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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR No.740 of 2008
BETWEEN:
STATE
AND:
JIM AKE
Accused
Mt. Hagen: David, J
2011: 16, 17, 18, 21, 24 & 25 February
2012: 7 May
CRIMINAL LAW – attempted murder – it was alleged that the accused and his friends attacked the victim inflicting serious multiple injuries – the victim and accused are relatives – parties had a history of disputes arising between them over a particular piece of family land – victim on his way to attend mediation of dispute - general denial – prosecution has burden of proving beyond reasonable doubt all elements of charge – elements of charge identified - burden not discharged – verdict of not guilty returned - Criminal Code, Section 304.
Cases Cited
Papua New Guinea cases
John Beng v The State [1977] PNGLR 115
The State v Wanaepe Warara [1977] PNGLR 458
SCR No. 1 of 1980: Re s.22A (b) of the Police Offences Act (Papua) [1981] PNGLR 28
Biwa Geta v The State [1988-89] PNGLR 153
The State v Henry Judah Les (2005) N2950
Overseas case
Woolmington v Director of Public Prosecutions [1935] AC 462
Treatise cited:
Criminal Law and Practice of Papua New Guinea by DRC Chalmers, D Weisbrot, S Injia, WJ Andrew and D Nicol, Lawbook Co., Sydney, 2001
Counsel:
Joe Waine, for the State
Michael Mumure, for the accused
DECISION ON VERDICT
7 May, 2012
1. DAVID, J: INTRODUCTION: The accused, Jim Ake was indicted before me on a charge that on 3 March 2007 at Kelua in the Papua New Guinea, he attempted unlawfully to kill Philip Pungi contrary to section 304 of the Criminal Code. The accused denied the charge and a trial ensued. At the conclusion of the prosecution case, the defence made an unsuccessful no case to answer submission and the accused was called upon to answer the charge.
2. The State's allegations are these. The victim, Philip Pungi and the accused are relatives in the extended family system. The parties had a history of disputes arising between them over a particular piece of land. That resulted in the killing of a man from the accused's side. The current incident erupted when the victim's wife did some gardening on the disputed land. On 3 March 2007, the dispute was to be brought before the Kelua No.2 Village Court for a mediated settlement. That morning, the victim and 2 others were on their way to the Village Court when they were confronted by the accused and his men armed with bush knives. They attacked the victim inflicting serious multiple wounds to his body in the process. The injuries were life threatening, but the victim survived.
ELEMENTS OF OFFENCE
3. The offence of attempted murder has 3 elements and these are:
1. the accused intended actually to kill the deceased;
2. the accused put his intention into execution by means adapted to its fulfilment;
3. the accused manifested his intention by some overt act.
BURDEN AND STANDARD OF PROOF
4. The prosecution has the burden of proving beyond any reasonable doubt every element of a charge to secure a guilty verdict and conviction. Hence, the failure to prove beyond any reasonable doubt any one or more of the elements constituting a charge will result in acquittal for that charge: SCR No. 1 of 1980: Re s.22A (b) of the Police Offences Act (Papua) [1981] PNGLR 28; Woolmington v Director of Public Prosecutions [1935] AC 462. The principle applies equally to negating any defence raised.
ALTERNATIVE VERDICT
5. On a charge of attempted murder, an alternative verdict is not available: see discussion of the subject in The State v Henry Judah Les (2005) N2950; Criminal Law and Practice of Papua New Guinea by DRC Chalmers, D Weisbrot, S Injia, WJ Andrew and D Nicol, Lawbook Co., Sydney, 2001, 309. The proper course is to join all possible alternate counts in an indictment: The State v Wanaepe Warara [1977] PNGLR 458.
6. The accused does not rely on any specific defence. He simply states that he did not in any way attempt to kill the deceased. His defence therefore is a general denial.
EVIDENCE
Prosecution case
7. In a bid to establish the charge against the accused, the prosecution called only one witness namely the victim himself, Philip Pungi. He gave sworn oral evidence and was subjected to cross-examination.
