N4601

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 1169 OF 2008

BETWEEN

THE STATE

AND

EZEKIEL YAUM,
RAPHAEL KARIWA &
CLETUS BON

Wewak: Kirriwom, J.
2012: 10, 11, 12 & 13 January

CRIMINAL LAW – Practice and Procedure – No case to answer- Principles of – Wilful Murder- Essential elements – Proof of – Case dismissed

Facts

The three accused and the deceased who are related by blood as first cousins were drinking with several other persons when they went to Wom Beach between 7 and 8pm on 19 May 2008. As they drank they had an argument and fight. The deceased then left his cousins and walked away from the group. The vehicle they were travelling in went after him to bring him back two times but did not locate him and they returned to town.

The deceased was found dead lying on the road well after mid-night almost half-way between the Wom junction and first Wom village after the bridge. Of the five witnesses who testified, no one actually saw how the deceased was killed. Medical report showed extensive damage to the chest area of the deceased where his rib bones were fractured. The cause of death was hypoxia. 

The issue was one of identification although State case was founded on the accused having a motive to kill the deceased. The only eye witness who saw some people coming in the same vehicle in which the accused persons were travelling in jumping down and attacking the deceased on the road. But that evidence stopped short of identifying anyone in the vehicle and did not identify those persons attacking the other person.

A no case to answer submission was upheld by the court which held:

•	That the evidence before the court was so poor, insufficient, unreliable and unconvincing for a reasonable tribunal doing justice to call upon the accused to answer the charge.

•	Evidence of motive was not strong and lacked logic and credibility

•	There were other hypotheses open on the evidence as to the possible cause of the deceased's death which excused or excluded the accused. 

Cases cited:
The State v Paul Kundi Rape [1976] PNGLR 96 
The State v Koivi Ipai [2010] N3972 
State v Paul Dimon Asilip [2011] N4197 
Paulus Pawa v The State [1981] PNGLR 498 
Devlyn David v The State (2006) SC881 applied
Counsel:
A Kupmain, for the State
M Wagambie, for the Accused

VERDICT FOLLOWING NO-CASE TO ANSWER SUBMISSION

13th January, 2012

1.	KIRRIWOM, J.: The three accused Ezekiel Yaum, Raphael Kariwa and Cletus Bon are charged with wilful murder of Jovi Valarien contrary to section 299 of the Criminal Code. If convicted the accused are liable to a maximum penalty of death pursuant to section 299(2) CCA.

2.	It is alleged that on 19 May, 2008 the three accused were drinking with the deceased at various locations in and around Wewak Town and surrounding areas and ultimately ended up at a private home of Harry and Julie Saya at Wom Beach near Wom Beach Guest House. There were other persons also with the accused and the deceased.

3.	More beer was consumed at this place during which time an argument developed between the deceased on one side and Ezekiel Yaum, Raphael Kariwa and Cletus Bon on the other. The argument turned into a fight which was stopped. After fight stopped the deceased left the accused and the others and proceeded to walk back towards Wewak.

4.	State case is that two of the accused went after him in a vehicle and after further assaulting him on the road took him back to where the rest were and after picking up the rest of the drinking party they headed back to Wewak. On the way back the deceased was further assaulted and consequently killed. His body was then dumped on the side of the road and the accused returned to Wewak about mid-night.

5.	State relies on the theory that there was a motive for this killing. It was over ownership of customary land between the deceased through his mother and also Ezekiel Yaum through his mother. The deceased who was excluded by Ezekiel Yaum was quite unhappy that he wrote a strongly worded letter to his cousin Ezekiel over his mother's exclusion as a landowner, hence, himself. A proposed gathering to resolve this issue never materialised and remained pending when his death occurred.

6.	Otherwise all three accused and the deceased are first cousins, related by blood. The deceased's father Joseph Valarian is the first born in the Bon family. Ezekiel Yaum's father is the third born in Bon Family and Raphael Kariwa and Cletus Bon are sons of sisters born after the deceased's father in Bon Family. Through inter-marriages Ezekiel Yaum was related to both the deceased's father and mother through their respective mothers who were said to be customary landowners in Sinamble, Turubu, East Sepik Province. However during the formation of the Incorporated Land Group of their maternal customary lands, the deceased was excluded and that struck a bad chord in the deceased in his relation with his cousin Ezekial.

