease Development Pty Ltd-v-Zemlicka (1985) 3 N.S.W.L.R. 207

Counsel

M. L. Rangan, for the State
P. Kaluwin, for the two Accused

14th November, 2012

1. LENALIA, J: The two accused are charged with three (3) counts of wilful murder of three separate victims, an offence contrary to s.299 of the Criminal Code. The State say the offences were committed at Tokarkar Plantation mangrove near the Watah Light House near Tokua airport on 31st July 2008. The State alleged that because they acted in concert, they aided, procured and counseled each other to execute the triple murder. In law, principal offenders are caught by ss.7 & 8 of the Criminal Code.

The State's Evidence

2. Eleven witnesses were called to testify on this trial. Some of them were vigorously cross-examined as to the prosecution allegations of the alleged wilful murder and the motives for the killing of the three deceased. The deceased named on the indictment are, Koli Sapau, Nelson Koli and Lomki Wanain. A number of those witnesses including the first witness were cross-examined by Mr. Kaluwin of counsel for the two accused. Except for the evidence by the first prosecution witness Kiliaon Kamlapar, the evidence of the remaining ten prosecution witnesses is all circumstantial in nature.

3. Evidence by the key witness, Kiliaon Kamlapar establishes that, on 30th July 2008, he came to Kokopo by boat from Kaboman village, located on West Coast of Namatanai, New Ireland Province. He came with other passengers for purposes of selling bags of cocoa beans at Agmark. The name of the boat they came on was 'Fly Tulait'. After he and the others were dropped at Kokopo, they stayed back at Kokopo until the next day due to bad weather. While they were in Kokopo they sold their cocoa beans and after doing business in town, he walked back to Takubar Beach Resort where one of his brothers has a house and he lives there.

4. By 8 pm, he left his brother and the others at Takubar and walked back to Skowhegan Service Station to check for any boats going back to his village. At Skowhegan, he met Willie, John and Robert at the bus-stop. He did not give their other names. He stood at the back of Willie and heard him talking to someone by a mobile.

5. He said he heard Selmon asking Willie to go to Takubar to take the boys to kill Koli, Nelson and Lomki. He did not clarify in his evidence where the first accused is supposed to have spoken from or whether he heard him talking over from a mobile phone or whether he was there with him, Willie, John and Robert.

6. He left the bus-stop at Skowhegan with Willie and walked back to Takubar and sat near the boat at Takubar Beach Resort. They sat down for sometime then Willie left and he stayed away for a long time. They waited for him for a long time and he returned about 1 am in the morning. Kiliaon noticed that Willie had a factory made gun wrapped up in a laplap. He saw Willie handed over the gun to Joe Dicks. In the process of handling the gun, John and Willie invited this witness to follow them to see what they would do later during that day. The boat they were sitting on was 'Las Peles'.

7. By then the time would have been about 5 am. As they were sitting and talking, three other boats came. He named one of them as 'Sparrow Fly'. The Sparrow Fly slowed down while the other two continued in the direction heading towards Karawara Island on the Duke of York Islands and the main land. Joe then told those in the boat with him and the witness to follow the sparrow fly. They all sailed toward the light house near the airport at Tokua and the boat in which this witness was in, changed direction and sailed toward the mangroves area.

8. After they sailed off from Takubar, Joe Dicks was the skipper. Before reaching the mangrove swamps, Willie asked Kiliaon (witness) to skipper the boat. When Kiliaon took over they sailed in the direction between Karawara Island and the light house. From there, the other two boats that were ahead of them sailed in the direction of West Coast Namatanai.

9. When those two boats left the Sparrow Fly, they headed in the direction of the boat which was skippered by Kiliaon. When they caught up with Las Peles, those in that boat asked Joe Dicks for fuel or petrol. They were given some right near the mangrove swamps. It was there that Joe Dicks got the gun from within the boat and pointed it at Nelson and commanded him to skipper the boat into the mangrove swamps.

10. They then diverted from their direction toward the mangroves with the Las Peles boat coming after the Sparrow Fly. As they entered the edges of the mangroves, Willie asked Kiliaon to stop at a distance of fifteen metres which he did. While the boat was stationary, the witness saw Joe Dicks pointed the gun at Koli Sapau and short him at point blank range. He saw Koli fell down dead into the Sparrow Fly boat. Soon after that, he pointed the gun at Nelson Koli and also shot him. Lomki started to cry but Joe also shot him. They all fell into the boat.

11. The witness looked on and saw the first accused, Robert and Joe Dicks lifted up the three dead bodies and buried them in the swamps amongst the mangrove trees. Then after the three men were shot, Willie asked Kiliaon not to tell anyone about the killing and what he had just seen. The time then was about 4 pm. The witness was requested to sail up to Maren village on the Duke of York Island where the first accused was dropped off. This witness and Joe Dicks and the others headed back to Takubar. The other part of his evidence is not relevant to the circumstances of this trial.

12. As I have said at the beginning of this discussion, all other witnesses' evidence is substantially circumstantial like for instance, the evidence of witness John Mannering is only relevant in so far as he met the two accused at Skowhegan on the night of 31st July 2008. His evidence also establish that, that day the sea was very rough and it was very windy. When he saw that there was a great wind, he stopped his son Pulangis from getting on the Sparrow Fly boat which was destined to King village, West Coast Namatanai. In that boat were the first accused, Koli Sapau, his son Nelson Sapau and Lomki Wanain.

13. The evidence by Japet Balaut is mostly circumstantial as well. His evidence relates to the time when the first accused was rescued at Maren village beach on Duke of York islands. He said he had been around with village boys and when he returned to his house, he wanted to chew betel nut. So he climbed a betel nut tree to pick a bunch of betel nut. While he was still up on the betel nut tree, his mother called out to him to climb down quickly to go out to the beach to look for someone calling out for help.

