N6341
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
					
CR NO. 8 OF 2014

BETWEEN:

THE STATE 

AND:
JOSEPH VIGA  
Accused 

CR NO. 9 OF 2014 
BETWEEN:

THE STATE 

AND:
CECIL VIGA
Accused 

CR NO: 11 OF 2014 

BETWEEN 

THE STATE 

AND:
SAMSON VIGA JR
Accused 

CR NO: 866 OF 2014 

BETWEEN:

THE STATE 

AND 
FREDDY VIGA 
Accused 

Popondetta: Davani, J
				2016:   18th, 19th, 20th May
                                                      16th June

CRIMINAL LAW – Verdict –Wilful Murder- Co- accused- Defence under s.269 (1) (2) Criminal Code 
CRIMINAL LAW- Wilful Murder – intention – a comment by a co-accused – made 3 to 4 hours before killing - not sufficient to establish intention – co accused guilty of lesser charge of murder – s.300 (1) (a) Criminal Code 
CRIMINAL LAW- Alibi- person other than accused must be named on Alibi Notice as a witness.
Facts
4 accused, who are brothers, and their father, were charged under s.299 of Criminal Code for wilful murder. A co- accused inflicted the fatal blow during a fight by using a knife to cut the Deceased in the stomach resulting in his intestines falling out and ultimately, death. The State invoked s.7 of the Criminal Code.
Held
1.	The filed Notice of Alibi is defective because it refers to the accused Freddy Viga as the only Alibi witness. The Alibi witness must be a person or persons other than the accused, to be an alibi witness;
2.	The State relies on a statement made by accused, Samson Viga snr, about 4 hours earlier, to prove intention, where he said that they will cut the deceased in the stomach. That is not sufficient to prove intention to unlawfully kill because the fatal blow was struck several hours later, by Joseph Viga, whilst in a group fight situation.

PNG Case Cited:
•	Agiru Aleni v Paul T Tahain [1978] PNGLR 37
•	Denden Tom v The State (2008) SC 967
•	David Kandakason v The State (1998) SC 860
•	Eliza v Mandina [1971]PNGLR 422 at 430
•	Michael Tenaram Balbal v The State (2007) 

•	R v Pari – Parilla (1969) N527
•	R v Paul Maren (1971) N615
•	Steven Loke Ume &Ors v The State [2006] PGSC 9 SC 836 dated 19th May,2006
•	The State v Mannaseh Voeto [1978] PNGLR 119; 
•	The State v Opi Aiyo (1991) N939
•	The State v Geoffrey Edwin Ahupa (1998) N1789.
•	The State v David Pandau Huahori (No.1) (2002) N2185
•	The State v Alwyn Wani (2010) N3968
•	The State v Robin Andolu (2013) N5128

Overseas cases cited:
•	R v Coney and Others (1881 – 1882) 8 QBD 534
•	R v Russell [1933] VLR 59 

Counsel:

Mr D. Kuvi, for the State 
Mr F. Kirriwom assisted by Mr E. Yavisa, for the co-accused.

VERDICT

16th June, 2016

1.	DAVANI J: On 18th May, 2016, the State presented an indictment alleging that Joseph Viga, Cecil Viga, Samson Viga Jnr and Freddy Viga (‘co-accused’), all brothers and all of Dove village, Tufi, Northern province, had allegedly wilfully murdered one Densley Kariva (‘Deceased’) on 12th November, 2012, at Yagisa hamlet, Tufi, Northern Province, contrary to s.299 of the Criminal Code.
2.	The State also invoked s.7 of the Criminal Code, alleging that the co-accused and their father assisted and encouraged each other to commit the crime.
S.299 reads;
	“S.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”

3.	The co-accuser’s father, Samson Viga Snr, has escaped from custody.  A warrant was issued for his arrest on 12th February, 2014 and has yet to be executed.
4.	Upon arraignment, the co-accused pleaded not guilty and the matter proceeded to trial. 
States allegations
5.	The State alleges that on 12th November, 2012, the Deceased went to the hamlet of Yagisa, about a kilometre away from his Yorukode hamlet, to visit his uncle Eric Desegari. However, his uncle Eric was not home so he spent that time talking with his aunt Serah Desegari, Eric’s wife. Serah and Eric Desegari’s house is located near a new house that the co-accused were building, together with their father, Samson Viga Snr. Whilst the Deceased was talking to his aunt, the co-accused and their father, confronted the Deceased and told him to leave, because of ongoing differences between the Deceased and the co-accuser’s family, the State alleges. The State alleges that the Deceased left and returned that day with 2 of his brothers and a sister. The State alleges that they were unarmed. That they went to Yagisa hamlet to discuss some ongoing issues they were experiencing which was all related to why the co-accused and their father had told the Deceased to leave. The State alleges that before the Deceased and his siblings went to Yagisa hamlet, that the co-accused and their father had prepared their weapons to fight the Deceased and his siblings. That they had sharpened their knives and axes and had them ready, in the event the Deceased and his siblings challenged them to a fight. 
6.	The State alleges that when the Deceased and his siblings approached the co-accused and their father, that they confronted them and a fight erupted. Accused Freddy Viga attempted to stab the Deceased with a spear knife but the Deceased disarmed him and threw it away. Whilst the Deceased was assisting his 2 brothers who were fighting with accused Cecil and Samson Viga jnr, the State alleges that accused Joseph Viga picked up a grass knife that was lying on the ground, then cut the Deceased in the stomach. As a result, the Deceased’s intestines fell out of his stomach because the cut was very deep. When this happened, the State alleges that the co-accused and their father mocked the Deceased, his brothers and his sister, telling them to get up and walk back to their hamlet. The co-accused also chased away the Deceased’s 2 other brothers, leaving his sister, alone with him.
7.	The State alleges that the Deceased died the next day. The co-accused and their father, escaped by raft down the Musa River, to Guruguru village. They were later apprehended by villagers and brought to the Popondetta Police Station where they were arrested and charged for the offence.  
Evidence tendered by consent
8.	Documents were tendered by consent and were marked as exhibits. I will refer to them, where appropriate.
State’s witnesses
9.	The state called the following witnesses;
•	Roslyn Kariva.
•	Serah Desigari
•	Erick Kariva
Defence witnesses
10.	Each accused elected to give sworn evidence, exercising their Constitutional right. They did not call any other witnesses.
Legal Defence
11.	Accused Cecil Viga and Samson Viga Jnr, raise the Defence of Self Defence against an Unprovoked Assault under s.269 (1) of the Criminal Code.
12.	Accused Joseph Viga raises and relies on the Defence under s. 269 (2) of the Criminal Code. 
S.269 (1) (2)   reads;
“269. Self – defence against unprovoked assault
(1) When a person is unlawfully assaulted and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make an effectual defence against the assault. If the force used is not intended to cause, and is not likely to cause death or grievous bodily harm.
            (2) If –
(a) the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm; and
(b) the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous bodily harm,

