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State v Hapot (No 1) [2015] PGNC 294; N6455 (29 September 2015)

N6455

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR Nos. 915 - 917 OF 2013


THE STATE


V


ALPHONSE HAPOT


Lorengau: Kirriwom, J
2014: 13-15, 20& 22 May
10-12, 15, 17, 19 September
2015: 29 September


(No.1)


CRIMINAL LAW – Trial – Particular offence – Wilful murder – Criminal Code s 299 – Multiple deaths – Mother and two daughters stabbed repeatedly multiple times with sharpened knife-like object – Circumstantial and confessional evidence – Proof beyond reasonable doubt.


EVIDENCE – Fabrication of – Police planting story in witnesses mouth


PRACTICE AND PROCEDURE - Identifying false testimony – From perspective of prosecution, defence and totality of evidence.


Facts
In a remote part of Mal Island in Manus province an adult woman aged approximately 28 years and her two daughters aged six years and 12 years were killed by having their throats cut, plus cuts to the body and two of the victims also suffering blows to the skull causing the skin to peel back from the bone. Two of the bodies were found in the water some distance from shore and the adult female in the water close to shore with her clothes torn and skirt and underwear pulled down below her knees. At the trial the accused relied on an alibi of being at home all day of the day on which the offence occurred. The State evidence included statements that on the day of the offence the accused had the appearance of someone who had been diving, that when the bodies were brought to the village he volunteered the information as to where they had been killed, although he had not been part of the search group looking for them, that he also volunteered to the husband and father that it was not him who had killed the deceased and that four days later when the bodies were being buried he confessed to a cousin that he was the one who had killed them.


Held:

  1. The alibi evidence was of recent invention and could not be believed when compared with the evidence for the State, at [136-139];
  2. The accused had opportunity to commit the offence, at [144 (2)];
  3. The evidence of the conduct and appearance of the accused and his unsolicited words added a short time after the killings as to where the killings took place provide inferences that are consistent with the guilt of the accused, at [142];
  4. The evidence that the accused confessed his guilt to his cousin on the day of the burial of the bodies, confirmed his guilt, at [143];
  5. Verdict, guilty of all three counts of wilful murder, at [146];
  6. Ben Caspar, and police witnesses Markson Gamui and Chris Kopi lied to the court, at [126-130] and at [141-142].

Cases cited:


Paulus Pawa v The State [1981] PNGLR 498
The State v Mole Manipe& Others [1979] N196 (1 June 1979)


Counsel:


P. Kaluwin, for the State
P. Moses with T Kaleh, for the Accused


JUDGMENT ON VERDICT


29th September, 2015.


  1. KIRRIWOM, J. The accused Alphonse Hapot of Mal Island Manus Province is charged with wilfully murdering Brenda Ben, Bernadette Ben and Benita Ben at Mal Island on Sunday 20 January, 2013. The charge is brought under section 299 of the Criminal Code. Section 299 provides:

“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.”


  1. The brief facts of the case are that on the morning of Sunday 20 January 2013, the deceased Brenda Ben and her two daughters Bernadette Ben aged 12 and Benita Ben 6 left their house at Salehiak and went to Puihipi, a hamlet on the eastern side of Mal island to sell their lalai or trochuses shell. They left about 8 or 9am.
  2. Upon arrival at Puihipi they learnt that the buyer did not have cash to buy their lalai so they left their lalai with Richard Mangiel to sell for them when the buyer returned with cash from Lorengau. There was some rain so they waited and when the rain stopped, they left for their home at Salehiak hamlet. They did not reach home.
  3. About 3pm Ben Caspar left Puihipi for Salehiak in search for lime and arrived at Benjamin Andreas’s place at Lewaleu. When he did not see Benjamin’s wife and the two girls he enquired of their whereabouts. They had not yet arrived from their trip to Puihipi.
  4. Ben Caspar told Benjamin Andreas of seeing blood drops along beach road on the way. Accompanied by Ben Caspar, Benjamin Andreas and two small children they proceeded to the scene where Ben Caspar saw blood.
  5. Upon arrival they saw the blood drops. Benjamin Andreas traced the blood drops to the beach where he saw the body of Brenda Ben lying on the beach face down. And upon further search in the sea he also found the bodies of his two daughters Bernadette and Benita.
  6. The bodies were taken home in a motor boat and police in Lorengau were contacted and they advised to hold the bodies. After four days bodies were already beginning to decompose so they buried them.
  7. Two weeks later police mobile squad and CID personnel arrived on the island and apprehended six men, five from Puihipi and one from Salehiak and took them to Lorengau on a Defence Force Patrol Boat.
  8. Following interviews of the six suspects at Lorengau Police Station, the accused Alphonse Hapot was charged with the wilful murders of the mother and two daughters while Ben Caspar became the State or prosecution key witness and the other four suspects were released.
  9. The State case is based partly on the circumstantial evidence, an alleged confession and an eye witness account. There are five witnesses plus two who gave rebuttal evidence as result of defence raising allegations of Police fabrication of evidence by changing the State key witness’s story, viz a viz that of Ben Caspar while he was in custody at Lorengau Police Station as suspect.
  10. There are also a number of exhibits which include:
  11. The record of interview contains denials only which the accused refused to sign.
  12. Defence raised by the accused was one of alibi. He denied the charges and denied even being at the scene of the murders on the day in question. The accused gave sworn evidence and called five witnesses which included his father, Willie Hapot, his mother, Genevieve Hapot, his wife, Maryanne Hapot, his wife’s mother, Francesca Mendis and a person called Gilbert Hilarai.
  13. The evidence of the last witness did not relate to the alleged crime but nonetheless was a material witness with respect to the events at the Lorengau Police Cells that go to the credibility of the key State witness Ben Caspar as well as whether or not Police investigator in this case and another officer maybe guilty of fabricating evidence for the purpose of securing conviction of the accused.
  14. After setting out the evidence of the witnesses, as a preliminary matter, I deal firstly with the reliability of the eye-witness story in this case. Based on other evidence before me, this would be a prudent course to take. Then I shall address the rest of the evidence and the demeanour of witnesses, identify the issues, apply the law and reach the verdict.
  1. Evidence - State witnesses

Philip Sapak

  1. The first State witness was a person called Philip Sapak from Amik Island, a neighbouring island near Mal Island. Philip Sapak’s father was from Salian Island and mother was from N’Drano, Manus Highway but was married to a woman from Amik Island for 20 years and they had ten children.
  2. He recalled that Sunday night 20 January 2013 when a group of men in motorised boat arrived at their place. He was woken up from sleep and amongst them was Alphonse Hapot. Alphonse told him of the three deaths and even told Peter Sapak that he went to Puihipi that Sunday as well to find or buy newspaper for his parents. After telling him this story the boat moved on.

Nick Kepis

  1. The second State witness was Nick Kepis. Nick Kepis was from Pateku, another neighbouring island in the same group of islands as Mal. He gave evidence of admission made by Alphonse Hapot on the fourth day following the deaths as the community in and around Mal island got together to bury the three dead after the police advised that the burials must proceed. This was on Thursday 24th January 2013. The dead bodies were held back awaiting police arrival but after four days the police could not get there and directed the burials to proceed.
  2. Nick Kepis gave this evidence:

“I was assisting with the coffins and there were lots of people there. I did not see Alphonse but his parents were there. So I left those making the coffins and walked over to his house. He was sitting inside and I went in and sat next to him. I asked him several times ‘Did you kill these people?’ I told him you can trust me and tell me, I won’t tell anyone. And on the third asking he bowed down his head and told me that he killed them.”


