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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 662 OF 2008
&
CR NO. 76 OF 2011
THE STATE
-V-
FREDDY MARAMUN
PETER BIROLA
ALOIS KITUR
Kokopo: Oli, AJ
2013: 24 & 25 September, 23 October.
2014: 25 February.
CRIMINAL LAW – Practice & Procedure: - Criminal Jurisdiction – The accused charged with wilful murder of deceased William Raphael – Plea enters not guilty – Defence rely on legal defence on identification and breaches of non-compliance with s. 42 of the Constitution and Judges Rule on caution when confessional statement were obtained – Considered objection refused when former arm robbery trial against defendant Freddy Maramun and Peter Birola admitted the confessional statement through Voir dire trial – Both defendants' were found guilty serving imprisonment terms – Court take judicial notice of confessional statement used in that case – But Court warn itself of the danger to weigh single witness evidence on identification on the accused general denial – Considered other evidence of accused confessional statement to corroborate single State witness evidence on three defendants' legal defence on identification.
CRIMINAL LAW – Practice & Procedure: - Criminal Jurisdiction –The third defendant Alois Kitur is charged with wilful murder for pulling the fatal trigger against deceased William Raphael – The first and second defendants' are joined under ss. 7 & 8 of the Criminal Code Act 1974 as co-accused with Alois Kitur for wilful murder as principal offender - Matter went on full trial prosecution call three State witnesses – Defendants elect to have the right to remain silent – Prosecution and Defence made submission on verdict – Court having considered the evidence and submissions before it is satisfied that State has proven its case beyond reasonable doubt and return with a verdict of guilty against the defendants each and severally as charged – matter adjourned for submission on sentence.
Cases Cited:
Papua New Guinea cases
State – v – Freddy Maramun & Peter Birola (CR .No. 662 of 2008)
State -v- John Beng 1976] PNGLR 471
State – v - Kwainfelin [1986] PNGLR 106
Overseas Cases
R v Larson [1984] VicRp 45; [1984] VR 559
Counsels:
Mrs Sheila Cherake, for the State
Mr Philip Kaluwin, for the Accused
RULING ON VERDICT
25th February, 2014
1. OLI, AJ: The State laid charges against the three accused whose charges are consolidated and heard jointly who now stand before this Court that on the 19th February 2008 at Nemutka/Kadaulung Village in Warangoi/Kokopo District - East New Britain Province, Papua New Guinea did each and severally wilfully murder one WILLIAM RAPHAEL, thereby contravening Section 299 (1) of Criminal Code Act 1974.
FACTS
2. The brief facts surrounding the circumstances of this case attest that on the afternoon of 19th February 2008 between about 4pm and 5pm the deceased William Raphael and three of his friends; namely Joseph Wandorok, Vincent Sali and Romoi Aaron got off from a PMV at Kadaulung Village and were walking through the bush track to their Nemutka Block in Kadaulung village in Warangoi Ward in the Sinivit Local Level Government, Kokopo. As they were walking home they were confronted by five armed man, including the three defendants now in Court.
3. These men were armed with homemade guns, bush knives and sticks. The deceased and three of his friends were ordered to lie face down on the ground as they were searched robbed of their cash and properties and victim Joseph Wandorok cash of K1,700.00 from his cocoa bean sale was taken off him plus other valuables from the other three victims to the value of about K7,000.00. One of the gangster armed with a shot gun pulled the trigger at the deceased head killing him instantly. They then robbed the victims of cash and other personal property and escaped.
4. The defendants' Freddy Maramun and Peter Birola surrendered after two days after the event but defendant Alois Kitur was arrested some two years later and they all being charged with armed robbery and wilful murder. The matter now before the Court is where three accused are charged with and are now appearing before the Court on wilful murder charges.
COURT ENTERS PROVISIONAL PLEA OF NOT GUILTY
5. The Court read the charge to the defendants' each and severally and in reply told the Court that they each and severally denied the charge and the facts as read and put to them upon their arraignment. The Court enters provisional plea of not guilty against the defendants' each and severally.
ONUS AND STANDARD OF PROOF
6. Since the defendants each and severally have pleaded not guilty to the charge, I must remind myself as a trial Judge at this stage of the trial that the burden of proof of guilt of the accused is placed upon the State. The onus rests upon the State in respect of every element of the charge. There is no onus of proof on the accused at all. It is not for the accused to prove their innocence but for the State to prove their guilt and to prove it beyond reasonable doubt. This is the burden of proof. The onus which rests upon the State is to prove the elements of the charge beyond reasonable doubt.