7.	State called five witnesses who were orally examined. They were (1) Joseph Valarian, father of the deceased (2) Jonah Wanji, Harry and Julie Saya and Ronald Niamkoi.
 
8.	Joseph Valarian comes from Sinamble village, Turubu but a resident of Yawasoro Government Station along the West Coast highway on the outskirts of Wewak Town at the material time. He is a retired school teacher but self-employed at this time as a private contractor with Wewak Market who did cleaning up using his small dump truck.

9.	He gave evidence of seeing the accused and the deceased drinking together that day at his work place and late in the afternoon he dropped them all off at Yawasoro Government Station where the boys continued drinking. That was the last time he saw his son alive.

10.	Sometime after mid-night he was woken by Cletus Bon at his sister's block at Yawasoro requesting lift to take his family to Boram Hospital. It was then he learnt that Jovi Valarian had gone to Kreer Heights with Raphael and the others. So they proceeded to Kreer Heights where Joseph Valarian learnt the truth that his son had not returned to Wewak with his cousins.

11.	After reporting to the Police at Yawasoro, Joseph Valarian drove to Wom and about 200 metres before reaching the beach from the headlights of his dump truck he could see his son's body lying face down parallel with the road head towards the main highway junction. They lifted him up and he placed his son's body in the cabin and they drove back to Yawasoro.

12.	Joseph Valarian had no problem with his nephews on his side of the family. However, the children, on their mothers' side had disagreements between them and he made reference to Jovi's mother's rejection as landowner by Ezekiel and his mother during the registration of the incorporated land group. This evidence then provided a possible motive for Ezekiel to want to harm Jowi in the absence of any other plausible explanation of this death. But motive alone is not enough to infer guilt. 

13.	Jonah Wanji was the next State witness. He lives not far from Wom junction and is an auxiliary policeman. He was at the junction area with the youth from the area who were playing cards at about 7 – 8 pm when he saw a Toyota 5th element grey in colour registration number PAD 577 drove into Wom Beach road. He did not see who drove the vehicle and also did not see who was in that vehicle. 

14.	At about 9.00 pm he saw the Yawasoro Police Station OIC drive out from Wom in the Police vehicle with his drinking party. Not long after he saw a Toyota landcruiser with SDA church goers drive into Wom village and he was still there when the landcruiser returned.

15.	Jonah Wanji wanted the young boys to retire to their houses before he retreated to his house so he remained with them until about 11 pm when he saw a NBC Toyota Hilux white single cab PAD 218 head towards Wom Beach. However before the NBC vehicle came he saw the Toyota Hilux 5th element PAD 577 drove up from Wom Beach area and made a U-turn and drove back towards Wom Beach. After some 5 – 6 minutes he saw the 5th element PAD 577 returned and made another U-turn and went back to Wom. He did not see who was driving and who was in the vehicle.

16.	About 30 minutes after the NBC vehicle had gone to Wom the 5th element PAD 577 returned and went to the main road.

17.	The third State witness was Ronald Niamkoi. He is a villager from Wom who lives at the entrance of Cape Wom Surrender War Memorial. He was at Wom Junction and at about 10 pm decided to walk back to the village.

18.	As he walked along the 1 – 2 kilometre road through tall bushes on either side, a vehicle approached from behind and he hid in the bushes. He recognised the vehicle as a Toyota land cruiser. As he came closer to the beach, the same land cruiser that had passed him earlier was now returning into town. He continued walking towards the village. When he reached the bridge he saw a person standing at the edge of the bridge. He greeted him and the person replied. From his response he calculated that the lone person was not a local from Wom. 

19.	After saying 'good-night' to the lone man he walked to the other side of the bridge and hear and saw a vehicle approaching from behind coming from Wewak side. He hid himself in the bushes at the edge of the bridge and saw the vehicle stop just before the bridge. He saw three people come out and fought the lone man. He said there was moonlight and he could see clearly, there were no obstructions to his line of vision. The distance was estimated to be some 40 – 50 meters. There was some suggestion that it rained at some point in time that night.