8. Several documents were admitted into evidence by consent and these are:
9. I summarise the evidence adduced in support of the prosecution case below.
The Medical Report
10. The victim was admitted to the Mt. Hagen General Hospital on 3 March 2007. Upon physical examination, the following injuries were noted.
11. First, there were four different wounds to the victim's head or scalp. Two of them involved the fracturing of the outer table of the skull. The outer table which is the outer layer of the skull was chipped off without entering the cranial.
12. Second, the right wrist was lacerated with the radius fractured. All the extensor tendons that extend the wrist and fingers were cut, some at 2 different places.
13. Third, there was a deep wound in the right leg, one inflicted at the upper end and the other at the lower end.
14. Appropriate treatment was administered to the victim during his stay at the hospital. These included, inter alia, resuscitation with 3 litres of intravenous fluids and blood, undergoing an operation to suture the wounds, debridement and packing of wounds, application of external fixators to immobilize the fracture of the relevant bone, insertion of a rush pin to fix the radius, repair of tendons, and administration of antibiotics and pain medicine. Antibiotics and pain medicine were continued after the operation. Recovery was slow. The victim was discharged on 9 April 2007. Routine medical examinations were conducted at the surgical clinic and the physiotherapy department of the hospital following his discharge.
15. The Medical Report concluded that; the victim was in a state of shock upon presentation at the hospital which meant that he could have died from loss of blood if there had been any delay; the right hand could have been disabled if it were not for the victim's commitment to exercise and physiotherapy. The right tibia had healed in a mal-aligned position. The prognosis was that the victim will have problems with his ankle in the future and it was most likely that osteoarthritis would set in.
Record of Interview
16. The Record of Interview does not contain any admissions, but it has some probative value.
17. The accused states that he is married with four children and he resides at Kelua No.2 village. He has received formal education up to Grade 9. He knows the victim, Philip Pungi Koipa. He is his brother.
18. The families of the accused and the victim have had a history of disputes between them in connection with a piece of land at the village. That particular land had been divided and allocated to each of them by their fathers. The ongoing dispute resulted in one of the victim's brothers killing one of their fathers. The culprit paid compensation comprising K4,000.00 cash and 12 pigs for that incident. However, despite that, the victim's brother's wife worked on the land. That reignited the dispute. Saturday, 3 March 2007 was the date set for the dispute to be brought before village leaders for a possible mediated settlement.
19. So on Saturday, 3 March 2007 at around 12:00 noon, he was in the company of Ellison Wingti, Mark Wingti and Tengti Doa and their wives making their way to the village along the main road to attend the mediation when the victim and another person from outside their family, namely Henry Kepes were seen at the deceased's tomb. This infuriated the deceased's two children and they together with Tengi Doa attacked the victim cutting him in the course. He denied jointly attacking the victim with the others with a bush knife. He however approached Henry Kepes, pulled him by the shirt and berated him for being with the victim there while there was a dispute amongst his own family members.