It is lawful for him to use such force to the assailant as is necessary for defence, even if it causes death or grievous bodily harm.  “
13.	And where the evidence suggests self-defence, the onus is on the State to show the absence of any one of the requirements of the section. (R v Paul Maren (1971) N615).
14.	And the prosecution also bears the onus of disproving self-defence where the evidence discloses self-defence as a defence. (R v Pari-Parilla (1969) N527).
15.	I discuss the elements of self-defence and the onus of proof, together with the evidence, later below.
16.	Accused Freddy Viga, raised identification as an issue, at trial. However, it became apparent in his evidence that his Defence was more Alibi than identification. A quick perusal of the court file revealed that the Public Solicitor filed a Notice of Alibi on 23rd October, 2014. I discuss this further below when I analyse Freddy Viga’s evidence. 
Issues
17.	Generally, the issues are basically these;
•	Did accused Joseph Viga, unlawfully kill the Deceased?
•	Did accused Joseph Viga act in self defence against an unprovoked assault, when he picked up the knife and attacked the Deceased, cutting the Deceased in his stomach, which eventually led to his death?
•	Did the co-accused aid and encourage Joseph Viga in the fight that eventually led to the Deceased’s death?
•	And in doing so, did they intend to cause the Deceased’s death?
•	Was Freddy Viga at the scene of the crime and if so, did he participate in the fight that eventually led to the Deceased’s death.
18.	There are other minor issues which I will raise and discuss, where appropriate. 
Undisputed facts
19.	The undisputed facts as put to me by counsel, and which I endorsed, are these;
•	On 12th November, 2012, there was a fight between the co-accused and the Deceased and his family members at the Yagisa Hamlet, Dove Village, Tufi, Oro Province.
•	That day, the Deceased sustained a knife wound to his stomach.
•	The knife wound was inflicted by accused Joseph Viga.
•	The Deceased died a day later.
•	Accused Cecil Viga, Joseph Viga and Samson Viga Jnr were all at the scene of the fight, when the fight broke out,
•	All parties involved in the fight, the Viga’s and the Kariva’s, are all related.
•	There has been ongoing disputes and issues between the Viga’s and the Kariva’s, concerning the land at Yagisa.
Elements of S.299 of the Criminal Code, to be proven.
20.	The elements in s.299 of the Criminal Code, which must be established and proven beyond reasonable doubt are;
1.	Joseph Viga unlawfully killed the Deceased.
2.	That Joseph Viga intended to cause the Deceased’s death.
3.	All co-accused aided and abetted in the killing.
Analysis of evidence and the law
21.	I set out below the evidence of all witnesses and will also discuss the law as it applies to each accused. 
22.	I discuss the evidence by all accused under my analysis of all State witnesses evidence. Then, the evidence given by all witnesses in cross examination will be discussed and that is where I will draw conclusions as to what really happened and whether co-accused’s Defence has been made not. 
Evidence of State witnesses 
23.	State witness Roslyn Kariva - evidence in chief; She is the Deceased’s sister. She is also sister to Eric Kariva. 
24.	She is unmarried and at the date of trial in May 2016, was aged 26.  Which means she would have been aged about 23, when the Deceased was killed.
25.	That day, she said her father told her brothers and her to go to Yagisa hamlet to make peace with the Viga’s. This was because Samson Viga Snr, the co-accused’s father, had earlier told the Deceased to leave Yagisa hamlet, or effectively, chased him. 
26.	Prior to that, she said the Deceased had been having some marital issues with his wife so he decided to visit his uncle and aunt, Serah and Erik Desigari at Yagisa hamlet. He went to them to ask for a biro so he could write a letter to his wife and her family. 
27.	Whilst the Deceased was away, she went to her garden. When she returned, she learnt that the Deceased had returned to their village but that he had been chased by Samson Viga snr, the co-accused’s father. She said that was when her father told her brothers and her to go to Yagisa hamlet, to make peace with the Viga’s, albeit, the co-accused.
28.	Roslyn also told the court that the Kariva’s and the Viga’s had an ongoing dispute over the land that the Viga’s were residing on. There were also other issues in relation to Samson Viga Snr’s wife. 
29.	She also told that court, that the accused Samson Viga snr is her father’s third sister’s son. So Samson Viga snr is her cousin and his children, the co-accused, are therefore, Roslyn’s ”children”, by custom or her nephews. 
30.	She said she left the village with her brothers, the Deceased, Eric Kariva and Kingsford Kariva. Eric Kariva is her cousin. 
31.	Her evidence is that whilst walking to Yagisa hamlet, they ran into somebody called Chris Bogai. Chris Bogai told them that the co-accused and their father had sharpened their weapons being knives and axes, placed them next to their newly built house and were waiting for them.
32.	Roslyn said her brothers and her were not armed.
33.	When they entered Yagisa hamlet, Samson Viga snr, jumped down from the platform and ordered his sons to get their weapons and to fight the Kariva brothers. 
34.	Roslyn Kariva described the fight as follows. 
35.	That her brothers removed their bilums and started to fight.
36.	She said she saw accused Freddy Viga swing a knife spear at the Deceased.  At the same time, accused Joseph Viga charged at the Deceased with a grass knife, The Deceased disarmed Joseph Viga and threw the grass knife under a newly constructed house that the co-accused and their father were building.
37.	Roslyn said further, that she saw accused Joseph Viga, pick up the same knife and swing it at the Deceased.  The Deceased again, for the second time, removed or disarmed Joseph Viga, and throw the grass knife under the new house.
38.	She said at that time, Cecil Viga was fighting the Deceased. Eric Kariva was fighting accused Samson Viga Jnr. 
39.	She referred to this instance as accused Joseph Viga’s fourth attempt. She said whilst the Deceased and accused Cecil were fighting, she saw him turn to help his cousin Eric Kariva. It was whilst he was doing that, that she saw accused Joseph Viga, grab the grass knife that was under the house, then run to the back of the Deceased, ran to the Deceased’s right side, come to the front, then swing the grass knife at the Deceased’s stomach.  That was when Roslyn called out saying “Densley, they will cut you with the grass knife”.
40.	Roslyn said she saw the Deceased stagger and fall, holding on to his intestines which were spilling out on to the ground. Roslyn said that was when she ran to the Deceased and held him. The fight also suddenly stopped. She said the co-accused and their father Samson Viga snr surrounded them, when Samson Viga snr taunted and ridiculed them and the Deceased, saying “wake your brother up and take him to your village”. 
41.	The Deceased lay in the sun for about 2 hours because Roslyn and her family had to find needle and thread to sew up his stomach because his intestines were collapsing and falling out of his stomach. Roslyn and her father sewed up the Deceased’s stomach. Whilst doing that, they also made a stretcher to carry the Deceased back to the village.
42.	They took him back to their Yorukode hamlet and the Deceased died the next day, at about 9.30 am.
43.	Roslyn said she knows all co-accused and pointed them out, and also by name, in Court.