20.	He heard the man call for help and he was too scared to help him because he too was alone. As the beating continued he heard the person call out 'God, mi dai nau'. The three men then pulled him up and placed him in the cabin of the vehicle and drove into Wom village. As they drove past him he recognised the rego on the vehicle was PAD 577 and it belonged to the Planning Office, normally driven by Sylvester Maru from Wom village.

21.	After the car had passed him he stepped onto the road from his hiding and proceeded to the village. He went to his cousin's house and had his dinner. After dinner he left them and continued walking to his house when a vehicle came up from Wom beach and stopped at a small market near the junction leading to his house. He saw it was the same vehicle PAD 577 and he saw the doors flung open and men came out and went back inside.

22.	He said as the vehicle started to take off the door of the cabin behind the off-sider remained open and the person sitting on that side made no effort to close it. Someone went out and closed the door and the vehicle took off on high speed. He said PAD 577 was a grey hi-lux double cabin. He made his observation at about 10 meters. 

23.	Julie Saya was the fourth State witness. She and husband Harry Saya live on the beach at the end of Cape Wom Surrender War Memorial. Around 6.30 – 7 pm on 19th May 2008 they were having dinner while watching TV on the beach in front of their house with their children and some relatives from the main village when the 5th element double cabin from Planning Office arrived with some people in the vehicle. The driver was Sylvester, Harry's nephew. Sylvester asked Harry if he and his friends could use the beach to drink their beer. Because Harry knew them he granted his approval. They sat not far from them and drank. After five minutes or so Sylvester drove Tom Fandin to Wewak.

24.	Julie identified those drinking at the beach as Ezekiel, Raphael, a priest whose name she did not know, Dominic and Jowi. She knew Ezekiel because he married Harry's cousin sister and she attended the same high school with Jowi Valarian at Angoram High. Jowi was junior to her. They sat at a distance of 10 meters.

25.	As the guys drank she heard Jowi was swearing 'kan yupela' repeatedly and Ezekiel and Raphael were stopping him asking him to show respect to the owner of the place. Jowi got up and wanted to fight the priest and Raphael stopped him and he tore Raphael's shirt. He then picked up two bottles of beer and ran towards the road.

26.	About this time the Planning vehicle came back so Harry and some of them jumped in the vehicle and went after Jowi. They did not find him and they returned to the house. They then all jumped in the vehicle and left their place. She estimated this to be about 9 pm.

27.	Harry Saya gave similar evidence to that of his wife Julie. He said Java Matui, his cousin requested to drink with his friends on his private beach so he consented. He even extended a light to where they were. 

28.	The deceased began swearing and he told Ezekiel Yaum for them to exercise restraint and show him respect and avoid swearing in front or in the presence of women and children. Ezekiel Yaum and the priest tried to calm down the deceased and Raphael Kariwa joined in and in the process the deceased tore Ezekiel's shirt. He then picked up two bottles of beer and walked away.

29.	He was concerned about the boy's safety and told his drinking mates that he did not want any trouble if anything should happen to him on the road. About that time PAD 577 returned after dropping Tom Fandin. He told the court of accompanying the accused in the vehicle with Java Matui driving to look for the deceased as far as the junction. When they went back without him, the wife insisted that they find him and with the family also in the vehicle, they drove towards Wom Public Beach looking for him there with little success. They returned to their place and PAD 577 left them about 9pm.

30.	In addition to this sworn testimonies, the State tendered by consent the following uncontested statements: 

•	Tony Valarian dated 20/5/08
•	Ryan Valarian dated 10/6/08
•	Peter Yang dated 16/6/08
•	Giffard Robeca 6/5/08
•	Moniara Christopher dated 3/6/08
•	Edward Isifu dated 7/6/08
•	Peter Polenduo dated 30/5/08
•	Venny Yambanduo dated 3/6/08
•	Tom Fandim dated 26/5/08
•	Samuel Pasu dated 23/5/08
•	Mary Noe dated 30/5/08
•	Pr. Reuben Jumbui dated 28/5/08
•	Pr. William Moke dated 25/5/08
•	Pr. William Moke dated 28/5/08
•	Cathy Aur dated 3/6/08
•	Alex Manau dated 21/5/08
•	Gabriel Wafewa dated 21/5/08
•	Raphael Kalamin dated 30/5/08
•	SC Wiliam kasona dated 23/7/08
•	Stenet Wohuienen dated 30/6/08

All these statements were marked as exhibits (Exhs. 5 – 24). Other documents tendered into evidence by consent were (1) Medical Report of Dr Lawrence Warangi dated 28 May 2008 – Exh. 1 and the respective records of interviews of the three accused, both pidgin versions and the English translations. They were marked as exhibits 2 – 4.