LAW
7. The brief background to the charges against the defendants' each and severally is that the State alleges that defendant Alois Kitur is principally charged with wilful murder under section 299 (1) of the Criminal Code Act 1974 for pulling the fatal trigger on deceased head and killing him instantly and the other two co-defendants' Freddy Maramun and Peter Birola were his accomplices together at the same time in the execution and prosecution of the common unlawful purpose and charged with the principal charge as wilful murder as well.
8. However, the latter two are linked to the principal offence under section 7 (1) (c) and section 8 of the Criminal Code Act 1974, though they were not the ones who pulled the deadly trigger on the deceased head that killed him instantly. But the event cannot separate two who were present to execute the armed robbery and fatal shooting executed by another friend of theirs Alois Kitur who was in possession of the deadly weapon, which is a homemade gun that pulled the trigger on the deceased head William Raphael that killed him instantly. The defendant Alois Kitur is charged with wilful murder under s. 299 (1) of the Criminal Code Act and it reads:
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.
9. The other two defendants Freddy Maramun and Peter Birola technically fit into the wilful murder charge scene because of their presence in the prosecution and execution of the common purpose of arm robbery and fatal shooting that took place at the same time and major role both of them played as part of the gang to reduce resistance from the victims in order to increase their gain before community help poured in to ruin their evil plan. Hence, both Freddy Maramun and Peter Birola are connected to the principle charge of wilful murder under section 7 (1) (d) and section 8 (a) & (b) of Division 2 of the Criminal Code Act 1974. These two sections are referred to hereunder for purpose of completeness and they read as follows:
Division 2. – Parties to Offences.
7. PRINCIPAL OFFENDERS.
(1) When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:–
(a) every person who actually does the act or makes the omission that constitutes the offence;
(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
(c) every person who aids another person in committing the offence;
(d) any person who counsels or procures any other person to commit the offence.
(2) In Subsection (1) (d), the person may be charged with–
(a) committing the offence; or
(b) counselling or procuring its commission.
(3) A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.
(4) Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, it would have constituted an offence on his part, is–
(a) guilty of an offence of the same kind; and
(b) liable to the same punishment, as if he had done the act or made the omission, and may be charged with himself doing the act or
making the omission.
8. OFFENCES COMMITTED IN PROSECUTION OF COMMON PURPOSE.
Where–
(a) two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another; and
(b) in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of the purpose, each of them shall be deemed to have committed the offence.
FACTS IN DISPUTE
FACTS NOT IN DISPUTE
PROSECUTION CASE OPEN
10. The Prosecution opened its case and made a brief opening address to Court and told the Court that the State will rely on three witnesses including Investigation Officer, who will tell the Court what he did during the Record of Interview and how he did it with each Defendant. The victim of the armed robbery and wilful murder will tell the Court how the armed robbery took place that he was involved as a victim and he witnessed the gunshot that deceased died from. And an independent witness, a Village woman, who was at the garden near the bush track who saw the group of youths walk past her garden along the bush track about 2pm and saw second defendant Peter Birola amongst the group before the event took place at about 5pm when she heard the gun shot not far from where she was from her garden. The three witnesses were called are as follows:
(i) He comes from East Sepik Province and lives here in Kokopo by acquiring a block at Waiware for settlers from Sepik and others from Momase region and few from other part of Papua New Guinea. He told the Court that he can recall the event that took place on 19th February 2008 at about 5pm in the afternoon. The witness is one of the victims of the armed robbery and the wilful murder event that took place on the said date and time where deceased William Raphael was killed by shotgun fired at him at close range.
(ii) The witness recalled that he saw the attackers wear musk over their face. They arm themselves with sticks and bush knife in their hands and they were ordered by attackers to lay down on the ground but he refused to follow their command as he held his child around his hands and did not lay down but was in an upstanding posture. The witness further recalled that he lost all the cash about K1, 700.00 in hard cash he got from his cocoa beans sale during the morning at Kokopo and lost other personal properties, as well. The witness was not able to recognise any of those people involved in the arm robbery and wilful murder that followed instantly thereafter.
(iii) The evidence by witness Joseph Wandorok goes to confirm the event that took place on 19th February 2008 and he happens to be one of the victims of arm robbery and witnessed the cold blooded murder of the deceased William Raphael through shotgun wound.