  1. Nick Kepis was asked: ‘What made you go and ask Alphonse if he killed the three, what caused you to do that?’
  2. His answer was that Alphonse had a swollen right hand or knuckles.
  3. Nick Kepis then continued to explain his relationship to Alphonse. He said Alphonse was half Western and half Bipi. His father was from Mal, in the Western Group of Islands and mother from Bipi.He was related to Alphonse as cousin because Alphonse’s father and his mother had the same mother but different fathers. They were brother and sister and his mother was older.
  4. Nick Kepis works for Papindo in Lorengau but was back home in Pateku after delivering the body of his deceased brother for burial when these three deaths occurred.
  5. Nick Kepis said some time after he got that confession from Alphonse, he was under enormous pressure from within himself. He needed to let it out so he told his small papa or uncle Stanley Angtil and later he told a policeman called Leonard John Lee.
  6. When asked why he did not keep his promise to Alphonse? He replied that he had to release the tension or pressure in him which was becoming unbearable the longer he kept the information locked up inside him. He said after telling Stanley of what he knew, he felt so much relieved and normal again to go about his normal life.

Cecilia Trevor

  1. The third State witness was Cecilia Trevor. She is married to Trevor Ben and comes from mixed parents of Pere in Manus and Awing, another island in the Western Group of islands. She, her husband and the husband’s parents were in their house at Salehiak when she saw a boat approaching in their direction. She was actually sitting in the haus win and saw men in the boat waving their hands and urging them to go towards their place where the boat was headed. The people in the boat were using long bamboo poles to direct the boat ashore, because of the shallow water, with the motor raised.
  2. When the boat finally touched the beach she was one of the first to approach it:

“I walked towards the boat to hear and see what was happening. When I looked into the boat, I was surprised to see a mother and two daughters lying dead inside the boat. I looked to the people in the boat and asked: ’Where did they kill the mother and the two girls?’ The people in the boat did not answer me. But Alphonse Hapot was standing on the beach said: ‘They were killed near the area where I sawed or carved my canoe.’ When I heard this I thought to myself, why is he not amongst those and assisting in delivering the bodies of the three home? And how did he know the place where these three died?”


  1. In the boat besides those bodies she saw Ben Andreas, the husband and father of the deceased woman and children. Also at the scene when the boat arrived was her husband Trevor Ben and other villagers from Salehiak including Alphonse Hapot.
  2. She was asked to describe Alphonse’s appearance that day when she saw him. She replied: “His appearance seemed like he was diving or something.”
  3. She was asked of the distance between Alphonse Hapot’s house and that of hers and family. She could not give any estimate but we overcame that problem by physical visit of the place and I can estimate the distance between them to be about 100 meters or less. One can see from the witness’s group of houses to Alphonse Hapot’s family’s houses. They have maintained jovial relationship between them but what she heard from Alphonse and his failure to help in bringing the bodies home was bothering her.
  4. In cross-examination Counsel put this to her: “ I put to you that the accused was in his house asleep when he heard the boat approaching so he ran down to the beach to attend to the boat. That is when you saw him and told the court that he looked like he went diving.”
  5. But she replied: “I do not know that long story. All I know is that he was on the beach when I asked the question and nobody in the boat said anything but he answered my question from amongst the crowd.”

Trevor Andreas

  1. The fourth State witness was Trevor Andreas. Trevor Andreas is the husband of Cecilia Trevor and small brother to Benjamin Andreas, also known as Ben Andreas, the husband and father of the three deceased. He also went down to the beach as the boat approached the shore.
  2. Trevor Andreas continued:

“The boat came to the beach and I went down to see what was happening. When I approached all those on the boat were standing in front of the boat. With my own eyes I saw the mother of the two children and I thought my big brother had an argument with his wife and killed her. I called my brother’s name and asked him: ‘What did you do?’ My brother lifted his head, looked at me and cried, and lowered his head again. He did not say anything. But the skipper of the boat answered my question and said: ‘We don’t know who did this. They killed three of them and threw their bodies in the sea.’ When I heard this I went forward to the boat and saw the two children. When I saw them, their necks cut open, big open cuts or wounds on their necks.”


  1. Trevor Andreas continued:

“When I saw this emotions overtook me and in that moment of rage I lost my temper and said things I cannot now recall. But when I regained control of myself, I walked toward the beach as the crowd came towards the boat. Alphonse Hapot was also walking in front of me when I called out loudly: ‘Whoever did this has grudges against my family.’ Alphonse Hapot heard me and avoided me and went to the side and came besides me. He tapped me on the shoulder, held my hand and shook hands with me and said: ‘I am very sorry, it is not me.’ I remembered what he said as his words rang in my ears and continued to the boat and stood thinking over what he said. My mother and wife and my sister were standing in front of the boat crying.”


  1. As they were gathered there and the women were crying when someone asked: ‘They killed them and where did they throw them?’ Alphonse Hapot who standing beside him replied: ‘Near where I sawed or carved my canoe.’
  2. He then carried the body of Bernadette from the boat to the house win and placed her beside the bodies of her mother and little sister.
  3. Trevor Andreas continued to tell the court of his investigation as the peace officer on the island as directed by the Police Reservist Willie Hapot. He visited the crime scene several times when he found a talisa wood with its bark peeling off on one end shoved under the roots of a tree. When he examined it, it had blood and human hair (curly) on the part where the bark had peeled off so he took it home and gave it to Wille Hapot as a possible murder weapon. That is now evidence before the Court as exhibit 5.
  4. When asked if he had any knowledge of the accused having any sour relations with the deceased Brenda Ben such as to cause her harm, the witness replied that he only heard rumours of the accused making sexual advances to Brenda Ben but she rejected him and on one occasion he was heard saying to or telling Brenda ‘one good time you will know me’ He said he knew that the accused was married and his wife’s name was Maryanne but they had no children.

Richard Mangiel

  1. The fifth State witness was Richard Mangiel. This witness lives in Puihipi and is related to the deceased Brenda Ben. The last person who saw and spoke to Brenda and her two daughters was Richard Mangiel with whom Brenda left their lalai when they learnt that the buyer did not have enough cash to buy their shell. He was to sell their lalai when the buyer returned to Mal from Lorengau with some cash.
  2. He estimated 12 midday as their time of their departure for their home. There was bit of rain after they left. About 3 o’clock in the afternoon his wife sent Ben Caspar also known as Pokeliu to look for lime at Salehiak.
  3. He saw Ben Caspar returned to Puihipi about one hour later with one of Brenda’s little children and told them that some people killed Brenda. While some boys rushed to the scene on foot Richard Mangiel with other boys took the motor boat and proceeded to the scene as requested by Ben Andreas.
  4. By the time he reached the scene where Ben Andreas was, Brenda’s body and that of one child were located while they searched together and located the body of the other child. They placed the bodies of the mother and two daughters in the boat and proceeded towards Salihiak. Upon arrival the boat preceded to Ben Abuse’s place, father of Ben Andreas and Trevor Andreas.
  5. Richard Mangiel saw Alphonse Hapot amongst those gathered on the beach standing 15 meters away from the boat and his body was wet. He was standing there looking frightened when Trevor Andreas angrily issued challenge generally to whoever caused this grief upon his family.
  6. Richard then proceeded to the Police Reservist’s house and reported the killings.
  7. He estimated the distance between Puihipi and Lewaleu, a small hamlet just before Salehiak to be about 1.5 kilometres to two kilometres. And from Puihipi to Salihiak is more than two possibly three or three and half kilometres.
  8. However the distance between Puihipi and the scene of crime was compared to the distance between Lorengau Court house and Kohai Lodge in Ward 2. As the sparrow flies, that would be about 500 meters or less.
  9. When asked to describe what he observed on the bodies they transported home:

“There was sore on her body, on the side of her ribs. They cut her neck like a pig. Her clothes were torn and I simply covered her with her torn clothes that were still on her body.”


  1. When asked if he agreed or disagreed with the observation and findings of the medical orderly contained in the three medical reports:

“I disagree with the reports because my sister’s husband told the story and they just wrote it.”


  1. During cross-examination counsel asked Richard Mangielto explain what other things that Alphonse Hapot did that he wanted to tell the court. He replied:

“Around 2011 Alphonse did something to my wife, same type of action which could lead to death but sheer luck saved my wife when other people arrived at the scene. All these incidents were reported to the reservist but he did nothing.”