20. The victim has accused him for this offence because he is with the group that works on the disputed land.
Philip Pungi
21. His full name is Philip Pungi Koipa. He resides at Kelua. The accused lives nearby. They are cousins as they have a common paternal ancestry or grandfather. Their families have had a dispute over a piece of family land for some time. His brother killed a man from the accused's side as a result. The dispute was set to be mediated at Kelua No.2 Village Court on 3 March 2007 at a market-like place. That morning, he was making his way on foot along the road leading into the village to attend the mediation accompanied by two of his brothers namely, Henry Kepes Kerowa and Lalyowa Nuns when the incident happened. Henry Kepes Kerowa and Lalyowa Nuns are village leaders and they went with him to help solve the dispute. That was around 12:30 pm and 01:00 pm. It was a good fine day. He was not on the main highway. The accused with Ellison Wingti, Mark Wingti, Tengi Doa, his brothers Tasks Ake and Lep Kolda came from the opposite direction and attacked him. Ellison Wingti and Mark Wingti are the deceased's children and were young teenagers at the time. Under cross-examination when asked if Ellison Wingti and Mark Wingti had reason to attack him, he said yes. Tengi Doa is the deceased's brother. Under cross-examination when asked if Tengi Doa also had reason to attack him, he said yes. He was approaching the market-like place when he was attacked. He knows all the assailants. Accompanying the assailants were their wives and children. The assailants were all armed with big bush knives described colloquially by him as 5.90s. There is a small creek before the market-like place and a hill. He was on the other side of the creek when he was attacked. The assailants came out from the cover of the hill and attacked him. The assailants had gone to the market-like place, but when they heard that he was approaching, they returned in a hurry and attacked him.
22. Under cross-examination, he said he, Henry Kepes and Lalyowa Nuns had taken a ride into the village in a public motor vehicle and were dropped off some metres away from the market place. The assailants were already at the market place and walked towards them when they became aware that he was making his way to the market place and attacked him. Under further cross-examination, he said he was dropped off at the back of the singsing ples and walked up towards the market-like place when the accused and five others attacked him.
23. Before attacking the victim, Tengi Doa and the accused challenged him to a duel. Whilst the accused was talking and trying to pull his bush knife out, Tengi Doa struck him on his right leg with his bush knife. He fell down backwards to the ground, face up. Then the accused cut him with his bush knife on the left side of his head. As he was lying on the road, Tasks Ake cut him on the right side of his head and the others joined in the assault thereafter inflicting multiple cuts to his body. Tengi Doa was the one who cut his right hand. It has healed, but he cannot bend it. It was painful at first, but as the cutting continued, his body became numb which he described as feeling "sweet" and did not feel any pain. He remembered what happened at the onset of the assault. He was in a state of shock at first and when he fell unconscious, he could not recall what happened thereafter. When he was being attacked, Lalyowa Nuns lay on top of him shielding him from sustaining further injuries.
24. The accused played the leading role in the whole incident. Had he not tried to pull his bush knife out, the rest of the assailants would not have done what they did.
25. Under cross-examination when it was put to the victim that the accused was actually on the side and did not assault the victim, he said that was true. Under further cross-examination, when it was put to him that the accused did not attack him because he was struggling with Henry Kepes at the time, he said that was a lie. Under re-examination when asked how the accused was involved in the killing when he had given evidence that only Ellison Wingti, Mark Wingti and Tengi Doa had reason to attack him, he said it was because the accused was in their group.
26. Compensation comprising K4,500.00 in cash and 7 pigs was paid to him on 10 December 2007 witnessed by police and Hagen Central Peace and Good Order Committee. However, it did not mean that he was not going to pursue this case.
Defence case
27. The accused called two witnesses to give evidence in support of his case namely, the accused himself and his wife, Catherine Jim. Both witnesses gave sworn evidence and were subjected to cross-examination.
28. Catherine Jim was the first witness to be called. At the close of her evidence, the defence informed the Court that no further witness would be called, the accused electing not to give evidence. The matter was then adjourned for submissions on verdict on Monday, 21 February 2011.
29. However, when the Court reconvened to hear submissions on Monday, 21 February 2011, a couple of things came to light. First, Mr. Tobias Dalid then acting as counsel for the accused informed the Court that the accused had instructed him that morning that he wanted to give evidence despite his advice and the accused's earlier instructions to him not to give evidence before calling the only defence witness. Second, his continued engagement by the accused as counsel became an issue as well. Mr. Waine took issue with the suggestion by the accused to give evidence himself when his case had been formally closed. This prompted an adjournment to give the parties time to consider this new development and then inform the Court of the outcome upon reconvening. When the sittings resumed, Mr. Dalid informed the Court that the accused insisted on giving evidence notwithstanding his advice that it could be procedurally wrong. In the circumstances, he had decided to withdraw his services and asked the Court for leave to do that, which I granted.