14. When he alighted, his mother told him where the distress calls were coming from. He then mobilized village boys to go out to the sea for a search. They sailed out in canoes and one group went to the right hand side of the village and the other to the left. He was the leader of the later group. When they heard the distress call, he called out and the first accused called his name out. They sailed close to him and rescued him. The time given by this witness would have been about between 5.30 pm to 6 pm.

15. It is clear from this witness evidence in chief and cross-examination that, when accused Selmon Amos came ashore to the beach at Maren village, his observation was that, his physical appearance was well and normal. Asked if he had any signs of dehydration, the witness said, no the only problem was the accused Selman Amos had no shots and only wore a pants. The first accused however looked well.

16. The next witness Kabintik Panuel is an High School teacher. In 2008, he was teaching at Goerge Brown High School, Vunairima near Keravat. His evidence only relates to finding a yellowish shorts a day after the first accused was rescued. It was floating on the sea on the beach front at Maren village. Asked in chief who was the owner of the shorts, he said he went to the nearby houses and asked if the shorts was for someone in their houses. One lady said, no one in the house owns any shorts of that colour. They formed the conclusion that the shots belonged to the first accused. This witness was not cross-examined.

17. The investigating officer of this case Detective Inspector Charles Winuan of Badili Police Headquarters office was called to give evidence. This witness evidence is relevant because, when the allegation was fresh, it was reported to a CID officer in Kokopo. The officer Poren Yagiri somehow did not expedite the investigations immediately. So that Inspector Winuan had to be called in from Moresby to conduct the investigation.

18. This witness evidence shows that, in September 2010 he was asked by Chief Inspector Sylvester Kalaut in Kokopo to come and carry out the investigation into the killing of the three deceased on this case.

19. On the first phase of his investigation, he interviewed most witnesses from West Coast Namatanai. He interviewed them and obtained statements from all such witnesses. On 23rd March 2011, he arrested the first accused at Kokopo Secondary School round about and after interviewing him, he arrested him and locked him up in the cells.

20. On 26th March 2011, he went together with two other officers to Karias plantation on the West Coast of Namatanai where they arrested the second accused. When they returned he immediately conducted the record of interview with him on 31st March and thereafter, he was arrested and placed in the cells. He said, both accused have been charged for a number of offences including wilful murder of the three victims.

21. John Mannering was also called. He is a subsistent farmer of King village, West Coast Namatanai, New Ireland Province. The relevance of this witness evidence only relates to him witnessing the first accused and the three deceased loading the boat with cargo at Skowhegan Service Station beach front on the morning of 31st July 2008.

22. He revealed on his evidence that, that day there was a big rain the boat 'sparrow fly' was fully loaded with cargo. Prior to the boat taking off, he saw the second accused was around there too and after the boat took off he saw the second accused using his mobile phone talking to persons which this witness did not then consider serious and he thought he was talking to friends.

23. He said when the news came about the killing, he remembers now that, when the boat left the second accused Misialis Amos stood for sometime looking at the boat and spoke on his mobile for quite a fair bit of time. His observation on the boat that took off from Skowhegan was that, that boat (sparrow fly) slowed down and turned into Takubar Beach Resort for a short time then it took off toward Tokua Tokarkar way.

24. According to this witness, when the sparrow fly sailed out from Takubar Beach Resort, the second accused is supposed to have told this witness, a teacher and a member of the LLG that his father had then taken off from the above resort. John noted that, the second accused was still talking to someone on his mobile phone.

25. The next witness, David Kaseba also comes from King village on the West Coast of Namatanai, New Ireland Province. This witness was not on the scene but he testified in court to a story that, witness Kiliaon Kamlapar had told him during a funeral food gathering at Tamsing Wanain residence. David's house is next to Tamsing's residence whose son Lomki Wanain was allegedly killed.

26. David's evidence shows that, he was the owner of the boat "sparrow fly". In that gathering, the first witness was there and David observed that Kiliaon looked towards David's petrol shed with empty drums a number of times and shook his head and laughed. David inquired if something was wrong and if he had anything to talk to him about. Kiliaon Kamlapar laughed away for a while then told David that, the three deceased did not drown but they were murdered.

27. The next part of his evidence consist of what this witness heard from the first accused on the date a feast was held to commemorate the death of the three deceased a week after they were allegedly killed. After hearing rumours about the killing, this witness and other village elders invited the two accused to tell them what exactly occurred to the boat they were on and they capsized. Accused Selman Amos told the audience of how their boat encountered heavy seas and waves that it capsized and sank. The tale went on that, after their boat turned over, the four of them, the three deceased and Selman Amos drifted on pallets and they were carried by strong currents toward Duke of York islands.

28. He further told the gathering that after they had drifted for sometime, he told the three deceased that he was going to seek help. After praying with them, he drifted away in one pallet and to his surprise, he saw two black objects came to where he was and carried him away to the shores. He was surprised when his legs touched the sand. He then called out for help until the rescue team from Maren village saved him.

29. David was asked in cross-examination about how the witness is supposed to have identified the key to his boat. He said, the boat key number is No.408. He was asked if he knew how the three deceased were killed. He said, what he was informed was that there was a hold-up on the high seas and the skipper Nelson Sapau diverted the sparrow fly boat into the mangroves at the light house at the airport where the killing took place.

30. He was asked if he was worried because his brother was killed. He said, not only that he was worried about the three deceased but he was also anxious about his boat and wondered where it was.