(i) She is a village woman from Kadaulung villager, Kokopo District in the East New Britain Province. The witness told the Court that she can recall the event of 19th February 2008 about 5pm that she was in her garden and heard a shotgun fired noise not far from where she was in her garden.
(ii) The witness tells the Court that it was much to her surprise to learn later that a deceased William Raphael was shot and died from the shotgun fired. The witness told the Court that she was not one of the victim's team members that was attacked and robbed during the arm hold up and consequently eventual shooting of the deceased William Raphael.
(iii) The witness told the Court that she went to her garden in the morning and she was at the garden, about 2pm a group of youth about seven of them walked passed her bush track near her garden and she saw and identified one of the accused namely Peter Birola. On the next day on 20th February 2008 in the morning about 9 am, the accused Peter Birola went to see the witness and ask her if she had told anyone about her seeing him with others walking passed her garden about 2pm the day before the alleged incident took place at about 5pm.
(iv) The witness further explained that the reason why Peter Birola asked her if she has told anyone else is because the accused told the witness that three of them were implicated in the arm robbery and murder of the deceased William Raphael. The witness replied that she has not told anyone of her sighting him the other day with other group of youths that also includes accused Freddy Maramun and Alois Kitur.
(v) During cross examination by the defence counsel asked if she saw and knows accused Peter Birola well. The witness in her answer without much hesitation said that she does know Peter Birola very well because he lives in the same village as the witness at Waiware village. The defence counsel ask the witness during the cross examination that if she recalled seeing the other two accused on the afternoon with Peter Birola and the witness also confirmed that she recognises the other two accused Freddy Maramun and Alois Kitur, as well.
(vi) I accept her evidence, though circumstantial is very credible and can be relied upon as the truth of the event that took place but not the truth of the matter that who was indeed was involved in the act in question.
(vii) However, her evidence begin to pick up some real credibility and persuasive value when the accused begin to enter into discussions as to whether she has told anyone else of her seeing him and others that passed by her garden through the bush track about 2pm before the event that complained of took place at 5pm on 19th February 2008. I warn myself of the dangers involved in the circumstantial evidence with caution to rely on it, but to do so in this case is for its persuasive probative value to the event in question in the circumstances of this case, in view of the totality of the evidence as it stands before the court.
COURT TAKES JUDICIAL NOTICE OF VOIR DIRE RECORD OF INTERVIEW FOR FREDDY MARAMUN & PETER BIROLA AND OTHER DOCUMENTS'
11. The Court takes judicial notice of Certificate of Conviction on both defendants Freddy Maramun and Peter Birola, who were formally convicted of armed robbery on the same event when the deceased William Raphael was cold bloodedly murdered.
12. The Court also takes judicial notice of the Record of Interview and Confessional Statement that were tendered into as evidence during the trial on aggravated armed robbery against the first and second defendants' case and they were admitted through the Voir Dire hearing during the trial in the case of State – v – Freddy Maramun & Peter Birola (CR .No. 662 of 2008) before his Honour Sawong J. In this case his Honour Sawong J, ran a separate trial on Voir Dire hearing and said this in his ruling in respect to Freddy Maramun:- "For instances, the accused Freddy Maramun said in evidence-in-chief that Joel Sael had assaulted him on his ribs with gun butt as they were travelling to Kokopo. He also told the Court that after being Tobing's office, he was taken out to the back of the station where he was assaulted, stepped on his neck and told to remove his trousers. Another new allegation raised was that Poren Yagiri had assaulted him (5) times inside the office which made him run around in the office and running out of the office. He became evasive when he was crossed examined. As I have said earlier, the accused Freddy Maramun was clearly fabricating new evidence/allegations during cross examination. His creditability is affected by this. I was also not impressed with his demeanour. I therefore reject his evidence and allegations. I would admit both his Record of Interview and his confessional statement, "His Honour Sawong J, has this to say in his ruling on accused Peter Birola: - "In so far as Peter Birola is concerned, I also do not accept his evidence. To my mind, he surrendered himself. His complaint really is that because he saw a gun on the floor of Tobing's office, he became scared. I do not think that I should reject his record of interview and confessional statement on that basis. In the circumstances, I would also allow his (Peter Birola) confessional statement and record of interview to be admitted into evidence as part of State's case"
13. I have had the opportunity to read his Honour Sawong J, judgment on the Voir Dire ruling on the same objection being raised again now on the admissibility of both confessional statement and record of interviews during this trial for breaches of non-compliance with section 42 (3) of the Constitution and Rule 3 of Judges Rule 1912. However, the Defence Counsel chose not to challenge the validity of both confessional statements and record of interviews were tendered into evidence when Investigation Officer Detective Senior Constable Poren Yagiri gave evidence during the trial and was not cross examined by Defence Counsel Mr Kaluwin.