30. The matter was then adjourned to 24 February 2011 to allow the accused to find a lawyer of his own choice and also to prepare himself to pursue the application to re-open the defence case if he insisted. When the Court reconvened on 24 February 2011, Mr. Mumure from the Office of the Public Solicitor appeared for the accused and asked for further time to get further instructions as he had received instructions from the accused the day before. I then adjourned the matter to the next day, 25 February 2011 at 09:30 am.
31. When the Court resumed sittings on 25 February 2011, by consent of the parties, I granted leave to the defence to re-open its case and the accused gave evidence as a result.
32. I now summarise the evidence adduced in support of the defence case below.
Catherine Jim
33. She is the accused's wife. They have been married for about seventeen years and they have five children. She resides at Kelua No.2 village.
34. She does not want the accused to go to prison without committing any wrong. She was telling the truth. She did not discuss what to say with the accused before going to Court to give evidence.
35. The victim resides a long way from them or the mediation place somewhere along the highway. A road connected to the highway leads to the market-like place where mediation was to be conducted and their village.
36. On 3 March 2007, two sons of the deceased, Wingti Doa namely Ellison Wingti and Mark Wingti attacked the victim, a person she knows. Ellison Wingti and Mark Wingti were young and unmarried at the time. The deceased's last born brother namely, Tengi Doa, the accused's brothers namely Task Ake and Lep Kolda also joined in the assault. They were all armed with bush knives. Under cross-examination when asked why they were all armed with bush knives when they were attending the mediation, she said it was for security purposes because a man had been killed previously over the land in dispute. The victim was cut on the head and leg and fell to the ground, initially saying, face up, but later said he fell to the ground, face down. Under examination in chief, she said Henry Kepes grabbed the accused and threw him into the ditch and were rolling in the ditch. When the victim was being assaulted, the accused was struggling with Henry Kepes in the ditch. This was confirmed in cross-examination. They were a short distance away from where the victim was assaulted. He described the distance as that between the witness box and the door to the Court room. After the fight had ceased, the victim was taken to the hospital and they went home.
37. The victim's brother killed Wingti Doa previously so they were enemies. For this reason, the accused could not go to the victim's village for his own safety. The deceased was buried in their village. Under cross-examination when she was referred to question/answer 12 of the Record of Interview where the accused had said that the victim had visited the tomb of the deceased with another person which prompted the assault, she said the victim went there alone. So when they saw the victim, they attacked him. Under cross-examination when asked whether it was possible for an enemy to visit a cemetery situated in his enemy's territory, she said no.
38. The incident was witnessed by other ladies who were at there at the time.
39. Her husband's tribe paid compensation to the victim some years back witnessed by the police. He cannot recall the exact amount of compensation that was paid. He himself received the compensation payment. That restored peace and harmony between the families in dispute. When he received the compensation payment, the victim made an undertaking that there would be no further trouble arising from the attack on him. However the victim has decided to press on with the charge against her husband.
40. Before the incident on the date in question, instead of the victim going to the place where the mediation was going to take place, he went past it and the creek and went over to their house. They were at home at between 12:00 noon and 01:00 pm. Under cross-examination, she said they had left their house and their village and were proceeding towards the mediation area along the road on foot when they met the victim. The road is seldom used by motor vehicles. He was walking towards them in the opposite direction not far from their area, but a long way away from the mediation area. The distance between their village and the mediation area is quite far. He described the distance as that between the Court House here and the main Mt. Hagen market. There are coffee trees along the way. She had no idea why he went over to their house or if he had been dropped off by a motor vehicle prior to meeting him. Under the prevailing circumstances, he should not be in enemy territory. He was accompanied by Lalyowa Nuns, an Engan residing in their village and a Henry Kerowa.