31.	A view was taken of the scene on the third day of the trial after which State closed its case. My impression of the location where the body was found by the father Joseph Valarian and the distance between the main highway and the closest house were there was human life is expressed in the judgment. The road to Wom at night is not without its disadvantages especially when a person is walking alone.

32.	Defence counsel Michael Wagambie made a no case to answer submission relying on the two limbs in The State v Paul Kundi Rape [1976] PNGLR 96.

33.	Mr Wagambie submits that the State case failed to substantiate the allegations made against his clients. The issue in the case was one of identification but so far no evidence has been tendered showing that one or more of the three accused assaulted the deceased during the course of the evening.

34.	The evidence of Ronald Niamkoi does not identify any particular person or persons attacking someone. The accused must therefore not be called upon to answer the charge against them.

35.	In response Mr Kupmain for the State submits that there was a motive for the accused to want to kill the deceased. This was over land. There was evidence of argument at Yawasoro before the boys left Yawasoro and ended up at Wom beach.

36.	The issues at this juncture in the case are: (1) whether there is evidence supporting one or more of the essential elements of the offence of wilful murder and (2) whether such evidence, if any, is such that a reasonable tribunal doing justice can safely return a verdict and the accused ought to be called to answer the charge of wilful murder?

37.	I have considered the submissions by both counsel.

38.	Kawi, J in The State v Koivi Ipai [2010] N3972 summed up the often cited principles on no-case in Paul Kundi Rape (supra) as follows:

"At this stage I must warn myself that the question is not whether the 
State has established its case beyond reasonable doubt, but rather on
the evidence as it stands can the accused be lawfully convicted? The 
leading case on a no case to answer submission is the case of Paul Kundi Rape
where it was stated that following the close of the State's case two distinct
and separate questions arise;

•	The first is usually referred to as the first limb or first test in the Paul Kundi Rape's case. The test is –

"whether on the evidence as it stands, the accused could lawfully be lawfully convicted?" In other words, is there some evidence of each element of the offence which, if accepted, would either proved the element directly or enable its existence to be inferred?"

•	The second limb or test of the Paul Kundi Rape case is –
"whether the evidence is so insufficient that the accused ought not to be called upon to answer it? In other words, although there is a case to answer, is there sufficient evidence on the basis of which the court ought to convict the accused?" "

39.	I think it is a good approach to warn oneself of the objective of a no case submission at the outset following the close of the prosecution case with a subtle reminder that the Court's powers at this stage of the trial are confined to the two tests, one talks about lack of evidence establishing essential elements of the offence which often is not as tricky as the second test which talks about exercise of discretion by the tribunal of fact in a case where evidence tendered by the prosecution is so poor or insufficient, discredited and incredible that no reasonable tribunal doing justice can safely rely on it to return a verdict of conviction. This exercise of discretion does not involve the principal question of whether the Court can be satisfied beyond a reasonable doubt which comes at the end of the evidence in the trial including that of the defence.

40.	Applying this principle to the facts of this case, one must now look at the elements of the offence. Wilful murder under section 299 requires proof of the following elements:

1.	It is the accused
2.	With the intention to kill
3.	Wilfully kills or murders
4.	The deceased.
 
41.	In other words, at the close of the State case, for the accused to answer the charge, the prosecution must have tendered evidence showing that the accused before the Court charged with this heinous crime was the perpetrator who killed he deceased in the manner described by the prosecution when he had the intention to cause the death of the deceased and wilfully killed him.

42.	Evidence tendered by the prosecution showed the deceased and his cousins drinking around together in various places in Wewak and then to Yawasoro and finally ending up at Wom Beach. At Wom Beach there must have been an argument as the deceased was swearing at his cousins and calling them names. The evidence showed him to be the aggressor. The nearest that the prosecution got close to linking the death of the deceased to the accused is the assaults upon the deceased at or near the bridge leading to Wom village. This is the evidence of Ronald Niamkoi, a villager of Wom village.