  1. He was the peace officer at the time and he reported to Wille Hapot, the police reservist on the island. There is no telephone or mobile service except VHF radio at the Health Centre but that service is not for everyone to use as and when they like. He felt that reporting to the reserve police on the island and the village councillor was good enough. Willie Hapot, he said, was his father’s cousin.

Benjamin Andreas

  1. The sixth State witness was Benjamin Andreas. He is the husband of the deceased Brenda Ben and father of the deceased girls Bernadette and Benita Ben. The last time he saw his wife and two daughters was that Sunday morning 20 January 2013 when they left for Puihipi to sell lalai. He was left with three small children, all boys, to look after.
  2. About 3pm he was feeding his children when Ben Caspar arrived and gave him two betel nuts which he chewed. Ben Caspar then asked him if his wife and children had arrived. He responded that they had not yet arrived. He looked out the window and saw the sun going down and replied, you are right, it is getting quite late and by this time they should be home already. He said Ben Caspar then told him that he saw something on the road, he saw blood on the road and signs or marks of something like a canoe being pulled down into the sea. He told him that he was thinking of his two little girls and repeated his question again.
  3. Ben Andreas then picked up his bush knife which he handed over to Ben Caspar to carry and they went looking for his family. He led the way carrying his small child followed by his older son and Ben Caspar coming last. The other child remained with his cousin’s wife.
  4. There were thongs prints on the sand which Ben Caspar claimed were his thongs marks when he went to wash his legs after climbing a betel nut palm. As they approached the spot where Trevor Andreas made his garden, he asked Ben Caspar to show him where he saw blood on the road.
  5. As they passed Trevor’s garden, he saw blood clot on the road where the surface was bit rough and seemed like there was a fight or struggle there. He stood there and looked around and observed the marks like someone taking or pulling something to the beach. The corner of his eyes picked a familiar colour, his wife’s white and orange bra. He turned his whole face towards the beach and there he saw his wife’s body lying face down, clothes on her body were torn, only a piece of cloth on her left side was still hanging. Her trousers and pants were down on her legs below her knees.
  6. He called out to Ben Caspar and showed him his wife’s body. When he saw Brenda’s body, Ben Caspar let out some sort of cry he could not forget. He was so sorry and quite shocked by what he saw. He gave his child to Ben Caspar to carry while he got his bush knife and ran to the beach. He placed the bush knife at the bottom of a coconut tree and jumped into the sea near the body of his wife. He pulled the pants and trousers back to her waist. He further discovered that his wife’s neck had been cut and was hanging on the side of his arm.
  7. He lifted up the body for Ben Caspar to see and showed him the cut on the neck. There were further three big holes on her chest above her heart. He placed the body down on the beach and instructed Ben Caspar to take his small child to his grandmother at Puihipi and inform them and to tell Richard Mangiel to bring the boat around. Ben Caspar went with the child and turned back and looked at him undecided. He repeated two more times for Ben Caspar to leave him and his older child to stay with the body while he went to fetch help from Richard Mangiel.
  8. After Ben Caspar left for Puihipi he continued searching for his two daughters by calling out their names as they ran up and down the track but to no avail. He decided to search in the sea in case they too were killed and their bodies thrown into the sea.
  9. After a long while and false alarms from drifting logs he saw something drifting near the breaking waves. Placing the boy on a rock he swam towards the drifting object and recognised the skirt of his smaller daughter Benita and saw it was her body. He swam towards the body picked her up and carried her ashore. Her neck was cut from one side to the other. He placed her body besides her mother just as the boys from Puihipi arrived. Richard Mangiel also arrived in the boat about the same time.
  10. Richard also asked him who did this and he replied he did not know. They lifted the bodies and placed them in the boat. They got on the boat and used bamboos to move out of the shallow water to look for the other daughter when someone sitting right in front of the boat looked down and saw the elder daughter. Benjamin jumped down and pulled her body up. Her head was full of mud which he removed using the sea water. He felt something bumpy on her head inside the water and lifted her head out of the water. When he opened her hair on her head, he saw a big cut on her head. He neck was also cut. He lifted her clothes and checked her belly, there were two holes penetrating her liver.
  11. They put her body in the boat with her mother and sister and headed for Salehiak, Benjamin’s father’s house because at Lewaleu where Benjamin’s camp is isolated. When they arrived the family gathered and saw what was in the boat. Trevor asked him as to what happened. He could not answer his brother’s question. They took the bodies to the house win while he took some clean clothes and dressed them up and sent for the medical orderly who came and examined the sores on their bodies and applied some dressings on them.
  12. They were advised by police to hold the bodies but after four days they were instructed to bury the bodies as Police could not get there quick enough. Police Mobile Squad and CID arrived on the island in the PNGDF Patrol Boat two or three weeks later and picked up six suspects including the accused and Ben Caspar and took them to Lorengau.
  13. Benjamin Andreas was asked if there was any conflict or cross between his family and the accused. He replied that he had nothing against the accused. However, it was the accused who had been trying repeatedly to seduce his wife and the last time he did this which he remembered was the time she swore at him and he said to her: “One good time you will know me!”
  14. In cross-examination he reiterated what the accused did to his wife and further confirmed earlier evidence given by Richard Mangiel that the accused had this propensity or tendency to try luck on other women on the island.
  15. He maintained despite strong cross-examination that he did not suspect Ben Caspar as the murderer nor was he afraid of Ben Caspar at the scene of the crime when they spotted blood clots. He was scared of those who caused this harm to his family more than seeing Ben Caspar as the villain in case they were there and could even attack them both.

Ben Caspar

  1. The seventh State witness was Ben Caspar also known as Ben Pakeliu. Ben Caspar is from Powat, Manus. At the time of this trouble he was a resident of Puihipi hamlet, Mal Island where he was staying with Richard Mangiel and family. Richard’s wife was cousin sister to Ben Caspar. He had been there for 8 or 9 months when this incident happened.
  2. On that day Sunday 20 January 2013 Ben Caspar was at Puihipi with Richard Mangiel and family when the deceased Brenda Ben and her two daughters arrived to sell their lalai. Richard told her of the lack of cash and Justin Kolpi had gone to Lorengau to get some cash and was yet to arrive back home. Brenda left the lalai with Richard and she and her two daughters walked back home. He said there was a little rain and they waited until it stopped and then they walked. After they left there was even bigger rain. He was sleeping when awoken by Edith, his cousin, to buy lime.
  3. He picked up his billum and lime container and walked onto the road. On the way he heard shouting and crying. He hid at the back of a tree and saw Alphonse Hapot holding a piece of wood and a knife in his hand. He was talking to Brenda. With the piece of wood he hit Brenda and with his knife he stabbed her on the chest. He then chased Benita to where he was hiding. He held her cut her neck and threw her body in the sea. He returned to the spot where the mother was and grabbed the little one crying over her mother. He also cut her neck and threw her in to the sea. He then removed Brenda’s shorts and had sexual intercourse with her. After that he threw her into the sea as well. He then got sand and covered the blood and went in to the sea and washed himself.
  4. Next he saw the accused walking on a log lying towards the sea and jumped down on the other side and ran into the bush. He came out of his hiding and went down to where the killings took place saw the blood clots left uncovered and he looked out to the sea and saw Brenda’s body on the beach.
  5. He then resumed his walk to Salehiak. He saw a betel nut palm so he climbed it and retrieved some nuts from its bunch and walked to Ben Andrias’ house.
  6. Ben Caspar continued:

“I went to Ben Andreas’ house and sat down and asked him: ‘Did your family arrive?’ He did not answer me. After chewing my betel nut I asked him second time. I wanted to tell him about what I saw but I was scared and I did not tell him. Instead I told him my story of why I came and also mentioned seeing blood on the road. He carried his small child, he gave me his bush knife and we walked back to where the incident happened. I showed him the blood on the road. He looked down towards the beach and saw his wife. He handed me the small child and told me to go to Puihipi and inform his in-laws. I got the small child and ran to the house and informed them. I handed the small child to her grandmother. Me and the other boys we ran back to the area. We arrived there and helped carry the bodies into the boat and brought them to Salehiak.”