41. Under cross examination, she said he went straight to them, said good morning to them and shook hands with her, the accused and Mark Wingti. The accused told him that they were making their way to where mediation was to be conducted and the victim responded saying that nobody was back there therefore he left. Earlier on in cross-examination she said Henry Kepes Kerowa and Lalyowa Nuns were not with him, but under further cross-examination she said they were there. Mark Wingti was with them, but he did not attack the victim at the time. The victim continued walking towards their house and village. They proceeded to the mediation place. It took about half an hour for them to reach the place. Many people had gathered there. When they arrived, they waited for about 1½ hour for the start of the mediation. Under further cross-examination, she said they did not wait long. They were told later that there was not going to be any hearing so they returned.
42. Ellison Wingti, Tengi Doa, Task Ake and Lep Konda left them and went ahead. The two sons of the deceased got angry upon seeing him and attacked him. Under cross-examination, she said the incident happened on their way back from the mediation place at about the middle of the day when the victim was returning along the road from their house accompanied by Lalyowa Nuns and Henry Kerowa. He saw the attack on the victim from a short distance. He described the distance as that between the witness box where she was sitting and the rear of the Court room where people were sitting. Lalyowa Nuns was stopping them from assaulting the victim. This incident would not have occurred had the victim not gone to their house.
43. The weather on the date and time of the incident was a bit overcast.
Jim Ake
44. He is from Kelua No.2 village.
45. Saturday, 3 March 2007 was the date scheduled to resolve a dispute. He attended with his family, but the mediation did not go ahead and was rescheduled to the next day because they were late. He and his family then returned home. On their way home at a place close to their area, he saw the victim in the company of Henry Kepes and Lalyowa Nuns. Lalyowa Nuns resides in their village. He is neutral, but usually travels around with the victim. Under cross-examination when it was suggested to him that the victim was dropped off and was on his way to mediation area, he said he had no idea. However he said, the victim was in their area. The victim is the brother of Daniel Pungi who killed the late Wingti Doa over the disputed land and is married.
46. He shook hands with the victim and reminded him about the mediation. The victim said he was going to their village and would return to attend the mediation. He did not mention this fact in the Record of Interview because the interviewing police officer did not ask him about it. They proceeded to the mediation area.
47. When put to him under cross-examination that it was not possible for an enemy to go to a cemetery in a village located in enemy territory, he responded in the negative, but said the victim was not a "birua" to him as it was the victim's brother who had killed Wingti Doa. If he were the "birua", he would not have done what the victim did.
48. When he was referred to question/answer 12 of the Record of Interview, he said Wingti Doa was buried in the centre of the village, but on the side of the road.
49. Wingti Doa's 2 sons, Nelson Wingti and Mark Wingti and his brother Tengi Doa attacked the victim and cut him. He, Task Ake and Lep Kolda were there in the group. Except for Task Ake, all of them were armed with bush knives. He saw Tengi Doa cut the victim first. He did not cut the victim on his head.
50. He was berating Henry Kepes for getting involved in a family problem by being in the company of the victim and being a village leader. He could not intervene to stop the assault on the victim as by then he had grabbed Henry Kepes and was struggling with him. In the course, they both fell into a ditch and continued the struggle there. It was therefore not possible for him to give details of the assault on the victim in that position.
51. His wife was at the scene of the incident on the date in question. The incident occurred between 12:00 noon and 01:00 pm. He agrees with her evidence because she was with him when the incident occurred and she gave an eye witness account of the assault on the victim.
52. His brother one Joshua Ake was in Court throughout when the State's witness and the accused's wife gave evidence. Under cross-examination when asked if Joshua Ake discussed with him and his wife his wife's evidence which resulted in him deciding to give evidence, he said only parts of it as his brother was convinced that he did not assault the victim and he was sorry for him.
ANALYSIS OF EVIDENCE
53. In order for me to determine the issue of guilt or innocence of the accused, I must examine carefully all the evidence that is before me, including the assessment of the credibility of the witnesses that have been called to support the opposing cases.
