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State v Dippon [2014] PGNC 33; N5705 (14 August 2014)

N5705

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NOS.455, 456 & 457 OF 2013

THE STATE

-v-

MAHARI DIPPON,
JEFF MIKE TIKI
&
TIMOTHY PIKI BANGISEP

Vanimo: Kirriwom, J.
2014: August 11, 12 & 14

CRIMINAL LAW – Practice and Procedure – No case to answer – Murder – Evidence of disappearance is not evidence of murder – Proof of death essential – Investigation deficient – Prosecuting counsel's inadequacies – Verdict by direction at close of State case – Acquittal.

Cases cited:

The State v. Paul Kundi Rape [1976] P.N.G.L.R. 96
The State v Roka Pep (No 2) [1983] PNGLR 287; SC261

Counsel:

C Sambua, for the State
R Yayabu, for Mahari Dippon and Jeff Mike Tiki
G Korei, for Timothy Piki Bangisep

RULING ON NO CASE SUBMISSION
14th August, 2014

1. KIRRIWOM, J.: The three accused Mahari Dippon of Ankem Telefomin, Jeff Mike Tiki and Timothy Piki Bangasep, both of Drolengam, Telefomin have been jointly and severally charged with murder of two fellow villagers, John Muli and Michael Morosep, whom they suspected of causing the death of one of their relatives by sorcery or sanguma. The charge was laid under section 300(1)(a) of the Criminal Code.

2. The indictment pleads in Count One that on an unknown date between 13 October, 2011 and 30 October, 2011, the three accused in the company of other unknown number of persons at Drolengam murdered John Muli. The indictment further pleads that on an unknown date between 1st November, 2011 and 30th November, 2011 the three accused in the company of other unknown number of persons murdered one Michael Morosep.

3. The State case was that following a death in the village at Drolengam of one Mike Tiki, on 13 October, 2011 there was a gathering in the village where the three accused were in attendance with many others. The gathering was to discuss the death and to seek out those responsible for this death. Following the meeting, groups of vigilantes went around looking for alleged sorcerers. Their suspects included one Deslyn Atiksep, who was called as a State witness and the only purported eye witness who testified in this case. Others also suspected and interrogated were John Muli and Michael Morosep, now presumed deceased and are alleged to have been killed by these accused and the others between 13 October, 2011 and 30th November, 2011.

4. There were five persons altogether, three women and two men. What these two men and three women endured in the hands of their interrogators as suspected sorcerers are set out in the sworn testimony of the only State witness and a victim of that witch hunt, Deslyn Atiksep.

5. Deslyn Atiksep is an unsophisticated village woman from Drolengam village who never went to school and an illiterate villager. On the night of Thursday 13th October, 2011 Deslyn went to Telefomin Health Centre to visit her daughter who was there to give birth. As she returned home she saw three groups of armed men coming towards her direction. She passed the first and second group without incident as they did not see her but as she passed the third group, someone in the third group saw her and shouted for them to grab her. They chased her. She ran and sought refuge in a pastor's house. The group stoned the building and demolished it and demanded that she go to them. A pilot went to the Police station and brought a policeman with him to quell the angry crowd. The policeman told the people to return home and that he would take the woman to the village later. She named those who damaged the house as Jeff Tiki, Mahari Dippon, Timothy Bangisep, Alfred Tiki, Michael Anton and many others. In court she identified all the accused persons as the same ones who were involved in pursuing her and damaging the pastor's house.
6. Policeman with the pastor later took Deslyn to the village and delivered her to them at Alfred Tiki's house. She described the scene at Alfred Tiki's house as filled with men armed with bush knives, sticks and grass-knives and named them as the three accused with many others. Once the policeman and pastor left her there and departed, her interrogation began. She was confused when they questioned her about killing Mike Tiki and eating his flesh. She denied but was assaulted and forced to admit that she was a sorceress. She was tortured with hot burning steel blade of grass knife. Both her arms carry visible scars from this torture. There is even a scar across her nose where she was cut with a bush knife by one Michael Anton. All these beatings and interrogation continued all night till next morning inside Alfred Tiki's house.