  1. When asked if he heard what the accused was saying to Brenda, he said he did not hear what was said.
  2. At the scene of crime Ben Caspar showed the place he hid behind a tree some 15 meters away towards the direction of Puihipi. The beach road or track was already becoming non-existent when the Court party visited the scene. There were young coconut palms in the line of vision between the witness and scene where the crime was allegedly committed. From Puihipi to the crime scene by foot would be about 400 to 500 meters away but several kilometres from Lewale and Salehiak. The entire length of the island was once a coconut plantation but now overgrown with bush and towards the seafront are trees and shrubs protruding out to the sea. Otherwise it is thick bush and the vegetation alone provide such an eerie and unfriendly territory when one is facing a hostile situation for purposes of successful escape. The isolated location was itself was treacherous. .

Markson Gamui

  1. The State’s eighth witness was Markson Gamui, Senior Constable of Police and member of CID involved in the investigation of this case. He was called as a rebuttal witness in relation to the procedure of arrest and interview of the State witness Ben Caspar following allegation that Ben Caspar’s testimony of eye-witness to the alleged murders was a recent invention fabricated by Police and ‘forced’ upon Ben Caspar to tell the Court.
  2. SC Markson Gamui denied assaulting or doing anything to Ben Caspar to make him tell his story. He received the message of the deaths in Mal and he commissioned a Police party to go to the island. When the Patrol Boat returned 8 February, 2013, he was contacted to assist the police team to return to Lorengau from Lombrum Naval Base. So he did and also brought the suspects to Lorengau Police Cells. At the station SC PakeTukon handed over the case file with witness statements to him.
  3. He said after his preliminary interviews with all of them, he satisfied himself that apart from Alphonse Hapot and Ben Caspar, the other four were only suspects who were involved in taking the deceased bodies to Salehiak. He was advised that the prime suspect was Alphonse Hapot and Ben Caspar because he saw blood on the road.
  4. Markson Gamui discharged the four suspects namely Justin Kolpi, Christopher Ailis Junior, Christopher Ailis Senior and Richard. After he released them he took out Alphonse Hapot and interviewed him. He was released back to his cell. Markson then took out Ben Caspar and interviewed him and told him that he knew the person or persons responsible but he was not being forthrightly truthful.
  5. Later that afternoon, Ben Caspar called out to him from the back of the cell window and offered to make a statement. So he took him out and obtained his story which he told the Court.

Chris Kopi


  1. State also called Chief Inspector Chris Kopi who was the Commander of the Mobile Squad in Manus as its ninth witness to give rebuttal evidence. He denied assaulting Ben Caspar or even talking to Ben Caspar at any stage of their incarceration at Lorengau following their apprehension. He denied being involved in the transportation and escort of the suspects from Lombrum following their arrival to Lorengau Police Station and denied being at the Police Station on the night of the suspects’ arrival from Mal.
  2. In cross-examination it was put to him that it was him who twisted Ben Caspar’s hand during questioning in the presence of Markson Gamui and CID members that resulted in Ben Caspar changing his story from the one he maintained throughout since he left Mal Island. However, the witness strongly denied.
  3. To clarify the question for the benefit of the witness and the court, His Honour interjected and said to the witness that the real question that the counsel are asking you and which no answer is coming out clear enough? This was what was heard from the witness Gilbert Hilarai which was that it was him who put the story in the witness Ben Caspar’s mouth that he just told the court about seeing Alphonse Hapot killing the mother and the two daughters. That was not Ben Caspar’s story but he told him to tell this story to the court by changing his earlier story of seeing only blood on the road.
  4. He answered that he did not know anything about this because he was not at the Police Station at the time. As the witness was appearing pursuant to a court summons, the court thanked him for coming all the way from Port Moresby at short notice to give evidence.
    1. Evidence – Defence witnesses

Alphonse Hapot

  1. Defence first witness was the accused, Alphonse Hapot. He denied the killings and raised alibi. His story was that that Sunday morning he got up from bed and went nowhere but stayed around the house or in their bedroom. He said his wife went to church that morning but he remained in the house and so was his mother in-law who also did not go to church. His wife returned home after the church service and they continued to stay home till that afternoon when the boat carrying the three bodies arrived at their area and headed to Andreas Apuse’s place. His father told him and his mother to go and find out about the people waving in the boat. When he arrived there were people crying and he saw the mother and the two girls’ bodies in the boat. After two weeks CIDs with Task Force came to the island and brought them to Manus.
  2. After two months and 13 days in the Police cell he was charged with wilful murder. The other suspects were Ben Caspar, Justin Kolpi, Chris Ailis, Chris Sautong and Richard Lomas.
  3. He denied the story given by Cecilia Ben about him telling the crowd that gathered there that the three were murdered at the location he cut his canoe. He also denied Trevor Andreas’s story of tapping him on the shoulder and saying sorry and saying to Trevor that he did not do this. He denied even hearing Trevor shouting the words ‘whoever did this ...has grudges against my family.’
  4. Alphonse Hapot also denied telling Philip Sapak on Amik island of going to Puihipi to buy newspaper that day. He only relayed the news of the death of the mother and her two daughters as they were under instructions from his father to inform the people in the nearby islands.
  5. Alphonse further denied the evidence of his alleged admission testified on oath by Nick Kepis although he agreed to their close relationship. He said they were cousins, his father (Willie Hapot) and Nick Kepis’ mother were brother and sister. He said Nick Kepis never went to see him that day in the house.
  6. In relation to an earlier incident involving Richard Mangiel’s trade store being broken into, he said that was done by somebody called Charlie from Vanimo who was staying with them. However that was settled long ago when his mother repaid the money to Richard Mangiel. He said Richard lied about him being involved because of this incident of stealing from his trade store by this boy who lived with them.
  7. He also denied the allegations of sexual advances to Brenda Ben, Richard Mangiel’s wife and other women as being untrue.
  8. As to the evidence of Ben Caspar’s eye witness account of seeing him killing Brenda, Bernadette and Benita Ben, he denied the story and all the allegations against him.
  9. On the other hand Alphonse admitted that he had a swollen right hand but that swelling was caused by firewood that he was splitting with an axe.

Francesca Mendis

  1. Second Defence witness was Francesca Mendis. She is a widow, husband died in 1992. She was from Liot Island and mother of Maryanne who is married to the accused. During the period in question she was spending her holiday with her daughter and her husband. Otherwise she works in a school at Longan.
  2. She said that the accused never left the house the whole day till the boat carrying the mother and two daughters approached the village. She then joined the family in their mourning. She said her second daughter got married to Brenda’s father.
  3. In her evidence she has the accused moving between their house and his parents house if he was not in their room. She also even remembered the accused wearing only a sportswear that day.
  4. She denied hearing Trevor Andreas call out generally to those at the gathering and expressing his anger and even denied hearing Cecilia Ben asking as to where the bodies were found.
  5. She however saw Nick Kepis come to Alphonse’s parents house because he was hungry. But she could not say anything on what Nick Kepis told the court of what he said the accused confessed to him of killing the three.

Maryanne Hapot

  1. The third Defence witness was Maryanne Hapot. She is the wife of the accused. She told the Court of going to church that morning while her husband and mother remained at home. She came back after church service and the mother went out to look for her daughters while she and the husband remained at the house. They cooked bananas and ate and stayed at home. Late in the afternoon about four o’clock they heard the boat coming and heard people shouting so she and her mother went to see the boat. Her husband was already there when they went. They saw the bodies and cried and later helped to wash and dress the bodies.
  2. Her story and that of her husband and her mother were the same. In cross-examination she was asked:

“Alphonse told this court a similar story to what you said about waking up and him waking up late and not joining you to go to church. He also said that because he woke up late, if you wait for him both of you will be late for church, same story. Then when you returned from the church, he told the same story about you asking where your mum was. The story was the same as your mother’s. All three of your stories are the same that before Alphonse could answer when you asked him about where your mother was, your mother answered from the other room. Them Alphonse going to his parents house, it is all the same. The story about boiling bananas to eat for dinner is the same. So all your stories are the same. Did the three of you plan to come tell that story?”