31. Rachael Koli is the wife of late Koli Sapau. In her evidence, Rachael gave an account of how her late husband and her had problem with Bernard Uriap over their boat which was hired by Bernard and it capsized with bags of copra. She said, they tried all their best to get Bernard pay for the loss of their boat but Bernard never responded favourably.

32. It is Rachael's evidence that, Koli Sapau sought assistance from the first accused. So on 24th July 2008 they came to Kokopo to see Bernard Uriap. All the pair wanted was K3,000 for compensation payment for their boat. When Koli Sapau went to see Bernard, they had an argument. Asked in chief, why did her husband die? She said, he died because of money. Asked as to how much money, she said, though they were asking Bernard for only K3,000.00, she heard after the accident that, Bernard gave Koli Sapau K13,000.00.

33. The next witness was Luke Aikos. Through this witness his statement was tendered and Marked Ex. "G". Hs evidence is merely circumstantial. He was not on the scene of the killing. The only relevant piece of evidence from this witness is about the first winess Kiliaon Kamlapar handing over the key to the boat sparrow to him at Kaboman village. In cross-examination, Luke was asked when they came to Kokopo police station whom did they report to. He said, they reported at the CID office to Poren Yagiri. Asked as to how many weeks after the alleged killing was it that they went to dig up the graves to exhume the three bodies. He said, it was seven months after they were buried.

34. Ruth Patrick's statement was tendered through her. All her evidence is hearsay. She refers to the story told to them in the village by the first accused. In her statement (Ex. "H"), she said, the first accused told the gathering that, when the boat capsized, they drifted. While they were drifting, the first accused said, he noticed that his tambu, Lomki Wanain was really drunk and he had no strength to swim. In case of Nelson Koli he was hungry and he too lacked the strength to swim. That in case of Koli Sapau, his hair was being washed away by the sea water.

35 The statement (Ex. "I") made by Lesley Jack Anton, was tendered through him. There is nothing much on his statement. He only states that, after they found out about the killing, they came to Tokua with the policemen to exhume the bodies. Some how they did not find the bodies.

36. Balan Lung's statement was also tendered though him. Balan was the skipper of the boat they call "Daisu boat". This witness was together with his passengers at Skowhegan service station on the night of 30th July 2008. In his statement he says, by about 10 pm he saw the two accused and they were there until morning.

37. The statement of this witness shows that, on the night before they sailed to West Coast Namatanai, the skipper of another boat, KDN Simon Anis and the crew of sparrow fly Lomki Wanain and this witness bought a carton of beer and they drank at Skowhegan that night.

38. He said, early in the morning on 31st July 2008, he got his boat ready and his
passengers got on. The KDN boat led the way followed by sparrow fly then the last one was Daisu skippered by Balan Lung. As they sailed up to Watah Light house, they stopped to properly load their cargo. After they took off, the boat KDN again led them. As they were sailing up towards open sea, he noticed the sparrow fly slowed down then Balan skippered his boat passed the sparrow fly. According to this witness, he said, he did not know why the sparrow fly slowed down as its skipper Nelson Koli did not do any signals to the other two boats to indicate that they had suffered any engine problem.

39. The following statements and documents were tendered by consent:

➢ A set empty photos showing pictures of living persons in one page Exhibit "A"
➢ Record of interview with 1st accused in Pidgin Ex. "B". "B.1" English translation.
➢ Record of interview in Pidgin with 2nd accused Ex. "C" and "C.1" is. English version.
➢ Statement by Senior Constable James Pius Ex. "E".
➢ The ignition key to the Sparrow Fly boat Ex. "F".
➢ Statement by witness Luke Aikos Ex. "G".
➢ Statement tendered through witness Patrick Ruth Ex. "H".
➢ Statement by Lesley Jack Anton tendered through him Ex. "I".
➢ Statement by Balaun Lung tendered through him Ex. "J".
➢ Exhibit "K" statement of Simon Anis.
➢ Exhibit "L" statement of John Cletus.
➢ Exhibit "M" statement of Rondal Tintineng.
➢ Exhibit "N" statement of Michael Douglass.
➢ Exhibit "O" statement of Bernard Uriap.
➢ Exhibits "P" "1. 2. and 3" warrants to exhume the dead bodies
➢ Exhibits "P2" warrants to burry.
➢ Ex. "Q" warrant to exhume a body.
➢ Ex. "Q.1" order for post mortem.
➢ Ex. "Q.2" warrant to burry.
➢ Ex. "R" warrant to exhume body.
➢ Ex. "R.1" order for post mortem.
➢ Ex. "R.2" warrant to burry.

40. The exhibits on exhumation of dead bodies, post mortems and warrants to burry are in order of deceased persons named in the body of the indictment.

41. On 3rd November 2011, this court on its ruling rejected the submission of no case to answer and ordered the trial to proceed. (See copy of judgment dated 3rd November 2011). A very useful discussion of the basic principles on a "no case to answer" submission appears in the judgment of O'Leary A.J. in The State-v-Paul Kundi Rape [1976] PNGLR 96 and the case of Roka Pep (No.2) [1983] PNGLR 287.

Defence Evidence

42. The two accused gave sworn evidence and called one witness. The first witness called was the second accused. He comes from Kait village in West Coast of Namatanai. At the introduction of his evidence, he said, he knows that he and his father have been charged with very serious charges of wilful murder and other pending cases. He said, on the night of 30th July 2008, he was at Kokopo Secondary School and at about something past 10 pm, he walked down to Skowhegan with his father to leave him to catch an early boat to go back to their village at West Coast of Namatanai. As they were walking down, they met persons whom he named as Lipas Morea, Francis Liko, Peter Lalake where they bought some food from the 24 hour service store at Vunamami.

