N6360
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
	
CR. NOs 362, 363, 364, 365 and 366 OF 2015

THE STATE

V

LUI NICKY, GIRI KIVOVON, DARIUS VOKINA, BENJAMIN PIDIK
AND TOMMY NOAH

Kokopo:   Anis AJ
2016: 21, 22, 23, 24 March, 11 May & 19 July

CRIMINAL LAW – five (5) accused each charged with one count of wilful murder under section 299 of the Criminal Code Act Chapter No. 262 - all pleaded not guilty - one (1) accused testified whilst four (4) accused exercised their rights to remain silent - identification and circumstantial evidence discussed - no eye witnesses - evidence considered together in totality - five (5) accused alleged deceased fell off from his veranda face down and died from injuries sustained - five (5) accused were identified next to the deceased immediately after the incident - no one else was present at the crime scene - medical examination showed evidence of assault particularly all over the deceased back - medical examination also showed evidence of assault on another victim who was unconscious next to the deceased at that time - logical conclusion discussed - circumstantial evidence point to one logical outcome which was that the deceased was assaulted outside his house by the five (5) accused and died from injuries sustained from the said assault 

PRACTICE AND PROCEDURE – right to remain silent - circumstances where silence may be perceived negatively against an accused discussed

CRIMINAL LAW – wilful murder - element of intention absent - charges of wilful murder pursuant to section 299 of the Criminal Code Chapter No. 262 were untenable - five (5) accused discharged from the offence of wilful murder

PRACTICE AND PROCEDURE – alternative charge - section 539(1) of the Criminal Code Act Chapter No. 262 discussed

CRIMINAL LAW – section 300 of the Criminal Code Act Chapter No. 262 considered - murder - offence of murder against the five (5) accused sustained - five (5) accused found guilty forthwith

Facts

The five (5) accused were each charged with one count of wilful murder.  They were alleged to have killed Peter Migu the deceased by assaulting him at his house in the early hours of the morning on 26 October 2014.  The five (5) accused denied the charges.  They alleged the deceased died from injuries received after he fell off from his veranda that morning.

Held

(i)	The Court considered the evidence in totality (principles held in the case of State v. Miriam Kakun (1997) N1673 applied herein).

(ii)	The defence own evidence puts four (4) of the five (5) accused namely Benjamin Pidik, Lui Nicki, Giri Kivovon and Tommy Noah at the crime scene.

(iii)	Medical evidence contradicted the defence version of how the deceased was alleged to have sustained his injuries.

(iv)	Circumstantial evidence proved beyond reasonable doubt that the established facts were inconsistent with any reasonable hypothesis other than guilt of the five (5) accused (principles held in the case of State v Morris [1981] PNGLR 493 applied herein).

(v)	The truth (i.e., of what happened after the deceased stepped out of his house) was not easily ascertainable by the prosecution but it was well known to the 5 accused.  Failure by four (4) of the accused to testify against the overwhelming circumstantial evidence of the prosecution was viewed or weighed negatively against the 5 accused (principles held in the case of Pawa v The State [1981] PNGLR 498 applied herein).

(vi)	The prosecution failed to establish the element of intent therefore the charges of wilful murder against the 5 accused were not sustained.

(vii)	The alternative charges of murder against the five (5) accused were sustained.

Cases cited

Ilai Bate v. The State (2012) SC1216
John Beng v. The State [1977] PNGLR 115
Pawa v. The State [1981] PNGLR 498
Simon Kama v. The State (2004) SC470
State v. Alphonse Asarombo (2010) N4035	
State v. Henry Toliu (2011) N4237
State v. Kikia Solowet (2007) N3154
State v. Miriam Kakun (1997) N1673
State v. Morris [1981] PNGLR 493	
State v. Seth Ujan Talil (2010) N4082

Counsel:

Ms Aihi, for the State	
Mr Kaluwin, for the Accused	

RULING ON VERDICT

19 July 2016

1.	ANIS AJ:	The accused persons namely Lui Nicky, Giri Kivovon, Darius Vokina, Benjamin Pidik and Tommy Noah (the 5 accused) are each charged under one indictment for the offence of wilful murder of one Peter Migu (the deceased) under section 299 of the Criminal Code Act Chapter No 262 (Criminal Code).  The indictment is dated 21 March 2016 and it was presented to this Court on the said date.  It reads:

LUI NICKY, GIRI KIVOVON, DARIUS VOKINA, BENJAMIN PIDIK and TOMMY NOAH all of GUNANUR, GAZELLE, EAST NEW BRITAIN PROVINCE stand charged that they the said LUI NICKY, GIRI KIVOVON, DARIUS VOKINA, BENJAMIN PIDIK and TOMMY NOAH on 26 day of October 2014 at Gunanur Village, Gazelle in Papua New Guinea, wilfully murdered one PETER MIGU.

BRIEF FACTS

2.	The prosecution alleged that in the early hours between 1am and 2am on 26 October 2014, the deceased was at his house at Gunanur village in East New Britain Province, drinking beer with Camillus Mapuak and Danny Peter.  Whilst they were there, two women joined them at the deceased's house.  The first woman was Nganga Garry.  Shortly after, a second woman Pidar (only identified by her first name) joined in.  They all drank beer inside the deceased's house.

3.	The prosecution alleged that not long, there was banging on or outside the house.  The deceased and the two women went outside the house to check.  That was when the 5 accused, the prosecution alleged, assaulted the deceased.  The prosecution alleged that Benjamin Pidik and Lui Nicky went inside the deceased's house and assaulted Camillus Mapuak and Danny Peter whilst the other accused continued to assault the deceased outside his house.  The prosecution alleged that when Camillus Mapuak went outside the house, he was further assaulted there with the deceased.  The prosecution alleged the deceased was taken to Tapipi Health Centre (the hospital) where he later died that same day.

4.	The prosecution charged the 5 accused for the wilful murder of the deceased pursuant to section 299 of the Criminal Code.  The prosecution has invoked sections 7 and 8 of the Criminal Code.  The prosecution alleged that the 5 accused went to the deceased's house for a common purpose, and they aided and abetted each other in assaulting the deceased and causing his death.

PLEA

5.	The 5 accused have pleaded not guilty to the charges of wilful murder.

ISSUES

6.	I set out the issues herein:

(i)	Whether it was an accident, in that the deceased fell off from his veranda, which had caused his death;
(ii)	If not, whether the 5 accused were present at that time of the incident;
(iii)	If so, whether the 5 accused wilfully murdered the deceased;
(iv)	If not, whether the 5 accused may be convicted of a lesser offence under law, and if so, what offence?

EXHIBITS

7.	Let me firstly set out the exhibits the parties tendered without objections.  I will list them down in a table starting with the prosecution's evidence followed by the defence.