  1. Maryanne answered, no.

Genevieve Hapot

  1. The fourth Defence witness was Genevieve Hapot. Genevieve is Alphonse’s mother. She comes from Bipi island Manus but married to Wille Hapot of Mal island.
  2. She is not an alibi witness or was not called as an alibi witness but her evidence in chief related to the 24thJanuary, 2013, the fourth day since the discovery of the three bodies. Her evidence was to rebut Nick Kepis’ evidence of alleged confession or admission by the accused.
  3. That morning she prepared food for the family as well as food for the haus krai. She was in the kitchen preparing food for the haus krai when the boat from Pateku arrived bringing the relatives of the deceased. Amongst them was Nick Kepis. She said Nick Kepis jumped of the boat and came straight to the house and asked for any leftover food as he was hungry. She said Nick Kepis went to their house that morning in the company of Junior Hapot, her first born son. She served him food, he ate and proceeded straight to the haus krai without going to Alphonse’s house. At the time Alphonse and his wife were in their house as the family was preparing food. She said Nick Kepis never came back to their house that day.
  4. She agreed that Nick Kepis was related to the family. He normally called her husband his uncle. She said Nick Kepis lied to the court. Alphonse was heavily involved in the funeral and burial of the three from building coffins, wrapping up the bodies in the plastic bags and burial of the bodies.
  5. She denied sending Alphonse to buy newspaper at Puihipi and also said that the swelling on Alphonse’s hand was the result of being hit by firewood while he and his wife were collecting or splitting firewood which had already healed up at the time of this tragedy.
  6. It was suggested to her that the family had got together and agreed or discussed on what to tell the court because of similarities in their stories, she denied the suggestion.

Willie Hapot

  1. Fifth Defence witness was Wille Hapot. He is the father of the accused. He is 50 years old married to Genevieve and they have 12 children. Accused is their second born. He completed Grade 10 at Papitalai High School. At the time of the trial he had a part-time job with Paladin Security and the only policeman on Mal Is. He was a reserve constable for 25 years.
  2. He gave the story of the bodies arriving home and what he and the community members did on the island from that day till the police arrived and the suspects were handed over to them. The news of the deaths were relayed by himself and a few others in one boat and Alphonse and others in another boat who went from island to island telling people of the tragedy. He relayed the news to Markson Gamui of Lorengau Police and requested their help quickly as it was the first time for the island to experience such killings. The news of such multiple killings provoked mixed reactions from communities to communities in Western Group of Islands and eight canoes filled with armed men from Pihon came to take revenge but he told them that there were no eye-witnesses and they did not know who was involved and let the police investigate and find the people responsible. They listened to him and returned to their island.
  3. He delivered the message to Lau Island, nearest to Mal and also informed senior District Court Magistrate Francis Kalai who was also on the island at the time and he too came over and saw the bodies of the three deceased family members. He said Chris Kolpi used his mobile phone to take photographs. However, none of the photographs taken were tendered in court as evidence to assist the court.
  4. He also denied sending Alphonse to Puihipi to buy news paper for smoke that Sunday and those other suggestions from counsel for the State.
  5. He said the PNGDF Patrol Boat arrived on the island on 6 February, 2013 and he went on board for briefing with OIC CID Mr Tukon who was accompanied by three other CID officers. Besides them there were 18 members of the Mobile Squad led by their commander whom they referred to as ‘White Shark’. He said they asked for names of witnesses and he gave them Ben Caspar’s name as the person who saw the blood on the road and alerted Benjamin Andreas. However he was surprised that the police had their own list of names of suspects or witnesses including Clement Ailis, Justin Kolpi, Alphonse Hapot and others whom they picked up when they went ashore.

Gilbert Hilarai

  1. Sixth and final Defence witness was Gilbert Hilarai. This witness was not a eye-witness to the killings of the mother and the two daughters on Mal island. His evidence does not go towards proving the primary issue of whether the accused is the person responsible or not. His evidence relates to showing whether the testimony of the key prosecution witness is reliable and truthful account of what he actually saw with his own eyes or of recent invention by him or by others who influenced him to change his story.
  2. In the light of the evidence given by Benjamin Andreas and the evidence of the witness Ben Caspar himself, I decided that this witness be allowed to give his evidence.
  3. Gilbert Hilarai is a petty offender with string of prior convictions against him for offences like arm robbery and other street offences and was therefore someone well familiar with the court procedures and processes. On 8 February 2013 when six suspects of Mal multiple murders were brought to Lorengau Police cells, Gilbert Hilarai was also detained in the cells as a suspect for arm robbery in Lorengau.
  4. Gilbert Hilarai is educated to Grade 10 and comes from Pitiluh island, not far from Lorengau town. His evidence is that the story of the murders on Mal Island was already big news in Lorengau Police Station and the prime suspect was said to be someone from Powat, Manus. He said when the six suspects from Mal were brought in he saw Ben Caspar and recognised him and immediately opened up conversation with him. Ben Caspar told him his story and out of pity for him, he decided to prepare his statement for purposes of engaging a lawyer to represent him.
  5. He also recalled an evening when the six suspects were taken out and interviewed by the Police. He said when Ben Caspar was taken out it took a long time and he could hear Ben Caspar crying and screaming in pain. He knew that they were assaulting him. When he returned to the cells he asked him what happened? Ben Caspar told him that Chris Kopi told him to change his story and say that he saw Alphonse Hapot kill the mother and the two daughters and twisted his arm or wrist.
  6. He was later transferred from the cells to Lorengau CS where he was remanded until Alphonse Hapot was also remanded at the CS. He was expecting to see Ben Caspar but he saw Alphonse instead. From Alphonse he learnt that Ben Caspar was now the key witness from a key suspect.
  7. Gilbert Hilarai continued:

“Around 7 or 8pm in the night we were in the police cell. The Police Task Force I do not know those personnel’s name, they came into the cell, and they took Caspar outside. He was taken into the office to be questioned. After 2 to 3 minutes, I heard a cry and shouting inside the office and I knew that he was beaten by the Police. After that they opened the cell door and he came in. When he came in he was holding his right wrist and sat down. I went close to him and I asked him, ‘what happened?’ and he said, ‘Task Force Commander Chris Kopi with investigating officer Markson Gamui questioned me and Chris Kopi twisted my hand and forced me to say I hid in the bush and I saw what Alphonse Hapot did to the deceased Brenda Andreas ..but truly, I did not see him. I felt pain and I agreed with the Police ....”
Preliminary issue – Truth or fabrication/Recent Invention


  1. With preliminary issue to be addressed is the truth or otherwise of this so-called eye-witness account of Ben Caspar or Ben Pakeliu. Ben Caspar is a suspect turned witness, not an ordinary witness, but an eye-witness.
  2. With most cases, the best practice rule in a criminal trial is that the testimony of an eye-witness (if any) often precedes all other evidence. That is usually the practice, although there is no particular order prescribed by statute or rule of court in which witnesses may be called, as that primary evidence lays the foundation upon which other peripheral evidence rest upon. In this case, when the eye witness’s testimony was left to the last, I became instinctively alert which is why I granted leave to the defence to call evidence unrelated to the crimes alleged. By this time also I had heard evidence from Benjamin Andreas which set the scene on the type of evidence expected from the supposedly eye witness.
  3. With anticipated Ben Caspar’s evidence that differed entirely to that of Benjamin Andreas, I started asking myself as to whether this witness was a truthful one or not? The importance of identifying and isolating liars and untruths early is to eliminate or discard theories or assertions that are clearly false and untrue so that such false or made up stories do not clog the real issues to be properly and fairly addressed by the Court in order to reach its verdict.
  4. In The State v Mole Manipe & Others [1979] N196(1 June 1979)while discussing ways of dealing with lying witnesses, Wilson, J said:

“..in addition to the methods described in these cases for assessing whether a witness may be lying or not, one may usefully examine (as Mr. Roddenby urged me to do in this case regarding the witness, Jim Sam):

(a) whether the story told by the witness is inherently probable or not;

(b) how it fits in with the prosecution case;

(c) how it fits in with the defence case; and

(d) how it fits in with the evidence as a whole.”