44.	State witness Serah Desegari – Evidence in chief; Serah Desegari is married to Eric Desegari. She resides at the Yagisa hamlet and has been there for the last 12 years. She has 5 children. She is the Deceased’s aunt because her husband is the Deceased’s father’s brother. 
45.	She said on the day of the killing, her husband had gone to Guruguru village to do some church work. She said whilst she was in her house, the Deceased arrived. He asked if Serah had a biro he could borrow because he wanted to write a letter to the Police Constable at Foru. Whilst the Deceased was with her, accused Joseph Viga walked in to her house and saw the Deceased there. He went and told his father, Samson Viga snr, who promptly came along and told the Deceased to leave. He said; 
“leave this place and go to your place. This is not your area”. The Deceased told Samson Viga snr, “I did not come to argue and fight with you. I came to see my father and mother for them to assist me write a letter to my wife and the constable at Foru”. When the Deceased said that Samson Viga snr, told the Deceased to stop talking and leave. At the same time, all co-accused joined in and told the Deceased to leave. 
46.	When the Deceased was leaving, Serah told the court that he told Samson Viga snr and the co-accused, that he would return.  After the Deceased left, Samson Viga snr told the co-accused to sharpen their weapons and wait for the Deceased. Serah said she saw them sharpen knives, bush knives, grass knives, spear knives and wheel spears and leave them where their new house was.
47.	It was whilst waiting for the Deceased’s return, that witness Serah heard Samson Viga snr say 
“When Densley left, he was lucky. If he returns with others, one of them will have their stomach cut and his intestines will fall out”. 
48.	Witness Serah said that soon after, Roslyn Kariva, the Deceased, Eric Kariva and Kingsford Kariva, arrived at Yagisa hamlet. She said they walked towards the co-accused and Samson Viga snr. This was when all the co-accused got their weapons and went to attack the Deceased and his brothers.  Whilst the co-accused were running towards the Deceased and his brothers, Serah said she heard Kingsford Kariva call out, “we did not come to fight, we came to sort out some issues”.
49.	Serah said despite what Kingsford said, the co-accused and their father were determined to fight. She said she saw accused Freddy Viga run up to the Deceased to cut him with a spear knife. However, the Deceased disarmed him. 
50.	The second time, accused Joseph Viga, ran to the Deceased to cut him. But the Deceased disarmed him the second time. 
51.	She said she saw Eric Kariva fighting with Samson Viga jnr and Cecil Viga. That was when the Deceased went to help Eric and punched accused Cecil Viga. It was at that time that accused Joseph Viga picked up a grass knife lying on the ground and ran to the Deceased who had his back to him. He then proceeded to the front, where he cut the Deceased in his stomach and he fell on his chest. She said she was about 6m away from the deceased when she saw accused Joseph Viga, cut the Deceased on his stomach. 
52.	She ran to help Roslyn take care of the Deceased. It was whilst she was with the Deceased, that Samson Viga snr taunted and ridiculed the Deceased asking him why he was lying down and that he should get up and go to his village. 
53.	State witness Eric Kariva- Evidence in chief; Eric Kariva, is from Yorukode hamlet, Dove village. He is aged 32 at the date of trial. He would have been aged 29 when the Deceased was killed. He is married with 3 children and is a subsistence farmer. 
54.	The Deceased is his natural brother. 
55.	He said on 12th November, 2012, he was at Yorukode village when the Deceased returned from Yagisa hamlet at about 2 to 3 pm. He said the Deceased told his father and other family members that Samson Viga snr had chased him from Yagisa hamlet. 
56.	He said that his father told his children to go to Yagisa hamlet and to “make peace”. He left soon after, for Yagisa hamlet with his siblings Roslyn, Kingsford and the Deceased. 
57.	On the way to Yagisa hamlet, they met a Chris Ogai, who told them that Samson Viga snr and the co-accused, had prepared their weapons and were waiting for the Deceased and his siblings. 
58.	He said as they entered Yagisa hamlet, he saw Samson Viga snr and his sons come down towards them. He said Samson Viga snr, went to Kingsford Viga. That Samson Viga jnr, went to him. They all started exchanging punches. Accused Cecil Viga then came to him from the back and that was when the Deceased intervened and punched Cecil Viga. He said he was still fighting with Samson Viga jnr when he heard the Deceased call his name. When he turned around, he saw that the Deceased had sustained a very deep wound on his stomach and had fallen to the ground. 
Analysis of issues including cross examination of State witnesses evidence; accused’s evidence and conclusions and findings. 
59.	This is an opportune time for the court to analyse all the evidence given by both State witnesses and the accused and to draw or make conclusions.
60.	I will also discuss the effect of prior inconsistent statements; the legal Defences raised by all accused and the Defence of Alibi.
61.	The first issue is whether accused Joseph Viga acted in self defence against an unprovoked assault, when he picked up the knife and attacked the Deceased, cutting the Deceased in his stomach, which eventually led to his death?
62.	I will discuss accused Joseph Viga’s evidence. I will not extensively discuss all accused’s evidence but will only discuss evidence that is consistent or contradictory, in response to sub issues I will raise.  
63.	Joseph Viga told the court that he is 16 years old. Which means he would have been aged 13 at the date of the Deceased’s death? However, he appears to be older than 16.
64.	He said he is from Yagisa hamlet, Dove village in the Tufi sub district. 
65.	He said between 8 am and 12 midday that day, he was sewing sago leaves together with his father Samson Viga snr and his brothers. He said about 10 am that day, the Deceased arrived at Yagisa hamlet and stayed with Serah Desegari in her house. He said he had seen the Deceased walk around his “boundary” and so, went and told his father Samson Viga snr. Accused Joseph said his father told the Deceased not to walk around their area, then told him to leave. It is from here on that there is a lot of divergence in the evidence of all accused persons. 
66.	He said the Deceased then stuck a knife in a tree trunk then said “you are asking for a fight. I will go and come back again.” 
67.	The sub issues I will raise are in response to the diverging evidence given by the witnesses including co-accused. I should also point out that there are some aspects of evidence given, which is similar in many respects. 
Was there or is there an on-going dispute between the Viga and Kariva families?
68.	It is clear from the evidence of all accused and from the State witnesses, that there is. However, this was not fully explored by both counsel to assist the court in understanding what it really is; how long it had gone on for; whether there had been any previous acts of violence between the two groups; who instigated these acts of violence; whether there had been any intervention by village peace officers or chiefs or even the local village court magistrates. I say this because it was these long on-going issues, that prompted Samson Viga snr, to be that violent and to coerce his sons into fighting the Kariva’s. That it would be reasonable for this court to assume that there is more to this history of ongoing issues, then what I heard in evidence. I say this because no person, with an ordinary temperament, would pick a fight on a close relative, as with the case of the Viga’s, unless there was an issue so serious and so emotionally and psychologically draining, that would have prompted Samson Viga snr, to coerce his sons into fighting and injuring, and eventually killing, a close blood relative.