Exhibit No	Description	Dated	
P1	Affidavit of Dr Lisioth Wauleau, attached with the Post Mortem Report	5/01/15	
P2	Five (5) sworn statements of Investigating Officer, Constable Johnson Bomokar	19/12/14	
P3	ROI of Lui Nicky, both English & Pidgin versions	12/12/14	
P4	ROI of Giri Kivovon, both English & Pidgin versions 	17/12/14	
P5	ROI of Darius Vokina, both English & Pidgin versions	18/12/14	
P6	ROI of Benjamin Pidik, both English & Pidgin versions	18/12/14	
P7	ROI of Tommy Noah, both English & Pidgin versions	18/12/14	
P8	Medical Report of Camillus Mapuak attached with 1 page copy of Clinic Book & Receipt for Payment  of Medical Report, sum of K40.00	4/11/14, 29/10/14	
P9	Statement of William Okole, both English & Pidgin version 	27/10/14	
P10	Statement of Henry Dapia, both English & Pidgin versions	27/10/14	
P11	Five (5) sworn statements of the Corroborator Constable William Kalava, in English	19/12/14	
D1	Statement of Headmaster, Camillus Mapuwak, in Pidgin	29/10/14	

SWORN EVIDENCE

8.	The prosecution called six (6) witnesses. They are:

•	Dr Lisioth Wauleau
•	Constable Johnson Bomokar
•	John Kaim
•	Camillus Mapuak
•	Danny Peter
•	Michael Gea

9.	The defence called two (2) witnesses.  They are:

•	Benjamin Pidik
•	Nganga Garry

EVIDENCE IN TOTALITY

10.	I will consider the evidence in totality following the second method as held in the case State v. Miriam Kakun (1997) N1673.  I will consider together the evidence of the prosecution and the defence to finding out the truth or nearer to the truth of what really happened.

LAW - IDENTIFICATION

11.	Identification of one of the accused is in issue.  Let me first set out the principles governing identification, and secondly, what is required of a judge on the subject matter.

12.	The case law (see cases: John Beng v. The State [1977] PNGLR 115; Ilai Bate v. The State (2012) SC1216) has made it mandatory for courts and in particular for a National Court judge to caution himself or herself when dealing with a case where conviction is dependent on identification.  The Supreme Court in Ilai Bate v The State (supra) summarised the principles.  I set them out herein:

10.     It is settled law as explained by the Supreme Court in John Beng v The State [1977] PNGLR 115, Biwa Geta v The State [1988-89] PNGLR 153 and Jimmy Ono v The State (2002) SC698 that there is an inherent danger in convicting an accused on the basis of identification. The trial judge should by his or her reasons for decision demonstrate that that danger is recognised and heeded. This is done by administering a ‘self caution’. It is the sort of caution that a judge would give to a jury in jurisdictions that have trial by jury. In PNG we have no juries. The judge is the tribunal of fact as well as of law. So the judge is expected to caution himself or herself as a matter of self-discipline and as a means of demonstrating through his or her judgment that the principles on identification evidence have been applied.

11.     The trial judge should indicate that the court is mindful of the risks involved but that if the quality of the identification evidence is good the matter should proceed to verdict; and if the quality of the evidence is poor an acquittal should be entered unless there is other evidence that goes to support the correctness of the identification. The judge’s reasons should show an awareness of the possibility that an honest witness can be mistaken and still be convincing. The court must be satisfied that the witness is both honest and accurate. In assessing the quality of the identification evidence relevant considerations include: whether the witness is purporting to identify a person who was a stranger or someone he recognised; the length of time that the witness observed the accused (eg a prolonged period or a fleeting glance); the emotional state of the witness at the time of the incident; the prevailing conditions (eg was it broad daylight or at dusk or dawn or inside or outside?); the line of sight (eg did the witness have a clear front-on view or was the line of sight interrupted or did the witness just see the accused from the side?). If there are discrepancies in the identification evidence the court should consider them and assess whether they are explicable in terms other than dishonesty or unreliability.

13.	The principles held above of course are binding herein.  I apply them accordingly.

14.	I must caution myself on the dangers of accepting evidence from witnesses who testify that they actually saw the 5 accused or some of them at the crime scene.  I note that even an honest witness can make mistake for various reasons including normal human error.  I note that for me to seriously consider and accept a witness's evidence on point, the witness must prove himself or herself to be honest, accurate and reliable.  This can of course be difficult and a judge in my view must consider all factors including legal, factual and also common sense or the practical aspect of the story, for example, whether the evidence makes logical sense.  If it is in a village setting, for example, whether the witness personally knows the accused; whether the witness and the accused come from the same or neighbouring village; whether the accused is a stranger to the witness.

15.	I note that the trial of the 5 accused is mainly dependent on circumstantial evidence.  The prosecution did not call a witness who actually saw the incident that had led to the death of the deceased.

16.	Identification, under the circumstances, will therefore be relevant to the present case as the first limb, that is, the prosecution is required to firstly prove that the 5 accused were all present at the crime scene immediately after the alleged assault on the deceased.  As it is, not all the 5 accused admit they were present at the crime scene after the alleged assault.  Four (4) of the 5 accused have exercised their rights to remain silent at the trial.  If the prosecution is able to prove that all or some of the 5 accused were present at the crime scene after the alleged assault, the second limb of course will be for the prosecution to prove based on circumstantial evidence, that the 5 accused or those accused that have passed the first limb, wilfully murdered the deceased.  Those accused found to have failed the first limb would be the first to be acquitted herein from the charges of wilful murder. 

EVIDENCE - IDENTIFICATION

17.	At the trial, only one accused gave sworn evidence.  He is Benjamin Pidik (Benjamin).  Accused Lui Nicky (Lui), Giri Kivovon (Giri), Darius Vokina (Darius) and Tommy Noah (Tommy) exercised their rights to remain silent.

18.	Evidence disclosed by both the prosecution and defence showed that Benjamin, Lui, Giri and Tommy were present at the crime scene immediately after the incident.  For Benjamin, he himself gave sworn evidence that he was there at the crime scene.  For Lui, Benjamin gave sworn evidence putting him there at the crime scene with himself.  As for Giri, he admitted in his record of interview that he was there because he said he and Benjamin assaulted their mother Nganga Garry at the crime scene area.  Giri's record of interview was tendered without objection and is Exhibit P4.  As for Tommy, Benjamin gave sworn evidence that he was also at the crime scene.  Identification of these four (4) accused is based on direct evidence coming from the defence evidence.  There is also evidence by the prosecution identifying the four (4) accused which I will discuss later herein my judgment.

19.	In my opinion, Darius is the only accused the defence evidence did not identify as one of the persons also present at the crime scene immediately after the incident.  Darius has stated in his record of interview that is Exhibit P5 that at the material time he was at his brother's house.  His exact words were "I don't know.  I was at my brother's house.  I do not know these boys.  They mentioned my name for nothing."  Darius also exercised his right to remain silent at the trial.  With Darius's denial and his refusal to talk, the prosecution is required to prove beyond reasonable doubt that Darius was present at the aftermath of the incident with the other four (4) accused.  