  1. Applying this principle to this case, Ben Caspar’s evidence of seeing Alphonse Hapot murder those three persons does not fit with the prosecution case for the reasons given below. This story he inherited while in Police custody at Lorengau Police Station. This story is not consistent with that of Benjamin Andreas. It is not surprising because his overall demeanour is unimpressive to say the least. He did not strike me as a truthful witness in my observation of him at the trial and even at the scene of crime. In court he wanted questions to be repeated many times before he answered them. This could be due to his low intellect and lack of education. He struck me as someone who could easily be manipulated and who can sway from one position to another under pressure. And in my respectful opinion, based on the evidence before the court, that is exactly what happened in this case.
  2. Therefore I reject his evidence of eye-witness account of the killings at the scene of the mother and two daughters as one of recent fabrication. From the evidence before me given by Benjamin Andreas and Gilbert Hilarai, I am satisfied that Ben Caspar did not see the killings at the scene of crime with his own eyes. That story was made up here in Lorengau in the Police cells.
  3. The following considerations lead me to this conclusion:

Firstly, if he did truly witness the brutal murders, it would have been a natural human instinct or reaction for him to get help quickly, not continue remaining hidden and watch it all happen and then walk away pretending as if all was normal. If he truly witnessed it, the easiest thing for him to do was run back to Puihipi which was less than a kilometre from the scene of the crime and to alert Richard Mangiel and those at home. And he had to do this for two good reasons, (1) to get help and (2) to protect himself from becoming a suspect in the murders.


Secondly, if he truly witnessed the killings, why did he proceed to Salehiak or Lewaleu (Benjamin Andreas’s home) in such an unhurried manner where he climbed a betelnut tree and after retrieving the nuts from the tree he casually made his way to Lewaleu, the first hamlet before reaching main Salehiak village? That is not behaviour consistent with someone who had just witnessed brutal slayings, of three helpless persons he knew so well, in cold blood.


Thirdly, if he truly saw the killings with his own eyes, then why hold back that information when he could have told Benjamin Andreas there and then of what he saw? It is behaviour inconsistent with that of a normal human being.


Fourthly, if he feared reprisals or revenge if he told anyone, that is a very lame excuse and parting company with reality and common sense. The fact he can never forget or rub off, if he truly witnessed the incident, is that he just witnessed triple brutal and cold blooded murders and does that not trouble his conscience for withholding the information until he comes to Lorengau and reveals it at the urgings of the Police? There is no ring of truth in this story.


  1. There is therefore no doubt in my mind that Ben Caspar did not see the murders and did not see anyone committing these murders at the scene where the bodies were recovered. He lied to the court with respect to this evidence. It follows that both Markson Gamui and Chris Kopi have also lied to this court. This being the case, Gilbert Hilary’s evidence of hearing Ben Caspar crying and shouting in the office which was the result of being assaulted by the policemen, namely Chris Kopi has credence. Ben Caspar agreed to change his story as fabricated by Chris Kopi and Markson Gamui because of the advantage of escaping the charge of wilful murders of the three. That was not Ben Caspar’s story.
  2. Becoming a witness does not completely exonerate him from being charged because he is still a suspect and possibly an accomplice. After all, he was the first person at the scene who saw blood and who revealed the story of blood that led to the discovery of the bodies.
  3. This is not to say that he did not see the blood on the road or the story he gave Benjamin Andreas is not true. This story is straightforward. It was based on this story that the bodies of the deceased Brenda, Bernadette and Benita Ben were found. This is a true story that Ben Caspar told Benjamin Andreas and subsequently told Gilbert Hilarai, a cell mate. He never saw the incident with his own eyes as they happened. The first time he saw the body of Brenda Ben was when it was shown to him by her husband Benjamin Andreas and he let out a cry that Benjamin described as so different or unique. His whole behaviour at the scene after Brenda’s body was discovered too was noteworthy. Benjamin Andreas had to repeat himself two more times before Ben Caspar left for Puihipi because he hesitated leaving Benjamin Andreas alone at the scene in case anything happened to him (Benjamin) when he was gone or anything might happen to him along the way as he was going to Puihipi. At that point in time they were still under the fear that whoever caused the deaths of Brenda Ben could still be around and watching them.
  4. My conclusion on the evidence of the eye-witness account of Ben Caspar seeing Alphonse Hapot is that the evidence is false, it is fabricated and I reject the evidence. It follows from this finding that Ben Caspar lied to the court on this story. It further follows that both Chris Kopi and Markson Gamui also lied to the court about not putting this story on Ben Caspar’s mouth and used physical force or physical pain to make him adopt their story.
  5. Markson Gamui’s story of being requested by Ben Caspar who wanted to make a statement voluntarily is not true. If he did make a statement to that effect as we heard in court, that was not his own story, they planted it in his mouth. And he accepted it wholeheartedly because the exchange for that story appealed to him more than the consequences. He is no longer going to be an accused but a witness.

Analysis of the evidence without eye-witness testimony


  1. Without the direct eye-witness's evidence and subject to how strong the case for the opposition or defence is, State case is capable of succeeding without any direct evidence ie eye-witness account of seeing someone commit a crime. Cases are proved by direct evidence, indirect evidence or circumstantial evidence, documentary evidence, confessional evidence, expert evidence and so forth. An eye-witness account is not always the best evidence because it will rely very much on the quality of the observation made, the type of surroundings, the location, time of the day or night, distance and so forth.
  2. If I were to have accepted the eye-witness version of the story by Ben Caspar, I would have had great difficulty in accepting his ability to see clearly what he claimed to have seen. In my view, the State case did not need Ben Caspar’s eye-witness story to survive prosecution. There is overwhelming evidence from several sources that provide a prima facie case for prosecution without an eye-witness story. I discuss these different classes of evidence under circumstantial evidence and admission or confession. Can the State case stand entirely on circumstantial evidence or confession or admission by the accused?

Opportunity


  1. Evidence before the Court show that if anyone had the opportunity that day to commit these heinous crimes, it was the accused Alphonse Hapot because from his own mouth he went to Puihipi that day to buy a newspaper. This is what he told Philip Sapak on Amik Island that same evening of the murders when they were spreading the news around. Unless Philip Sapak was lying, apart from Ben Caspar who came to the area much later in the afternoon that day, the accused was the only other person in the area. This was from his own mouth and heard by Philip Sapak. There is no suggestion that Philip Sapak heard wrongly although it is said that he was lying.