7. The next morning Friday 14 August, 2011 they took another woman Alvina to the same house and began interrogating her. She was also subjected to physical abuse and violence as she was questioned. This went on for some hours. About 11am they took Deslyn to the hospital as she was badly injured. The matron suggested that Deslyn needed to be taken to Tabubil hospital for proper treatment but the men resisted saying she was an evil woman who did not deserve such treatment. So they walked her back to Alfred Tiki's house.

8. On the road they met John Muli. The men grabbed him and assaulted him and also took him to Alfred Tiki's house. John Muli was also interrogated and assaulted repeatedly for hours in the same house where she and Alvina were.

9. About 11pm that night (Friday) the same people took John Muli to another house belonging to one Rose Simbiak. Deslyn and Alvina were left with only Alfred Tiki. Early the next morning (Saturday 16/10) about 5am someone called to Alfred Tiki from outside the house and said that John Muli was left at the hospital. When Deslyn was again taken to the hospital and placed on drip, she learnt from the staff that John Muli was never taken to the hospital. These two houses, Alfred Tiki's and Rose Simbiak's house were the torture chambers used by the men to carry out their interrogations and punishments on their victims.

10. It was Saturday morning and the same men were guarding them and questioning them. Alvina was called to go to Rose Simbiak's house. She went and returned sometime later. Deslyn was called to go to the same house. When she went she saw Michael Anton there. He ordered her to remove her clothes and stand before him naked. She did and he checked her from her toe to the tip of her head and told her to wear her clothes again. She returned to Alfred Tiki's house.

11. That afternoon Jeff Tiki and Glen Omansep took Deslyn and Alvina to their house. They got changed and they took them to the hospital and both were placed on drip till Sunday morning. During this time she discovered that John Muli was never taken to the hospital.

12. On Tuesday the following week, Judith Takson arrived from Tabubil hospital and the same group of men picked her up. They took her and also picked up Deslyn and Alvina once again and brought three of them back again to Alfred Tiki's house. Judith was also put through the same interrogation and assaults and torture. Leaving Judith at Alfred Tiki's house they took Deslyn and Alvina back to the hospital. This time they left them at the hospital till Sunday morning and they fetched them again and brought them back to Alfred Tiki's house. There they questioned the three women repeatedly and assaulted them more. They slept in that house till next day.
Monday morning they went back to the hospital and received out-patient treatment and went home.

13. After a lapse of one week, the same men once again took the three women back to the same house. This time they had Michael Morosep. He was also questioned and beaten up badly. She called all these accused and their relatives, all those who were there and involved from day one were still searching for more suspects. She heard Alfred Tiki say to Michael "You next" as they sent the women away.

14. The final act of torture was that the three women together with Michael Morosep who was wheeled home from hospital in a wheel chair as he could not stand after the assaults, were all paraded in front of the public and forced to say that he or she was an evil person, a sorcerer and he or she killed and ate Mike Tiki. To avoid further beatings each one repeated what the men wanted them to say.

15. Michael was taken away by the accused and their relatives and later that day a gunshot was heard from a distance. Michael has not been seen since.
Both John Muli and Michael Mosorop have not been seen since and the State presumes them both dead and wants this court to find that these accused killed the two men.

16. During cross-examination of the only State eye-witness by defence counsel, it was shown that Detective Chief Sergeant Robert Nalaik who investigated this case and charged the three accused was in-law to the witness Deslyn Atiksep as he was married to Deslyn's sister from Drolengam village Telefomin. It was also shown that Chief Sergeant Nalaik never carried out investigations at Drolengam village before laying charges against the accused. 17. He was relying on Deslyn's story and was therefore biased in his decision to charge these accused motivated by personal interest as opposed to professional duty.

18. Consequently, Detective Chief Sergeant Nalaik was the next witness State called to clarify the source of this complaint. The complainant in this case was one John Kantrapnot. Nalaik conceded that the complainant was also his in-law.