43. The boys he named had come from Skowhegan to buy food and drinks. After buying food, they all then walked back to Skowhegan. They were there until day break the next day. It is clear from his evidence that, whilst in Skowhegan, he was together with other boys. He named them as Tovin, Tom Osea, John Mannering, Fidelis Mannering and others. This witness was asked in chief, what time did they leave Skowhegan in the morning. He said, about 7.30 am back to Kokopo Secondary School.

44. This witness was asked in chief if while at Skowhegan, he ever met Dicket. Further asked if he had a meeting with anyone. He replied no to both questions. This witness further revealed that after his father had boarded a boat to go home, he returned to Kokopo Secondary and by 10pm on the night of that day, the councillor from Maren village in Duke of York Islands called him up by phone and told him that his father had swam ashore at Maren village because the boat he was in had capsized and sank on the sea between Duke of York Islands and West Coast of Namatanai.

45. He was further asked if he took any actions after learning that the boat his father was in sank. He said he and his sister and her husband went to Radio East New Britain to put up a service message to RENB then went to the Disaster office to inform authorities about the boat that had sank and for the search of missing people. It was put to this witness if it was true that he was involved in the planning of the killing of the three deceased. He replied, he did not know about the killing.

46. In cross-examination, Mr. Ai asked this witness about the time he left Kokopo Secondary (KOSEC) to Skowhegan at about 7.30 or 8.30 pm. He answered it may have been 10 pm. The witness seemed to have contradicted himself on the time he gave to police when during the record of interview and what this witness told the court in evidence. This witness said, he was not so sure about the time. He was asked whether the councilor from Maren village contacted him through a mobile phone or otherwise. He said, it was through land line and mobile.

47. Asked if he knows a person by the name of Rondal Titineng of Mualim village on the Duke of York Islands. This witness said, he does not know that person. (See Ex. "M" statement of Rondal Titineng dated 29.3.2011). This witness was not called but, her statement was tendered by consent. The witness was further asked if it was true, Rondal saw him skippering the Sparrow Fly boat on 31.7.2008 at Mualim village. The witness answered 'no'.

48. He was asked if he had in his possession any mobile when he was at Skowhegan. He said, he did not have any. Asked if it was true his father (the first accused) had got the sparrow fly boat to go back to their village. He answered 'yes'. He was asked if it was true that when that sparrow fly boat left he was still at Skowhegan. He said, 'yes true'. Further asked, if it was true two other boats also left about the same time to go to West Coast Namatanai. He responded in the positive. He was asked if he knows State witness Kiliaon Kamlapar. He said he knows and he comes from the next village next to his called Kaboman village.

49. Asked if he had any grudges with Kiliaon. In his answer he said, though he does not have any problem with Kiliaon Kamlapar, Kiliaon himself had a problem with them about a plantation. He said, Kiliaon's father is supposed to have bought the plantation and their relative lived on it, they in fact have never bought it. When his father (first accused) bought that plantation, police was engaged to evict him from that plantation. He said, this created grudges between them.

50. He was asked if Lukas Aikos is related to the three deceased. He was asked if it was true that when his father bought the plantation, Kiliaon and his line were on that station. He said it is true. Further asked if after the police evicted, Kiliaon and his relatives, this witness and his relative had many arguments with Kiliaons' line. He said, the relatives of his father knew that, they had grudges against them because, Kiliaon and his side wanted to recover the plantation.

51. The second witness was the first accused Selmon Amos. He recalls that on the Morning of 31st July 2008, he was in Kokopo at Skowhegan and he wanted to go back home and due to rough seas, they decided to go together with two other boats. They left Skowhegan early during dusk and as they sailed up they reached the first point. The other boats went ahead and due to rough seas, their boat stopped. The skipper got something fixed as they started up the boat again.

52. After they took off, they travelled for about 30 minutes then the engine suffered further problems. They took off again and after 10 or 15 minutes, a big wave came and hit the boat and turned it completely over. Those on board that boat together with this witness started to use pallets to swim and float. He estimated that the time they sank was about 6.30 am.

53. He was asked about the other two boats. The witness said, they were ahead of them not realizing that they suffered engine problem. He gave an account of what happened after they sank saying while they were drifting, big waves came and assisted them to come near Nabual and Watara villages on the mainland of Duke of York Islands. They continued to hang on to their pallets. Then another wave came and took them almost reaching Nambual village.

54. After this, he then told those three people who were with him to try their best to swim to the islands at Duke of York. He revealed in chief that out of the three men that were with him on that boat, two of them were really drunk.

55. As they were swimming, he told the three that, he was to try and swim to Duke of York and the current was really working against them trying to carry them through the Saint George Channel. As they were drifting, this witness insisted that, he should seek help from those on the Island so he shared a word of pray and he tried to swim ashore. He swam and swam and whenever he was tired, he rested by turning himself facing upward with the pallet using it as a pillow to rest his head and breath fresh air. According to this witness he repeated this process many times and whenever he rested, he shouted for help.

56. He said, without him realizing what was happening, somehow something or someone assisted him and he landed near Maren village. After that, he saw light shining at the direction where he was coming from. He was surprised when the boys came to rescue him. He was pulled into a canoe but it sank. Eventually he was rescued and taken to the village at Maren.

57. This witness was vigorously cross-examined. He was asked about, how many islands he passed prior to drifting ashore at Maren village. He named Mualim island but he said, that they were far from there as the tide swept them past those places and he landed at Maren. He asked if he knows Kiliaon Kamlapar and if they had any grudges between them. He said, he does not know him personally but what he knows is they had some dispute about the plantation which he bought.