20.	Did the prosecution establish that Darius was present with the others at the crime scene after the incident?  In my opinion, I say, "yes it has".  Firstly, let me ask myself this:  "If Darius said that he did not know the other accused and denied his involvement in the incident, why then did he go with the three (3) accused early next morning to report the incident to the Chairman of the Law and Order Committee John Kaim?"  Mr Kaim gave sworn evidence identifying Darius as one of the accused who went to report the incident to him that morning on 26 October 2014.  And if Darius say he was wrongly named by the other accused, why did he not inform or clarify that with Mr Kaim at the meeting that morning?  Darius also had the opportunity to defend himself in Court on the said point but I note that he has decided to remain silent.  Mr Kaim gave sworn evidence that Benjamin spoke on behalf of the four (4) accused.  Mr Kaim did not mention Tommy's name, which means that Tommy did not go with the four (4) accused to report the matter.  The defence did not challenge Mr Kaim's evidence regarding the names of the four (4) accused that had gone to report the incident at Mr Kaim's house.  I accept as a fact that Darius went with the other 3 accused to report the matter.  I note that the defence counsel did clarify, during cross-examination, two other persons who also went with the four (4) accused to report the matter to Mr Kaim.  They were Giri's mother Jenny Kivovon and Giri's big brother Kosea Kivovon.  The defence clarified to the Court during cross-examination of Mr Kaim that these two persons were not involved with the others concerning the incident.  I note that the defence did not press on or put to Mr Kaim that Darius was not present with the others at the crime scene.  This then means, in my opinion that Darius is left with his lone statement that he gave in his record of interview concerning his whereabouts at the material time as against all the evidence of the prosecution.  Witness Michael Gea, for the prosecution, confirmed Darius's presence at the crime scene.  I find Michael Gea to be a credible witness.  He was a neighbour.  He heard banging and voices coming out in the direction of the deceased's house at the material time and he went there shortly after to investigate.  When he arrived, he said he was able to identify the 5 accused all standing around at the crime scene.  He said he was standing about 3 meters from them.  He said the 5 accused were all standing about 2 meters away from the deceased and Camillus Mapuak.  He said both men, that is, the deceased and Camillus Mapuak were lying on the ground.  He said he was able to identify the 5 accused because he said they all come from the same village and he knows each of them in person.  He identified Darius as one of the accused.  I note that Michael Gea stated in cross-examination that the place was dark and that he may have forgotten many things.  However, I give due weight to his evidence in identifying the 5 accused and in particular Darius, because of the fact that Michael Gea was standing 3 meters away from the 5 accused when he said he recognised and identified them.  I note that the defence did not call evidence to disprove Michael Gea's evidence particularly regarding where he was standing at that time and his personal knowledge of the 5 accused.  The final damning evidence against Darius is this:-  He denied twice in his record of interview that he knew the four (4) accused.  Yet, Michael Kaim's evidence shows that Darius must have known Benjamin, Giri and Lui because Darius went with them together with Giri's mother and brother early in the morning on 26 October 2014 to Michael Kaim's house to report the incident.  Darius, based on Michael Kaim's evidence, was prepared to and had allowed Benjamin and Giri's mother Jenny Kivovon do the talking on his and on behalf of the other accused. 

21.	I am therefore satisfied beyond reasonable doubt that Darius was present at the crime scene with the other four (4) accused immediately after the incident.  

DEFENCE CLAIM

22.	The defence has an explanation of how the incident unfolded (defence version of the incident) leading to the death of the deceased.  Benjamin and Nganga gave sworn evidence for the defence.  Let me summarise it herein:

Benjamin and Lui left Lui's house that night.  They walked to Nganga Garry's house (Nganga).  They heard Nganga's last born child crying.  They asked the child and the child told them that Nganga was not there.  They told the child that they would look for Nganga.  They walked to and came to the road leading to the deceased's house.  They heard loud music and noise of people drinking beer inside the deceased's house.  They recognised Nganga's voice inside the house.  Benjamin and Lui stood at the entrance leading into the residence of the deceased and called out to Nganga.  The deceased, Nganga and Pidar came out of the house.  The deceased came out first.  He was drunk so he bumped the side of the wall and fell head first over the veranda and landed on his face on the ground.  Nganga walked down the steps of the house and ran out.  Nganga met up with Benjamin and Lui at the entrance of the road leading into the deceased's house.  Benjamin and Lui told Nganga that her child was crying and that she should go home.  Just then, they heard Pidar calling.  Pidar called out to them to go over to assist her because the deceased had fallen over from his veranda and was lying face down on the ground.  Benjamin, Lui and Nganga walked over and saw the deceased lying on the ground.  They saw blood coming out of the deceased's nose and mouth.  Just then Tommy arrived.  Tommy asked them and they told him that the deceased had fallen off from his veranda.  Pidar and Nganga told Benjamin, Lui and Tommy that two other men Danny Peter and Camillus Mapuak were still inside the house.  Tommy instructed Benjamin and Lui to call out.  They called out but the two men inside the house did not come out.  Benjamin threw a piece of balsa wood against the wall of the house.  Again the two men did not come out.  Tommy sent Benjamin and Lui inside the house.  Benjamin and Lui entered the house and they saw the two men sleeping.  They kicked the lamp inside the house and assaulted the two men and brought them outside the house.  They did not assault Danny Peter and Camillus Mapuak further when they stepped outside the house.  They looked for a vehicle and transported the deceased to the hospital.

DID THE DECEASED FELL OVER HIS VERANDA AND DIED FROM HIS INJURIES?

23.	I must now determine whether it is true the deceased fell off from the veranda of his house and died from injuries he sustained from the said fall as alleged in the defence version of the incident.

24.	If evidence proves the deceased fell and died from injuries he received from the fall, the case must end and the 5 accused must be immediately discharged from the charges of wilful murder. 

25.	Now, I note that the defence version of the incident is based entirely on the sworn evidence of Benjamin and Nganga.  Let me first of all look at Benjamin's evidence and its credibility.  I note that in Benjamin's sworn evidence he said he did most of the things that night together with Lui who was by his side.  I note that this is reflected in the defence version of the incident as I have summarised above in my judgment.  Benjamin and Lui's records of interviews were tendered by consent and are in evidence.  Benjamin's record of interview is Exhibit P6 and Lui's is Exhibit P3.  In Benjamin's record of interview, he used a common phrase which is "I will shut my mouth" to nearly all the questions that were put to him.  And I note that Benjamin gave sworn evidence as I have summarised above in the defence version of the incident.  As for Lui, he said two things in his record of interview that I think are worth noting.  I set them out herein:

(i)	When he was asked at question 12 whether he knew Benjamin, Tommy and Darius by the interviewer, he answered "No".

(ii)	When he was asked at questions 21 to 23 by the interviewer whether he and Benjamin had assaulted Danny Peter and Camillus Mapuak inside the deceased's house, he answered "Not true".

26.	The above demonstrates that Benjamin and Lui gave conflicting evidence.  Their evidence repelled against each other firstly on whether they knew each other and secondly on whether the two had assaulted Danny Peter and Camillus Mapuak inside the deceased's house at the material time.

27.	According to the defence version of the incident, Benjamin and Lui did not actually see the deceased fall off from his veranda.  The persons who allegedly saw the deceased fall were Nganga and Pidar.  Nganga is the only person who was called and has given evidence for the defence.  Nganga said the deceased walked out first from his house when they heard people calling her name.  Nganga said she and Pidar followed the deceased out of the house.  Nganga said the deceased bumped the side of the wall of the house and because he was so drunk, she said the deceased fell over his veranda headfirst to the ground.  Nganga estimated the post of the house to be between 1.5 meters to 2 meters.  Nganga said she walked down the steps of the veranda shortly after and ran off to where Benjamin and Lui were standing.  According to Benjamin, the three of them namely Benjamin, Lui and Nganga walked back into the yard of the deceased's house after Pidar had called them, to try to help the deceased who had fallen and was lying on the ground.