19. Chief Sergeant Nalaik agreed that he did not conduct investigation in Telefomin. He arranged for two witnesses Deslyn Atiksep and Cathy Yemi to come over to Vanimo and he took statements from them. He created his case file out of their story and made his arrests. He said he asked Police in Telefomin to obtain statements from witnesses in Telefomin but they failed him.

20. When asked in cross-examination that given his relationship with witness Deslyn and John Kantrapnot, he was in a conflict position so it would have been better for him to delegate another officer to investigate the matter. He replied he had no conflict, other officers were all engaged, this was a complex and important case that as the acting OIC CID, it was proper that he took charge of the investigation himself.

21. At the close of the State case after Chief Sergeant Robert Nalaik, both defence counsel submitted that I must not call on the accused to answer the charges relying on both limbs of the no case submission in The State v. Paul Kundi Rape [1976] PNGLR 96. The first limb is that if there is no evidence at all to establish one or more elements of the offence charged, that is the end of the prosecution case. There is no need to call on the accused to give evidence. The second limb is where there is some evidence but such evidence is so inadequate or insufficient for conviction to lie on reasonable consideration of that evidence, the judge has the discretion to direct an acquittal.

22. The above principle is expressed in the following terms by the five men Supreme Court in The State v Roka Pep (No 2) [1983] PNGLR 287; SC261 presided by Kidu, CJ, Kapi, DCJ, Andrew, J, Pratt, J and Kaputin, J from the head note of that judgment:

"(Per Kidu CJ Kapi DCJ Andrew and Kaputin JJ) Where in criminal proceedings at the close of the case for the prosecution, there is a submission of no case to answer, the matter is a question of law for the judge as a tribunal of law; the test is whether the evidence supports the essential elements of the offence.

Where the tribunal decides there is no case to answer the accused is acquitted and that is the end of the matter.

Where the tribunal decides there is a case to answer, it nevertheless has a discretion to stop a case at the close of all the evidence in appropriate circumstances; this discretion is exercisable where there is a mere scintilla of evidence and where the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it.

The State v. Paul Kundi Rape [1976] P.N.G.L.R. 96, adopted and applied.

(Per Pratt J) A tribunal should make a finding of no case to answer where (a) there is no evidence to establish an element of the offence charged; or (b) there is some evidence covering the elements of the offence charged but it is so tenuous or incredible or discredited that it amounts only to a scintilla, and thus could not be accepted as persuasive by any reasonable person."

23. Both Ms Yayabu and Mr Korei submitted that the evidence now before the court is so unreliable that no reasonable tribunal can safely convict on it. As such the Court must stop the case here and now from going any further.

24. Mr Sambua while accepting that the State case has deficiencies in some respects such as the lack of evidence of proof of death, he submits that the evidence of their severe beatings and their permanent physical absence or missing from the village since that incident as testified by Deslyn Atiksep, establishes a prima facie case of their deaths.

25. Mr Sambua is asking the court to assume that John Muli and Michael Morosep are dead. And that they were killed by the three accused and those persons not in court with them. This assumption it is submitted can be inferred from the proven fact that since the time of their severe beatings that they were subjected to during their interrogation and removed from the interrogation centre between 13 October and 30 November 2011, the two men have simply vanished from the face of the village. That is enough evidence to find that both men have been killed.

Can the court presume that someone is dead by the mere fact of his disappearance from the village during the peak of the interrogation and is still missing from the village?

26. In my view, such presumption can be made but it must be founded on good credible and reliable evidence. During exchange between the bench and bar table I gave one example where a person is thrown into the sea in the vast ocean, submerges and sinks to the depths or devoured by the creatures of the ocean. His death can be safely assumed as having taken place and caused by drowning in the hands of the perpetrator of that evil act. Evidence of his death is conclusive. The chances of him springing up alive from somewhere else in the near future or at all are almost next to nil.

27. In the present case, the evidence given by Deslyn Atiksep was all about what happened to her. All she told the court was about what the men did to her which they likewise did to the others without detailing what exactly happened to John Muli and Michael Morosep. Her evidence was very general in character and context and do not really bring out the gravity of the illegal and atrocious acts of the perpetrators of violence upon her and the others. Maybe she was thinking that she was doing favour for all of them, the victims of that village sanctioned torture.