14. The Defence Counsel took a soft option by not calling on his client to go into the witness box to testify otherwise and be put through the due vigorous process of cross examination by State Prosecutor and any questions by Court, if need be.
APPLICATION OF LAW TO THE FACTS
15. The legal issue is whether the State has proven its case according to the criminal standard of proof beyond any reasonable doubt against the defendants in order for the Court to return a verdict of guilty. The State is tasked to prove the following requisite elements of the charge on wilful murder. The elements of the charge of wilful murder are as follows:
16. The three defendants are each and severally indicted on a charge of wilful murder of national male deceased namely; William Raphael, under section 299 of the Criminal Code Act 1974.
DEFENDANTS FREDDY MARAMUN & PETER BIROLA
17. In the case of Freddy Maramun and Peter Birola, both defendants were arrested on 21st February 2008 just two (2) days after the event when they voluntarily gave themselves in at Warangoi Police Station and were taken into custody at Kokopo Police Station. The Investigation Officer conducted their Record of Interview (ROI) soon after their arrest at Kokopo Police Station that contains confessional statements that were made during the Record of Interview.
18. For defendant Freddy Maramun, he gave his version of the story of how defendant Alois Kitur executed and pulled the deadly trigger shot at deceased who was some distant away, he estimate to be fifteen feet away, from the bush track whilst walking towards their blocks. This is somewhat quite contrary to defendant Alois Kitur's own version of what he did. The defendant Alois Kitur could still recall clearly some two years later and reflect on how he reacted to the deceased and pulled the deadly trigger on deceased to avoid the deadly bush knife attacked on him from his back that would almost cause his death.
19. The defendant Alois Kitur told his story that he was about a metre distant in front of deceased and when he turned due to his natural instinct instant reaction that deceased was at his back that deadly confrontation was eminent when he saw the deceased went into defensive and was in his attacking mood that he raised his bush knife to cut him from the back. The unavoidable fearsome situation faced by defendant Alois Kitur was unexpected scene of a life or dead situation that he unfortunately had allowed himself to be in it then.
20. All this was happening in a spilt seconds because of the arm holdup executed by the defendant and his accomplices and when the defendant turned around due to his natural instinct instant reaction coming from his back that deadly bush knife was aimed at him to fall on him, the defendant reacted instantaneously in retaliation and fired the deadly shot against the deceased through his head at point black. The deceased died instantly from the shotgun wound to his head. The defendant Freddy Maramun in his Record of Interview never denies that he was not involved in the planned arm robbery but denied causing the death of the deceased William Raphael. According to first and second defendants they said in their Record of Interview that there were seven (7) of them that planned to carry out the armed robbery adventure on a victim Joseph Wandorok who had gone to Kokopo to sell his cocoa bean harvested from his block.
21. During the Record of Interview, both defendants did not deny that they were not part of the planned arm robbery to be executed on victim Joseph Wandorok upon his return home in the afternoon on 19th February 2008. It was after two days of the event in question that both defendants voluntarily surrendered to Warangoi Police Station and voluntarily admitted that both of them were involved in the armed robbery and fatal shooting of deceased William Raphael on 19th February 2008 at Kadaulung Village.
22. The defendant Peter Birola, however, been commended for his initiative to surrender to Police at his own accord but after pleaded with accused Freddy Maramun to do the same, which they did. The accused Peter Birola in his Record of Interview did not deny that he was not part of the team that planned to hold up victim Joseph Wandorok to steal his cash from the sale of his cocoa beans at Kokopo upon his return to his block on 19th February 2008.
23. The defendant Peter Birola also confirmed that he surrendered voluntarily with co-defendant Freddy Maramun at Warangoi Police Station and were taken into custody at Kokopo and went through a Record of Interview with the Investigation Officer Detective Senior Constable Poren Yagiri in the presence of the corroborator Detective Senior Constable Reu Kede.