58. He was asked if he knew the three deceased and he said, he knew them well. Asked about the number of people who boarded the sparrow fly together with him. He said, there were three together with him added up to four. He was asked as to why witness Kiliaon could have made up the story. He answered that right from home Kiliaon and his line and him and his line had grudges. Asked if he had any grudges with the three victims, he said, he did not have any problems with them and named them as Koli Sapau, Nelson Koli and Lomki Wanain.

59. He was asked why would Kiliaon Kamlapar come to this court and tell lies about him on what happened to the three victims. The witness said, Kiliaon would have reasons to tell lies because, they were evicted from the plantation he bought. He was asked if he hired two men to kill the three deceased. He said, that was total lies as he never had any grudges with the three men who died that day. He was asked if he knew persons by the names of the two men who shot the three deceased. He said, he did not know them nor did he ever met or spoken to them.

60. The next witness called was John Base alias Biket. In chief this witness denied knowing the two accused and he does not know them. John comes from Madang and when he was asked if he knows witness Liliaon Kamlapar, he said, he does not know him and he does not know where he comes from. He was aksed in chief and cross-examination about a bandage on his right hand. He said, he is not left-handed and he never killed anyone as claimed by the first State witness.

61. As to why this witness was called is not clear from the defence case. In fact, there is evidence from both accused through their records of interview that, when the two were asked during the interview if he knew this person John Biket, mix Madang and Tolai parentage, George Tiks of Taui, Bitapaka LLG and Robert mix Arowe and West New Britain the first accused said he did not know them and those were ghost names only. (For that record of interview, see Ex. "B").

62. In case of the second accused, he denied knowing the same persons in answer to question 25 of his record of interview and said, he did not even know if they were around at Skowhegan that night. (See Ex. "C"). This is where the defence rested its case.

Defence Address on Verdict

63. The defence case was formally closed on 4th May 2012. Due to my engagement on Tribunal matters, this case was left there until 8th of August, I heard counsels submissions on verdict.

64. For the defence, Mr. Kaluwin spoke to his written submission. His submission is based on the evidence by the first State witness Kiliaon Kamlapar related the story of how he is supposed to have stood on the boat he was the skipper on and watched John Bikhet and George Tiks and Willie of mixed Ulagunan and Sepik shot the three deceased on command of the first accused.

65. Mr. Kaluwin argues that, the three victims were taken to somewhere near the
mangroves where they were shot and buried in the swamps and they left. He argued that after seeing the killing, he took the first accused to drop him off at Maren village. Then this witness took off to New Ireland then returned with the key without bothering to report the killings to police at Kokopo when he knew that two of his relatives Koli Sapau and Nelson Sapau had been shot.

66. Mr. Kaluwin argued that, the State's first witness was and is an accomplice on this Killing and as such an accomplice evidence ought to be properly scrutinized and ought to be supported by independent corroborative evidence. Counsel directed the court's attention to the issue of the grave yards not being found and despite warrants to exhume bodies ordered by the District Court, the bodies of those three deceased were never found or even exhumed.

67. Counsel submitted that, the court should treat the evidence by the prosecution with grate caution because, the evidence by the first witness seems to be a set up against the two accused for grudges about ownership of land.

Prosecution Address on Verdict

68. Mr. Rangan of counsel for the prosecution also spoke to his nine pages written submission. Counsel submitted that if it is true that, the three deceased were shot dead at Tokarkar plantation it must be the result of a well-planned killing. Counsel referred to the names those persons who were referred to by witness Kiliaon such as Willie, mixed Ulagunan and Madang, John Biket mix Tolai and Madang, George Tiks of Taui village and said, these persons would be criminally liable.

69 Counsel argued that if the court accepts the proposition that, the incident involved a well- planned killing, then the two accused have a motive for killing the three deceased. In his submission, he referred to an agreement entered into between a company owned by Bernard Uriap, (Las Peles Shipping & Plantation Management Company Ltd and KCL Shipping owned by Nakikus Konga and the boat "Trident" owned by late Koli Sapau and family.

70. Counsel raised the issue of why the killing of the three deceased could not be attended to quickly passing on the blame on a policeman by the name of Poren Yagiri. With respect this is not a matter for the court to deliberate on.

71. Mr. Rangan made reference to the evidence of Kiliaon Kamlapar and other witnesses Like Randal Titineng saying that their evidence reflect the truth of what happened on the date the killing occurred. He argued the State's evidence should not be doubted in any way because Kiliaon was an accomplice of this case.

72. Counsel referred to the distance which the first accused is supposed to have swam saying, the distance given by the defence evidence is illogical because if the boat on which the first accused was on capsized at the place and point described by the defence evidence, such distance would be too far or long for that matter for the first accused to swim. He argued that accused Selmon Emos evidence should not be believed and that of the second accused as their evidence is fabricated as the killing was reported to policeman Poren Yagiri the next day. Counsel urged the court to return verdicts of guilty.

Application of Law to the Evidence & Warning on Circumstantial Evidence

73. The issue for the court to determine is, who killed the three deceased Koli Sapau, Nelson Koli and Lomki Wanain? In order for the Court to be satisfied beyond reasonable doubt about the guilt of the two accused, the weighing and reviewing of all the evidence both for the prosecution and defence must be undertaken. In some criminal cases on trial, it is difficult to ascertain the truth and the court must do the best it can to accept the story that a human being is capable of understanding as reasonable: The State-v-Jacob Dugura Roy (2007) N3137.