43.	For this evidence to be accepted and relied upon, State must show that all these three accused were in that vehicle and they were the only ones in the vehicle and on the scene at the material time assaulting the deceased.

44.	There is a danger in accepting and relying on this evidence because the witness did not identify anyone in the vehicle nor could he identify the persons attacking the lone person he met on the bridge. Moreso the witness's evidence did not provide conclusive proof that the person he saw on the bridge was the deceased Jowi Valarian. This can only be inferred from other facts.

45.	The medical evidence shows that the deceased suffered extensive injuries which in summary was described as:

•	Bruising below neck across the shoulder at the back
•	Fractured ribs-3rd, & 5th left side
•	Haemothorax (clotted blood) three litres left
•	Double (store-in) fracture of 3rd, 4th, 5th, 6th, 7th, 8th and 9th rib on right side (sic).
•	Unclotted blood about one litre
•	Bruised mediastinum (under the sternum)
•	Bruises over anterior knee (bilateral)
•	Abrasions and grazes over the left side of chest and upper limb
•	Charred areas x 2 over the left outer arm and forearm
•	Bruises over cervical spine one and two space on opening the skin.

46.	The doctor concluded from these findings that the cause of death was hypoxia. Hypoxia, according to Encyclopaedia Britannica is a condition of the body in which the tissues are starved of oxygen. No doctor was called to explain the cause of death in the light of this conclusion so at best the Court can only be assisted by whatever literature I am able to lay my hands on to appraise myself of this medical terminology.

47.	The doctor's conclusion as to the cause of death and the description of the injuries found on the deceased's body raises another question that another witness also raised. Could assaults using fists alone have caused the injuries described in the report? Could it also be possible that the deceased might have been run-over by a vehicle as he lay on the road?

48.	Timing is also a critical factor here. If Tom Fandin says that the Planning vehicle was returned in good time for it to be locked up in the Pool, then it is possible that between 9 – 10 pm the accused and those in the vehicle returned to Wewak after two unsuccessful attempts at searching for the deceased between Wom village and the Wom junction. The evidence of Jonah Wanji must be correct then when he said he saw the Planning vehicle turn around twice at the Wom junction and returned to Wom and drove out thirty minutes later.

49.	If one is to accept this evidence, then the deceased was somewhere inside Wom area and still alive at the time his drinking party left Wom after unsuccessfully looking for him. The evidence from the two SDA pastors confirms that the deceased was still alive at about 11 pm that night when they saw him at the bridge and this is consistent with the timing given by Ronald Niamkoi and Jonah Wanji.

50.	This also raises another theory that the persons Ronald Niamkoi saw assault the lone man at the bridge could not have been from PAD 577. A NBC vehicle PAD 218, also with a government number plate and described as a single cab Toyota hilux was on that road about the same time frame according to the evidence of Jonah Wanji and as such Ronald Niamkoi could be mistaken as to his recollection of the number plate on this vehicle with that of PAD 577 which happens to be a most popular vehicle in the area because its official driver is a resident of Wom village.

51.	Having taken the view, I remind myself also that the distance between Wom junction to the clearing at the beach where the road meets the sea is no less than a kilometre and from that clearing to the first group of hamlets before the main village of Wom is about half a kilometre. Both sides of the road from half way down after the junction is all swampy with mangrove patches forming full canopy in some parts that it can be very dark and tricky when someone is alone on this part of the road at night.

52.	While I do not doubt the veracity of Ronald Niamko's evidence, I am reminded by these surroundings of the vegetation, the lateness of the night and his ability to absorb so much of what he might have seen if he was alone that night. His sighting of a non-local at the bridge is also verified by Pastors Ruben Jumbui and William Moke who saw a youth on the bridge between 11pm and 12 midnight with no shirt on his body but drunk. Each made his observation as the vehicle proceeded to Wom village and as they returned from Wom village after dropping of their fellow worshippers.