28. Generally therefore from Deslyn's evidence alone, death is not conclusive when it comes to John Muli and Michael Morosep. From Deslyn's evidence, these two men disappeared from the village during that time of witch-hunt after being severely beaten up during their interrogation and after being isolated from the others. The assumption is that they were killed.

29. She did not see what happened to John Muli and Michael Morosep after all the beatings they received and why they are no longer in the village. All she knows is that, that was the last time she saw them up to now, they are nowhere to be seen. She is only assuming that they were killed by the villagers. These three accused are part of that group of vigilantes.

30. There is a missing link between her story and the charge laid against the three accused. There is no evidence that they died and they were buried, no evidence of how they died, what was the cause of death, where were they buried, was there post-mortem done, are there any evidence of certificates of death?
31. There is no evidence of attempts being made to discover the bodies of the alleged murder victims.

32. The State does not have the bodies of these alleged murder victims, no evidence of how they were killed, no medical report or certificates of death because coroner was not even invited to conduct a coronial inquest into the disappearance of the alleged murder victims. This was a coroner's case that the investigation was botched up because police treated the case as straightforward homicide when it was more complex than it appeared acting simply on the story of Deslyn Atiksep.

But can the court make that assumption based on the two men's disappearance alone?

33. I do not think it will be right for the law to presume anyone dead unless proven otherwise. But the converse would be the case (presumption of life) just like the law presumes every person to be sane (presumption of sanity) until proven otherwise. This assumption is based on inconclusive evidence and such a presumption is rebuttable or can be rebutted. Where a person is presumed dead in circumstances like in this case, proof of death can be ascertained in many ways, for example, eye witness account of discovery of body, discovery of grave, evidence of attempts to conceal the body and even evidence of resistance to discovery of the body can also be conclusive as to proof of death. In this case no such evidence is available because Police investigation fell far short of interviewing as many as possible of witnesses in Drolengam village, let alone conducting search of the bush and surrounding areas of Drolengam village for possible grave sites. Without such evidence, it is quite premature to conclude that the two men died from the injuries sustained during those interrogations on the evidence of Deslyn Atiksep.

34. Absence of this evidence can only be attributed to poor police investigation. Investigation was not thorough and failed miserably to cover the most obvious place of investigation which is the alleged scene of crime. No prudent policeman or crime investigator conducting an investigation into a crime can be satisfied with the quality and extent of his evidence collecting by not paying physical inspection and visit of the alleged scene of crime. Such a failure can amount to a serious dereliction of duty. All clues and success or failure of an investigation lies at the scene of crime, not anywhere else. If the investigator fails to pay respect to the scene of crime, his investigation is almost as good as failed and the case is already lost even before he finished his investigation.
35. This was a big case and would have been a big story in Drolengam. What was happening there for almost two months between 13 October and 30 November, 2011 was a significant event that would have attracted people from all over Telefomin especially those surrounding villages who, out of curiosity or excitement wanted to visit and witness for themselves how one village was dealing with its sorcery related issues and problems. So there could have been many willing people around to volunteer information to the police about the fate of the two men presumed dead had police visited the scene.

36. The failure to prove death is so critical that an essential element of the offence in any homicide charge is missing. Without proof of death, there is no case of homicide. This is why there is always in cases of wilful murder, murder and manslaughter evidence of medical certificate of death, post mortem report to establish cause of death and issuance of certificate of death often follows identification of the body of the deceased by someone who knows the deceased such as a close relative or friend. These requirements demonstrate the importance of proving death, not just somebody gone missing and not found. Death must be proven by some physical evidence not by speculation or conjectures. So when there is absence of evidence of death, the prosecution case has not even lifted its head from its lying position and it is as good as lost.

37. From the indication given by Senior State Prosecutor Mr Sambua, the remaining eye-witness' story is basically the same as that of Deslyn Atiksep. There is no evidence of anyone actually seeing the two deceased being killed or their bodies disposed of or buried in the ground or evidence of recently dug up grave sites. This case was destined to fail at the very outset.