28.	Is Nganga a credible witness?  My answer is "no".  Firstly, her demeanour in Court was far from being a credible witness.  She did not seem confident when she was giving her testimony in Court.  Her voice was shaky at times.  I also noticed at times that she seemed as though she was afraid of giving her testimony to the Court.  In my opinion, I find that there were indications in her demeanour, which suggests that she was not telling the truth.  This is despite the fact and I noticed that she had tried to remain calm and speak smoothly or slowly in Court.  I also find her testimony strange and lack logical sense.  I ask myself this:  "Why did she run away after she said she had witnessed the deceased fall off from his veranda?"  The logical thing to do then, in my opinion, would have been for her and Pidar to assist the deceased.  Also unusual was the fact that Nganga did not explain to the Court her strange behaviour.  She did not say she was afraid which was why she ran off.  And also strange was the fact that despite Nganga stating that she had witnessed the deceased fall, Nganga did not mention that to Benjamin and Lui when she bumped into the two or even after they said they heard Pidar calling out for help.

29.	On the contrary, I find the prosecution witnesses evidence credible.  The prosecution's evidence has, in my opinion, "shot to pieces", so to speak, Nganga's sworn evidence and the defence claim that the deceased fell off from the veranda and died from injuries he sustained from the said fall.  I set them out herein:

•	Witness John Kaim:  He gave sworn evidence that four (4) of the 5 accused reported the incident to him between 6am and 7am on 26 October 2014.  He said they reported that the 5 accused had assaulted the deceased and Camillus Mapuak between 1am and 2am that morning.  Mr Kaim's evidence is solid on point despite being tested by the defence in cross-examination.

•	Witness Michael Gea:  He appears to be an independent witness.  He was a neighbour at the material time and said he came over to the crime scene shortly after he heard voices and banging at the deceased's house.  When he arrived there and from 3 meters away, he identified the 5 accused.  He did not see Nganga and Pidar with the 5 accused.  Michael Gea also stated that he saw both men namely the deceased and Camillus Mapuak lying on the ground.  He said the 5 accused were standing 2 meters away from the deceased.

•	Witness Inspector Bomokar:  He was the investigating officer.  He gave evidence for the prosecution.  He said he interviewed Nganga and Pidar earlier regarding the incident.  He said they both told him that when the accused called them out, the accused assaulted them and they both got scared and ran away and never returned.  He said they told him they did not see what happened back there.  He said because the two did not see what had happened, he did not obtain statements from them.  Inspector Bomokar's evidence is corroborated with the evidence given by the accused Giri.  Giri was interviewed by police and his record of interview is Exhibit P4.  Let me quote the questions and answers to questions 16 and 17 in the record of interview of Giri:

Q16:	At that time, you and Ben went to MIGU'S, and were calling your mother to come out of the house, is that true?
Ans:	Yes, that's true.

Q17:	At Migu's house you and Ben, did assaulted your mother first, is that true?
Ans:	Yes, we both assaulted our mother.

Inspector Bomokar's evidence also corroborates Michael Gea's evidence.  Michael Gea said that he did not see any other persons except the 5 accused present at the crime scene immediately after the incident that morning.

•	Dr Lisioth Wauleau:  The doctor gave sworn evidence in Court.  He also tendered his post mortem report, which is Exhibit P1.  For this purpose and to solely prove that the deceased did not die from injuries he had received from allegedly falling off his veranda, the doctor's report noted that the deceased suffered "Extensive bruise on his back".  The doctor said the deceased had bruisers all over his back.  I ask myself this:  "How can this be if the deceased was said to have fallen head first to the ground?"  Nganga provided no explanation on that in her evidence.  The posts to the deceased's house were low and were confirmed at about 1.5 to 2 meters high, which is actually quite low to the ground.  In my opinion, the medical report proves that Nganga had told lies to the Court as to what actually happened.  Nganga's recollection does not make logical sense.  Nganga alleged the deceased fell headfirst.  Yet the medical report also showed external and internal injuries sustained from the deceased's back or from all over his body.

•	Camillus Mapuak:  He gave sworn evidence that he heard banging and beating that implied or indicated to him that the deceased was assaulted outside the house at the material time.  He said he did not actually see the deceased being assaulted outside the house.  He said he could only recognise the voices of Benjamin and Giri because he said they were his former students.  He said when he went outside the house the assailants also assaulted him and the deceased.  He said he could not identify who assaulted him outside the house because he had his hands closed to his face.  Camillus Mapuak also tendered to the Court, in my opinion, a significant circumstantial evidence, that is Exhibit P8.  The evidence was tendered in by consent.  Exhibit P8 is a medical report issued by the Naparpar Health Centre by HEO Florence P. Wanawa.  The report reads in part and I quote:

"This is to certify that Mr Camillus Mapuak was admitted to the ward for 2 days after being beaten on the 26/10/14.  He came complaining of cough, feeling pain on both ribs side, redness of left eye and sore on upper lip.  He was unable to move his jaw as well.

On examination:

CHEST	Looks normal, expanding equally, tenderness over ribs, air entry into both lungs equal and clear.
LEFT EYE	Red, tender, watery upon sunlight exposure.
UPPER LIP	Lacerated and tender.
JAW	Unable to open fully, tender on movement, not deformed.
Coughing and breathing causes more pain on chest

...."

In my opinion, the Medical Report prepared by HEO Florence P. Wanawa corroborated Camillus Mapuak's sworn evidence.  For this purpose, it shows that Camillus Mapuak was assaulted at the material time as he had alleged.  Exhibit P8 and Camillus Mapuak's evidence also corroborates the sworn evidence of Michael Gea.  Michael Gea said that when he arrived at the crime scene, he saw the deceased and Camlilus Mapuak lying on the ground.  Michael Gea said when giving sworn evidence that in Camillus Mapuak's case, he looked a bit okay but as for the deceased, he said his condition was not so good or worse.  I note that the defence did not adduce evidence challenging the injuries Camillus Mapuak received at the material time.  I note that Benjamin testified that when Camillus Mapuak stepped out of the house, he was not assaulted.  That was all Benjamin said of himself and on behalf of the four (4) other accused concerning Camillus Mapuak.  That piece of evidence and the silence of the four (4) other accused do not say much at all.  If I compare the evidence on point, the medical evidence disclosed by Camillus Mapuak and his claim that he was severely assaulted when he stepped outside the deceased's house at the material time, in my opinion, appear overwhelming.   I note that the type of injuries Camillus Mapuak had suffered all over his body is similar to those injuries suffered by the deceased.  They showed that both men were assaulted all over their bodies.

•	Danny Peter:  He gave sworn evidence that he was with the deceased, Camillus Mapuak, Nganga and Pidar drinking beer inside the deceased's house before the attack occurred.  He said they heard banging on the house.  He said the deceased, Ngnaga and Pidar went outside the house to investigate.  He said he heard banging and noise of people fighting outside and he said he heard people assaulting the deceased outside the house.  He said shortly after, three (3) men came inside the house.  He said he saw Benjamin and Lui.  He said Lui threw a bottle at him and Benjamin broke a lamp inside the house.  He said another men he could not identify went to assault Camillus Mapuak.  He said Camillus Mapuak walked outside the house where he said he could hear the men assaulting Camillus Mapuak outside the deceased's house.   He said when he finally went outside, he could see the two men that is the deceased and Camillus Mapuak lying on the ground outside the house.  Danny Peter's evidence of the deceased and Camillus Mapuak lying outside on the ground corroborates with what Camillus Mapuak and Michael Gea had said.