UNDISPUTED FACTS
54. From all the evidence before me, the principal undisputed facts are these. The victim and the accused are from the same extended family. They are cousins as they have the same paternal ancestry. A dispute arose within the family over a piece of family land. The victim's full name is Philip Pungi Koipa. One of the victim's brothers murdered the late Wingti Doa. The victim's family paid compensation comprising K4,000.00 cash and 12 pigs to the family of the late Wingti Doa for that incident.
55. The land dispute was reignited over allegations that the wife of one of the victim's brothers worked on the disputed land. The dispute was scheduled to be mediated by the Village Court at a market-like place at Kelua No.2 village. Ellison Wingti, Mark Wingti, Tengi Doa, Tasks Ake, Lep Kolda and the accused were together and all armed with bush knives when they encountered the victim on the road that leads from the main road to Kelua No.2 village. The road goes past the market-like place where mediation was to take place. Ellison Wingti and Mark Wingti are sons of the late, Wingti Doa. Tengi Doa is the brother of the late, Wingti Doa. Tasks Ake is the brother of the accused. The victim was attacked by a number of people from the group consisting of Ellison Wingti, Mark Wingti, Tengi Doa, Tasks Ake, Lep Kolda and the accused with bush knives. The incident occurred on the road away from the market-like place towards Kelua No.2 village. Henry Kepes and Lalyowa Nuns are village leaders who were in the company of the victim when he was attacked. Henry Kepes is also known as Henry Kepes Kerowa. Lalyowa Nuns, an Engan resides at Kelua No.2 village. Lalyowa Nuns was stopping the fight and lay on top of the victim as he lay on the ground shielding him from sustaining further injuries. The victim suffered multiple life-threatening injuries and maiming him for life. When the victim was assaulted, the accused's wife and other women and children were at the crime scene. The accused's relatives paid compensation comprising K4,500.00 in cash and 7 pigs on 10 December 2007 witnessed by police and Hagen Central Peace and Good Order Committee.
CONTESTED FACTS
56. From all the evidence before me, the principal contested facts are these. The accused did not assault the victim. When the others were assaulting the victim, the accused was engaged in a struggle with Henry Kepes, fell into a ditch and continued the struggle in the ditch.
ISSUE
57. The primary issue for me to consider and determine in the present case is whether the accused committed the offence against the victim? If the issue is answered in the affirmative, then all three elements of the offence will be proven beyond reasonable doubt because there is evidence; that someone intended actually to kill the deceased; someone put his intention into execution by means adapted to its fulfilment; and that someone manifested his intention by some overt act.
SUBMISSIONS BY THE STATE
58. Mr. Waine for the State submitted that the primary issue can be determined by applying the principles of identification. He submitted that the offence was committed as a result of a land dispute within the extended family with a common ancestry. The parties were not strangers therefore identification of the accused and the other assailants could not be mistaken. He submitted that the Court should believe the State's evidence which shows that 6 people including the accused were involved in the attack upon the victim. Tengi Doa was the first person to cut the victim. Whilst the victim was still standing, the accused cut him. He was actually the second person to cut him. The other assailants followed. The quality of identification was good. The victim clearly recognized the accused. Visibility was good as it was a bright sunny day, the incident occurring between 12:00 noon and 01:00 pm. It was not a fleeting glance or a longer observation made in difficult conditions. No other possibilities were there to create a doubt as to correctness of identification.
59. Counsel said this was a case were enemies who were at loggerheads over a piece of land met on the road while the victim and company were about midway to the Village Court to attend mediation of the land dispute when the victim was attacked. The evidence adduced by the defence that the victim was found in enemy territory visiting the graveyard of the late Wingti Doa should be disbelieved as it was illogical and incredible in the circumstances. A motive for the accused's intention to confront and assault the victim to the extent of killing him has been established counsel said.