74. As to which of the versions of the evidence before the court is whether that of the prosecution or that of the defence, depends very much on the credibility of the witness or witnesses. Authorities warn that extreme caution must be exercised when the judge is dealing with the issue of the lying and truthful witness. There is no rule of law which says that a party which calls more witnesses and who gives consistent and almost identical stories must be believed and a party who calls only one witness must not be believed: Woolmington -v- DPP [1935] AC 462.

75. In a trial like this one, the truth is not so easy to find and the court must do the best it can in all the circumstances of a given case to "try and strike a balance between what is logical and more probable of human comprehension than what is illogical or plain fallacy". The common law practice which Papua New Guinea adopted on 16th September 1975 including the criminal law and practice by virtue of Schedule 2.2 of the Constitution and s.37(4) of the Constitution itself requires that the court must be satisfied beyond reasonable doubt of the guilt of an accused before an accused can be convicted.

76. And where there is any doubt the court must give the benefit of the doubt to the accused: SCR No.1 of 1980 Re s.22A of Police Offences Act and s.37(4) of the Constitution [1981] PNGLR 28, see also The State-v-Misari Warun [1988-89] PNGLR 327.

77. Still on the standard of proof ("proof beyond reasonable doubt") the Supreme Court in SCA No.1A 1981 Re Motor Traffic Act [1982] PNGLR 122 Greville Smith J, referring to s.37(4)(a) of the Constitution at page 136 said:

"...To 'prove' a person to be guilty means to establish or demonstrate the actuality of his guilt of the offence charged. This may be done either upon a person's own plea of guilty or upon evidence from which his guilt may be inferred to the requisite degree of persuasion."

78. In that earlier case of SCR No.1 of 1980 Re s.22A of Police Offences Act and s.37(4) of the Constitution [1981] PNGLR 28, the Court said at page 38-39:

"In my opinion, as a result of s.37(4)(a) the law in Papua New Guinea relating to proof of guilt in criminal cases is that the onus is on the prosecution to prove each element of the offence charged beyond reasonable doubt, subject to the following exceptions namely; namely:

(a) In the case of a defence of insanity, ....

(b) Where an enactment prohibits the doing of an act save in specific circumstances, .....

(c) In the case of an enactment which places upon the person charged the burden of proving particular facts which are ..... peculiarly within his knowledge."

79. On the instant trial, this court heard evidence from witnesses called by both the prosecution and defence. The issue now is whose evidence should the court accept as credible? Apart from the defence version of certain grudges between the two accused and witness Kiliaon Kamlapar, the defence has not given any possible reasons why that State witness could have come to court and tell lies to this Court.

No reasons or motives were given by the defence evidence as to why the witnesses came to court and tell lies against the two accused.

80. I find that there is no plans or conspiracy between the first witness and anyone of the witnesses that were called or any body for that matter to tell this court lies in relation to these very serious allegations. Though there may have been some grudges about land but I find such problem was not the cause of the killing. In all, what inferences should this court draw from all the evidence? In particular on this case where all evidence is mostly circumstantial except for the evidence of one witness who alleged to have witnessed the killing.

81. It is settled law in this jurisdiction that the court can either accept or reject evidence both by the prosecution or the defence on the basis of whether such evidence is credible or not: Paulus Pawa-v-The State [1981] PNGLR.498, see also Garitau Bonu & Rossana Bonu-v-The State (1997) SC.528 and The State-v-Garitau Bonu & Rossana Bonu [1996] PNGLR.48.

82. Under the heading of circumstantial evidence, the court must observe the witnesses' demeanour and use common sense and tell whether the witness was telling the truth or not. Let me quote a passage from the common law case of Barca-v-The Queen [1975] HCA 42; (1975) 133 C.L.R 82 at 104 which was quoted in The State-v-Tom Morris [1981] PNGLR 493 at 495 which concisely states the position in law on drawing of inferences. The court in that case said:

"When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': Peacock v The King [1911] HCA 66; (1911) 13 C.L.R 619 at p.634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only reasonable inference that the circumstances would enable them to draw': Plomp v. The Queen (1963) 110 C.L.R 324, at p.352; see also Thomas v The Queen [1960] HCA 2; (1960) 102 C.L.R 584 at pp.605-606. However 'an inference to be reasonable must rest upon something more than mere conjecture...' ".

83. The two accused raised general denial on their defence. There is sound reason for the above rule in all criminal offences that it is unsafe to convict an accused person upon uncorroborated evidence of one witness alone unless such evidence is corroborated by evidence of other independent witnesses which would render it probable that the offence charged has been committed by someone and that the accused was the one who committed it.

84. It is also established law that where there are competing inferences, it is a question of fact for the court to decide which inferences should be drawn, which should be rejected and which is reasonable, which is mere conjecture and which party should it believe: Paulus Pawa-v-The State [1981] PNGLR 498. It was also said, that when a case rests substantially upon circumstantial evidence, an accused should be acquitted unless all the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of an accused: The State-v-Tom Morris [1981] PNGLR 493.

85. The Supreme Court in Allan Oa Koroka-v-The State [1988-89] PNGLR 131 where the then Deputy Chief Justice, Sir Mari Kapi (as he then was) at 136 quoted extensively a passage from an Australian authority Lend Lease Development Pty Ltd-v-Zemlicka (1985) 3 N.S.W.L.R. 207 at 211, the president of the Court said:

"It is doubtful that the suggested distinction between conjecture an inference is as plain as some of these authorities suggest. With greater knowledge of human psychology and greater understanding of probability theory, it is nowadays increasingly recognized that the one process of reasoning merges into the other. In order to draw inferences, it is often necessary to speculate. Whether the product of the speculation is a mere conjuncture, guess or surmise or a 'definite inference' depends on processes of evaluation and judgment that are not always susceptible to strict logical analysis. This has been recognized in decisions of high authority. The fact that competing inferences which are available cannot be positively eliminated does not render an inference derived from proved or accepted facts a mere conjuncture, surmise or guess: cf Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 169."