69.	This is what the court knows about an ongoing land dispute, based on the evidence I heard;
•	That there was a long ongoing land dispute between the Kariva’s and the Viga’s over the land at Yagisa hamlet that the Viga’s are living on. There is no evidence of how long this had gone on for or how serious it is. 
•	That the Deceased may have started a relationship with the Viga’s sister which the Viga’s did not approve of. However, that appears to be secondary.  
Did Roslyn Kariva, the Deceased, Eric Kariva and Kingsford Kariva, go to Yagisa hamlet with the sole purpose of fighting the Viga’s or did they go there to make peace?
And at that time, were the co-accused and their father innocently going about their business with no intention of fighting the Kariva’s including the Deceased or were they sharpening their weapons waiting for the Deceased and his family member’s arrival? 
70.	All State witnesses evidence are consistent. They said they went to Yagisa village to make peace. 
71.	All co-accused said that they expected a fight because the Deceased had said he would return.
72.	The evidence from State witnesses is that all co-accused were seen sharpening their spears and had their weapons at the ready, waiting for the State witnesses. All co-accused however, said they were sewing sago leaves for their new house.
73.	So who is telling the truth?
74.	There are witnesses, including witnesses who came before me in this trial, who will lie and who did lie. Some of them are very convincing liars. The courts have encountered these lying witnesses over many years and have dealt with them in the way they thought proper and fair. The courts have held that a tribunal of fact must exercise caution when addressing the issue of lying witnesses whose evidence can be convincing. (see The State v Mannaseh Voeto [1978] PNGLR 119; The State v Geoffrey Edwin Ahupa (1998) N1789).
75.	In Geoffrey Edwin Ahupa, the court considered the credibility of witnesses because of the lies that were being told. The court did the same for the accused where it found his evidence to be extraordinary and incredible.
76.	Care is also needed when weighing evidence where the state witnesses are from one traditional grouping and the accused’s witnesses from an opposing traditional grouping. This is because there is a likelihood that witnesses on either side will lie to the court. There is no rule of law requiring corroboration of the evidence of either side. The court needs to be careful. All testimony needs to be approached with circumspection and intelligent credulity. 77.	And finally, the onus of proof is on the State to establish its case beyond reasonable doubt. (see The State v Opi Aiyo (1991) N939).
78.	Indeed, that is where the court would have been greatly assisted if evidence was illicited from all witnesses, including co-accused, about the nature of the “problem”; when it started; whether parties had previously encountered similar situation; whether it had turned volatile; and how it was dealt with.  That evidence is not before me. 
79.	The evidence before me is that Chris Ogai and Serah Desegari had seen the co-accused and their father Samson Viga snr, sharpen their weapons and wait for the Kariva’s arrival. That evidence is confirmed by Serah Desegari. 
80.	Chris Ogai did not give evidence. Only Serah Desegari did. Is Serah Desegari’s evidence reliable?
81.	Defence counsel attempted to show the inconsistency in Serah’s evidence by what she said in her written statement to the police and by what she said in her verbal evidence. And relying on this purported” inconsistency”, Defence Counsel asked the court to disregard her evidence in its entirety.
82.	Can the court do that?
83.	S, 23 of the Evidence Act is the provision on “Cross-examination as to previous statements”. It reads;
“23. Cross-examination as to previous statements
         (1) A witness may be cross-examined as to previous statements made by him in writing or reduced to writing relating to the subject matter of the proceedings without the writing being shown to him, but it is intended to contradict the witness by the writing his attention shall, before the contradictory proof is given, be called to those parts of the writing that are to be used for the purpose of contradicting him.
         (2) The court may at any time during the proceedings require the writing to be produced for its inspection, and may make such use of the writing for the purposes of the proceedings as it thinks fit. “ 
84.	In this case, the witness’s attention was drawn by Defence counsel to parts of the statement that were deemed to have contradicted her verbal evidence. This was more particularly the fact that in her written statement she had said that it was Joseph Viga who lunged at the Deceased with a knife. Whereas, in her verbal evidence, she said that it was Freddy Viga who had done that. She clarified that ‘error “when asked why she made such contradicting statements, she said that because it had been nearly 4 years since the killing occurred, that she had forgotten what she told the police.
85.	Additionally, Defence did not ask for that statement to be tendered in to evidence. I say this because s.23 (2) of the Evidence Act states”…the court may…make use of the writing…as it thinks fit”. In my view, the only time the court can make use of that statement, is after it has been tendered in to evidence as an exhibit/evidence for the Defence.
86.	In the present case, although Defence counsel did raise questions in relation to these purported inconsistencies, that these were later clarified by counsel for the State. And because the statement was not tendered, as the court, I cannot make use of it.
87.	The Courts in this country have established the law in relation to prior inconsistent statements. Both Counsel referred to and relied on Michael Tenaram Balbal v The State (2007) SC 860; and David Kandakason v The State (1998) SC 860. Counsel for the State more particularly, urged me to consider the fact that prior inconsistent statements can always be corrected by the witness and that the court should not completely disregard the evidence but to place the appropriate weight to it. I set out below the excerpts by the Supreme Court from Michael Tenaram Balbal when citing David Kandakason, and which support State’s submissions, which I accept. The Supreme Court said;
“These cases tend to encourage flexibility. The High Court of Australia in Driscoll v The Queen…whilst adopting the first part of the proposition in Golder, Jones & Porrit…said “It cannot be accepted that in a case where a witness has made a previous inconsistent statement, there is an inflexible rule of law or practise that the jury should be directed that the evidence should be regarded as unreliable.” In other words, the existence of a prior inconsistent statement, ipso facto, does not make a victim’s statement unreliable. On the other hand, the prosecution is entitled to call other evidence to verify the correctness or truth of a hostile witness’s previous written statement to prove that his subsequent sworn testimony is untrue. In R v Prestano & ors…it was held “ that the witness having given evidence which directly opposed statements made to the police, it was permissible for the crown to test his recollection further upon that vital matter by putting to him a deposition made in an altogether different case so as to give him yet another opportunity of saying whether or not having been reminded of that, he did or did not regard what he had said previously to be right and what he had said in the witness box to be wrong”. The court held further that the evidence was for the jury to consider subject to a proper warning from the judge, if any, which could be attached to it.” 