SUBMISSIONS BY THE DEFENCE
60. Mr. Mumure of counsel for the accused submitted that a verdict of not guilty should be returned because the evidence shows that the accused was not involved in the actual assault of the victim. Should the Court accept the submission, then no alternative verdict is available counsel said.
REASONS FOR DECISION
61. In determining the primary issue, I remind myself of the warning given in John Beng v The State [1977] PNGLR 115 and Biwa Geta v The State [1988-89] PNGLR 153 of the dangers of convicting someone on identification evidence alone. Many other subsequent cases have discussed and applied these principles. The head note to John Beng summarises these principles and it states:
"In proceedings where evidence of identification is relevant, the Court should be mindful of all the inherent dangers, the need for caution before convicting in reliance on the correctness of identification, the possibility that a mistaken witness could be a convincing one and that any number of such witnesses could all be mistaken; the Court should examine closely all the circumstances in which the identification by each witness came to be made bearing in mind that recognition may be more reliable than identification of a stranger, but that even where the witness is purporting to recognize someone he knows mistakes can be made.
When the quality of the identification evidence is good the matter should proceed to a verdict, when the quality of identification evidence is poor, unless there is other evidence which goes to support the correctness of the identification, an acquittal should be entered."
62. It is not disputed that the accused was at the crime scene at the time of the incident. His wife and some other women and children were at the crime scene too. The accused's wife gave an account of what she observed within close proximity. Her evidence was that on the date and time in question, Ellison Wingti, Mark Wingti, Tengi Doa, Tasks Ake and Lep Kolda who are persons known to him jointly attacked the victim. They were all armed with bush knives and they inflicted multiple injuries to his body. Henry Kepes was in a tussle with the accused and fell into a ditch where the tussle continued whilst the victim was being assaulted. So the accused did not take part in the assault.
63. There is no question of mistaken identity of the assailants by the accused's wife. They were not strangers as she knows all of them. She is their in-law. She was in close proximity to where the assault was taking place and the accused's tussling with Henry Kepes. There was no suggesting in the evidence of any obstacle obstructing her view of the entire incident.
64. Whilst I accept that the evidence by the defence about the victim wandering into enemy territory to visit the graveyard of the late Wingti Doa is illogical and incredible or that the evidence is full of inconsistencies or contradictions therefore the evidence might be unreliable to act upon, the evidence that during the assault upon the victim, the accused was elsewhere at the crime scene is corroborated by the victim's own evidence. Under cross-examination he said the accused was actually on the side and did not assault the victim. The victim changed his mind and said the opposite later, but I think that only goes to show that his evidence is unreliable. The benefit of the doubt should go to the accused.
65. In any event, under re-examination, he said the accused was involved in the killing just because he was in company with the group that assaulted him. Section 7 of the Criminal Code was not invoked for the accused to be caught as a principal offender. That exonerates the accused from criminal culpability.
66. I think an inference of criminal culpability cannot be drawn from the fact that compensation comprising K4,500.00 in cash and 7 pigs was paid to the victim on 10 December 2007. That in my view was an initiative by the accused and his relatives to restore peace, harmony and to mend broken relationships amongst members of the families of both the victim and the accused and those who actually assaulted the victim.
67. I make findings of fact that the accused did not assault the victim and that when the others were assaulting him, the accused was engaged in a struggle with Henry Kepes, fell into a ditch and continued the struggle in the ditch.
VERDICT
68. The State has failed to prove beyond reasonable doubt all elements of the offence of attempted murder preferred against the accused. In the result, I find the accused, Jim Ake NOT GUILTY of the attempted murder of Philip Pungi on 3 March 2007 at Kelua village, Western Highlands Province in Papua New Guinea. He is formally acquitted and discharged from bail forthwith.
69. I order that the accused's bail money be refunded to him forthwith.
____________________________________________________
Pondros Kaluwin, Public Prosecutor: Lawyer for the State
Frazer Pitpit, Public Solicitor: Lawyer for the Prisoner
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