30.	In conclusion, I find that Benjamin and Nganga told lies to the Court by creating this defence version of the incident.  In my opinion, Benjamin and Nganga have motives for telling lies.  For Benjamin, he obviously would want to save himself and his friends from the offence of wilful murder.  As for Nganga, she appears related to Benjamin and Giri, and also I think she is determined to tell lies to protect the 5 accused.  She probably felt guilty that she may have contributed to the whole incident and got everybody into trouble.  She perhaps sees this as her opportunity to make things right from her perspective.

31.	I will not rule out completely Benjamin's evidence.  In my opinion, part of his evidence appears credible because it corroborates with the prosecution's evidence.  For example, Benjamin's evidence that he entered the deceased house and assaulted Camillus Mapuak and Danny Peter is credible and I accept that as true.  

32.	As for Nganga, I find that she gave mostly false evidence except for the following:

•	where she said she went to the deceased's house;
•	where she said Pidar arrived at the deceased's house shortly after;
•	where she said she heard banging on the house;
•	where she said she heard the boys called out her name from outside the deceased's house; and
•	where she said the deceased, herself and Pidar walked out of the house to investigate.

33.	The prosecution claims that Nganga and Pidar were assaulted outside the deceased's house and fled and did not return to witness what happened later.  I find this fact true and I accept the prosecution's evidence on point.  I refer to the sworn evidence of Inspector Bomokar as I have highlighted above in my judgment.  I note that the defence's own evidence corroborates and partly confirms this fact.  That is, Giri expressly states in his record of interview that he and Benjamin assaulted Nganga that night when Nganga stepped out of the deceased's house.  Giri's statement did not support the so-called conversation both Benjamin and Nganga claimed to have had in their respective sworn evidence.  Inspector Bomokar's sworn evidence is credible.  In my opinion, his evidence is accurate when he said that the two women had told him that they did not know what happened because they were assaulted and they both ran away from the deceased's house that morning.

34.	I find that the prosecution has disproved the defence version of the incident herein.  That is, I find that the prosecution has proven beyond reasonable doubt that the deceased did not fall off from his veranda that morning on 26 October 2014 and died from injuries sustained from the said fall.

DID THE DECEASED DIE FROM ASSAULT?

35.	In my opinion, it is not difficult to prove that the deceased died as a result of him being assaulted between 1am and 2am that morning on 26 October 2014.

36.	I note that I have already generally ruled out Benjamin and Nganga's sworn evidence on the material facts.  

37.	Evidence of assault on the deceased is discussed above at paragraph 29 of my judgment.  Evidence revealed that the deceased was severely assaulted when he stepped outside of his house.  Evidence also revealed that Camillus Mapuak was firstly assaulted inside the house.  When Camillus Mapuak stepped outside the deceased house, he was also severely assaulted.  I note that I have earlier in my judgment found that the 5 accused were present at the crime scene immediately after the incident.  By that I mean, the 5 accused were actually seen standing within close proximity to where the deceased and Camillus Mapuak were lying on the ground outside the deceased's house.  And I note that I have now found that the deceased and Camillus Mapuak were assaulted in the early hours of the morning of 26 October 2014.  As for the deceased, he was assaulted when he stepped out of his house.  As for Camillus Mapuak, he was assaulted both inside and outside the deceased's house.  Based on the doctor's sworn evidence and post mortem report, it is without doubt in my opinion that the deceased died directly from injuries he sustained from the assault on him that occurred outside his house at Gunanur village in the early hours of 26 October 2014.  

38.	Of course, my above findings do not in any way automatically prove or mean that the 5 accused should therefore be held liable.  To summarise, what this Court has found so far are as follows:  The deceased was seriously assaulted when he stepped out of his house that morning on 26 October 2014.  No one actually saw the deceased being assaulted outside his house.  But immediately after the assault on the deceased and Camillus Mapuak, the 5 accused where present at the crime scene.  The defence did not dispute that Benjamin, Lui, Giri and Tommy were present at the crime scene at that time.  This was revealed in the defence own evidence.  Nevertheless, the prosecution has established beyond reasonable doubt from its evidence that the 5 accused namely Benjamin, Lui, Giri, Tommy and Darius were present at the crime scene immediately after the assaults on the deceased and Camillus Mapuak.

39.	The findings by the Court lead to the next issue, which I will now address.

WHO ASSAULTED THE DECEASED? CIRCUMSTANTIAL EVIDENCE

40.	Let me first set out and observe the law and case law on circumstantial evidence.  

41.	The law on point in this jurisdiction is settled.  Justice Miles held the principles in the case of State v Morris [1981] PNGLR 493.  His Honour's decision was upheld by the Supreme Court a year later in the case of Paulus Pawa v The State [1981] PNGLR 498.  But going back to Miles J's decision, this is what he said at page 495, and I read:

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 The Queen [1975] 50 ALJR 108 at p 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 The King [1911], 13 CLR at p 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 national inference that the circumstances would enable them to draw":  Plomp v The Queen [1963] 110 CLR 234, at p 252;  See also Thomas v The Queen [1960], 102 CLR 584, at pp 605-606.  However, 'an inference to be reasonable must rest upon something more than a 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 The Queen at p 661:  These principles are well settled in Australia. It was recently held by the House of Lords in McGreevy v Director of Public Prosecutions, [1973] 1 WLR 276, that there is no duty on a trial judge to direct the jury in express terms that before they could find the accused guilty they should be satisfied that the facts proved were inconsistent with any other reasonable conclusion, than that the accused had committed the crime. That decision goes only to the form of direction necessary to be given to the jury, and although its effect may be that the practice in this respect is less rigid in England than in Australia, it does not reflect upon the correctness of the principles stated, which are really principles of logic and common sense."

42.	The said principles were summarised by Justice Cannings in the case of State v. Alphonse Asarombo (2010) N4035.  His Honour held and I read:

(1)  The principles to apply when a case is dependent on circumstantial evidence are:

•	the accused must be acquitted unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than guilt;
•	to enter a guilty verdict, it is necessary not only that guilt is a rational inference but that it is the only rational inference that the circumstances would enable the court to draw;
•	the question to ask is: do the proven facts lead reasonably to only one conclusion – that the accused did all the things constituting the elements of the offence? If yes, he is guilty. If no, he is entitled to an acquittal (Paulus Pawa v The State [1981] PNGLR 498, Devlyn David v The State (2006) SC881 applied).

43.	I turn to the present case.  Firstly, I note these:

•	only one (1) out of the 5 accused gave sworn evidence;
•	four (4) accused have exercised their rights to remain silent;
•	I have already found that the 5 accused were present at the crime scene immediately after the assaults on the deceased and Camillus Mapuak;
•	I have already found Benjamin's sworn evidence to be lacking in credibility;
•	I have already found  that Nganga gave false evidence in Court;
•	I have already found that the prosecution has disproved the defence version of the incident; and
•	I have already found that the deceased and Camillus Mapuak were seriously assaulted by assailants that morning outside the deceased's house.

