N6814
PAPUA NEW GUINEA
 [IN THE NATIONAL COURT OF JUSTICE]

CR NO 637 OF 2012

THE STATE

V

ANDREW BENG, ANDREW MANGA & HEBRON TUI EKIL

 Cannings J
Madang: 11, 17, 18, 20 March, 8 July 2015
Ramu: 13, 14 July 2015
Madang: 24, 25 September 2015
Waigani: 30 September 2015
Madang: 22 October 2015, 
3, 8 March, 13 July 2016,
31 July 2017 

CRIMINAL LAW – wilful murder – Criminal Code, Section 	299(1) – elements of the offence – whether any of the accused killed the deceased – whether killing unlawful – whether the accused who killed the deceased intended to do so – Criminal Code, Section 7 – whether any accused enabled or aided another in  committing the offence.

Three accused were indicted for wilful murder following a late-night altercation at a social club, involving two groups of men, in which one man was stabbed and later died from the injury. All accused pleaded not guilty and a trial was conducted. The State alleged that the second accused directly killed the deceased by stabbing him, that he acted unlawfully, intending to cause his death, making him guilty of wilful murder under Section 299(1) of the Criminal Code, and that the two other accused enabled and aided the second accused to commit the offence, making them also guilty of wilful murder under Sections 7(1)(b) and (c) of the Criminal Code. The State presented four witnesses who gave evidence of seeing the second accused stab the deceased, while the deceased was being held by the first accused. All accused gave sworn evidence. All stated that they were present but denied involvement in death of the deceased and denied knowledge of how he was killed. 

Held:

(1)	Under Section 299(1) of the Criminal Code the offence of wilful murder has three elements: 

•	the accused killed the deceased;
•	the killing was unlawful; and
•	the accused intended to cause the death of the deceased.

(2)	It was proven beyond reasonable doubt that the second accused killed the deceased as: there was credible and consistent eyewitness evidence by four witnesses of the second accused stabbing the deceased; the medical evidence was consistent with the eyewitness evidence; the evidence of all accused was not credible and was uncorroborated. 

(3)	As no excusatory defence was claimed by the second accused, his killing of the deceased was unlawful.

(4)	It was proven beyond reasonable doubt that the second accused intended to kill the deceased, given the nature and extent of the injuries inflicted on the deceased. The second accused was therefore guilty of wilful murder. 

(5)	Though there was evidence of the first accused’s involvement in the assault on the deceased, it was insufficient to prove beyond reasonable doubt that he assisted the second accused with the intention of killing the deceased. The first accused was not guilty.

(6)	Though there was evidence that the third accused started the fight that led to the altercation in which the first accused stabbed the deceased, it was not proven that he aided or assisted the second accused in killing the deceased. 

(7)	In summary, the second accused was convicted of wilful murder, as charged and the first and third accused were acquitted. 

Cases cited

The following cases are cited in the judgment:

Fei Stanley v The State (2006) SC1324
The State v Abaya Ulas (2010) N4009
The State v Cain Wosae (2010) N3996
The State v David Yakuye Daniel (2005) N2869
The State v Ephraim Ria Boa (2008) N3436
The State v Jenny Dei (2011) N4231
The State v Melchior Kapus (2010) N4114
The State v Moses Nasres (2008) N3302
The State v Paul Gambu Laore & 11 Others (2007) N5026
The State v Raphael Kuanande [1994] PNGLR 512
The State v Sapik Tommy (2014) N5575

Glossary

The following people and places are referred to in the evidence.

People
Ambro Pai – Assas resident; Daniel Paul’s uncle
Andrew Beng – first accused, defence witness #2
Andrew Manga – second accused, defence witness #3
Daniel Paul – State witness #3, Engan man
Dr Manna Ario – doctor who conducted post-mortem examination, State witness #6 
Ekip Yambi – person involved in the fight with Hebron Tui Ekil
Engan – person from Enga
Hagen people – people from Mt Hagen 
Hebron Tui Ekil – third accused, defence witness #1, son of Tui Ekil  
Jack Ben – son of Joel Giu, referred to in evidence
Jeffrey Tee – the deceased, Engan man
Joel Giu – State witness #1, club owner, Markham man
MCC Ramu Nickel – company; employer to Daniel Paul
Nan Ambro – person involved in fight with the accused 
Paku Waips – State witness #4, person from Enga
Sgt Martin Howley – arresting officer, State witness #5
Steven Joel – State witness #2, regarded Joel Giu as his father 
Tui Ekil – father of third accused, Hebron Tui Ekil, defence witness #4