88.	The Supreme Court said further in Michael Tenaram Balbal:
“21. As would be apparent, questions of inconsistency does not arise until a witness gives a testimony that directly opposes or contradicts a statement previously given by the witness. Even in that case, that is not conclusive. As long as the court warns itself of the kind of weight it should place on such evidence, it can still consider the evidence. This in our view, a prior statement that omits other evidence, but included subsequently in the oral testimony of a witness, does not amount to a prior inconsistent statement”.  
89.	So based on the Supreme Court’s above reasoning, I will consider Serah Desegari’s evidence in totality, and will give it the appropriate weight it deserves, more particularly in relation to the evidence of what happened during the fight between the co-accused and the Kariva’s.
90.	I accept Serah Desegari’s evidence that she saw the co-accused and their father, sharpen their weapons whilst waiting for the arrival of the Kariva’s, and did so in preparation to fight. 
91.	And as to whether, the Kariva’s went to Yagisa hamlet with the intention of making peace and not fight, the only evidence before the court is that of the Kariva’s  and the co-accused. Eric Kariva and Roslyn Kariva. They both say that they went to Yagisa hamlet to talk peace because that is what their father wanted them to do. That they were not armed when they went to Yagisa hamlet. Whereas the co-accused say that the Kariva’s came to their village armed and ready to fight. 
92.	Witness Serah Desegari said that when the Kariva’s arrived at Yagisa hamlet, that they were not carrying any weapons. But she had seen earlier that the co-accused and their father, upon their father’s encouragement, had sharpened their weapons and were waiting for the Kariva’s, presumably to fight them.  
93.	I accept Serah Desegari’s evidence in relation to this because she is the only person not involved in the dispute. She also lives on the plot of land in a house next to the co-accused and their family, so it definitely is not to her benefit, if she gives evidence against the co-accused. 
94.	Eric Kariva and Roslyn Kariva are the Deceased’s natural brother and sister. Their evidence is consistent, that they were asked by their father, to go to Yagisa hamlet, to make peace with the Viga’s. Of course, the court has many questions as to why the Kariva’s father asked his children to make peace and not involve village elders or village chiefs or members of the church. The Kariva’s father did not give evidence, so the court cannot confirm that. And both the State and the Defence did not bring any further evidence to confirm or negate this fact. 
95.	It means I will have to rely solely on the evidence of Roslyn and Eric Kariva and that of Serah Desegari because their evidence is credible.
96.	Roslyn was very consistent in her whole evidence. Despite intense cross examination, she continued to maintain that her brothers were not armed when they set off for Yagisa hamlet.
97.	Eric Kariva’s evidence is also consistent in relation to this aspect. However, Defence counsel asked that the statement he made to the police be tendered into evidence and marked as an exhibit for the Defence because Eric Kariva had given inconsistent evidence about Freddy Viga being at the scene of the fight. I will not reject Eric Kariva’s evidence in its entirety, as requested by defence counsel, and will, relying on David  Kandakason, accept his evidence and will give it the appropriate weight it deserves. 
98.	In relation to whether the Kariva’s had gone to Yagisa hamlet unarmed, Roslyn, Eric and Serah Desegari, have not shirked in their evidence on this aspect, despite intense cross examination, that indeed, the Kariva’s had proceeded to Yagisa hamlet  unarmed, that fateful day. 
99.	And I also make this finding based on the fact that during the fight, the Kariva’s did not have or use any weapons. It was the co-accused who used weapons to fight. I cover the evidence on the fight scene later below. 
Was Freddy Viga at the scene of the fight that fateful day?
100.	The Defence mounted by Freddy Viga’s evidence during trial, is that of identification. And Defence counsel continues to maintain that despite the fact that there is a Notice of Alibi in the court file, filed by the Office of the Public Solicitor on 23rd October, 2014. Defence counsel, who had seen the Notice of Alibi for the first time during trial, quite rightly was hesitant to accept the Notice in the form before the court because it stated this;
“TO: THE PUBLIC PROSECUTORS OFFICE
NATURE OF ALIBI
  That on the 12th November, 2012 the accused woke up early in the morning around 6 am to go fishing at Kokota swamp where he threw his nets all day for fish to catch and sell and returned to Yagisa village at 4 pm.
Alibi witnesses include
     (1) The accused himself.
Dated this 17th Day of October, 2014.
                                                                     (signed)
                                                                     FRAZER PITPIT
                                                                     Public Solicitor 
101.	I could see that Defence counsel was reluctant to run the Defence of Alibi because accused Freddy Viga refers only to himself as an alibi witness. That cannot be so. It has to be somebody else or others who can vouch for the fact that Freddy Viga was somewhere else that fateful day, when the fight and killing occurred. The Notice of Alibi filed and in court, is clearly defective. 
102.	In The State v Alwyn Wani (2010) N3968, the court said this about the Defence of Alibi:
“An Alibi under 0.4 R.8 of the Criminal Practise Rules (‘CPR’) means evidence tending to show that by reason of the presence of the accused person at a particular place or in a particular area at a particular time, that he was not or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged omission.”
103.	Additionally, I do not find identification to be an issue because the accused Freddy Viga, is known to the Kariva’s. They are all related. 
104.	In any event, I will address the alibi raised because counsel for the State cross examined Freddy Viga extensively on his claims of being out fishing that day, to show that the venture he purportedly undertook could not have occurred. 
105.	Freddy Viga told the Police in his record of interview with them, which was tendered in to court as evidence by consent, exhibit “D1” and “D2”, that on 12th November, 2012, he had left about 6 am to go fishing at the Kokode swamp. That he did not return to Yagisa hamlet until late in the evening when he learnt that there had been trouble at the hamlet.
106.	However, in the Notice of Alibi filed, it states that he is the only witness. In my view, the fact that he is the only witness extensively reduces his chances of running an Alibi Defence, only because he does not have an alibi.
107.	Notwithstanding, that obvious legal defect, counsel for the State cross examined the accused extensively where this evidence was borne out.