24. Whilst defendant Peter Birola was not able to give an account of how co-defendant Alois Kitur pulled the deadly trigger on deceased William Raphael, but he did not deny that he was part of the team that planned to execute the arm holdup upon victim Joseph Wandorok to steal his money from cocoa beans sale at Kokopo upon his return to his block in the afternoon of 19th February 2008. And he also confirmed that he was involved in the arm robbery but denied that he was involved in the fatal shooting of the deceased William Raphael.
DEFENDANT ALOIS KITUR
25. The co-accused Alois Kitur apart from first and second defendants, he was eventually arrested in early 2011 and was formerly interviewed by the Investigation Officer Detective Senior Constable Poren Yagiri in the presence of the corroborator Detective Second Constable Reu Kede soon after his arrest. The Investigation Officer did conduct a Record of Interview (ROI) on 13th January 2011 with the accused in the presence of his corroborator Detective Senior Constable Reu Kede and during the Record of Interview a confessional statement were obtained.
26. The Record of Interview is apparently conducted some two years after the event on 19th February 2008. The defendant Alois Kitur made reference and could recall clearly the said event and moments of desperation before he pulled the fatal trigger on the deceased that took his life instantly. He said that he had to react and did what did was when he realised after they had carried out their ambush plan on arm hold up attack, along the bush track against the four Sepik man, but targeted victim was Joseph Wandorok to steal money from his cocoa beans .
27. The victim was in the group with three others that includes deceased William Raphael, as well. The co-accused Alois Kitur can recall that moment soon after it was apparent to victim/deceased that there was a arm hold up against them, the deceased reacted instantly and charged at him from the back to cut him with his new long bush knife that deceased had in his hand. The defendant Alois Kitur having felt the natural instinct realised the eminent danger that he placed himself in a very exceptional high risk situation and he had a moment of desperation to avoid the near unexpected but inevitable outcome and that was either his day to face the cold front of their planned reality, the unexpected from the planned arm hold up.
28. But having to have a prior planning session on their misadventure, he may have anticipated the worse to happen too. And, indeed the victim/deceased did reacted on the defensive mood and counter attack in self defence to get defendant Alois Kitur from the back and defendant Alois Kitur turned around and responded instantaneously to save himself by pulling the deadly trigger from the homemade gun he had in his possession and he witnessed the foreseeable cold blooded murder he committed in the prosecution of the common purpose of armed robbery with his other accomplices including first and second defendants now in Court.
29. That fatal shot that killed the deceased though he regrets he may have not meant it but there is no excuse in law of his unlawful action. Hence, the defendant Alois Kitur cannot escape the serious consequences that flow from that fatal shooting that he now stands before the Court to account for according to the law. He openly made this statement after two years since 2008, whilst on the run and he said that he did not want to surrender to police because he feared that he may have coped the perceived fearsome police brutality upon his arrest. So he decided to stay away from police community network radar at Warangoi Local Level Government area and its immediate environs until he was caught by the Police tireless community partnership network in the area.
30. The defence counsel submitted in defence on behalf of the defendants and relied on two legal defences in law based on identification and breach of caution as required under s. 42 of the Constitution and sometimes referred to as Judge's rule on caution. The Defence relied on the legal defence of identification of the accused is not made out that defendants are the ones who were involved in the shotgun wilful murder of the deceased William Raphael.
31. The defence counsel refered to the well-known and landmark case on accused identification is the case of State -v- John Beng [1976] PGNC 12; [1976] PNGLR 471 CJ Frost, where his Honour Frost CJ did run a trial where the accused was charged upon indictment with unlawfully wounding a young woman, and pleaded not guilty. The only matter at issue in the trial was the identification of the accused as her assailant, by the young woman. His Honour held that:-
(1) ـ Where eere evidence of identification is relevant, the court should be mindful of the inherent dangers. There is no rule of law that the evidencene wi is iicient, nor is there any rule of law thaw that there must be a police parade for for the pthe purpose of identification, nor is there any rule of law that in every case a warning ought to be given (to the jury); it all depends upon the circumstances of the case before the court.
(2) ټ Wtere dee identifictification relied upon is that of a single witness it is proper to be mindful that the identification "was critical, and that mistakes have in the past occurred in regaridenttion,eby occy occasionasioning aing a miscarriage of justice", and the Court must be satisfied that the witness was not only honest but also accurate in the evidence given. Matters to be taken into account are, what opportunities the person identifying had to form a judgment of the identity of the person who committed the crime, the position of the parties when the identification was made, the lighting, the opportunities to form a judgment, and generally the circumstances in which the identifying witness formed his judgment as to identification.
