N5182

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 626 OF 2009

THE STATE

V

AVANA LATUVE, JOEL LOVI & MALO BAGESA
(NO.1)

Popondetta: Toliken, AJ.
2013: 15th April

CRIMINAL LAW – Particular Offence – Wilful Murder – Trial - Deceased suspected of sorcery, reputed to have killed 34 people through sorcery – Killed by mob of angry villagers – Criminal Code Act Ch. 262, s 299.

CRIMINAL LAW – Evidence – Identification evidence - Whether the accused were positively and clearly identified – Whether a matter only raised in oral evidence which was not mentioned in statement to police is an inconsistent statement.

CRIMINAL LAW – Evidence – Alleged coercion or pressure to admit offence to police by community leaders – Effect of such coercion or pressure - Whether accused were coerced – Evidence Act Ch.48, s 28.

CRIMINAL LAW - Evidence – Circumstantial evidence – Whether the guilt of the accused is not only an inference but the only inference that can be drawn from evidence. 

 Facts: 

The deceased was killed by an angry crowd of villagers at Kovelo Village, Kokoda, Northern Province. He was suspected of causing the deaths of 34 villagers through sorcery.

The State alleged that the accused persons led the villagers into killing the deceased who was at the time in the custody of the police on a suspicion of possessing and unlicensed firearm.

No suspects were arrested at the time of the killing but the three accused were asked to surrender after a week and 2 days after the killing to the police by their community and community leaders. They were subsequently arrested and charged for wilful murder contrary to Section 299 of the Criminal Code Act Ch.262

During their Records of Interview, the accused made admissions to their involvement in the killing. 

At the trial one was discharged for not having a case to answer. Trial proceeded with the two remaining co-accused. They raised the issue of lack of proper identification. They also claimed that their admissions were not voluntary and that they were coerced into making those admissions by their community and community leaders. As such their admissions were not voluntary and therefore unreliable and should therefore be rejected as offending against Section 28 of the Evidence Act Ch. 48 

The State’s case against the accused was to a large part circumstantial.
 
Held: 

(1) The fact that a witness did not allude to seeing the accused initially attack the deceased in the village or that the accused told him later on the road that they had killed the deceased in his statement to the police and only mentions these in his oral evidence does not constitute an inconsistent statement: Balbal v State (2007) SC860 followed.

(2) In the circumstances so described by the witness, his identification by recognition of the accused Avana Latuve was clear, positive and reliable.

(3) The law is settled on admissions made to those in authority by an accused person under duress, coercion or undue pressure. Such an admission would inadmissible and a denial of the accused right to the protection of the law.

(4) However, the law seems to be not so clear when pressure is said to have been exerted upon the accused to admit his guilt to the police from extraneous sources such as the community leaders. These people are clearly not “person[s] in authority” within the meaning of Section 28 the Evidence Act Ch. 48 which in my opinion refers to State authorities such as the police in the exercise of the investigatory powers.

(5) Where an accused person says that he had been coerced or pressured into making admissions to the police, by persons other those in authority, then the onus is on him to satisfy the court on the balance of probabilities that he was in fact coerced, pressured or somehow overborne by such pressure to admit committing the offence charged against him. It is incumbent upon him to adduce evidence to support his contention. It is not sufficient to merely say that one was pressured or coerced, even under oath, without calling some corroborative evidence. Of course the State bears the burden of negativing such a contention beyond reasonable doubt.

(6) On its part the court should warn itself on the dangers of acting on such an admission and the proper weight to attach to it. The court should also tread with extreme caution so that it is not seen to be reversing the legal burden of proof and in the process trample on the accused’s right to the full protection of the law under Section 37 of the Constitution including the presumption of innocence.

(7) For the court to convict the accused on circumstantial evidence it must 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 be the only rational inference that the circumstances would enable it to be drawn: Paulus Pawa v The State [1981] PNGLR 498.

(8) In respect of the accused Joel Lovi, in view of what I have found above regarding his involvement or otherwise, the evidence clearly to me points to an inference that he might be innocent of the crime. Granted, the State has invoked Section 7 of the Code. However, without further evidence as to what he did besides admitting to having a stone with him and running after the deceased as all others did, I do not think that it is safe to find him guilty by virtue of Section 7 of the Code.

(9) As for the accused Avanah Latuve, while there is similarly no evidence, showing that he physically stoned the deceased to death, I am satisfied beyond reasonable doubt based on the evidence of State witness Benson Kadoga and the accused admissions in his Record of Interview, that the only reasonable inference that can be drawn is that he unlawfully and wilfully killed the deceased Dianny Iruva on the 09th of January 2009 at Kovelo Village.

Cases Cited:
 
The following cases are cited in the judgment:
The State v John Beng [1976] PNGLR 481
John Beng v State [1977] PNGLR 115
The State v Kwambol Embogol (1977) N91
The State v Tom Morris [1981] PNGLR 493
Paulus Pawa v The State [1981] PNGLR 498
Yandasingi v The State [1995] PNGLR 268
David Kandakason v The State [1998] SC588
Jimmy Ono v The State (2002) SC698
The State v Marety Ame Gaidi (2002) N2256
Piakali v The State (2004) SC771
Taiya Balua v The State (2006) SC878
The State v Robin Erick (2006) N3023
Michael Tenaram Balbal v State (2007) SC860
Patrick Towingo and two others v The State (2008) SC983 
The State v William Nanua Kapris & Ors (2010) N419

Counsel: 

J W Tamate, for the State
D Mamu and E Yavisa, for the accused

JUDGMENT ON VERDICT

 15th April, 2012

1.	TOLIKEN AJ. The accused persons were indicted for the wilful murder of Danny Iruva on the 09th day January 2008 at Kovelo Village, Kokoda, Northen Province in contravention of Section 299 of the Criminal Code Act Ch. 262 (the Code).

2.	The deceased was killed by an angry mob of villagers and the State alleged that the accused persons played a leading role in the killing. It therefore invoked Section 7 of the Criminal Code Act Ch. 262.

 ALLEGATIONS

3.	For the purpose of arraignment the State alleged that on 09th January 2008, three police man and a PNGDF soldier, who were based at the Kokoda Station during the Cyclone Guba Relief Operation had gone down to Kovelo Village to apprehend the deceased who was suspected of having in his possession an unlicensed firearm.
 
4.	They picked up three villagers from Kovelo and proceeded to the suspect’s hamlet of Hoi. They located the deceased but did not find any firearms. Nonetheless they apprehended him and then returned to Kovelo.