44.	In summary, I am satisfied that so far the prosecution has proven beyond reasonable doubt the following facts:

(i)	the fact that the deceased had been drinking beer at his house at Gunanur village between the hours of 1am and 2am on 26 October 2014 with Camillus Mapuak and Peter Danny; (not contested but proven)
(ii)	the fact that Nganga joined the deceased, Camillus Mapuak and Peter Danny and they drank beer together; (not contested but proven)
(iii)	the fact that Pidar joined them shortly after at the deceased's house; (not contested but proven)
(iv)	the fact that there was banging outside and on the house and persons including Benjamin and Giri called out Nganga's name; (partially contested but proven)
(v)	the fact that the deceased walked out of his house to investigate closely followed by Nganga and Pidar; (not contested but proven)
(vi)	the fact that the deceased was assaulted outside his house when he stepped out; (denied but proven)
(vii)	the fact that Nganga and Pidar were assaulted outside the house by persons which included accused Benjamin and Giri and the fact that Nganga and Pidar fled the scene and never returned back; (partially admitted or denied but proven)
(viii)	the fact that Benjamin and Lui entered the house and assaulted Camillus Mapuak and Peter Danny; (not contested, partially admitted but proven)
(ix)	the fact that Camillus Mapuak followed on outside of the deceased house where he was assaulted with the deceased; (denied but proven)
(x)	the fact that the 5 accused were all present outside the deceased's house immediately after the assaults on the deceased and Camillus Mapuak. (partial denied but proven)

45.	I note that during the trial, the defence tried to adduce evidence that other people were also there at the crime scene immediately after the incident.  However, Benjamin and Nganga both have denied in their sworn evidence that there were other people present as well at the time of the incident.  This fact (i.e., of no one else being present at the crime scene) was also confirmed by the sworn evidence of Michael Gea.  I note that the defence tried to imply during cross-examination that it was too dark so Michael Gea could not have seen if there were other people present as well.  Michael Gea answered "yes" to the question.  But in my opinion, the fact of the matter remains which is that Michael Gea has stated that he was close by to the incident.  Michael Gea said he stood 3 meters away from the 5 accused.  He said the deceased and Camillus Mapuak were lying 2 meters away from the 5 accused.  If there were anyone else close by, Michael Gea would have seen them.  I note that Michael Gea's brother Henry Dapia also provided statement which was tendered by consent and marked as Exhibit P10.  Henry's evidence corroborates Michael Gea's in terms of the two hearing noises coming from the deceased's house and them attending at the scene to investigate.  Henry also mention's Benjamin's name as a person who was there and who had helped Henry to look for a vehicle.

46.	I also take into account an essential fact.  This incident occurred in the early hours of the morning between 1am and 2am.  It was not as if it happened at daytime.  As such, I take note that the chances of people or spectators or just the public to be out within the vicinity of the crime scene would be nil or minimal.  The sudden noise or banging caused Michael Gea and his brother to inquire and when they did, Michael Gea was able to identify the 5 accused standing 2 meters away from the deceased.  Michael Gea said he did not see anyone else there.  If for example Michael Gea states that there were other people there at the crime scene as well but he was unable to recognise them except for the 5 accused, there would of course be a real risk if this Court were to put more weight to Michael Gea's sworn evidence.  And the Court, in my opinion, would be wrong to conclude based on circumstantial evidence, that the facts proved in evidence are inconsistent with any reasonable hypothesis other than guilt.  The mere fact that there were other people there would have drawn a hypothetical situation making it possible for these other persons to have assaulted the deceased and not the 5 accused and the Court's reliance on circumstantial evidence may fail.  However, this is not the case here.  The 5 accused were the only persons seen present outside the deceased's house immediately after the assault on the deceased and Camillus Mapuak.  The defence's own evidence puts four (4) of the 5 accused at the crime scene.  And I note that both Benjamin and Nganga confirmed when giving evidence in chief that there were no other persons there at the material time.

47.	I am therefore satisfied that the facts proved in evidence are inconsistent with any reasonable hypothesis other than guilt regarding the present case.

48.	Do the proven facts lead reasonably to only one conclusion?  My answer to that is "yes they do".  Evidence shows that the deceased walked outside his house.  Evidence shows that Danny Peter heard the deceased and Camillus Mapuak being assaulted outside the house.  Evidence shows that the deceased was assaulted together with Camillus outside his house.  Evidence shows that the 5 accused where the last persons seen standing 2 meters away from the deceased who was lying motionless on the ground outside his house with Camillus Mapuak.  In my opinion, there is no other logical conclusions or possibilities that would have explained how the deceased and Camillus Mapuak had sustained bruisers all over their bodies.  Both medical reports of the two men showed serious assault injuries all over their bodies.  The only logical conclusion is that the 5 accused had assaulted the deceased and Camillus Mapuak at the material time.

49.	I find that the deceased died as a direct result from the injuries he sustained from the said incident.  The defence did not contest the fact that the deceased died from injuries he received in the morning of 26 October 2014.  Nevertheless, I am satisfied the prosecution has proven this fact beyond reasonable doubt.  I refer to the prosecution's evidence as I have discussed above in my judgment.  I should also mention Exhibit P9 which was tendered by consent of the parties.  It is a signed statement by William Okole dated 27 October 2014.  He was the one who drove the deceased to the hospital that morning after the assaults on 26 October 2014.  His evidence proves that immediately after the incident, the deceased was taken to the hospital for treatment that morning.  His evidence also confirms that the deceased died in the hospital on the same day that he was assaulted.

MOTIVE

50.	Was there a motive for the 5 accused to assault the deceased and the others?  I find that there was a motive.  The deceased was a widower.  He called Nganga who joined him, Camillus Mapuak, Danny Peter and later Pidar, and they drank beer between 1am and 2am on 26 October 2014.  I note that the prosecution asked Nganga during cross-examination whether she had any relationship with one of the three men.  She answered 'no'.  I note that I have found Nganga's sworn evidence to be generally false.  I find that Nganga lied because of what had followed which was the assault and death of the deceased.  Because the deceased died, I find that Nganga did not want to be embroiled in all this.  Secondly, I think she lied because of the fact that she is a married woman.  It would not look good for her, her family or the relatives if she admits to have had an adulterous affair or relationship with the deceased.  I find as a matter of fact that Nganga had some sort of relationship or affair with the deceased at that time before his death.  I say this after taking into account the following:  Nganga had no family relations with any of the three men namely the deceased, Camillus Mapuak and Danny Peter.  She is a married woman.  Yet the deceased had her number at that time because it was the deceased who called Nganga over to join the group at the deceased's house.  The deceased called Nganga not sometimes during the daytime but at around 1am and 2am in the very early hours of the morning.  And Nganga, a married woman, came over with no hesitation.  And further, she participated in drinking beer with the deceased, Camillus Mapuak and Danny Peter.  Another lady Pidar joined them shortly after.  In my opinion, any reasonable person would have found the conduct of such a married woman like Nganga odd and suspicions.

51.	Giri admitted in his record of interview that Nganga was his and Benjamin's mother.  During cross-examination of Benjamin, he stated that he and Lui were first cousins from their mothers' side.  Benjamin stated that he and Lui's mother were sisters.  However, Benjamin kept denying any relationships whatsoever between himself and Nganga.  Of course, I had ruled out most part of Benjamin's evidence as reliable.  I find as a matter of fact that Benjamin, Giri and Lui are related to Nganga.  I also find that Darius and Tommy were willing participants to the actions by the five (5) of them.  They were unhappy that Nganga who is their mother or relative who is also a married woman was having beer with the deceased at the deceased's house in the odd hours of the morning together with other men.  In my opinion, that drove the 5 accused to assault the deceased and the others there.