86. In The State-v-Tom Morris (supra) Justice Miles quoted a passage from the Australian High Court case of Barca-v-The Queen (1975) 133C.L.R.82 at 104; [1975] HCA 42; 50 A.L.J.R. 108 at 117 where the Court there said:

"When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': Peacock v The King [1911] HCA 66; (1911) 13 C.L.R. 619 at p 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but hat it should be 'the only rational inference that the circumstances would enable them to draw.': Plomp v The Queen [1963] HCA 44; (1963) 110 C.L.R. 234 at p 252; see also Thomas v The Queen [1960] HCA 2; (1960) 102 C.L.R. 584 at pp 605-606. However, 'an inference to be reasonable must rest upon something more than mere conjuncture."

87. I adopt the above principles and apply them to the circumstances of the current trial. In order for this court to find the two accused guilty, I must be satisfied beyond reasonable doubt about their guilt from all the evidence. All evidence I mean evidence by the only witness Kiliaon Kamlapar whom the State say was an eye witness and an accomplice to the killing of the three deceased. Then there was circumstantial evidence from witness 2 – 10 together with statements that were tendered from Exhibits "A" to Exhibit "R.2" and off course the evidence by the two accused and their one witness.

88. From all evidence, both for the prosecution and defence, I make the following finding of facts and questions that can be raised on the status of such evidence:

(a) Witness Kiliaon Kalapar was an accomplice to these offences,

(b) He was at Skowhegan on the night of 30th July 2008,

(c) He was there when the two accused came to Skowhegan on the evening of the above date,

(d) He heard accused Selman Amos talking to someone by mobile phone while standing at the bus-stop on the plan to kill somebody,

(e) The key to the sparrow fly boat Key No.408 was tendered. If the boat got sunk, how did that key managed to land on the hands of the first witness?

(See Ex. "F").

(f) The witnesses like John Mannering who was on the ground at Skowhegan saw accused Misialis Amos use his mobile phone to talk to someone for a long time. Who was he talking to is not clear.

(g) The first accused was rescued at Maren village, did he raise the alarm with the boys who saved him that, they should go out to the sea to try and save the three deceased as he told police in the record of interview. (See answer to Q.54 on the record of interview with accused Selman Emos.

(h) The evidence of witness Japheth Balaut shows that when accused Selman Amos was rescued, he never raised the issue whether the first accused ever raised the issue about the other three who were out in the sea drifting.

(i) The same witness was asked about the physical condition of the first accused, he said, he looked ok except he only had pants on his body.

(j) The three deceased died either as the result of being shot as put by the prosecution evidence or by being lost in the sea between Duke of York Islands and West Coast Namatanai as understood from the defence version.

(k) Oral evidence by accused Selman Amos contradicts what he told police in the record of interview and the evidence by Ruth Patrick and her statement Ex. "H".

(l) He told police in the ROI that, the current threw him ashore at Maren village beach.

(m) In the village when he was invited to tell a gathering which mourned the death of the three deceased that while he was swimming, he saw something like a blue canvass and he was surprised he got carried off by fish right up to the beach of Maren village when he was shocked to stand on the sand, see Ex. "H).

(n)He never told the court on his oral evidence about this piece of evidence, and did not tell the police in the record of interview.

(o) The alleged killing could have occurred between 7 and 8 am.

(p) The prosecution and defence evidence shows that the first accused was rescued at about 5.30 pm and to 6 pm.

(q) The time described by the statement of witness Rondal Tintineng when she saw a white boat Mualim village on Duke of York mainland land may have been about between 6.30 pm and 7 pm.

(r) Rondal's statement also shows that, she saw Misialis Amos skippering the white boat and she knows the second accused well because, Misialis' mother is the big or elder sister of the husband of Tintineng. Her husband is Rondal.

(s) There may have been conspiracy between the first and second accused to carry out the killing on the three deceased as Kiliaon observed both the first and second accused used mobiles that night and when Sparrow Fly boat left on that fateful morning, witness John Mannering observed that the second accused spoke to someone on the mobile phone for a long time.

(t) What inference should the court draw from such evidence?

(u) How did accused Selman Amos know of the person whom the key witness refered to as John Base alias John Biket orBighead?

89. From the above findings, what inferences should the court draw from the total evidence on this trial? I must warn myself about the dangers of convicting the two accused on the circumstantial evidence and I do further say that any inferences that this court draws must not just be 'the product of the speculative evidence, mere conjuncture, guess or surmise or a definite inference' which factors are dependent on the processes of evaluation and judgment that are not always susceptible to strict logical analysis.

90. But to enable this court 'to be satisfied beyond reasonable doubt of the guilt of the' two accused 'it is necessary not only that' their 'guilt should be a rational inference but that it should' and must be 'the only rational inference that the circumstances would enable' this court to draw: Plomp-v-The Queen [1963] HCA 44; (1963) 110 C.L.R. 234, Allan Oa Koroka-v-The State [1988-89] PNGLR 131 and see also The State-v-Jacob Dugura Roy (2007) N3137.

91. I find the defence evidence to be illogical and plain fallacy amidst the prosecution case which I find to be credible. Linking the inferences from the evidence of the first witness (Kiliaon Kamlapar) about him witnessing the killing. Then how the suspects and this witness were taken to Maren village on the Duke of York Islands and the timing given by Kiliaon Kamlapar comparing it with the time given by witness Japheth Balaut (5.30 to 6 pm), and that by Rondal Tintineng (6.30 pm) when she saw the white boat at Mualim village which is a distance away from Maren village, what inferences should the court draw.