Places
Angau General Hospital – hospital in Lae 
Assas – place of incident, between Ramu and Walium 
Dei – district in Western Highlands Province
Dumpu – oil palm estate in Ramu area
Enga – Highlands province
Gusap – place within area of incident 
Kandep – deceased’s district, Enga Province
Lae – capital, Morobe Province
Madang – capital, Madang Province
Markham – home village of Joel Giu, Morobe Province 
Markham Valley – valley in Morobe Province 
Menia – village before Dumpu, spot where deceased passed away 
Modilon General Hospital – hospital in Madang
Mt Hagen – capital, Western Highlands
Ramu – town along the Lae-Madang Highway
Ramu Sugar – another name for Ramu town 
Rumonga – accuseds’ village, Dei District, Western Highlands Province
Walium Station – headquarters, Usino-Bundi District 
Western Highlands – Highlands province
Yakambu – village, near Walium

TRIAL

This was the trial of three accused charged with wilful murder.

Counsel

F K Popeu & M Pil, for the State
B W Meten, for the Accused

31st July, 2017 

1.       CANNINGS J: The three accused are charged with the wilful murder of Jeffrey Tee (the deceased) at Assas, in the Walium area of Usino-Bundi District, Madang Province, on 23 October 2011. They have pleaded not guilty so a trial has been conducted. The State’s case is that:

•	the second accused (Andrew Manga) is the principal offender and he is guilty of wilful murder under Section 299(1) of the Criminal Code as he directly and unlawfully killed the deceased by stabbing him in the abdomen with a knife, intending to cause his death; and

•	the first accused (Andrew Beng) and the third accused (Hebron Tui Ekil) enabled and aided the second accused to commit the offence, thus making them guilty of wilful murder under Sections 7(1)(b) and 7(1)(c) of the Criminal Code.

2.     The State presented four witnesses who each gave evidence of seeing the second accused stab the deceased, while the deceased was being held by the first accused. All accused gave sworn evidence. All stated that they were present but denied involvement in death of the deceased and denied knowledge of how he was killed. 

UNDISPUTED FACTS

3.      A number of undisputed facts have emerged from the evidence:

•	An incident in which the deceased was injured occurred at Assas late on the night of Saturday 22 October or in the early hours of Sunday 23 October 2011, at a licensed club owned and run by State witness No 1, Joel Giu, a man from Morobe Province.

•	Assas is a small built-up area on the Madang-Lae (Bruce Jephcott) Highway between Walium station and Ramu town in Usino-District. It is 50 kilometres along the highway from Ramu, in the direction of Madang town. 

•	Joel Giu’s club was on the northern side of the highway. It is no longer in operation. The Court party conducted a site visit and observed that the old club, which was only ten metres in from the highway has been replaced by a new store, further inside, about 20 metres from the highway.

•	On the other side of the highway, 150 metres from Joel Giu’s area, is a service station and workshop owned by a Western Highlands man, Tui Ekil.  

•	Tui Ekil is the father of third accused, Hebron Tui Ekil, and an uncle to first accused, Andrew Beng, and second accused, Andrew Manga.

•	On the afternoon of Saturday 22 October there was a birthday party for Hebron Tui Ekil’s son at the Ekil premises. No alcohol was consumed at the party. The three accused were at the party.

•	After the birthday party finished, the three accused walked across to Joel Giu’s club and started drinking alcohol and socialising.

•	The three accused are from the Ramonga area of Dei District, Western Highlands Province, but they, like many people from that province, were known commonly as ‘Hagen’ people. 

•	The first accused, Andrew Beng, was employed at the nearby Dumpu oil palm estate, and lived close to Assas. The second accused, Andrew Manga, was a University of PNG student, living at Port Moresby, who was on holiday at Assas (he had been there for a week) at the time of the incident. The third accused, Hebron Tui Ekil, lived at Assas and worked there with his father, Tui Ekil. 

•	When the three accused arrived at the club, there was already a drinking session in progress involving men from Enga, most of whom lived close by.

•	There were two distinct drinking groups, those from Enga (who were first at the club) and those from Western Highlands (the “Hagens”) who arrived later.

•	Joel Giu agreed to leave the club open beyond the normal closing time of 8.00 pm and the two groups of men were socialising harmoniously. Music was playing and some people were dancing. 

•	At about 10.00 pm an Engan man, Ekip Yambi, accidently bumped into Hebron Tui Ekil, causing Hebron Tui Ekil, who was drunk, to fall. Hebron Tui Ekil was upset about this. He got up and punched Ekip Yambi. This led to a fight between the Hagen men and the Engan men.

•	The deceased Jeffrey Tee is from Kandep District, Enga Province. He was aged about 30. He was not at the drinking party but he arrived when the fight started. In the course of the fight he was stabbed by someone and seriously injured.
 
•	Joel Giu and others put Jeffrey Tee in a vehicle, and drove in the direction of Ramu in an attempt to get him urgent medical treatment, at Ramu. Jeffrey Tee died on the way, at Menia Bridge. 