Motive


  1. Also there is evidence before the court, which remains very much intact, of motive. Alphonse Hapot had a motive or reason to cause such pain on Brenda Ben. His sexual advances were rejected and he was even scolded or sworn at which made him very upset. It was an obsession to him to have sex with Brenda. He could have felt quite insulted and offended to tell Brenda that one of these days she will know him or she will regret it. So on this Sunday not only that the accused had the opportunity, he had a motive for the crime committed. Evidence of motive is supported by other evidence including:
  2. Firstly, Brenda Ben’s body was found with all her clothes torn to pieces, shorts and underpants pushed down below the knee-level, indicating that she may have been sexually abused and the reason for killing her was sex related. No conclusive proof can be reached on sexual penetration because of lack of medical examination by a properly trained medical officer. In saying this, I place no weight on the medical reports (exhibits 2, 3 & 4) because I am not satisfied that those reports are based on proper medical examination. From the evidence I heard, Kiripai Maibi Papi, the health worker on the island who prepared these reports did not make a thorough examination of the bodies as is normally done before or at the time of post mortem examination. His reports are generally based on the observations and statement of Benjamin Andreas. His failure to even attend the hearing and give evidence gives credence to this view.
  3. Secondly, the two daughters would have been murdered as well to destroy any source of being discovered either before or after sexually assaulting the mother. The possibility of sexual molestation of the girls cannot be ruled out because without medical examination of the bodies post mortis, the benefit of the doubt goes to the accused.
  4. Thirdly, the observations made of the physical appearance of the accused coupled with his conduct and behaviour on the afternoon of Sunday 20 January, 2013 when the three bodies were transported to Salehiak from the scene of crime by several eye-witnesses implicate the accused as a possible perpetrator of these cold blooded murders for these reasons:
    1. None of the people on the boat answered when Cecilia Trevor asked as to where the killings took place. It was the accused who answered from the shore that it happened at the place where he cut and shaped his canoe. How did he know that? He was not involved in the search and recovery of the bodies. If he was not involved in the search and recovery of the bodies and this was the very first time that the community was introduced to this unfortunate tragedy, the logical conclusion he must have had a hand in this outcome.
    2. Without anyone directly accusing him of killing the mother and the two daughters, Alphonse Hapot goes over to where Trevor Andreas is after he publicly called out ‘whoever has done this has grudges with or against my family’ taps him on the shoulder and says to Trevor, ‘sorry, not me’. Why would anyone innocent of any wrong-doing without being accused proclaim his innocence unsolicited unless he had done something wrong and his conscience was unsettling?
    3. There was evidence that day that the accused was in sports wear including from his mother in-law. When the bodies were brought ashore and still in the boat, several witnesses saw Alphonse Hapot’s physical appearance was that he looked as if he was scared, his eyes and body looked as if he was diving in the sea that day. With the discovery of the bodies of the two girls in the sea, it is open to inference that whoever had killed the three must have taken every effort to conceal the bodies deep in the sea, as the distances between them show when they were found, which would involve considerable amount of diving in and out of the water.

Admission made to a close relative


  1. Fourthly and most importantly, he admitted killing the three deceased to Nick Kepis. When someone admits to doing something, often his admission is sufficient to hold him accountable for his action. In this case the accused denies admitting anything to Nick Kepis so I need critically analyse their evidence and decide who I must believe.
  2. Nick Kepis in almost like first cousin to Alphonse Hapot, his mother and Alphonse’s father are brother and sister, one father and two separate mothers. Nick Kepis and his mother live on Pateku island. There is nothing wrong in their family relationship. Alphonse’s father or the family from time to time support or assist Nick Kepis’ mother and family when they are short of food. This was made clear by Genevieve Hapot in her evidence. On that morning of 24 January 2013 when the boat load of Pateku islanders beached at Salehiak, Nick Kepis in the company of his cousin Junior Hapot went straight to his uncle’s and aunt’s house and asked for food as he was hungry. And he was fed. After that he proceeded to the haus krai which was not too far away from the Hapot’s house.
  3. Nick Kepis was troubled when he did not see his first cousin amongst those men who were engaged in making coffins and preparing the bodies for burial. He took it upon himself to find out. It is not clear in the evidence what other reasons he may have had to go looking for his cousin at his house. When he got there he saw Alphonse sitting alone in his house. He asked him direct question, “did you kill the three, tell me, I won’t tell anyone?” when he repeated the question second or third time, Alphonse bowed his head down and admitted he did.
  4. Nick Kepis said he was prompted to question Alphonse about his complicity in the murders not only because of his non-participation at the burial, but he was sporting a swollen right hand or knuckles. The knuckles swell when there is physical trauma of sufficient force most times repeatedly on hard surface with a folded fist. Different explanation for the swelling was given by Alphonse and supported by his family members which I will come to later.
  5. This is evidence of confession or admission made in the presence of a close family member. There was no trick involved to obtain this confession by Nick Kepis. A straightforward question was asked, albeit repeatedly, and a positive answer was extracted.
  6. Was there any legal obligation on Nick Kepis to keep that information secret because of his promise to Alphonse? He was legally obliged to reveal that story to the appropriate authorities which he did. Because failure to do so would have resulted in him becoming an accessory after the fact for withholding information that could have assisted in the investigation of the killings.
  7. There is no law that stops one family member reporting another family member for committing a crime of such magnitude if he or she has knowledge to share with the authorities. Every citizen of adult age under the Constitution has a duty to assist law enforcement authorities to maintain law and order which includes reporting a crime committed anywhere. There was nothing wrong between their families for Nick Kepis to make up a story to implicate his close family member for nothing when all was good between them. There must be truth for the stability in the family to be disturbed for a wider good cause.
  8. The defence story is that on the day in question, Alphonse never left the house. Throughout the day from sunrise to the afternoon when the boat with the bodies came ashore, the accused stayed at home. I also remind myself that this is the story that all the immediate family members of the accused told this court. It is not supported by any independent evidence or witness.
  9. All the immediate family members of the accused want the court to believe that the observations made by Richard Mangiel, Trevor Andreas, Cecilia Trevor on the beach at Salehiak and the evidence of Nick Kepis of what he heard from the accused are not true, they never happened.

Demeanour of witnesses.


Caspar Ben

  1. He lied in the story he gave of physically eye-witnessing the killing and pointing to Alphonse Hapot as the killer. I rejected that bit of his evidence.
  2. I accepted his evidence of seeing blood on the road. It was that evidence that led to the discovery of the bodies. This is reliable evidence he gave.
  3. Otherwise I find Ben Caspar as truthful witness up until that time he arrived in Lorengau and was forced and assaulted by Chris Kopi in the presence of Markson Gamui to tell an untrue story and he only did so to save himself from further arm.

Benjamin Andreas

  1. He is the husband and father of the deceased trio. In my observation of him, he handled himself very well and gave evidence and without showing any emotion or breaking down described what he found or saw on the bodies of all his three family members. The number of wounds on each body he counted to minute detail which was later transferred onto the so called medical reports of the three deceased. His demeanour was good, he gave a reliable and truthful account of what he saw and found.

Richard Mangiel

  1. He is related to Brenda Ben. Apart from transporting the bodies to Salehiak, he gave evidence of his observation of the accused on the beach on that afternoon, when the bodies were in the boat. Richard’s wife too almost fell victim to the accused’s obsession for sex with women on the island. He gave his story in court without exaggeration. I was impressed by his appearance and I accept his evidence.

Trevor Andreas

  1. On that afternoon when the bodies were delivered to the family, Trevor Andreas become highly emotional upon seeing his brother’s wife and his two nieces killed in that fashion. He lost his cool and temper but quickly recovered his senses and made a statement. It is not uncommon in such situations for statements like the one he made can be expressed out of sudden burst of emotion, anger and sorrow. But he maintained all his faculties and remembered exactly what he saw and heard. He is a truthful witness and I accept his evidence.

Cecilia Trevor

  1. She is the wife of Trevor Andreas. She gave evidence with confidence and in forthright manner. Although she is married to the family that was made subject of this tragedy, she displayed no signs of favouritism. She was very clear in her evidence that she heard Alphonse answered her question from amongst the crowd of less than 20 people gathered. She is truthful witness.

Nick Kepis

  1. I have already discussed this witness and his evidence at length earlier. Nick Kepis has no personal grudges against the accused. They are first cousins. He elicited critical information from the accused he felt he must not conceal or suppress in the interest of justice. So he opened up to other persons besides testifying in court. He is a truthful witness and I accept his evidence.

Philip Sapak

  1. He is from Amik Island who was told by the accused that he went to Puihipi that Sunday to buy paper. He was an impressive witness. He is not directly related to any of the parties in this case, the accused or the line of the deceased. I accept his evidence.