38. This is the kind of scenario, that even without application or no case submission by defence, the court on its own volition has the power to stop the trial going any further as envisaged in the second limb of the no case principle in Paul Kundi Rape. It would serve no useful purpose and it would be against public policy to allow the case to proceed further when in reality it would be a witch-hunt to continue. Justice will not be served to call on the accused to answer the charges against them when there is no evidence at all of a crucial element of the offence. Death or proof of death is an essential ingredient of the offence of murder. As Pratt, J said in Roka Pep No.2:

"There can be no doubt that where proof of an essential element of an offence has failed, an application for a ruling of 'no case' at the conclusion of the prosecution evidence would always be upheld. An example is where, on a charge of breaking entering and stealing, the prosecution has failed to adduce any evidence as to a breaking."

39. This is a very simple illustration. And by analogy, one looks at the case of murder. In murder, like all other homicide cases, it is synonymous with death, but not just any death, it must be death caused by a criminal act of someone. It is essential therefore to establish a case of murder, there must be proof of death. And death was caused by being killed or murdered by someone, in whatever way it was executed. For there to be a case of murder or any homicide for that matter, this is the minimum required in evidence before a prima facie case exists.

40. But Pratt, J goes on to discuss what the second limb in Paul Kundi Rape is all about in these terms:

"The difficulties stem from the next stage namely, where there is some evidence, what has been called a "scintilla of evidence", but the evidence is so slight that it would be an insult to anyone's intelligence to expect that a conviction would follow, to expect that such evidence would be accepted as material worthy of consideration in the light of its nebulous and tenuous nature.

".................where evidence of this character exists, it should not be suggested that the test of reasonable doubt enters into the field at all. In the circumstances that I have outlined, the state of the evidence is such that it simply should not go to any jury. It is not a matter of the jury not being satisfied beyond reasonable doubt, it is rather a matter that a jury (or tribunal of fact), considering all the material which has been put forward up to the end of the prosecution case, would not have sufficient material upon which to base a conviction — that is, there is insufficient meaningful evidence. The situation is not a rarity in practice. Perhaps the most unrealistic but clear example of this would be a case where the one and only prosecution witness admits during cross-examination that the whole of his evidence-in-chief has been one pack of lies because it has been his intention to do harm to the accused, and for this reason he has brought a false charge against him. Now strictly speaking, one could say that the evidence still has to be weighed in that his evidence-in-chief is weighed against his withdrawal or retraction of that evidence in cross-examination. It would be the height of absurdity in my view for such a case to go any further. Indeed, it would make the administration of the criminal law a farce."

41. It is arguable in this case that there was evidence of severe beatings of both men at different times and being taken away and were never seen again till now is ample evidence that they were killed. Of course that is the logical conclusion, what else could have happened to them if they are no longer in the village. If they had left on their own accord while being interrogated out of fear of execution one might be left to wonder if they had fled for safety and are hiding somewhere safe. But they were held captives by the villagers and interrogated at length and beaten up that even Michael Morosep could hardly stand and was placed in a wheel chair. Telefomin hospital must have all the evidence of their injuries to help Police with their investigation if they are interested. But did Police seek their help? No. Issue of threat such as "you next" allegedly uttered by Michael Anton to Michael Morosep and the sound of gunshot heard that afternoon of Michael Mosorop's disappearance do not even provide evidence of death, let alone evidence of death by murder.

42. So in reality, there was no evidence that both John Muli and Michael Morosep are dead and that they were killed. Therefore there really was no evidence for the three accused to answer. This is where the judge can direct an acquittal to be entered in favour of the accused. It is a verdict by direction of the court as opposed to a verdict by decision based on all of the evidence in the case.

43. I have no desire to unnecessarily belabour a point if I did not consider its importance because of its impact on the way and the processes that we have in place in our justice system. The point that I want to drive home here is that apart from incomplete police investigation this case was not ready for prosecution. Prosecution was premature.