108.	That the accused’s claims of fishing by himself with a large net could not have occurred because he was by himself in a small dugout canoe, which did not have an outrigger. That he would have needed somebody else to balance the canoe whilst he threw the net out or when he pulled the net in. That it would have been an impossible feat to achieve, all by himself. Defence did not call any evidence to counter these revelations.
109.	Indeed, I find the accused Freddy Viga was not out fishing that day, because he could not have spent the whole day in a dugout canoe, all by himself, with a large fishing net because of the reasons raised above. 
110.	As to whether Freddy Viga was at the scene of the fight and whether he participated, witness Roslyn Kariva said that when they arrived at Yagisa hamlet, the co-accused’s father Samson Viga snr, called out to is sons to get their weapons and to start fighting the Kariva brothers.
111.	Roslyn said she saw accused Freddy Viga throw or swing a knife spear at the Deceased, who avoided it. She said after that, Freddy Viga stood there and watched. She pointed the accused out in court.
112.	She told the court that she has known the Viga brothers for a long time because they are all related and that Freddy Viga is not a stranger to her.
113.	Eric Kariva also said that accused Freddy Viga was the first person to swing a knife spear at the Deceased. He said after that he did not do see what Freddy did later because he (Eric) was busy defending himself from the other Viga brothers.
114.	It was at this time that Defence counsel led evidence on what he considered to be a prior inconsistent statement where Eric Kariva had not told the Police that he had seen accused Freddy Viga swing the knife spear at the Deceased. I accepted the statement and marked it as an exhibit for the Defence.
115.	Counsel for the State asked why he did not tell the police that. His explanation was that he had just dug his dead brother out of the ground after which the police took him in for questioning.  I understood that to mean that he was too emotionally traumatised and was not mentally prepared for the interview with the police. In fact I accept that it would indeed be very mentally traumatising to dig out a loved one from the grave, soon after burial and when his or her body is in a state of decay. Only those trained for such a job can cope with an experience of that nature. But these experiences, both for the trained and untrained, can be very emotionally scarring. 
116.	I accept that this was a genuine error and could only have happened whilst the witness’s state of mind was in an emotional and mental turmoil. 
I find that Freddy Viga was at the scene of the fight that fateful day. 
117.	I must also point out that identification raised by Defence counsel, has no weight in these proceedings because identification is clearly not an issue. Which means that because I have ruled that the Notice of Alibi is incompetent in form and the evidence accompanying the notice, to be unreliable and misconceived, that accused Freddy Viga does not have a Defence, at all. 
What role did the co-accused play, in the fight?	
118.	Freddy Viga; Roslyn Kariva said she saw accused Freddy Viga swing a knife spear at the Deceased.  However, the Deceased disarmed him.  
119.	In cross examination, she maintained that evidence. She also said in cross examination that after accused Freddy swung the knife at the Deceased and was disarmed, that he just stood and watched what was going on.
120.	Serah Desegari said when the Kariva’s arrived at the crime scene, that all co-accused got their weapons and went to attack the Kariva’s. She said that was when she heard Kingsford Kariva scream out and say that they did not go there to fight but to sort out some issues. And because the Kariva’s could not just stand there, for fear of being hurt, they had to defend themselves.
121.	She said that was when she saw accused Freddy Viga run up to the Deceased with a knife spear, and swing it at him. In her cross examination, she maintained that evidence although Defence counsel did question her extensively, in relation to the inconsistencies in her evidence.
122.	I decided that I will accept her evidence, because apart from what I said earlier, her evidence is credible and she is a witness of truth, in my view.  
123.	Defence counsel did suggest that she could have manufactured that part of her evidence after speaking with Roslyn Kariva during the luncheon break. I did not accept those contentions because unsophisticated villagers cannot just identify a certain part of the evidence, which they think will incriminate an accused and to then twist it around to suit their purposes, especially in a situation where evidence is extensive and detailed as in this case.
124.	Eric Kariva said in evidence that he saw Freddy swing a knife spear at the Deceased. He said he did not know what happened after that because he was fighting the co-accused. Although his statement was tendered as a prior inconsistent statement, I have given the statement the appropriate weight it deserves and have accepted Eric Kariva’s evidence in relation to Freddy Viga’s presence at the crime scene.
125.	Indeed, I find that Freddy Viga was at the scene of the fight and did play a role in that fight, by aiding and abetting. 
126.	Cecil Viga; The accused Cecil Viga, is aged 17 at trial. However, in my view, he looks older than that.
127.	It means then that Cecil Viga would have been aged 13 on 12th November, 2012, when the offence was committed. Again, Cecil Viga looks older than what he claims to be. 
128.	Roslyn Kariva’s evidence is that when accused Joseph Viga swung the knife spear at the Deceased on the fourth occasion, that at that time, the Deceased was helping Eric Kariva, who had 2 accused persons fighting with him, being Cecil and Samson Jnr. She said that was when she saw the Deceased punch accused Cecil Viga. It was at that time that accused Joseph Viga charged at him and inflicted the fatal blow. I discuss accused Joseph Viga’s involvement in and participation in the fight, further below. 
129.	In cross examination, Roslyn Kariva maintains the extent of accused Cecil’s involvement in the fight, which is the same as the evidence I discussed above. 
130.	Serah Desegari also states in her evidence, the extent of accused Cecil Viga’s involvement in the fight, which is the same as Roslyn Kariva’s evidence. Basically, she said that the accused Samson Viga jnr and Cecil Viga were throwing punches at Eric Kariva. That was when the Deceased intervened to assist Eric Kariva and punched Cecil Viga, who fell to the ground. At the same time, accused Joseph Viga came from behind and attacked the Deceased. I discuss this aspect of Joseph Viga’s involvement further below.
131.	In cross examination, Serah Desigari maintained her evidence, as above, and said that accused Cecil Viga had come to help accused Samson Viga jnr and that they were fighting the Deceased. She said she did not see the Deceased attack accused Joseph Viga. However, she saw the Deceased punch accused Cecil Viga because accused Cecil and Samson Viga jnr, were fighting Erick Kariva. She said she was about 6 m away from the Deceased when accused Joseph Viga attacked the Deceased. 
132.	Eric Kariva said that when his siblings and him arrived at Yagisa hamlet, that Samson Viga snr and all accused, approached them with weapons. He said Samson Viga jnr went to him and the both of them exchanged punches. He said accused Cecil Viga then approached him from his back and it was at that time that the Deceased intervened by punching Cecil Viga. He said it was at that time that the Deceased may have inflicted the fatal blow but that he did not see what happened. He only heard the Deceased call his name. When he turned around, the Deceased was already on the ground having sustained a serious wound to his stomach.