EXCEPTION - RIGHT TO REMAIN SILENT

52.	I think this case is one that fits in with one of the exceptions to the general rule that is the right to remain silent and be presumed innocent, as identified by the Supreme Court in the case of Paulus Pawa v The State (supra).  I am referring to a case where the Court may imply negatively against accused persons who refuse to give evidence in Court.

53.	The Supreme Court therein held on point and I read:

"Where an accused person fails to give evidence or to call witnesses to support his case the Court may draw inferences which properly flow from the evidence and reach its conclusion without being deterred by the incomplete state of the evidence or by speculation as to what the accused might have said had he testified. 

Where an accused person fails to give evidence or call witnesses to support his case, any inferences to be drawn and the weight to be attached thereto must be determined by common sense having in mind that: 

(1)	The failure of an accused is not an admission of guilt and no inference of guilt may be drawn there from; 

(2)	Failure to testify may, however, tell against an accused person in that it may strengthen the State case by leaving it un-contradicted or unexplained on vital matters;

(3)	Failure to testify only becomes a relevant consideration when the State has established a prima facie case; 

(4)	The weight to be attached to failure to testify depends on the circumstances of the case.  Significant circumstances include:

(a)	whether the truth is not easily ascertainable by the State but probably well known to the accused;
(b)	whether the evidence implicating the accused is direct or circumstantial;
(c)	whether the accused is legally represented and
(d)	whether the accused has before the trial given an explanation which the State has adduced in evidence."
(Underlining is mine)

54.	Following the decision of the Supreme Court, firstly, I note that the prosecution herein has established more than just a prima facie case.  I note that I have already found above in my judgment that the prosecution has proven beyond reasonable doubt that the deceased was assaulted outside his house.  Secondly, I also note that I have found that the prosecution has established beyond reasonable doubt that the 5 accused were the only persons seen at the crime scene immediately after the deceased was assaulted outside his house.

55.	Witnesses who testified in Court by both the prosecution and the defence fell short of telling who actually assaulted the deceased when he stepped out of his house.  Evidence showed that the 5 accused were at the crime scene and no one else.  And based on circumstantial evidence, I have found that the 5 accused and no one else, were responsible for the assaults on the deceased and Camillus Mapuak.  

56.	For this purpose, I will go one-step further and say this:  I find that the 5 accused all knew or ought to have known what happened to the deceased as soon as he stepped outside his house on that fateful morning.  I find that the truth (i.e., of what happened after the deceased had stepped outside his house) was not easily ascertainable by the prosecution but it was well known to the 5 accused.  I find that the 5 accused knew, saw and participated in the assaults of the deceased and Camillus Mapuak but deliberately kept quiet about it.  In doing so, it goes to show that the 5 accused tried to hide the truth in the hope to escape punishment.

WILFUL MURDER

57.	Section 299 of the Criminal Code reads:

299.	Wilful murder.

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

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

58.	I set out the elements of wilful murder as follows:

•	the accused killed the deceased
•	the killing was unlawful
•	the accused intended to cause the death of the deceased or some other person.

[see cases: Ilai Bate v. The State (2012) SC1216; State v. Henry Toliu (2011) N4237; State v. Seth Ujan Talil (2010) N4082]

59.	All three (3) elements of the offence must be established by the prosecution to sustain the charges of wilful murder against the 5 accused.  

60.	Let me firstly consider the element of intention.  Did the 5 accused intend to kill the deceased?  I would answer "no".  The evidence, in my opinion, points towards assault on the deceased by the 5 accused.  I do not think killing was part of their grand plan.  I arrive at this conclusion based on the following:

•	The first evidence is when the 5 accused called upon Nganga to come out of the deceased's house.  The 5 accused did not call the deceased to come out.  If they had planned to kill the deceased, it would have made more sense if they had called out to the deceased to come out of his house, or otherwise for example if the 5 accused had broken into the deceased house and attacked the deceased there.  Instead, the 5 accused or some of them called out to Nganga to come outside.  Evidence also showed that the deceased tried to prevent Nganga from leaving the house (i.e., from the sworn evidence of Camillus Mapuak).  Because the deceased stepped outside the house first, things could have quickly gotten out of hand between the deceased and the men who were waiting for Nganga outside the deceased's house.  The men threw things at the deceased house so it is possible the deceased could have said something to them to provoke them.  The deceased was also drunk so it is also possible that he could have said something bad or swore at them, or they could have said something to him and he responded which could have resulted in them assaulting him.  It is also possible that the deceased could have also tried to prevent them from taking Nganga which could have also quickly turned out nasty.
•	The second revealing evidence against intentions to kill is the fact that the 5 accused did not leave or disappear into the darkness after they had assaulted the deceased and Camillus Mapuak.  If they had carefully planned the attack with the aim to kill the deceased then I ask myself this:  Why did they all not run away immediately after they had assaulted the deceased and Camillus Mapuak?  The place was dark with no one around yet the 5 accused stood there and waited.
•	And this:  All or some of the accused participated in assisting to take the deceased to the hospital.  If they wanted the deceased killed, why did they remain back and tried to save him?  
•	I also note that the 5 accused or at least four (4) of them went early in the morning to report the incident to the Chairman of the Peace and Good Order Committee that the five (5) of them had assaulted the deceased.  At that time when they reported the matter, the deceased was still alive at the hospital.  I note that the 5 accused later tried to deny this fact (i.e., the report that they assaulted the deceased) in Court but I have already ruled against that denial above in my judgment.  I think the 5 accused were honest and told the truth when four (4) of the 5 accused first reported the incident to John Kaim.  But they perhaps did not expect that the deceased would die at that time.  When the deceased passed away, which led to them being arrested and charged, they were probably afraid and decided to change their story.  I note that in doing so, they lied to the Court through their witnesses Nganga and Benjamin.

61.	I find that the 5 accused did not intend to kill the deceased at the material time.  This means the prosecution has failed to prove one of the elements of wilful murder.  That being the case, there is no need for this Court to consider the remaining two elements of the offence of wilful murder.

62.	I find that the charge of wilful murder against the 5 accused cannot be sustained.

ALTHERNATIVE OFFENCE - LAW

63.	I note that the prosecution did not plead any alternative charges against the 5 accused.  Does this Court still have the power to convict the 5 accused on lesser offences than the offence of wilful murder and if so what are they and whether the 5 accused can be found guilty under one of them?

64.	The answer is expressly provided for under section 539(1) of the Criminal Code.  It states and I read:

539.	Charge of murder or manslaughter.

(1)  On an indictment charging a person with the crime of wilful murder, he may be convicted of the crime of murder or of the crime of manslaughter but not, except as is expressly provided in this Code, of any other offence other than that with which he is charged.
(Underlining is mine)

65.	I think the Supreme Court in the case of Simon Kama v. The State (2004) SC470 gave simple distinctions between the offences wilful murder, murder and manslaughter.  It held and I read:

The Criminal Code classifies different categories of murder in terms of wilful murder, murder and manslaughter, where intention of the offender at the time of committing the offence is a key distinguishing factor.  A murder is wilful if there is an intention to kill while there is no such intention but an intention to cause grievous bodily harm in the case of murder and where there is neither of these elements, it is manslaughter.  