5.	Arriving back at Kovelo the policemen were about to address the villagers when the accused Latuve Avana who was armed with a bush knife, and other villagers who were armed with knives, axes and stones confronted the police and tried to attack the deceased.

6.	Realising that he being attacked the deceased escaped and started running towards the Kokoda Station following the main road. The State alleged that the accuseds and other village started running after the deceased. They eventually caught him at Kovelo Plantation some 1 ½ - 2 km from the village.

7.	There, the State alleged that Avana Latuve and the other two accused attacked the deceased. Avana got a big flat stone and hit the deceased on the head with it. The other two accuseds and other villagers acted together and also attacked the deceased.

8.	The State alleged that they intended to kill the deceased because he was suspected of having killed a lot of villagers through sorcery and for stealing people’s monies through false pretences.

9.	It was also alleged that Avana Latuve intended to kill the deceased because he strongly suspected him of causing the death of his brother in December 2007 and the State alleged his co-accused and the other villagers assisted him. 

10.	A villager later reported the matter to the Kokoda Police who went to the scene with medical staff from the Kokoda Hospital. They confirmed that the deceased died from serious head injuries.

11.	The matter was later investigated and the accused were indentified, arrested and charged. 

 PLEA

12.	The accused each pleaded not guilty. They denied any involvement in the killing of the deceased. They also raised the issue of identification and further claimed that pressure was exerted on them by the community to admit committing the offence in its behalf – sacrificial lambs, as it were. 

 THE OFFENCE

13.	The offence of wilful murder is provide and defined by Section 299of the Code as follows:

299. Wilful murder.

(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death. 

 THE ELEMENTS 

14.	The elements of wilful murder are as follows:

1.	The accused
2.	Caused the death of the deceased
3.	The accused intended to cause the death of the deceased
4.	The killing was unlawful 

 THE EVIDENCE

15.	The State’s case consisted of uncontested documentary evidence and the sworn testimonies of Julius Kadoga, Benson Kadoga and Eddie Toroi, though the latter was later declared adverse to the prosecution.

16.	The documentary evidence consisted of the following:

1.	A Medical Report annexed to an affidavit by Heath Extension Officer (HEO) Nasa Yakom dated 18/01/08

2.	A serious of 14 colour photographs of the deceased taken at the crime scene

3.	Record of Interview for Avana Latuve dated 03/09/08 (both Pidgin and English versions)

4.	Record of Interview for Joel Lovi dated 14/11/2008 (Pidgin and English versions)

5.	Record of Interview for Malo Bagesa dated 17/11/2008 

17.	At the close of the State’s case I ruled that Malo Bagesa did not have a case to answer and acquitted him. Trial then continued against Avana Latuve and Joel Lovi. 

18.	The accuseds Avana Latuve and Joel Lovi elected to give sworn evidence. They did not call any other witnesses. Further to this the defence successfully tendered a statement by State witness Benson Kadoga into evidence allegedly as a prior inconsistent statement. 

19.	From the evidence I find the following undisputed facts.

 UNDISPUTED FACTS

20.	On 09th day of January 2008, a detachment of three policemen and a soldier (Security Personnel), operating out of the Kokoda Station during Oro Disaster Relief operations had gone to Kovelo Village in search of the deceased who was suspected of having an unlicensed firearm in his possession.

21.	They picked up Community Based Constable Julius Kadova, Benson Kadova and Village Councillor Lance Lovi at Kovelo and proceeded to Hoi, the deceased’s hamlet. They located the deceased and searched his house but came up empty handed. They nonetheless apprehended the suspect and returned to the main village arriving there sometime between 11.00 a.m. and 12.00 p.m. 
 
22.	They left the deceased standing on the road while they went to Benson Kadova’s house for refreshment after which they intended to address the villagers. However, they were completely taken by surprised when the angry villagers set upon the deceased. The deceased ran to the Security Personnel obviously for his own safety. Seeing what was happening the Security Personnel tried firing several warning shots but their weapons misfired. According to State witness Julius Kadova they tried six times to fire their gun but the gun misfired on all six attempts. Completely over-powered and helpless to protect the deceased or disperse the angry crowd, they shouted at the deceased to run for the Kokoda Station for his safety.

23.	The deceased turned and ran for the Station. The mob, which included men, women and children chased after him. They were armed with stones, knives and sticks. They caught up with him at a rubber plantation a little over a kilometre from the village. They killed him and returned to the village leaving the body on the road.

24.	The Security Personnel followed after the villagers but were unable to keep up with them. They, however, met them about a kilometre from the village as they were coming back after having killed the deceased.

25.	Community Constable Julius Kadova who had ran after the crowd arrived at the scene shortly after the mob had killed the deceased. Seeing the condition the deceased was in, he ran to the Kokoda Station. He returned with the Health Extension Officer (HEO) and other Policemen to the scene. 

26.	The HEO took photographs of the scene and the deceased’s body lying dead on the crime scene. The colour photographs show in very clear detail the various wounds that were inflicted on the deceased’s body, its position on the road and stones that were obviously used to kill the deceased with. 

27.	The HEO Nasa Yagom examined the body on the scene and the body was taken away by relatives for burial. HEO Yagom later prepared a Report which he annexed to an affidavit dated 18/01 /2008. This was tendered by consent and marked Exhibit A for the State.

28.	 The principal findings of the Medical Report were as follows:

 “... The examination reveals knife wounds on the right hand involving index finger extending to the metacarpal of the middle finger as well. 

 The deceased also sustained blunt wounds on the right lateral aspects of the base of the head parallel to the right ear thus having contact to the brain leading to head injury and instant death. 

 Conclusively, the deceased was alleged to have been murdered as a result of trauma to the base of the skull leading to death secondary to internal haemorrhage and head injury.” 

29.	Simply put the deceased died from head injuries caused by blunt objects to the base of the skull and from internal bleeding.

30.	It is accepted that the deceased was a reputed sorcerer and was widely suspected of having been responsible for the deaths of some thirty four (34) people in the village, the most recent of whom were Avana Latuve’s brother Mado Latuve and Joel Lovi’s sister (unnamed). In fact the villagers were still in mourning and were in their respective haus krai when this incident occurred. It is common ground that the villagers were very much angered by this.

31.	I also accept that apart from this the villagers were also angry with the deceased because he had obtained monies from them (some K8000 or K800?) in the pretext of hosting a funeral feast for the death of his child. He never held the feast.