•	The cause of death was hypovolaemic shock (sudden loss of circulating blood) caused by a deep laceration to the liver. 

ISSUES

4.     As the second accused is alleged to be the principal offender, the Court’s attention must be focussed on him first. He has been charged under Section 299(1) of the Criminal Code, which states:

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.

5.     The three elements of the offence are that:

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

6.     The Court must determine whether those elements have been proven beyond reasonable doubt. A decision will then be made on whether the accused is guilty of wilful murder or any other offence (eg murder or manslaughter). If he is guilty, the Court’s attention will shift to the other accused to determine whether either of them aided or assisted him in committing the offence or are otherwise criminally liable under Section 7 of the Criminal Code. If the second accused is found not guilty of any offence, the others will also be acquitted. The issues will be addressed in this order:

1.	Did the second accused kill the deceased?

2.	Was the killing of the deceased unlawful?

3.	Did the second accused intend to cause the death of the deceased?

4.	Is the second accused guilty of wilful murder?

5.	Are the first and/or third accused guilty? 

1 	DID THE SECOND ACCUSED KILL THE DECEASED?

7.      Resolution of this issue requires a:

•	summary of evidence for the State;
•	summary of evidence for the defence;
•	determination of the question whether the second accused killed the deceased.

Evidence for the State

Oral testimony

8.      Six witnesses gave evidence for the State, as summarised in the following table.

No	Witness	Description	
1	Joel Giu	Owner and manager of club where incident occurred 	
Evidence	
Runs licensed premises at Assas – he opened the club at 6.00 pm on 22 October, started the generator and waited for customers – there was already a birthday party going on at Tui Ekil’s residence, not far away, across the other side of the highway – the people there were from Mt Hagen – he knew most of them well, they had been living at Assas for about five years, including Andrew Beng and Hebron Tui Ekil; however he did not know Andrew Manga well, as he only came from Mt Hagen a week before the incident. He correctly identified each of the accused. 

Some Engan fellows came into his club (consisting of a tuckshop, a bottle-shop and a small clubhouse) and started drinking – he knew them, they were living about 300 metres along the highway from his place – then a few hours later, the Hagen men who had been drinking at Tui Ekil’s area came to the club: the Engans and the Hagens were drinking in their own groups: Engans at the side of the bottle-shop; Hagens at the front.

At 8.00 pm he asked the club patrons to finish their drinks as he wanted to close but he agreed to keep the club open after Hebron Tui Ekil asked him (Hebron is his neighbour and he knows him well) – the two groups remained in the club, drinking, until 11.00 to 11.30 pm when there was an incident: 

•	one of the Engans, Ekip, was drunk and dancing and bumped into Hebron;
•	Hebron was also drunk, and fell;
•	Hebron got up, hit Ekip;
•	he (the witness) stepped in, trying to stop Hebron;
•	Hebron was too strong, chased Ekip, and hit him again;
•	Jeffrey Tee, the deceased, an Engan – he was not drinking – saw that his brother Ekip was in trouble, stepped in, and punched Hebron;
•	Hebron called out ‘Hey, Kange, I have been injured!’ and fell again;
•	he (the witness) and his son, Steven, held Hebron’s feet to stop him getting up and fighting further;
•	the Hagen people heard Hebron’s calling and they entered the fray;
•	Andrew Beng held Jeffrey Tee from the back, around his waist;
•	while Andrew Beng was holding Jeffrey Tee, Andrew Manga stabbed Jeffrey Tee;
•	Andrew Manga used a short (estimated to be 23 cm in length) US-style pocket knife to stab Jeffry Tee in the ribs; Jeffrey Tee fell forward; Andrew Manga stabbed him again in the forehead; then stabbed him a third time on his left thigh (at the back); 
•	he took Hebron to his (the witness’s) house and asked Hebron for his vehicle keys so that he could drive Jeffrey Tee to the hospital – Hebron was very drunk;
•	Hebron shouted ‘Let him die!’ but he managed to get the vehicle key from Hebron’s pocket and drove the vehicle (a Toyota Landcruiser) to his clubhouse;
•	with the assistance of his son Steven and a friend, Daniel (from Enga), they lifted Jeffrey Tee into the Landcruiser and he drove it fast in the direction of Ramu;
•	at Menia, just before Dumpu, on the way to Ramu, Jeffrey Tee died, while Steven and another of his sons, Jack, and Daniel were holding on to him: they left the body at the Apostolic Church, then drove on to Ramu Police Station and reported the death;
•	they headed back to Assas but ran out of fuel at Dumpu and stopped there until after dawn on 23 October.