66.	And I also note and adopt Justice Cannings' remarks concerning the power of the National Court to convict an accused of a lesser offence, that is, in the case of State v Kikia Solowet (2007) N3154.  Justice Cannings states at paragraph 80 of his judgment and I read:

80.           There is no general principle that if a person has been charged with a specific offence and, though not all elements of it are proven, all elements of a lesser offence are proven, the court can enter a conviction for the lesser offence. The power to convict an accused of a lesser offence only exists where the Criminal Code specifically provides for it. For example, Section 539 says that a person indicted for wilful murder can be convicted of murder or manslaughter.
(Underlining is mine)

67.	With these, my answer is "yes, this Court has the power pursuant to section 539 (1) of the Criminal Code to convict the 5 accused under the offences of murder or manslaughter."

ALTERNATIVE OFFENCE - MURDER

68.		Section 300 of the Criminal Code reads:

(1)	  Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:—

(a)		if the offender intended to do grievous bodily harm to the person killed or to some other person; or

(b)		if death was caused by means of an act—

(i)		done in the prosecution of an unlawful purpose; and
(ii)		of such a nature as to be likely to endanger human life; or

(c)		if the offender intended to do grievous bodily harm to some person for the purpose of facilitating—

(i)		the commission of a crime other than a crime specified by a law (including this Code) to be a crime for which a person may only be arrested by virtue of a warrant; or
(ii)			the flight of an offender who has committed or attempted to commit an offence referred to in Subparagraph (i); or

(d)		if death was caused by administering any stupefying or overpowering thing for a purpose specified in Paragraph (c); or

(e)		if death was caused by wilfully stopping the breath of a person for a purpose specified in Paragraph (c).

Penalty: Subject to Section 19, imprisonment for life.
(Underlining is mine)

69.	What I have underlined above, in my opinion, are the main elements for the offence of murder.  In summary, an accused may be convicted of murder under two main types of situations, that is, under section 300(1) (a) or section 300(1) (b) of the Criminal Code.  

70.	For this case and in my opinion, the offence of murder under section 300(1) (a) is applicable and the Court has to be satisfied beyond reasonable doubt that the 5 accused:

•	had intended;
•	to do grievous bodily harm;
•	to the deceased.

71.	Did the 5 accused intend to cause grievous bodily harm to the deceased at the material time?  My answer is "yes".  I state the reasons herein:

•	the fact that the deceased died as a direct result from injuries he sustained at the hands of the 5 accused;
•	the deceased received serious injuries to various parts of his body.  Firstly, his C-5 cervical spine was displaced (i.e., a dislocated a neck bone).  The likely cause from such injury, according to Dr Wauleau, would be from a powerful blow to the neck area.  His right lung suffered laceration.  It means the deceased's right lung was torn or cut internally.  The likely cause would be from an excessive or powerful blow externally from the right back area or shoulder of the deceased.  The deceased's both lungs tissues had blood in them.  Again, this would occur if the deceased was hit or punched very hard from his back or sides of his abdomen.  Both his lung cavities were filled with blood making it difficult for the deceased to breath.  Both kidneys of the deceased were bruised.  His left kidney suffered lacerations meaning that it was torn or cut internally.  Again, such injuries were possible by use of powerful external forces either by using an object(s) or fists.  The deceased also suffered an external blunt injury to his chest.  Extensive bruises were noted all over his back.  I note that these were explained in detail by Dr Wauleau in Court.  All these injuries showed, in my opinion, the real intentions of the 5 accused at the material time, which was to inflict grievous bodily harm to the deceased; and
•	the fact that he was just one man and the fact that he was suddenly attacked by 5 men when he stepped out of his house.

72.	I note that I have already found that the 5 accused seriously assaulted the deceased which led to his death.  The question now is this:  Can the assault or serious assault by the 5 accused on the deceased be also termed as grievous in nature to constitute grievous bodily harm to pass the second element of the offence of murder?

73.	The term "grievous bodily harm is defined under section 1 of the Criminal Code.  It means and I read:

"grievous bodily harm" means any bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health;
(Underlining is mine)

74.	The elements of what constitutes grievous bodily harm are:

•	any bodily injury(1);
•	that endangers or likely to endanger life(2); or
•	cause or is likely to cause permanent injury to health(3).
(Numbering is mine)

75.	The second and third elements are optional meaning the prosecution can choose and prove either one of them or both.  But the first element that is 'bodily injury' is mandatory.  

76.	I am firstly satisfied the prosecution has proven beyond reasonable doubt that the 5 accused had caused bodily injuries to the deceased.  I refer in my judgment above and perhaps also point to Exhibit P1 and the sworn evidence of Dr Wauleau.  I am satisfied the prosecution has proven the first element of grievous bodily harm.  Now the said bodily injuries caused the death of the deceased.  Again, this has been proven and I have discussed that above in my judgment.  I am satisfied the prosecution has proven the second element of grievous bodily harm.  I am therefore satisfied the 5 accused assaults on the deceased had constituted grievous bodily harm.

77.	In summary, I find that the 5 accused:

(i)	had intended to; and

(ii)	had caused grievous bodily harm;

(iii)	to the deceased resulting in his death.

78.	The alternative offence of murder against each of the 5 accused is sustained.

SECTIONS 7 & 8

79.	The prosecution invokes sections 7 and 8 of the Criminal Code. 

80.	I set them out herein:

7.	Principal offenders.

(1)	When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:—
(a)	every person who actually does the act or makes the omission that constitutes the offence; and
(b)	every person who does or 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 in 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 a conviction of committing the offence.

(4)	Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, it would have constituted an offence on his part, is—
(a)	guilty of an offence of the same kind; and
(b)	liable to the same punishment,
as if he had done the act or made the omission, and may be charged with himself doing the act or making the omission.

8.	Offences committed in prosecution of common purpose.

Where—
(a)	two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another; and
(b)	in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of the purpose,
each of them shall be deemed to have committed the offence.

81.	I have found the 5 accused each guilty of committing the offence of murder.  I also now find herein that they had aided and abated each other in committing the said offence.  I uphold the application of section 7 of the Criminal Code herein.

82.	Secondly, I also find that the 5 accused had formed a common intention which was to assault the deceased and his friends at the deceased's house.  They went there and carried out their intentions.  I uphold the application of section 8 of the Criminal Code herein.

SUMMARY

83.	I now refer to the four (4) issues I have stated above in my judgment.  In regard to the first issue which is Whether it was an accident in that the deceased fell off from his veranda which had caused his death, my answer is "no".  For the second issue which is If not, whether the 5 accused were present at that time of the incident? my answer is "yes".  For the third issue which is whether the 5 accused wilfully murdered the deceased, my answer is "no".  And for the final issue which is If not, whether the 5 accused may be convicted of a lesser offence under law and if so what offence? my answer is "yes, I have convicted each of the 5 accused for the offence of murder under section 300(1)(a) of the Criminal Code."

ORDERS OF THE COURT

The 5 accused are found guilty of murder.

________________________________________________________
Office of the Public Prosecutor 	:    Lawyer for the State		
Office of the Public Solicitor	:    Lawyer for the Accused