32.	It is accepted that the three accused persons were surrendered over to the police by the community after one week and two days after the killing. 

33.	It is also accepted that the accused Avana Latuve and Joel Lovi made some admissions of their respective involvement in the killing of the deceased in the Records of Interview which were tendered by consent (Exhibit C1 and C2, Exhibit D1 and D2 respectively) though they both claimed to have been coerced by the community and community leaders.

34.	 It is accepted that the accused were not pressured into making these admissions by the arresting officer. However, they claimed in their respective interviews that they were pressured by the community into making those admissions to take the blame for the community. They reiterate this in their sworn evidence. And that was the reason they did not sign their Records of Interview. 

THE ISSUES

35.	The accused have raised the defence of general denial which raises the question of identification. They also claim to have been pressured into making admissions in their Records of interview by the community and their leaders.

36.	 Hence I therefore need to determine the following questions to ultimately determine whether the State had proved its case beyond reasonable doubt that the two accused unlawfully and intentionally killed the deceased. These are:

1.	Were the accused persons reliably and positively identified as taking part in the killing? This issue will turn on the issues of inconsistent statements, motive to attach liability on accused and credibility of State witnesses. 

2.	If they were, were they pressured or coerced into admitting their involvement by their community and leaders?

37.	Let me now consider these disputed facts.

DISPUTED FACTS

Whether the accused persons were reliably and positively identified as taking part in the killing of the deceased 

The Evidence

38.	The State’s evidence on these crucial questions came principally from the oral testimonies of Julius Kadova, his brother Benson Kadova, Eddie Toroi and the accused’s Records of Interview. The state also sought to rely on the evidence of its third witness Eddie Toroi who turned hostile and was accordingly declared hostile. The State further successfully applied for the tender of his previous statement to the police as a prior inconsistent statement.
 
39.	It must be stated at the outset that not one of the State witnesses saw the two accused actually kill the deceased. Its evidence is therefore entirely circumstantial and substantially propped up by the accused alleged admissions in their records of interview.

40.	Julius Kadova is a Community Based Constable (CBC) at his Kovelo Village. On the 09th January 2008, he accompanied the Security Personnel to Hoi in search of the deceased. They returned to Kavelo with the deceased when the police failed to find any firearms in his house. 

41.	Julius said he went to his house while the police took a rest. It was at that time that the villagers attacked the deceased. They rushed at the deceased and attacked him with knives and axes and other weapons. Seeing this Julius said they rushed over but by then the whole community had gotten involved and the situation got out of control. The police tried firing warning shots six times to disperse the crowd or control the situation but their guns fired. They were over-powered and helpless. When the deceased saw this he ran for the Kokoda Station. The whole community ran after him shouting “Kill him! Kill him! Kill him!” 

42.	The community chased the deceased out of the village into the rubber plantation.

43.	Julius ran after the village mob and a colleague CBC also followed suit. After running through the rubber plantation for a distance he stopped obviously out of breath. He came to a hill and when he looked down he saw the villagers attacking the deceased. When he came around a corner he could see the villagers walking back having killed the deceased already. When they met him they told him “Policeman, we have killed your pig” and continued on back to the village.

44.	Julius ran down and saw the deceased on the ground. Just then his colleague arrived. They stood at a distance. Julius said he saw bleeding from the deceased head. His colleague told him to stand guard while he returns for the policemen. Julius got frightened but then thought of going for help so he set off for the Kokoda Hospital and reported the matter to the Officer In-Charge.

45.	During examination in-chief Mr. Tamate must have sensed that the witness was deviating from what he might have previously told the police. He (Mr. Tamate) began asking questions which seemed to be preparing the ground for an application for prior inconsistent statement or for the witness to be declared adverse or hostile. Mr. Mamu said he did not strongly object this line of questioning if the witness will be ultimately declared hostile.

46.	Mr. Tamate did not pursue his intention, though, but not before the witness said that he was pressured by the community to implicate Avana. He also denied being related to Avana, fact to be contradicted later by his own brother Benson Kadoga, who later told the court that they were in facts cousins.

47.	Benson Kadova, is a retired soldier of some 35 years. He testified that after they had returned to the main Kovelo Village from Hoi with the deceased and members of the Security Force, they left the deceased on the road while they went to his house to drink coconut.

48.	As they were they having refreshment he saw Avana Latuve chase the deceased with a long grass knife. He was being encouraged along by his angry sister and other relatives. Soon other villagers joined in and they charged at the deceased.

49.	The deceased ran towards the Security Personnel with Avana and the other villagers in tail. Noticing this the Security Personnel tried firing warning shots but their gun misfired. Realizing that they were completely over-powered by the crowd and rendered helpless they called out to the deceased to run for Kokoda Station for assistance from other Security Personnel there.

50.	The deceased turned and ran for his life to the Kokoda Station. The three accused persons together with other villagers chased after him. Benson Kadova could not tell at that time if Avana was still armed. He was able to see him though with the other villagers but was unable to pick out Joel Lovi and Malo Bagesa – as there were just too many villagers.

51.	He and the Security Personnel went after the crowd but could not catch up with them. After about a kilometre they met the villagers – men, women and children - coming back. He asked them what happened but no one answered or even said a word to them. When they came to about 100m from the scene of the killing they met Avana walking back to the village. He asked Avana what happened and Avana replied “We already killed the man and we are going back to the village.” 

52.	During cross examination Mr. Mamu brought the witness’ attention his previous statement to the police. It was put to him that he made no mention at all about Avana attacking the deceased with a long grass or saying to him on the road that they had already killed the deceased. The Statement was tendered as a prior inconsistent statement. I will return to this later on.

53.	The third and final witness for the State was Eddie Toroi testified that on the date in question, at around 10.30a.m he was in the village. He was in his house when the community chased after the deceased. He ran after them but did not see who actually killed him as he was five minutes late. When he got to the scene of the crime he notice that the deceased lying with his legs on the road and head towards the edge of the road. He was not able to see the suspects as the villagers had already gone back to the village.

54.	He said that the deceased a known sorcerer who was reputed to have killed 34 people in the village. Among these was Mado Latuve (Avana’s brother) whose death was also attributed to the deceased. As a resulted the community retaliated by chasing and killing him. He said he did not see who actually killed and maintained that it was the community who killed him.