(3) ;ټ Being sing satisfitisfied that the evidence of the single witness, the young woman, was both truthful and accurate, and mindful of the inherent dangers, it could be said in the circumes the accused was cris criminalminally responsible for the attack upon the young woman.
32. In this case on foot the defendants generally denied that they were not properly identified as the ones involved in the alleged armed robbery and wilful murder. The only State witness is the village woman Ernie Antonia, whose evidence is circumstantial, but one that lead up to the event in question when the witness saw defendants Freddy Maramun and Peter Birola walk passed her garden through the bush track at about 2pm and the said armed robbery and gunshot fired was carried out between 4pm to 5pm not so far away from where she was from her garden.
33. This witness evidence of seeing and recognising the first and second defendants (2) to (3) hours earlier becomes a very crucial and circumstantial evidence and ought to be given some probative and persuasive weight in respect to their involvement in the said armed robbery and shotgun fired.
34. The circumstantial evidence is supported by one of the defendants Peter Birola who went and asked the witness in a normal casual manner, if she had told someone of her seeing them earlier at about 2pm when they walked passed her garden near the bush track before the armed robbery and the gunshot was fired. The witness replied "No, mi no tokim wanpela man" means "No, I did not tell anyone".
35. The important question one may ask, is the motive behind Peter Birola asking that very question to witness Ernie Antonia the next day. Firstly, defendant Peter Birola must have recognised the witness seeing them walking past and to confirm his own ego whether the witness has told anyone of her seeing him and others walking past the bush track the other day the armed robbery and gunshot was fired that resulted in the killing of the deceased William Raphael. This question by the defendant Peter Birola is highly suspicious and only point to one conclusion.
36. My common sense dictates that his action alone demonstrates that he must have some knowledge or has anything to do with what took place on the day in question when the armed robbery and gunshot was fired that resulted in the deceased William Raphael's death. This is the only piece of evidence in the nature of circumstantial evidence which goes to prove what the witness saw, but does not go to prove the truth of the matter of what was complained of has happened, some two to three hours later on the same day that the witness said she saw them pass by.
37. But this piece of evidence is very important and crucial to State case when it is put into perspective of conversation by defendants Freddy Maramun and Peter Birola told the Investigation Officer Detective Senior Constable Poren Yagiri during their Record of Interview. They voluntarily told Investigation Officer Peter Yagiri that they were in company with third defendant Alois Kitur as their gunman and when Alois Kitur was arrested some two years later, he did not make any secret about their planned attack on target victim Joseph Wandorok on 19th February 2008, as well.
38. The witness Ernie Antonia's circumstantial evidence fits in very well with the planned arm robbery event that these three defendants and four others had planned to execute and they did it quite effectively. This goes without saying that eventful drama follows them with serious consequences with such serious magnitude that follows them thereafter that lands these defendants into the same crime scene. They were together and effectively carried out their common unlawful intention and purpose to rob their planned target victim Joseph Wandorok.
39. So generally speaking, in the absence of no group parade was called to identify the defendants, the evidence of one witness in particular Ernie Antonia can be treated with some caution but cannot be ignored because it goes to confirm these three defendants involvements during the prosecution of their common illegal purpose to carry out armed robbery on Joseph Wandorok. This is confirmed by their own admission in their respective Record of Interviews; for first and second defendants they admit two days after the event and third defendant admits two years after the event.
40. In this case the Defence Counsel on behalf of the defendants have not particularised any aspect on the legal defence on identification of each of the defendants in Court except that they raised a general denial on their identification that they were not the ones that were involved in the execution of the armed robbery and subsequent shooting of the deceased by homemade gun.
41. The evidence before the Court is sufficient to conclude that defendants identification is not an issue at all because the Record of Interviews were admitted into evidence and since Defence Counsel through his clients choose not to testify in their defence from the witness box nor call witnesses to verify their general denial on identification. I am of the view that defence has not provided any thread of substantive evidence as credible legal defence on identification to counter and to dent the credibility on prosecution evidence on identification on three defendants now before the Court.
42. I am convinced that evidence on identification provided by the State Prosecution is sufficient and credible and I accept it and able to conclude that the three defendants were in fact involved in this crime of wilful murder of the deceased William Raphael. This conclusion is supported by the undisputed and unequivocal admission by defendants themselves who unreservedly admit that they did plan the armed robbery to be executed on the targeted victim Joseph Wandorok, which they successfully executed in prosecution of the common purpose that ensued the flow-on sub-sequential commission of the offence on wilful murder on the deceased Raphael William. Hence, I totally reject the legal defence on identification by the defence.