133.	Eric Kariva maintained this evidence in cross examination.
134.	Indeed, I find that Cecil Viga did play a role in the fight, by aiding and abetting.
135.	Samson Viga jnr; Serah Desegari, Erik Kariva and Roslyn Kariva, all say that Samson Viga jnr was fighting Eric Kariva, together with Samson Viga jnr, when the Deceased intervened to assist Eric Kariva, by punching Cecil Viga. 
136.	They maintain this evidence in cross examination. 
137.	Indeed, I find accused Samson Viga jnr, was aiding and abetting. 
138.	Joseph Viga; All state witnesses say that they saw accused Joseph Viga approach the Deceased from the back, then cut him. And this was after he had made several attempts to cut the Deceased. 
139.	The State witnesses say he attempted on 4 occasions. However, accused Joseph Viga said the Deceased chased him and attempted to cut him with a knife on 7 occasions.
140.	 The accused said that he only wanted to defend himself which was why he attacked the Deceased the way he did. And he did that only because the Deceased had run or charged at him with a knife.
141.	The only  consistent evidence I have before me in relation to Joseph Viga’s attack upon the Deceased, is from the State witnesses who say that when the Deceased was in the fight with Cecil Viga, Samson Viga jnr and Eric Kariva, that accused Joseph Viga ran up to him from his back. That whilst he was caught up in the fight, accused Joseph Viga, cut him in his stomach. The State witnesses say it was a slash like movement of his arm.
142.	The co-accused were also very uncooperative with the police in that they remained silent and did not answer the questions asked of them. Their record of interview tendered into evidence confirms that. 
143.	As I mentioned above, how has the Accused’s remaining silent during the record of interview with the police, affected his credibility? In The State v David Pandau Huahori (No.1) (2002) N2185 , a case where a defendant failed to put his case to the prosecution in cross examination and  failing to put  his  or her claims in the record of interview, Kandakasi.J said;
“…if indeed what you say is correct, I do not see what was the reason for you choosing not to place your claims on record. You could have done that in your record of interview or during the committal hearings or any time prior to coming in to court and give such evidence in court following a rejection of a no case submission. Of course, I note that whilst you have the right to remain silent and that no negative inferences should be drawn from that as a matter of law, as a matter of fact, your side of the story should be placed on record at the earliest opportunity. This could have been easily done if indeed what you have just claimed in court was true…”.
144.	The co-accused chose to remain silent during his record of interview with the police, definitely their Constitutional right, however, which has really turned against them. There is evidence incriminating them, at trial, which if they had mentioned in their records of interview, may have assisted their lawyer in preparing the case. 
145.	And this includes their claims of other persons being at the scene of the fight, and who were involved, being Abraham Kariva and one other. The co accused I find, have lied throughout in their evidence.
What were the nature of the injuries sustained by the Deceased? Are they consistent with the slash like movement and cut that was inflicted upon the Deceased?
146.	The Post Mortem report that was to have been tendered in to evidence, is not before the court. There is an affidavit in the court file, sworn by Chief Sergeant Amoko on 31st November, 2013, which deposes that at the time of compiling the hand up brief for the court file, the post mortem report had yet to be made available. And it was to have been prepared by a Mr Jerold, an Health Extension Officer. And that even though SOCO S/C Simon Tonkoe had made numerous inquiries about the report, that he was always advised that the Health Extension Officer was still away on a course.
147.	When the trial commenced on 18th May, 2016, it had been 4 years since the order to conduct a Post Mortem was made by the District Court (on 16th November, 2012). However, in its place, there are 7 coloured photographs of the exhumed body, which were tendered into evidence by consent and marked as exhibits. These are also supported by investigator, Det S/C Simon Tonkoe’s report, dated 21st December, 2012, tendered into evidence by consent and marked as an exhibit. Although I did not mark the photographs separately, I did say that I would refer to the markings in the court file. 
148.	In relation to the wound sustained, it was on the left side. Photograph 1 confirms that.
149.	Photograph 4 shows slashed ribs. On a closer view, the photographs show a rib hanging loose. 
150.	Photograph 6 shows a cut in the Deceased’s stomach and the blue nylon thread that was used to sew up his stomach. The cut is fairly large and extended, from one side of the Deceased’s stomach to the other, showing the intestines. 
151.	Photograph 7 shows the Deceased’s left lung which had been slashed and punctured.
152.	I can assume and infer that the knife used was very sharp, consistent with the State’s evidence that the co-accused were seen sharpening their weapons, before the fight commenced. 
153.	I can further assume and infer that the knife was wielded and thrown with such force, resulting in the cut inflicted being very deep, extended and large which caused the Deceased’s intestines to spill out. And this is consistent with what I have seen in the photographs and from what the State witnesses said. 
154.	I can also further assume and infer that because of the ferocity with which the knife was thrown, that it cut through 2 ribs in the Deceased’s rib cage.
155.	And I can finally, assume and infer, that the ferocity and tenacity with which the knife was wielded and used, resulted in the bearer being able to cut through the Deceased’s rib cage and at the same time, cut through his lung. 
156.	Indeed, the nature of the Deceased’s wound are those that would have been caused by a person who wielded and threw the knife with such force and hate, which caused the injuries sustained by the Deceased and which could only result in death. 
157.	As to whether Joseph Viga intended to cause death, is a matter I discuss below. 
Co-accused’s Defence under s.269 (1) (2) of the Criminal Code
158.	Accused Samson Viga jnr and Cecil Viga rely on s.269 (1) of the Criminal Code. They claim that they did not provoke the assault which was why they could use the force they used and that it was not intended to cause or not likely to cause death or grievous bodily harm.  
159.	The State invokes s. 7 of the Criminal Code. This provision reads;
	“7.   Principle Offenders.
(1)	When the offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it – 
	(a)	every person who actually does the act or makes the omission that 		constitutes the offence; and
(b)	every person who does omits to do any act for the purpose of enabling or 	aiding another person to commit the offence; and 
(c)	every person who aids another person is committing the offence; and 
(d)	any person who counsels or procures any other person to commit the offence.
(2)	In Subsection (1) (d), the person may be charged with- 
	(a)	committing the offence ; or 
	(b)	counselling or procuring its commission.