Markson Gamui

  1. He lied to the court. Untruthful witness and I reject his entire testimony.

Chris Kopi

  1. He too lied to the court. Another untruthful witness, I reject his testimony as well.

Alphonse Hapot

  1. I observed the accused in the witness box, he did not impress me. He took time to answer simple questions.

Maryanne Hapot

  1. Provided alibi for the accused. Evidence supported that of accused. Fabricated evidence.

Francesca Mendis

  1. In-law to the accused and gave evidence similar to that of the accused and Maryanne. She was closely related to the deceased Brenda Ben.

Genevieve Hapot

  1. Mother of the accused. Natural tendency to protect her family. She saw Nick Kepis arrive that morning. Because they were also involved in preparation of food for those who came for the funeral, she would not have been watching over Alphonse during the day on the day of the burial so may not have seen Nick Kepis go to Alphonse’s house. And the same story could apply to Francesca and Maryanne.

Willie Hapot

  1. As far as his evidence is of alibi in nature I will not accept his story, I prefer those of the State witnesses. However, I accept his evidence generally on the role he played as the law enforcement officer on the island.

Gilbert Hilarai

  1. He was a witness of truth. He stuck his neck out because there was something wrong in this case. Ordinarily, no one, for the fear of going to jail for perjury, sticks his neck out to save another person unless he knows that the information he has is of some material worth to the court in the case before it. And that is how I treat his evidence before the court.
  2. His evidence clearly seals the lid on the coffin of the two policemen, Markson Gamui and Chris Kopi that they lied to this court because they assaulted and forced Ben Caspar to change his story. They did this because that is the only savvy and experience they have in criminal investigation.
  3. Police did not investigate this case at all. There is a lot more to this case than that meets the eye. The evidence produced in this trial is very much the initiative of the village peace officer. If the CID had properly carried out investigation into these deaths, one would have expected:

The Law


  1. The law on circumstantial evidence is well settled in this jurisdiction. In the Supreme Court decision of Paulus Pawa v The State [1981] PNGLR 498 at 501 Andrew J said:

"I am in agreement with Miles J in The State v Tom Morris [1981] PNGLR 493 at 495 when he said:
'I take the law as to circumstantial evidence in Papua New Guinea to coincide with what was said in the High Court of Australia in Barca v R [1975] HCA 42; (1975) 50 ALJR 108 at 117:

"When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': Peacock v R [1911] HCA 66; (1911) 13 CLR 619 at 634. To enable a jury to 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 should be the only rational inference that the circumstances would enable them to draw: Plomp v R [1963] HCA 44; (1963) 110 CLR 234 at 252; see also Thomas v R [1960] HCA 2; (1960) 102 CLR 584 at 605–606. However an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration, of all the facts in evidence: Peacock v R at 661. These principles are well settled in Australia.’

From that decision of our Supreme Court it seems that the principles are also well settled in Papua New Guinea.”


  1. What the Courts are saying here is that not only must guilt be the only rational inference open on the evidence, it must reasonable and only inference open upon all consideration of the facts in evidence, the bare possibility of innocence alone should not prevent a jury arriving at a guilty verdict.
  2. Here we have a combination of circumstantial evidence based on the appearance of the accused and the words uttered when the bodies were delivered home and confession made by the accused to a family member which provides a very strong case against the accused. When confessions are obtained from persons detained or arrested by persons in authority the law says that if that confession is voluntarily made for purpose of later use in court, it can be accepted as good evidence. But if it was not made voluntarily and was obtained without warning, that it will be used in evidence, that confession is not voluntary and cannot be used in evidence against the accused.
  3. We also have an admission made by the accused to Nick Kepis, a family member. This is not a privileged communication protected from being shared with others. In some cases between husband and wife there may be protection or privilege of communication between them just like between solicitor and client. But no such privilege exists between brothers, cousins, friends and good pals. In this Alphonse was under no legal obligation to say anything to Nick Kepis. Once he confessed to Nick Kepis, it was Nick Kepis’s privilege to use the information as he considered appropriate.

Issues


  1. So the issue before the court now are as follows:

Alibi

  1. I have considered the evidence of alibi from the accused, his wife, his mother in-law and to some extent from his mother Genevieve Hapot. When I look at their evidence in the light of the evidence of those key witnesses like Philip Sapak, Nick Kepis, Trevor Andreas, his wife Cecilia Ben and Richard Mangiel, I prefer their evidence to that of the accused, Maryanne Hapot, Genevieve Hapot and Francesca Mendis.
  2. I am of the view that alibi raised is of recent invention which is apparent from the consistency of the stories given by the alibi witnesses. The witnesses were coached to give the same evidence.
  3. I am satisfied that the accused had the opportunity and at some point in time he was on his way to Puihipi and ambushed the three as they made their way back after leaving their lalai with Richard Mangiel and family. An elaborate and extensive investigation by Police on the ground in Mal using their investigative skills would no doubt have uncovered more detailed evidence of how this massacre might have been perpetrated. But this is not to say that evidence before me is insufficient.
  4. For the above reasons I reject the alibi as of recent invention and untrue.

Proof beyond reasonable doubt


  1. That brings me to the next issue as to whether or not I can be satisfied beyond reasonable doubt on the evidence before me of the guilt of the accused? I have discussed the remaining evidence in the State case in the light of the alibi raised. The evidence from witnesses like Philip Sapak and Nick Kepis contradict the defence of alibi. The accused had not actively rebutted the evidence of motive. The evidence of torn clothes and Brenda’s shorts and panties being pushed down below her knees clearly indicate that her murder was sex-related. That is the only inference that can be drawn because absence of proper medical examination does not provide conclusive proof of sexual penetration. And there is strong evidence of the accused having a crush on the deceased and the threat he made to her the last time she rejected his advance and scolded him.
  2. In this case I do not give much weight to the medical reports for the reasons I have given in the judgment. This is the result of poor police investigation. But that is not to say that I cannot be satisfied beyond reasonable doubt due to the absence of such reports. There is no dispute that the deceased in the case were murdered. The only issue is who did it and the accused is the only suspect before the court. The charges against the accused are for wilful murder. To be satisfied beyond reasonable doubt I must have before me evidence of death, intention to cause death and circumstances of death. I am satisfied that the mother and the two daughters were brutally murdered with sharp weapons by repeated stabbings of their necks cut by a sharp knife and graphic descriptions of these wounds on their bodies as observed by the husband and father Benjamin Andreas and confirmed by other witnesses like Richard Mangiel is sufficient evidence of intention to cause death.
  3. Evidence of conduct, appearance, behaviour of the accused and his unsolicited words uttered short time after the killings as to where the killings took place provide inferences that are consistent with guilt of the accused
  4. And the evidence that seals the lid on the coffin in the State case is the admission or confession he made to Nick Kepis, his cousin on the day of the burial.

Finding and conclusion


  1. In the final analysis of the evidence in the State case, I am satisfied beyond reasonable doubt that -:
    1. The Accused Alphonse Hapot had a motive to do harm to the deceased Brenda Ben in the light of the threat he made when she refused him sex;
    2. Given the remoteness and isolation of the location on the island where the killings took place and the evidence of Philip Sapak of Amik, the accused Alphonse Hapot had the opportunity to commit these crimes undisturbed on the day in question;
    3. Supported by his own total behaviour, physical appearance and statements he made on the beach at Salehiak when the boat arrived with the bodies of the deceased mother and the two girls, such displays are consistent with being made or demonstrated by a person with guilty conscience;
    4. And the evidence of admission to Nick Kepis, a close family member who had no reason to implicate his cousin in these murders but for truth and justice to prevail,
  2. It was the accused Alphonse Hapot who wilfully murdered Brenda Ben, Bernadette Ben and Benita Ben between the hours of 12 and 2 or 3pm on Sunday 20 January 2013 for the reasons amply covered in the judgment and I find him guilty of wilful murder of Brenda Ben, Bernadette Ben and Benita Ben and I convict him accordingly on all three counts.
  3. Verdict: Guilty of all three counts of wilful murder.

Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Defence


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