44. Experienced and senior prosecuting counsel have onerous responsibility in ensuring that only those cases capable of securing conviction need to proceed to indictment or prosecuted. They are duty-bound to assess the evidence thoroughly upon receiving their briefs before making that critical decision whether to prosecute or not to prosecute. It is not rare for Prosecutors to decline prosecuting and filing nolle prosequies when they are not satisfied of the quality of evidence in the briefs before them. Most times nolle prosequies are misapplied by the prosecution. They file nolle prosequies when they cannot secure attendances of material witnesses in the case. But this is a classical case where nolle prosequie would have been in order. When they choose not to prosecute for want of further evidence, they send the case back to the police for further investigation. Carefully studied and understood, this is the course that this case ought to have taken. It is no excuse to wash one's hands off and say that investigation is police work and how they do it is a matter for them.
State Prosecutors occupy this important position in society representing the Public Prosecutor whose functions are clearly set out in section 177(1) of the Constitution "to control the exercise and performance of the prosecution function (including appeals and the refusal to initiate and the discontinuance of prosecutions) before the Supreme Court and the National Court, and before other Courts.." The buck stops with them in making this critical decision. Police investigators are not trained like lawyers to make such valued judgment on a case. Only lawyers have trained mind to make that judgment.

45. Failure to exercise that critical judgment in this case means that the case against the three accused stops here. This end result also has its own sour grapes when it comes to Deslyn Atiksep. For all intents and purposes, when giving her evidence in this trial, she may have been thinking that justice will finally be done to her for all the suffering she went through in the hands of her torturers. But little did she know or even realise that this court case was not for or about her, and it was not going to redeem or vindicate her, she was only called to appear as a witness.

46. But having testified against these men without them being charged for assaulting her, she will face many legal hurdles taking these men back to court in due course due to double jeopardy argument that can rightly be raised by these men and pleas of autre fois acquit by all three of them if the State is going to prosecute them again for what they did to her.

47. Her best bet would be to prosecute those who have not been charged with these three like Alfred Tiki, Michael Anton, Rose Simbiak, etc. Moreso, she is now exposed to more risk and left vulnerable to reprisal attacks by these men and their relatives for testifying against them. This is the result of poor judgment made by people in authority handling this criminal investigation.

48. I want to make just one final observation about police investigation. It is possible that emotion may have played a part in this case when Det Chief Sergeant Robert Nalaik took charge of this case because of his relationship to the victim Deslyn Atiksep. When emotion clouds the mind because of the investigator's familiarity with a party, the chances of mistakes cannot be ruled out. And this could be the reason for lack of complete and objective police investigation.
49. The need for thorough and complete investigation by police cannot be over-emphasised. Because homicide cases associated with killings of suspected sorcerers now attract death penalty under the recent amendments to the criminal law, police investigations must be precise, thorough and conclusive. There is no room for half-baked investigations. I do not believe in sorcery and that sorcery causes deaths. Sorcery is only a belief that people have of good and bad or evil. Evil sorcery kills people, good sorcery heals people, bring good fortunes and good harvests, etc. Those are what people believe, they do not exist in physical substance. It is a mind game.

50. These men and all their relatives in Drolengam saw themselves as the saviours of their people by exposing and terminating alleged sorcerers in their midst. Did they truly eradicate sorcery and sorcerers in the village? Like I said, it is only a mind game. The only way to remove sorcery and sorcerers in our society today is by accepting change in their mindset or shift in paradigm by discarding their beliefs in sorcery as causes of deaths and belief in the existence of sorcerers and sorceresses. It is all in the mind.

51. I find there is no case to answer by all three accused. I will stop this case and acquit all three accused on both counts of murder.

52. I now recommend to the PPC in Vanimo in the strongest terms possible that every effort must be made to apprehend all those responsible for carrying out the assaults on Deslyn Atiksep, John Muli, Michael Morosep, Alvina and Judith between 13 October and 30 November, 2011. And if need be, set up a coronial inquest to investigate the disappearance of John Muli and Michael Morosep. Both are human beings with families whose lives are just as precious as everyone else in Drolengam village.

Public Prosecutor: Lawyer for the State
Public Solicitor & MS Wagambie Lawyers: Lawyer for the Defence