(3)	A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as conviction of committing the offence.	
(4)	Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, it would have constituted an offence on his part, is –
	(a)	guilty of an offence of the same kind; and 
(b)	liable to the same punishment, as if he had done the act or made the omission, and may be charged with himself doing, the act or making the omission.”

160.	There have been many discussions by Judges and in legal texts, on who is an aider and abettor. One case which I found to me most precise on the definition of an aide and abettor is the case of Agiru Aleni v Paul T Tahain [1978] PNGLR 37 by Wilson. J. In that case, Wilson .J referred to Eliza v Mandina [1971] PNGLR 422 at 430 where the court said;
“…what is being looked at for the purpose of the offence….is the nature of the conduct by the individual concerned and not the fact of his engaging in that conduct as part of a group.”
Wilson. J also referred to R v Coney and Others (1881-1882) 8 QBD 534 where Hawkins. J said at pg 557 – 558;
“In my opinion, to constitute an aider and abettor, some active steps must be taken by word, or action, with the intent to instigate the principal or principals. Encouragement does not of necessity amount to aiding and abetting, it may be intentional or unintentional, a man may unwittingly encourage another in fact by his presence, by misinterpreted words, or gestures, or by his silence, or non-interference, or he may encourage intentionally by expressions, gestures or actions intended to signify approval. In the latter case, he aids and abets, in the former, he does not. It is no criminal offence to stand by, a mere passive spectator of a crime, even of a murder. Non-interference to prevent a crime is not itself a crime. But the fact that a person was voluntarily and purposely present witnessing the commissioning of a crime and offered no opposition to it, though he might reasonably be expected to prevent and had the power so to do, or at least to express his dissent, might under some circumstances, offer cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted.”
Another case which Wilson .J referred to is R v Russell [1933] VLR 59 where Cussen AJ at pg 66 said;
“ various words such as ‘aiding’ ‘abetting’ ‘comforting’ ‘concurring’ ‘approbating’ ‘encouraging’ ‘consenting’ ‘assenting’ ‘countenancing’ are to be found in the authorities. A principal in the second degree is sometimes defined as a person present aiding or abetting, but in this context each of these words has, as I have indicated, a wide meaning. A common dictionary meaning of ‘abetting’ is ‘encouraging’ or ‘countenancing’; and this is to be remembered when the words ‘aiding’ or ‘abetting’ alone are used. All the words abovementioned are, I think, instances of one general idea, that the person charged as a principal in the second degree is in some way linked in purpose with the person actually committing the crime, and is by his words or conduct doing something to bring about, or rendering more likely such commission.” 
161.	The evidence is that co-accused were all fighting the Kariva brothers, when Joseph ran up to the Deceased, and inflicted the fatal blow upon him. The co-accused were not encouraging him or goading him on. However, they had been spoken to earlier by their father, Samson Viga Snr, to sharpen their weapons and to fight the Kariva’s. Was this the motivation that drove them on? Were Samson Viga’s comments to his sons that they would cut the Deceased’s stomach open, actually drive accused Joseph Viga on, to do what he did?
162.	I have come across two differing views as to who an aider and abettor is. In State v Robin Andolu (2013) N5128, the National Court said this;
“Although State did not invoke s.7 and/or 8 of the Code…the evidence clearly showed a pre planned dawn raid on the victim’s house, gang attack and perpetrated with extreme violence involving a group of angry men. This is not a case of the accused acting alone, he was in a group.  It is nonsensical to argue that the accused can only be dealt with as acting alone because he is charged as principal and not in the terms of sections 7 or 8 for those provisions to come into play. That would be parting company with reality.
This argument limits the scope of criminal law and is becoming narrowly too technical and misses the whole thrust of the criminal law covering accessories and aiders and abettors. All these men helped each other to make it possible for one or more of them to commit this heinous crime on this innocent and helpless victim. “ 
163.	The Supreme Court in the case Denden Tom v The State (2008) SC 967, when relying on Steven Loke Ume & Ors v The State [2006] PGSC 9 SC 836 dated 19th may, 2006, said this;
“Eventually, the court turned to the case before it, which was a case of wilful murder by a group of men and said it was necessary for the court to consider what part each of the offenders played before arriving at a sentence for them. In arriving at the view, the Supreme Court stated what was always the law that, where two or more people are charged with committing the same offence, it is necessary to consider the part each of them played in the commission of the offence, even though ss.7 and 8 of the Code make them equally responsible and can be sentenced as principals. This is on the basis of the well accepted principle that the punishment for an offence must fit the crime and the part each offender has played towards its commission, where more than one person is involved in the commission of the offence.”
164.	Indeed, the court in Robin Andolu is more focussed on the role an accused plays, when considering verdict, whereas Steven Loke Ume discusses the role played by an aider and a better and what would be a suitable sentence.
165.	In this case, the co-accused were all at the scene of the fight, each fighting with a Kariva. Accused Samson Viga jnr and Cecil Viga were both fighting Eric Kariva when the Deceased intervened to help Eric Kariva. That was when Joseph Viga attacked the Deceased. Would the other co-accused have been aiding and abetting Joseph Viga?
166.	Going by the principles in Ageru  Aleni and the common law case of R v Coney & others(supra), that the person charged as a principal in the second degree is in some way linked in purpose with the person actually committing the crime, and is by his words or conduct doing something to bring about, or rendering more likely such commission, I find that the co-accused, did aid and abet in the Deceased’s killing because their actions distracted the Deceased in that he could not defend himself, as he had successfully done earlier, on 4 occasions…when he disarmed accused Joseph Viga. 
167.	What of the Defence under s.269 (1) (2) of the Criminal Code?
168.	The evidence is that accused Joseph Viga attacked the Deceased on about 4 occasions, when the Deceased disarmed him. The co-accused say the Deceased attacked Joseph Viga on 7 occasions. I find the co-accused have exaggerated their evidence because it would have been impossible for any of them to count the number of times Joseph Viga was purportedly attacked because they were all involved in the group fight and were scattered. Under those circumstances, none of them would have seen what happened. At least Eric Kariva was honest in his evidence when he told the court that he did not see what happened to the Deceased because he was defending himself from his 2 assailants and that he only turned around when he heard the Deceased call out, after he was cut in the stomach.
169.	Two people, Serah Desegari and Roslyn Kariva, saw what happened to the Deceased. They were able to, because they were not involved in the fight.
170.	I find the Defences under s.269 (1) has not been made out because there is overwhelming evidence before me that it was the co-accused who provoked the assault..
171.	In relation to the Defence under s.269 (2), I find that at no time did the Deceased assault Joseph Viga. The Deceased was actually helping his brother’s get out of a tight situation and whilst his back was turned, accused Joseph Viga attacked him from the back, in a brazen cowardly attack. 
172.	I find that accused Joseph Viga, attacked the Deceased, but not to cause his death, rather, to cause him grievous bodily harm. I find the element of intention to cause death has not been made out, as opposed to the intention to cause grievous bodily harm. I find that just by the fact that Samson Viga Snr, uttered the words, we will cut his stomach or words to that effect, is not an intention by accused Joseph Viga, to kill the Deceased. These were words uttered by his father about 3 to 4 hours before the group fight started. However, the fact that co-accused had their weapons in readiness for an attack upon the Deceased and rushed upon the Kariva’s to attack them, resulting in the Kariva’s and the co-accused being involved in several fist fights right across the village square, is clear indication of their intention to do grievous bodily harm.  
173.	Indeed, I find the accused Joseph Viga, guilty of the lesser charge of murder, under s.200 (1) (a) of the Criminal Code. I also find accused Freddy Viga, Samson Viga Jnr and Cecil Viga, all guilty of the offence of murder as they are all caught under s.7 of the Criminal Code. 
174.	I also issue a stern direction to the Provincial Police Commander, Popondetta Police Station, to direct his officers to locate and immediately arrest accused Samson Viga snr because it has been 4 years since the offence was committed and 2 years since the National Court issued a bench warrant for his arrest (issued on 12.2.2014). 
175.	So ordered.
________________________________________________________________
Public Prosecutors		: Lawyer for the State. 
Public Solicitors		: Lawyer for co-accused