55.	The witness was referred to his previous statement to the police where he had stated that when Avana saw the deceased arrive with the police he got angry because he suspected the deceased of killing his brother just before Christmas 2007. He armed himself with a long bush knife and charged at the deceased who was with the policemen. Sensing imminent danger the deceased ran for Kokoda and Avana Latuve, Joel Lovi and Malo Bagesa chased after him.

56.	On application this witness was declared hostile and accordingly cross-examined by the State.

57.	 The accused Avana Latuve testified that on the date in question, the villagers of Kovelo chased the deceased. The crowd was armed with stones and sticks. Seeing this he ran after the crowd as they were chasing the deceased. When he finally caught up the crowd they had already killed the deceased and were returning to the village. 

58.	He said that despite being on the scene of the crime when it happened, the police did not come back until some times later when they sent word to the community to surrender the those responsible for the deceased’s death. They issued threats that they will come and burn down the village if that was not done. So in fear of the threats the community leaders and the community forced him and his co-accused to surrender in behalf of the community even though they were innocent of the crime. They were taken in by the community 1 week and 2 days after the incident.

59.	Avana denied Benson Kadoga’s evidence that he instigated the attack on the deceased in the village by attacking him with a grass knife. He also denied meeting Benson Kadova on the road or talking to him for that matter. He said the community attacked the deceased and chased after him and he (Avana) merely ran after them. He denied throwing any missile at deceased at all. 

60.	Avana said in-chief that his family and Benson Kadoga’s family had a dispute over land which was awarded to his (Avana’s) family after mediation. He said that Benson Kadoga wanted him to go to jail so that he can take over his land.

61.	Avana admitted in examination in chief that he made some admissions during his record of interview. However, he said that he was forced, pressured or coerced by the community into making those admissions and what he said was really what the community wanted him to tell the police. And that was the reason he did not sign the Record of Interview.

62.	 On cross-examination Avana said that the deceased was attacked and chased by the villagers because he was suspected of killing 34 people through sorcery. The villagers were angry. He also said that his elder brother Mado Latuve was among those killed by the deceased. He died in December 2007. He said he did not think that the crowd would kill the deceased. He thought that they would just chase him.

63.	He agreed though that he was also angry with the deceased for killing his brother but he did not attack him when he was in the custody of the police. He denied the involvement of his immediate family members or that he instigated the attack on the deceased.

64.	He denied wanting to take revenge for the death of his brother.

65.	The accused was cross-examined about his admissions in the record of interview. He was referred to his answer to Q16 (below) where he admitted killing the deceased with the help of the community and his co-accused. It was put to him that he was never pressured. He said that it was the first time for such an incident to happen in the village so the community exerted pressure on him.

66.	He was then asked to explain his answer to Question 21 (below) where he said he and his co-accused were blamed for the death simply they “were ahead of everyone” when in fact he was not the only one - the village community and his co-accused all stoned the deceased to death. Avana said that it was over his brother’s death that the community took the law into their own hands and he made that statement because of community pressure.

67.	The accused Joel Lovi testified that on the date in question he was at his late sister’s haus krai. He said he never was involved in chasing the deceased nor involved in his eventual killing. He said he arrived at the scene later and only to be told by the community that they had already killed the man. He never assaulted the deceased with any stone or stick.

68.	 He said that the police were there and they should have arrested the suspects there and then. Rather it was a week and 2 days and that they issued threats to villagers to surrender the suspects failing which they will come and burn down the village. There was a strong presence of the Security Forces in the Oro Province at that time and they simply over-ruled everyone. Because of that he and his co-accuseds were surrendered to the police by the community.

69.	He said the community pressured him into surrendering because they reasoned that they acted in behalf of his late sister who had died that same month and over whose death they were still mourning. The community wanted him to take the blame in their behalf. 

70.	He said that his sister was one of the 34 who were suspected of having been killed by the deceased through sorcery.

71.	 The accused said that what he said in his record of interview was not of his own free will. Rather he said what the community wanted him to say. Hence he declined to sign the Record of Interview.

72.	In cross-examination this accused denied that he was related to Avana Latuve. He, however, said that his sister and Avana’s died around the same time (December 2007) and he admitted when it was put to him that he and Avana strongly believed that the deceased killed their siblings through acts of sorcery.

73.	He admitted that he was angry about this but denied that he wanted to take revenge. He denied that he and Avana and others led the other to chase the deceased down the Kokoda they were the first to attack and eventually kill him at the Rubber Plantation.

74.	Under heavy cross-examination he denied that he was armed with a stone, that he knew Eddie Toroi and that he was involved in the killing. While admitting that he did make some admissions to the police in his Record of Interview he strenuously said that he was pressured by the community who were the ones responsible for killing the deceased.

75.	So were the accused positively and reliably identified as actually killing the deceased?

76.	Now it is common ground or accepted that there is no direct evidence that the accuseds actually killed the deceased by stoning him. Hence the State’s case on this element of the case, if not the whole case, is essentially circumstantial. 

77.	The defence attacks the state’s case arguing very strongly that whilst Benson Kadova’s evidence puts the accused Avana Latuve firstly at the first scene – the confrontation in the village – and secondly that he told him that they had already killed the deceased, the court should not place any weight on his evidence because his evidence was inconsistent and he had an ulterior motive which was connected to a land dispute between his and Avana’s family. This therefore affected the credibility of his evidence. 

78.	Mr. Mamu therefore submitted- and I agree with him - that the whole case will turn on the following:

1.	Identification
2.	Inconsistencies in State evidence
3.	Involuntariness of admissions in Records of Interview
4.	Circumstantial nature of the State’s case.

79.	Let me now consider these questions. I would deal with the question of identification and inconsistent evidence together as they are related.

 Identification and Inconsistencies in State Evidence
 
80.	In his oral submission Mr. Mamu asked the Court to be particularly careful with Benson Kadoga’s identification of both accused persons. He said that the witness is pretty much advanced in age and he was some 50 meters from the deceased when he said Avana Latuve first confronted him. His identification of Avana was therefore poor. He further said that the witness had a motive – interest over land - in singling out Avana and his immediate family from among the many villagers who set upon the deceased.
 
81.	Mr.Mamu further urged the court not to place any weight on the evidence of Benson Kadoga because his oral evidence was inconsistent with his previous statement to the police. Counsel argued that he did not mention in his statement to the police that he saw Avana attack the deceased in the village which then led other villagers to join in nor did he state that Avana met him on road and told him that he had killed the deceased.