43. The second leg of Defence Counsel submission on legal defence is on the issue of breaches of s. 42 of the Constitution and rule 3 of Judges Rule when Investigation Officer obtained Confessional Statements from the defendants. On this issue the Defence Counsel made reference to the case of State v Kwainfelin [1986] PGNC 34; [1986] PNGLR 106; N543 (6 May 1986) His Honour Pratt J:
"In this case during the course of a trial on charge of rape objection was taken to the tender of a record of interview on the ground that to admit it would be unfair to the accused in that it had been obtained contrary to the Judges' Rules and to the Constitution, s 42(3). The brief facts are that on 19 January an accused was taken into custody and charged with rape. On 21 January he was taken before a court, formally charged and remanded in custody by the court to a Corrective Institution. The accused was returned to the police cells, where some 28 days later, a lengthy interview was conducted and recorded as containing some 97 questions and answers. On objection to the admissibility of the record of interview, His Honour Held that:-
(1) In exercising the judicial discretion to exclude evidence of confessions and admissions on the ground of unfairness regard may be had to the Judges' Rules 1912 as part of the underlying law of Papua New Guinea.
(2) Rule 3 of the Judges' Rules 1912 which states that "persons in custody should not be questioned without the usual caution being first administered" is not to be interpreted as encouraging or authorising the questioning or cross-examination of a person who has been taken into custody and charged.
(3) In the circumstances the lengthy questioning of the accused 28 days after being charged with the offence amounted to harassment of a person placed under the protection of the judicial system and to cross-examination of a person in custody, contrary to the Judges' Rules, r 3. R v Larson [1984] VicRp 45; [1984] VR 559, considered.
(4) The court should exercise its discretion to reject the record of interview because it would be quite unfair to the accused to do otherwise.
(5) (Per Pratt J) If there were also, as appears to be the case, a breach of s 42(3) of the Constitution, then that breach when conjoined with the breach of the Judges' Rules, must make an ever clearer case for exercising the discretion against admission of the record of interview."
44. The Defence Counsel in this case though submited that Confessional Statement by his clients were obtained by Investigation Officer contrary to s, 42 (3) of the Constitution and r.3 of the Judges Rule in administering caution on the defendants when they were taken into police custody.
45. In this case the Defence Counsel made particular reference to Confessional Statements contained in the Record of Interview (ROI) but choose not to challenge the admission of Record of Interview into evidence as part and parcel of the State case against the defendants during the trial. The Defence Counsel making a sweeping statement of breaches in respect to s. 42 (3) of the Constitution and r.3 of the Judges Rule and question the manner in which the Confessional Statements were obtained by Investigation Officer were never challenged in some material particular to show that there were evidence of impropriety in the manner the Investigation Officer administered caution was indeed in breaches of s. 42 (3) of the Constitution and r.3 of Judges Rule.
46. In the absence of proper articulated and particularised alleged impropriety of non-compliance on procedural legal caution on Constitutional and Judge Rule breaches by Defence Counsel as alleged against the Investigation Officer, the assertion of non-compliance is nothing more than just a mere speculative general statement of non-compliance with Constitution and Judges Rules on administering proper caution by Investigation Officer on the defendants before and during the conduct of the Record of Interview with the defendants.
47. The Court therefore rejects the defence counsel submission on non-compliance by Investigation Officer on caution under s. 42 (3) of the Constitution and Judges Rule 3 as its mis-conceived and without any real material particularised evidence to the contrary presented as evidence by defence.
MEDICAL REPORT ON THE DECEASED
48. The Medical Report by Doctor F. Pakop, Medical Officer of Nonga Base Hospital who carried out a Post Mortem autopsy on the deceased William Raphael on 29th February 2008 at 1pm, report presented to the City Coroner as follows:-
It was alleged that on the 19th February 2008, the deceased was confronted by some men. It was alleged that, the men shot him on the head using a shotgun. He met his fate instantly.
Body of a male adult. Cold to touch, rigor mortis set in. Obvious gaping injuries to the skull and the head.
Entry wound at the junction at the right jaw traversing the base of the skull and neck of the opposite jaw area. Size of entry wound about one and half inch with an exit wound size 2 inch.
Not necessary.
Gaping wound with an entrance exit wound to the head.
Severe head injuries as a result of gunshot wound.