92. I conclude that the prosecution case is more credible than that of the defence. I am convinced beyond reasonable doubt that according to the evidence of Kiliaon Kamlapar, they left the scene of the killing about 4 pm and travelled up to Maren village and dropped accused Selmon Amos on the rocks there somewhere and he swam to the sea then shouted for help.

93. Inferences drawn from Luke Aikos evidence of him being present in the office of Bernard Uriap with accused Selam Amos and Koli Sapau when the deceased Koli Sapau argued with Mr. Uriap about the payment for his lost dinghy which Koli Sapau placed its value at K3,000.00.

94. There was much argument between Koli Sapau and Bernard Uriap about that boat which sank ferrying Bernard's 22 bags of copra. Bernard Uriap was not called as a witness but his statement was tendered by consent shows that there was grudges between Koli Sapau and himself on the sinking of Sapau's dinghy.

95. He does not mentioned if he gave K13,000.00 to Koli Sapau but says, he never paid Sapau any K35,000.00 and he placed the value of that boat at between K15, 000.00 or K17,000.00.

96. He does not reveal if Selman Amos and Luke Aikos were together at the time Koli Sapau had an argument with him. In all what inferences should the court draw from all the evidence? It is established law that where there are competing inferences, it is a question of fact for the court to decide which inferences should be drawn, which should be rejected and which is reasonable, which is mere conjecture and which should this court accept as "the only rational inference that the circumstances would enable them to draw."

97. Linking the evidence of the only key witness to that of other witnesses such as that of Lung Balan and Simon Anis who were skippers of two other boats namely 'Daisu' and 'KDN' who both say in their statements that, they left the sparrow fly boat somewhere between Karawara island and Kapkap point or the Watah Light house, they saw that the sparrow fly boat slowed down. The skipper, late Koli Sapau did not make any signs to indicate if they were in trouble. Why not make a signal so the other two boats could have slowed down to offer assistance?

98. This evidence is compared to that of the first accused who said in evidence that, they were already far up past the Watah Light house sailing towards West Coast Namatanai when they capsized with the sparrow fly boat. The evidence by Kiliaon and the two skippers of "Daisu" and "KDN" say they left the "Sparrow Fly" boat between Karawara island and Kapkap plantation point.

99. What inference should the court draw from the evidence by the key witness of how the key of the Sparrow Fly boat got into the hands of Kiliaon Kamlapar (key witness). The key of the sparrow fly boat that was tendered as Ex. "F" is No.408 corresponds with the number that was given by the owner of the sparrow fly boat David Kasemba on his oral evidence. Had the 'sparrow fly' boat sank, how did its key come to Kiliaon's possession?

100. The only rational inference the court must draw is that when the sparrow fly boat slowed down at Takubar Beach Resort was to give the warning to the skipper of Las Peles boat to follow suit. By the evidence of the other skippers of the other two boats, the sea was not so rough at Kapkap point and even up to Watah Light House and the court cannot accept the evidence by the defence that, the Sparrow Fly was way up behind the other two boats when it sank.

101. The reason for slowing down was because by then, the Las Peles boat caught up with the Sparrow Fly and diverted it to sail towards the mangroves swamp to get some petrol then thereafter to execute the crimes of killing. The court accepts the evidence by Kiliaon Kamlapar that after the killing, he was directed to skipper the Sparrow Fly boat to the Duke of York where the first accused Selam Amos was dropped off somewhere near Maren village beach.

102. Part of the evidence by witness Japheth Balaut of Maren village on Duke of York islands is that when he and other boys rescued the accused Selman Amos, he was made to seat on the sand and he asked him what had occurred and the accused told him the story of how the Sparrow Fly boat got sunk and there were three others still drifting on the pallets.

103. According to this witness, he observed the first accused appearance to be normal and he appeared not to look tired and observed him to be still full of vigour. What inference should the court draw from this piece of evidence? The inference I must draw is that the accused Selman Amos did not swim to Maren beach as the result of the boat Sparrow Fly being sunk or capsized.

104. On the matter of credibility and the issue of whose evidence should the court accept as credible and give weight to. By the evidence presented to the court on this trial, I take the State's evidence as credible and by such evidence I am satisfied that the inference which I have drawn is not only a rational inference but it is the "only rational inference that the circumstances" of the evidence has enable me to draw.

105. The biggest mystery or unexplained part of the evidence before this court is if the sparrow fly boat sank, how did its key got saved from sinking if the skipper of that boat drowned together with two others. The evidence by the first accused is the sparrow fly sank in the rough seas and the boat went down into the sea together with all the cargoes.

106. The issue now is how did the boat key No.408 get into the hands of Kiliaon Kamlapar? The owner of the "sparrow fly" boat David Kesemba confirmed that, the number of the key to his boat was N.408.

107. I reached the conclusion that, from all evidence before this Court, there is more evidence to show that the two accused conspired, counseled or procured with each other when they contacted each other by mobiles and when the sparrow fly boat left Skowhegan, the second accused used his mobile to contact their accomplices and the first accused in terms of s.7(1)(a)(b)(c) & (d) and s.8 of the Criminal Code to execute the crimes of unlawful killing. The evidence before this court is 'more than mere conjecture'. The only rational inference that the circumstances of this case enable me to draw is the guilt of the two accused.

108. The court returns verdicts of guilty to all the three charges of wilful murder. They are found guilty and convicted to each and severally on the three counts of wilful murder contrary to s.299 by virtue of s.7 and 8 of the Criminal Code.

___________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the two Accused.