82.	Mr. Tamate for the State on the other hand submitted that this witness was a very truthful witness who had no other interest than to see that justice is done. The land dispute between his family and Avana’s has nothing to do with the case at all. The witness told the court, who, he saw attack the deceased first and whom he saw chased him together with other villagers to where he was eventually killed. 

83.	Mr. Tamate submitted that Benson Toroi and hostile witness Eddie Toroi both identified the accused. The accused Avana and the State witnesses are related and that is why some were reluctant in identifying him in their oral evidence. However, weight should be given to Benson Kadoga’s evidence as he positively identified who attacked the deceased. 

a)	Identification

84.	The legal principle regarding identification has been well settled in this jurisdiction since the much celebrated case of John Beng v State [1977] PNGLR 115. There the Supreme Court held that –

 “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.”

85.	Basically I am to warn myself of the dangers that are inherent in identification evidence from eye witnesses, that there is a special need for caution before an accused can be convicted because it has been known that a convincing a witness and even a number of witnesses may be mistaken. I need to pay special attention to the prevailing circumstances under which such identification is made and that while identification by recognition may be reliable I need to be cautious because mistakes have and may be made in trying to identify close relatives and friends.

86.	There is need to assess the quality of the evidence - where quality is good the identification may be reliable but if it is poor the identification will be bad and the accused is entitled to be acquitted. The quality of the evidence may be poor if there was only a fleeting glance but even if there was a longer observation it will be still poor if it was made under poor conditions. (Taiya Balua v The State (2006) SC878; Jimmy Ono v The State (2002) SC698; Piakali v The State (2004) SC771, and Patrick Towingo and two others v The State (2008) SC983.See The State v Marety Ame Gaidi (2002) N2256 where Kandakasi J. gives a good summary of the principle) 

87.	The matters that need to be taken into account in assessing the accuracy of identification may include what opportunities the witness had in identifying the accused as the person who committed the crime, the position of the parties, lighting, the opportunity to form such judgment and the circumstances under which such judgment was formed. (The State v John Beng [1976] PNGLR 481 upheld on appeal in John Beng v The State (supra))

88.	In Yandasingi v The State [1995] PNGLR 268 (Amet CJ, Kapi DCJ, Los J), the Supreme Court said the quality of identification depended on (a) whether the witness knew the accused before the event in question (b) the lighting conditions at the time the distance between the witness and the accused at the time of the event and (d) whether there was any object which may have obstructed the view of the witness. 

89.	In Taiya Balua v The State (supra)(Los, Manuhu, Gabi JJ.) the court said that:

“11. The law on identification is settled. In short, correctness of identification is established by "closely examining the circumstances in which the identification by each witness came to be made:" John Beng v The State [1977]PNGLR 115. See also the Supreme Court case of Luingi Yandasingi v The State [1995] PNGLR 268, Amet CJ, Kapi DCJ and LosJ. 

12. After the correctness of identification is established, "the trial judge should warn the jury of the special need for caution before convicting in reliance on the correctness of the identification. He should make some reference to the possibility that a mistaken witness could be a convincing one and that a number of such witnesses could all be mistaken":John Beng v The State (supra)."
 
90.	The above cases and many others resonate the duty on a trial court to warn itself on the dangers that are inherent in identifying accused persons either through "identification evidence" (the evidence of an eyewitness who identifies an accused as the offender in circumstances where the eyewitness first saw the defendant at or near the crime scene) or through "recognition evidence" (the evidence of a eyewitness who recognises a defendant as the offender in circumstances where the defendant was previously known to the eyewitness or had previously been seen by the eyewitness other than at or near the crime scene).

b)	Inconsistency in State Evidence

91.	Inconsistencies in a witness' own evidence or the evidence of other witness go to the question of credibility and will render such evidence unreliable for the party on whose behalf such evidence is called.

92.	Often times a witness will give evidence at the trial which is inconsistent with a statement he has given previously, for instance to the police. In such a situation such a statement, if tendered as a prior inconsistent statement under Sections 22 and 23 of the Evidence Act Ch. 48, may be treated as unreliable as will be any evidence given at the trial. 

93.	The Supreme Court in David Kandakason v The State [1998] SC588. (Amet CJ, Los, Kirriwom JJ.) said that - 
 
 "Where the witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial the court must regard and treat that evidence unreliable and similarly disregard that previous statement, whether sworn or unsworn, as it does not constitute evidence upon which the Judge can act. In other words, both the sworn testimony of the witness and his statement given out of court are discredited and both are no longer reliable evidence". (Underlining mine)

94.	The question of inconsistency does not arise until a witness has given a testimony that directly opposes or contradicts a statement he had previously given. But even in that case, that is not conclusive for as long as the court warns itself on the kind of weight it should place on such evidence, it can still consider the evidence. However, a prior statement that omits other evidence but is included subsequently in oral testimony does not amount to a prior inconsistent statement. (Michael Tenaram Balbal v State (2007) SC860; (Sevua, Kandakasi, and Gabi, JJ.)

95.	However, when a number of inconsistencies are found and such inconsistencies are such that serious doubt is cast upon the state's case the accused should be acquitted and discharged.

96.	So turning now to the case at hand, has the State proved beyond reasonable doubt that the accused Avana Latuve and Joel Lovi were involved in the killing of the deceased on 09th January 2008? Have they been positively identified by the witnesses? Is the State witnesses' evidence inconsistent hence unreliable?

97.	The State's evidence on these crucial points comes from the evidence of Benson Kadoga and Eddie Toroi. 

98.	Now at the outset I must warn myself of the inherent danger in convicting on the evidence of these witnesses. Benson Kadoga is a cousin of the accused Avana Latuve and there is the risk that he may be mistaken in his recognition of him. The accused Joel Lovi is not related to the witness but he is nonetheless known to him as they are from the same village. Again he may be mistaken.

99.	What then were the circumstances under which Benson Toroi identified Avana Latuve?

100.	The evidence clearly shows that it was broad daylight sometimes between 11.00a.m and 12.00 p.m. Benson Kadoga was at his house with members of the Security forces when he said he first saw Avana confront the deceased and started assaulting and chasing him with a long grass knife. And while he was doing that he was being encouraged along by his immediate family members. Benson agreed that the distance between him and where he saw the accused assaulting the deceased with the grass knife was like 50m but he said that nothing obstructed his view.