The victim died instantly from massive severe head injury. There are no chances of survival at all.
The findings suggest that he was shot at a very close range.
49. The medical report confirmed that the deceased died from gunshot wound to the head at a close range and according to the author of the Medical Report concludes and confirms that there was no chance of survival and deceased met his fate instantly.
CONCLUSION
50. In view of the issue on identification on accused Alois Kitur is supported by two co-accused Freddy Maramun and Peter Birola that defendant Alois Kitur was their gun man for the planned arm hold up planned to be carried out on target victim Joseph Wandorok to steal his cocoa beans sale at Kokopo and wait for his return to his block at Nemutka.
51. The defendants Freddy Maramun and Peter Birola by their own admission that they had planned the arm robbery and witness accused Alois Kitur was their gunman and was the one who pulled the deadly trigger on the deceased Raphael William, is indeed self-testimony to the event and the offence that three of them have been charged with. The relevant case authority on identification is State -v- John Beng refer to a single witness who testified on identification without any direct corroborative evidence, the court must warn itself of the danger and care must be given when giving weight to such evidence from single witness.
52. In this case, the single witness circumstantial evidence of Ernie Antonia, whose evidence is corroborated by defendant Peter Birola, who upon his enquiry to the witness Ernie Antonia as to whether she has told anyone else of her sighting them walking past her garden along the bush rack some 2-3 hours earlier before the alleged event arm robbery and fatal shooting took place on 19th February 2008, not far away from where she was from her garden.
53. In respect to defence allegations on breach of s. 42 Constitution and of Judges' rule on caution, there is no concrete evidence by defence to the contrary to suggest that there was non-compliance of caution as required under the Constitution by the Investigation Officer.
54. For defendants Freddy Maramun and Peter Birola, they disputed and questioned the confessional statement obtained were not voluntary during the trial of arm robbery case against them and the court held a Voir dire trial and the confessional statements were admitted into evidence.
55. For defendant Alois Kitur, he was arrested after two years later in 2011 and he was accorded and was given the same caution required under s.42 of the Constitution and defendant himself went out of his way and freely told his story of what he did two years ago.
56. I have no reason to disbelief his statement and the defence assertion that it was obtained by force could not stand up by the very nature of his recollection of his story as clearly recorded and narrated in his Record Of Interview (ROI) that include his confessional statement. The defendant generally denied the charge, however, his accomplices the co-accused Freddy Maramun and Peter Birola have identified him as the gunman and he himself confirmed that in his recollection of his involvement during the ordeal with deceased William Raphael that caused his death through the fatal trigger he pulled against the deceased, who he can recall mounted a vicious attack on him cannot rub off that easily for a little while to come.
57. The obvious down side to defendant Alois Kitur's case is the fact that he was literally on the run since 2008 until in early 2011 when he was caught and placed under police custody. From the premise of any human rational imagination the accused had in fact had ample time to reconstruct and architect his defence version of the event that took place on 19th February 2008 at Kadaulung village, if he had wanted to. But he chooses not to and decided to stick to the truth of the event then till his arrest.
58. The Record of Interview conducted by the Investigation Officer in early 2011 clearly elicit statement made by the accused were in line with what co-accused Freddy Maramun and Peter Birola had told him during their Record of Interview upon their arrest two days later on 21st February 2008 after the event in question. The accused Alois Kitur was arrested after two (2) years later in early 2011 and did have the opportunity to fabricate his story, if he wanted to, however, in whatever form and shape it may have to pan out to be. But accused Alois Kitur, can be commended for his steadfastness to stick to the truth.
59. This is in view of the opportunity he has to try to orchestrate or explore contrary fabrication option, but he sticked to his original version as was the case in this case as corroborated by two co-accused Freddy Maramun and Peter Birola's version of the event in question in their Record of Interview.
VERDICT
60. The Court having considered the evidence before, it is satisfied that the State Prosecutor has proven its case beyond reasonable doubt and that the Court enters the verdict of guilty against the defendants each and severally and the Court will adjourn to receive address on sentence by both Counsels on a date to be advised by both counsels.
1. The Court Adjourned generally to receive submission from counsels on sentence against the defendants on a date to be advised by both counsel.
2. Defendants are remanded under custody at Kerevat Corrective Institution for sentence on a date to be advised.
_____________________________________________________________
State Prosecutors Office: Lawyer for the State
Public Solicitors Office: Lawyer for the Defendants
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