53.	The general rule in circumstantial evidence is that where State case is founded purely on circumstantial evidence, there must be no other hypothesis consistent with innocence of the accused except his guilt for the court to return a verdict of guilt. In the State v Paul Dimon Asilip [2011] N4197, Cannings, J summarised the principle in the often cited Paulus Pawa v The State [1981] PNGLR 498 as follows:

"	The principles to apply when a case is dependent on circumstantial evidence are:

•	the accused must be acquitted unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than guilt;
•	to enter a guilty verdict, it is necessary not only that guilt is a rational inference but that it is the only rational inference that the circumstances would enable the court to draw;
•	the question to ask is: do the proven facts lead reasonably to only one conclusion – that the accused did all the things constituting the elements of the offence? If yes, he is guilty. If no, he is entitled to an acquittal (Paulus Pawa v The State [1981] PNGLR 498, Devlyn David v The State (2006) SC881 applied)."

54.	In this case on the evidence before me there are a number of hypotheses as to how the deceased might have met his fate that could even exclude the accused as perpetrators. It is possible that the deceased could have been beaten up by persons in another vehicle and it is also possible that the deceased was run-over by a vehicle as he laid on the road when he was too drunk to walk home or seek help. Heavily intoxicated persons are capable of unimaginable things that a person who is sober would dare not do such as sleep on the road hoping that a vehicle on the road would stop and assist him.

55.	Assuming that this is what might have happened, the possibility that a frightened driver confronted with this spectacle in the middle of the night on a long stretch of road far away from the nearest village could well drive over the body fearing it to be a deliberate trap by criminal elements at work. I am not suggesting that this is what happened but the evidence implies such a conclusion.

56.	However to accept such a theory would not be consistent with Ronald Niamkoi's evidence of three men assaulting the lone man at the bridge which given the evidence of Pastor William Moke and Pastor Ruben Jumbui was the deceased Jovi Valarian as that identification was made after death to the person each saw on the bridge that night of 19 May, 2008. Even then, Ronald Niamkoi's evidence on this critical aspect of the prosecution case falls very short of identifying any person. While four persons were committed to stand trial, three of whom are related by blood as first cousins and also related by blood to the deceased as first cousin as well and the other was said to be the driver of the vehicle at all material times of this night, in this drinking party there were several other persons as well. 

57.	The evidence of motive is not strong. If the accused had plans to harm the deceased, they would not choose this time when they are in the company of other persons drinking together especially in the presence of a priest to commit such a crime. Motive appears to be the only reason for this charge against the accused especially when other persons who were in the company of the accused and deceased at the material time have been exonerated from complicity in this crime which included a priest and one other.

58.	I do not find motive for the killing to be convincing for the simple reason that the dispute over the customary land only involved the deceased and Ezekiel Yaum, it had nothing to do with Raphael Kariwa and Cletus Bon. Why would they want to murder their cousin brother over differences between him and Ezekiel that had nothing to do with them? They had nothing to benefit from that dispute.

59.	But then, why did Cletus Bon lie to Joseph Valarian when asked of the deceased's whereabouts? If Cletus Bon knew that they had left Jova Valarian behind at Wom when they proceeded into town, he should have said so instead of misdirecting Joseph Valarian, his big papa, to Kreer Heights, Ezekiel Yaum's place. On the other hand, he may not have lied, he could have made a genuine mistake for reasons unknown to the court unless he explained this discrepancy in his story. Be that as it may, is this sufficient to hold the accused Cletus Bon accountable for his part in this allegation? I am not convinced that this is so. 

60.	I agree with Mr Wagambie that the issue is one of identification and the State case has failed to even measure up to that expectation. An essential element of the offence as to the identity of the deceased's attackers/assailants and the ultimate murderers has not been satisfied. The critical piece of evidence from Ronald Niamkoi showing three men assaulting the lone man and throwing him on the vehicle now appears compromised between the possibility that it might have been another vehicle that Ronald Niamkoi is mistaken as to its correct identity or with the other possibility of being run over by a vehicle. So the reality is, quite apart from the motive aspect which I have already rules out, there is really no evidence implicating the three accused. That being so the accused cannot be asked to answer this charge of wilful murder.

61.	The evidence before the court is so unreliable that no reasonable tribunal doing justice can safely rely on it. I will therefore uphold the no-case submission and dismiss this charge against the three accused and acquit them accordingly.

62.	I order their bail monies to be refunded to them forthwith.

VERDICT: Not Guilty
Public Prosecutor: Lawyer for the State
Wagambie Lawyers: Lawyer for the Defence