101.	Avana was soon joined by other villagers and they chased the deceased along the Kokoda road towards the Kokoda Station where the deceased later met his death at the hands of the crowd. Furthermore, when the witness met the accused Avana some 100m from the death scene, Benson met the accused who told him the they have already killed the man.

102.	I accept that Avana Latuve's involvement at that point stuck clearly to Benson Kadoga's mind because he was the initial attacker. He instigated the whole incident and he had the motive to do so. He admitted that he was angry with the accused – a reputed sorcerer - whom he blamed for the death of his brother Mado and 33 other people in the village. The ensuing involvement by the other villagers was because of Avana's initial confrontation and attack on the deceased.

103.	Benson Kadoga's oral evidence was not inconsistent with his statement to the police. The fact that witness did not allude to seeing the accused initially attack the deceased in the village or that the accused told him later on the road that they had killed the deceased in his statement to the police and only now mentions these in his oral evidence does not constitute an inconsistent statement: Balbal v State (supra) followed.

104.	I find that in the circumstances so described by the witness, his identification by recognition of the accused Avana Latuve was clear, positive and reliable. It was broad daylight and he had a clear unobstructed view of the accused assaulting the deceased. 

105.	In fact even if the accused was initially some 50m away from his when he first confronted the deceased, the evidence clearly shows that the deceased ran towards the Security Personnel who were with Benson Kadoga and that would have provide a further if not a perfect opportunity for Benson Kadoga to clearly recognize the deceased's attacker or attackers.

106.	I further accept that there was no room for any mistake in identifying the accused on the road a mere 100m from where the accused was killed. Benson Kadoga was again able to positively identify the Avana Latuve by sight and recognition. He clearly heard what the accused Avana said to him.

107.	I find that this witness was a witness of truth and his only interest in the matter as submitted by the prosecution is to see justice done. He did not waver from his testimony even under heavy cross-examination.

108.	I reject the accused evidence that the witness was motivated by their dispute over land to falsely testify against the him. The accused said that he wanted him in gaol so that he can take over his land. This is a mere assumption which is unreasonable. How would he do that when Avana has other siblings and other relatives who will no doubt defend their land from any attempts by Benson to get it?

109.	At this juncture it is not necessary for me to place any weight or even consider the oral testimony and prior statement of hostile witness Eddie Toroi. His evidence was inconsistent with his prior statement. Both the oral statement and the prior statement must therefore be rejected as being unreliable. (David Kandakason v The State (supra)

110.	Avana Latuve's active involvement in the death of the deceased is further by bolstered by his admissions in his Record of Interview. This is, however, will depend on whether or not those admissions were voluntary.

111.	I am therefore satisfied beyond reasonable doubt that Benson Kadoga positively and clearly identified Avana Latuve as having initially attacked the deceased at the Kovelo Village with a long grass knife. I am also similarly satisfied that Benson Kadoga clearly and positively met and saw Avana Latuve 100m from the crime scene along the Kokoda road and clearly and positively heard him say that they had already killed the deceased.

112.	On the other hand I am, however, not satisfied that the accused Joel Lovi was satisfactorily identified by any of the State witnesses. The evidence of identification has not improved beyond the prima facie status upon which he was called upon to answer the case even if it can be inferred that he was identified by the community who later surrendered him to the police.

113.	 The state did not call any evidence as to why he came about to be handed over apart from the odd mention of his name in witnesses' statements to the police. And while there is some evidence that he was seen chasing after the deceased with a stone, the evidence of identification against him is nonetheless unreliable and must be rejected. His case will, however, hinge on his alleged admissions in the record of interview which I shall presently consider.

114.	On this disputed fact I find therefore that the accused Avana Latuve was positively and clearly identified as the one who instigated the attack on the deceased. He was the first to confront and attack the deceased with a bush knife which led other villagers to also attack him. He and the crowd chased the deceased towards the Kokoda Station. After the deceased was killed Avana Latuve said to State witness about 100m from where the deceased met his death that they had killed the deceased already. There was no mistake of identity or recognition at all on these facts.

115.	Let me now turn to the question of involuntariness of the admissions in the Records of Interview.

 Whether Admissions made by the accused in the Records of Interview were voluntary
116.	Both accused persons admitted to making admissions of their involvement in the killing of the deceased in their Record of Interview.

117.	For completeness, below are the relevant parts of the Records of Interview for each accused.

 Avana Latuve

 Q15. Why are you living at CIS, Biru? 
 Ans. I was there for killing a man.

 Q16. Is it true that you did kill a man?
 Ans. I was not only the one who killed this person, the community and my two friends, JOEL and MALO BAGESA did kill him.
 
 Q17. What is name of the person whom you and your two (2) friends did murder?
 Ans. Danny Iruva.

 Q18. What is the full name of your two (2) friends?
 Ans. Malo Bagesa and Joel Lovi.

 Q19. Why did you and your two (2) friends wilfully murder this person, DANNY IRUVA?
 Ans: This person committed sorcery and did killed 34 people. That is man and woman. And between every one, my elder brother and a daughter belonging to the Ward Councillor and for that reason the community were not happy and we all gathered together and murdered this man, DANNY IRUVA.

 Q20. You are saying that you and your two friends including the village community did wilfully murdered [killed] this man, did you all some evidence to prove that that man was sorcerer before you people did murder him?
 Ans. Yes, we did have evidence and did report the matter to the Kokoda Police and nothing had taken place and so will wilfully murdered [killed] this man. 

 Q21. I have received information from police witness that you and your two friends did chased this person from Kovelo village and under the rubber plantation, in between Kokoda Station and Kovelo village, you did wilfully murdered [killed] him there. What have you got to say about this?
 Ans. The village community including my two friends and I chased this person and did throw stones at him until death. Just because we, my two friends and I were ahead of everyone and we blamed for killing this person. 
 ...

 Q23. I have received information from Police witness that, you and your two friends did wilfully murdered [kill] this persons with big stones and did also cut him with knive. What have you got to say about this?

 Ans. That is true but not only three of us, the whole community was also involved in the death of this person.

 Q24. Is it that you and your two friends did wilfully murder [kill] this person, DANNY IRUVA at Kovero rubber plantation with stones and he died?
 Ans. Yes it is true but it was not only three of us, when this person died and he was there, we all walked back to the village and a t the same time Police arrived and told us to wait in the village.

 Q25. Can you be able to tell me in your own words, what did you used to help the community to kill this person, DANNY IRUVA?
 Ans. I did used a stone to assist in killing this person.

 Q26. What did you used to hit and killed this person DANNY IRUVA?
 Ans. My two friends, the community and I stones to kill this person.

 Q27. Did you know that what you did by killing this person was a wrong thing and the law does not allow it to happen?
 Ans. Yes I know but because of frustrations over the death of my elder brother and did so by killing this person with the community.

 Q28. [Accused informed that he had already been charge with wilful murder and cautioned]

 Q29. Do you have anything to say to your charge?
 Ans. Before this person was killed, the Policeman were there and they suppose to arrest us but they let us go and stayed for two weeks two days and then the police send message for the community to bring fort those who wilfully murdered this person to them, they further stated if community failed they would come and burn the village and kill us. When hearing this by the community they become afraid and they surrendered to the police.

 Q30. Do you have anything more to say?
 Ans. Yes I have some more to say. I want to say that I have a big land mass. My father is very old and he has a guest house and he is old enough to do work, I am the only one left, my brothers and he passed away. We are ten in the family, six had passed away and only four left, two females and two men. There is no one left to do work and I am saying sorry and ask for court mercy
 .... 

 Joel Lovi.
 ...

 Q32. After the arrest of the accuse which place did the community attacked the victim and the policemen? 
 Ans. At Kovelo village

 Q33. Would you like to tell me how the community attacked this man as the man was under the custody of the policemen?
 Ans. Yes

 Q.34. Would you like to tell me how he was been attacked?
 Ans. They attacked him.

 Q35. Would you like to tell me what was the things used in attacking him?
 Ans. Sticks, bottles and stones.

 Q36. Would you like to tell me who actually started the fight where the community involved in this? 
 Ans. The village people.

 Q37. As you have mentioned they were the village people would you like to tell me the names o[f] the village people who attacked the deceased? 
 Ans. The whole community had caused this.

 Q38. As you have mentioned that the whole community had cause this trouble, what really caused the community to take the [law] into their own hands? 
 Ans. This man in the community that he normally kills people within the short time interval.
 ...

 Q40. Would you like to tell me where you were then and the incident happened?
 Ans. At Kovelo Village.

 Q41. What were you in possession to attack this person?
 Ans. I did not hold anyting.

 ...

 Q43. According to the witness mentioned that you and the other 2 persons who have been arrested were the ones who chased the victim/ deceased and killed him, what are you going to say to this?
 Ans. That is true but it was not the of us. [Original Pidgin version reads: "Emi tru tasol ino mipela tripela man"] 

 Q44. As you have mentioned that it was not you and the two others who chased the deceased with others and what were in possession at that time you did that?
 Ans. I was holding a stone and I chased him.

 ...

 Q46. I put to you that the whole community chased but they were unable to catch up with the deceased and that is the reason you and the two (2) others had chased the deceased, What are you going to say to this?
 Ans. The whole community chased the deceased and threw the stone and stick and killed him.
 ...

 Q49. I refer you to the time of the death of Dianny the witness mentioned that you and the other two (2) accuse were the ones who left the others and went ahead to hold onto the deceased and killed him?
 Ans. That is true but it was not the three of us but the community. [Pidgin: Em i tru tasol i no mipela 3pela tasol.]
 
 Q50. From you own knowledge what [did you have] to attack the deceased with?
 Ans. I did not throw anything.

 Q51. The witness mentioned that they had seen you had in possession with a stone and threw the stone at the deceased, what are you going to say to this?
 Ans. That is not true.
 
 ...

 Q54. From your general knowledge of the matter where you have been arrested and charged over the matter, what you felt about this case?
 Ans. I did not cause this trouble but the whole community had put their burden on me and now I am in this trouble.

 Q55. I do not have anything more to but do you have anything you would like to [say] about the trouble, the charge and the interview now police is doing about the alleged offence?
 Ans. Yes. He had killed 34 people in the community and during the disaster time he had killed the chief and he had received [K800.00] from the community as contribution where he would make a party for his death child but this person had not done anything and this was one of the contribution that contributed to his death. The community were upset and had done this. I have not killed that person. 

118.	Defence Counsel acknowledged that the accused did make some admissions in their Records of Interview. Avana Latuve admitted the facts but denied being solely responsible for the killing. He said the community contributed to the killing. Joel Lovi on the other had admitted chasing the deceased with a stone but never used it on the deceased. It was the community who threw sticks and stones on the deceased. Both said that they were pressured into admitting the crime by the community.

119.	Counsel submitted though that because the admissions were effectively involuntary this brings in Section 28 of the Evidence Act Ch. 48 which provides:

 28. Confessions induced by threats.

 A confession that is tendered in evidence in any criminal proceeding shall not be received in evidence if it has been induced by a threat or promise by a person in authority, and a confession made after any such threat or promise shall be deemed to have been induced by it unless the contrary is shown.

120.	Counsel referred me to a statement by Justice Cannings on Section 28 in the recent case of The State v William Nanua Kapris & Ors (2010) N419 where his honour said:

 "An involuntarily statement is one made because the accused is overborne (repressed by power or authority). It does not matter by what means he was overborne. If the statement is the result of duress, intimidation, persistent or sustained or undue insistences or pressure, it cannot be voluntary (The State v Kwambol Embogol (1977) N91). Likewise, if the statement is induced by a threat or promise, it is inadmissible by virtue of Section 28 (confessions induced by threats) of the Evidence Act, ..."

121.	Counsel admits that Section 28 may not cover the situation where an accused person may be overborne or succumb to pressure not from persons in authority but from outside such as in this case. And that was why the defence was not able to file the relevant application for a voir dire. However, he said that the accused knew that what they were telling the police was what the community wanted them to say so that was the reason they did not sign their Records of interview.

122.	Counsel submitted further that accused are entitled to the full protection of the law under Section 37 (4) (a) (e) and (f) of the Constitution which basically guarantee their right to to the presumption of innocence until they are proven guilty.

123.	Counsel cited the case of The State v Robin Erick (2006) N3023 where the co-accused had made admissions in their ROIs but pleaded not guilty on trial. The essential elements of the charge were not proved and they were accorded their rights under s 37of the constitution and s 570 (2) of the Code (Defence of accused).

124.	Counsel submitted therefore that the ROI should not be admitted into evidence as the admissions were involuntary. They were made because the accuseds were overborne or repressed by power or authority. Any weight to be attached to these must be done with a lot of caution was the Record of Interview should not be placed on the same status as a sworn statement.

125.	Counsel also submitted that the Statement of Eddie Toroi should be treated with the same caution and that his oral evidence that the accused were pressured by the community should be believed instead. 

126.	Mr. Tamate, on the other hand submitted that the accused were not pressured at all by the community. The community surrendered them to the police because they saw them kill the deceased.

The Law
127.	The law is settled on admissions made to those in authority by an accused person under duress, coercion or undue pressure. Such an admission would inadmissible and a denial of the accused right to the protection of the law.

128.	However, the law seems to be not so clear when pressure is said to have been exerted upon the accused to admit his guilt to the police from extraneous sources such as the community leaders. These people are clearly not "person[s] in authority" within the meaning of s 28 the Evidence Act which in my opinion refer to State authorities such as the police in the exercise of the investigatory powers.

129.	So what must be done in such a situation as this?

130.	There is no denying that a person can be coerced into admitting guilt for a crime he did not commit in order that he becomes the "sacrificial lamb" for somebody else. This has happened as evidenced from some reported cases which unfortunately I cannot recall off the top of my head just now. But it must also be said that such claims can easily be made.

131.	I would like to think therefore that where an accused person says that he had been coerced or pressured into making admissions to the police, by persons other than those in authority, then the onus is on him to satisfy the court on the balance of probabilities that he was in fact coerced, pressured or somehow overborne by such pressure to admit to committing the offence charge against him. It is incumbent upon him to adduce evidence to support his contention. It is not sufficient to merely say that one was pressured or coerced, even under oath, without calling some corroborative evidence. Of course the State bears the burden of negativing such a contention beyond reasonable doubt.

 Deliberations

132.	So were the accused pressured by the community to admit their part in the killing of the deceased? Both accused gave evidence on oath and reaffirmed what they told their interrogator. There is evidence from hostile witness that there was such community pressure but I have already rejected both his statement to the police and his oral evidence as unreliable. 

133.	On its part the court should warn itself on the dangers of acting on such an admission and the proper weight to attach to it. The court should also tread with extreme caution so that it is not seen to reversing the legal burden of proof and in the process trample of the accused's right to the full protection of the law under s 37 of the Constitution including the presumption of innocence.

134.	So the accused ought to have called witnesses from the community – not necessarily community leaders – to confirm that there was indeed pressure from the community on the accused to own up in the community's behalf at the relevant time.

135.	No such evidence was called and while the alleged admissions were not sworn evidence and the accused's were examined on oath about them, I am not convinced on the balance of probabilities that they were so pressured or coerced. I tend to agree with Mr. Tamate that the reason why the accused were surrendered to the police was because they were recognised for the part in the killing of the deceased.

136.	When assessing the answers given by the accused in the questions reproduced above, there seems to be no doubt at all in the accused Avana Latuve's answers, that he was not pressured. On the contrary he willingly admitted his part in the killing of the deceased. Why, in the end he even apologised for his crime. That is not something an innocent man can easily do.

137.	I find therefore in Avana Latuve's case, that he voluntarily and willingly made admissions to his interrogator in the Record of Interview. I make this finding, fully conscious of the fact that the ROI was not sworn and of the danger is inherent in accepting the admissions and after warning myself of the dangers inherent therein.

138.	In the case of Joel Lovi, while I also find that his admission was voluntarily made, his answers to questions put to him were equivocal owing mainly to the double –barrel questions that were put to him which sometimes seem convoluted and which on the face required more than one answer. I find that he admitted holding a stone while running after the deceased but that is as far as the evidence can go against him. 

139.	Therefore I cannot accept his admissions in the Record of interview in the same light as those of the accused Avana Latuve.

Circumstantial Evidence

140.	Now the final matter is on the circumstantial nature of the state's case. It is accepted that there is no evidence showing that the accused stoned the deceased killing him in the process.

141.	There is also no evidence showing that the accuseds cut the deceased's fingers.

142.	The only evidence that points to them is that they, particularly Avana Latuve was positively identified as initiating the attack on the deceased which resulted in the community chasing him to his eventual death, and that his clearly published to Benson Kadoga that they had killed the deceased.

The Law
143.	The law on circumstantial evidence is clear – that for the court to convict the accused on circumstantial evidence it must 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 be the only rational inference that the circumstances would enable it to be drawn. (per Kapi J. Paulus Pawa v The State [1981] PNGLR 498.

144.	The inferences that can be drawn are matters for the trial judge to draw. In The State v Tom Morris [1981] PNGLR 493, the Supreme Court held that "where there are a number of competing inferences, it is a question of fact for the judge to decide which and what inferences should be drawn, which should be rejected, which are reasonable, which are mere conjectures, and which party they should favour at the end of the prosecution case and where there are inferences inconsistent with the accused guilt there is discretion to acquit." While this statement applies to a no case submission, the end result in a full trial must necessary result in an acquittal should there are other inferences.

 Deliberations

145.	In respect of the accused Joel Lovi, in view of what I have found above regarding his involvement or otherwise, the evidence clearly to me points to an inference that he might be innocent of the crime. Granted, the State has invoked Section 7 of the Code. However, without further evidence apart from him as to what he did besides admitting to having a stone with him and running after the deceased as all others did, I do not think that it is safe to find him guilty by virtue of Section 7 of the Code.

146.	As for the accused Avanah Latuve, while there is similarly no evidence, showing that he physically stoned the deceased to death, I am satisfied beyond reasonable doubt based on the evidence of State witness Benson Kadoga and the accused admissions in his Record of Interview, that the only reasonable inference that can be drawn is that he unlawfully and wilfully killed the deceased Dianny Iruva on the 09th of January 2009 at Kovelo village.

147.	The intention to kill is sufficiently – in fact proved beyond reasonable doubt – from his very leading role in the assault and eventual killing of the deceased. This is fortified by his statement to Benson Kadoga that they had killed the deceased already and the extent and nature of sustained by the deceased and the fact that he died almost immediately. It is further fortified to ac certain extent by the accused's voluntary admissions in his Record of Interview.

 VERDICT

148.	I therefore return a verdict of NOT GUILTY, against the accused Joel Lovi, acquit him of the charge of wilful murder and order that he be discharged forthwith.

149.	I return a verdict of GUILTY against the accused Avana Latuve and accordingly convict him of the wilful murder of Dianny Iruva on 09th day of January 2008. 
 
Orders accordingly.

______________________________________________________________
The Public Prosecutor: Lawyer for the State 
Paraka Lawyers: Lawyers for the accused persons