In cross-examination, defence counsel put to the witness that his evidence was too incredible  to believe, as it requires the court to believe that he just stood there while Jeffrey Tee was being held back and stabbed and  did nothing about it – the witness replied that the incident happened in a short space of time, probably 15 seconds, and he was unable to intervene to save the victim – the witness repeated that the incident happened at about 11.30 pm on Saturday – straight after Jeffrey Tee was stabbed, he (the witness) took Hebron back to the house, then Daniel came and told him that the man who had been stabbed was in a bad way and they had to get him to the hospital; he had not realised before then that Jeffrey Tee was so badly injured, he was focused on getting Hebron out of the scene.

It was put to the witness that his story about Andrew Beng holding back Jeffrey Tee could not be believed as he said nothing about it in his police statement [exhibit D2] – he replied that he did tell the Police this, and he does not know why it is not in his statement.

He denied making up his evidence in order to shift the blame from himself as he was trading illegally in liquor at the time and someone died – it was also suggested that another reason he had for lying was that he had, before the incident in which Jeffrey Tee died, been charged with dangerous driving causing death arising out him running over and killing a man on the highway – the witness agreed that he had been charged over such a death and that the vehicle he was driving belonged to a relative of Jeffrey Tee, but denied that that or his alleged illegal trading had anything to do with his evidence in this trial – his evidence is what he saw: he was only one metre away when he saw Andrew Manga stab Jeffrey Tee. 
	
2	Steven Joel 	Joel Giu’s son 	
Evidence	
He was at Joel Giu’s club on the night of Saturday 22 October, helping Joel, collecting bottles, helping to control the situation – neither he nor Joel was drinking – he was living at Assas at the time and knew Andrew Beng and Hebron Tui Ekil very well – he came to know Andrew Manga in the week before the incident. He correctly identified each of the accused. 

Hebron was dancing with the Engans, one of whom bumped Hebron – Hebron punched the Engan man, so he and Joel tried to hold Hebron and told him to cool down – another Engan man,  the deceased, came in and hit Hebron – Hebron fell, then called out “Kange! I am injured!”

Andrew Beng then came in and held the Engan who had hit Hebron, then Hebron, with a US- style knife, stabbed that man: the deceased, Jeffrey Tee, who ran away somewhere - then he turned around and saw that Hebron stabbed another man – he witnessed the action from only one metre away – at that time the clubhouse was located close to the highway, only about eight metres from it – there was sufficient lighting to see what was happening. 

He (the witness) and Joel Giu took Hebron to the house – another Engan man, Daniel Paul, came and told them that the first man who was stabbed was lying at the side of the bottle shop and was in a bad condition – so Joel Giu got Hebron’s vehicle keys from Hebron and they put the injured man in the vehicle and drove towards Ramu, to get him medical treatment – he died when they half way to Ramu – they took the body to the Apostolic Church then drove on to Ramu to report the death to the Police – they drove back towards Assas but ran out of fuel at Dumpu and stayed there the night. 

In cross-examination he agreed that he was slow to react to the stabbing of Jeffrey Tee but it was his first time to see anything like that happen before him and he was confused – he did not do nothing – he felt he had to step in to stop Hebron, who was getting out of control, he started to kick the Engan man who bumped him – he and Joel had to remove Hebron from the scene – Hebron was his friend and he knows that he can get violent. 

He (the witness) denied that he was lying to protect his father, Joel Giu – he gave his statement to the Police [exhibit D3] – they might have mistakenly not included everything he told them – he definitely saw Andrew Manga stab the deceased – he swung the knife from his shoulder into the side of Jeffrey Tee’s body.
	
3	Daniel Paul 	Engan man, resident of Assas	
Evidence	
He was with other Engan men at Joel Giu’s club on the night of 22 October, socialising, drinking – the Engans had been drinking for a while, since 6.00 pm, then the Hagen men came from across the road at Tui Ekil’s place, where there had been a birthday party in the afternoon. He knows Andrew Beng and Hebron Tui Ekil well, as they had all lived in the local area for many years.

Hebron and Ekip Yambi were drunk and dancing when Ekip accidentally pulled Hebron who fell and got cross – Hebron hit Ekip – Jeffrey Tee came in and punched Hebron – Jeffrey Tee was not in the drinking group, he was a PMV operator and he had been doing mechanical work on his vehicle – he just walked in and saw that Ekip Yambi was being assaulted, so he got involved and punched Hebron – then Andrew Beng came in and held Jeffrey Tee – Andrew Manga pulled out a pocket  knife and stabbed Jeffrey Tee three times – it was a big commotion – he (the witness) started looking for a bush-knife – then he saw Andrew Beng stab another of his Engan friends, Paku Waips. He was only one metre away.  

Then he saw that Jeffrey Tee was in a bad way and he yelled out that he needed a vehicle – Joel Giu found a vehicle and they put Jeffrey Tee on the vehicle and drove towards Ramu but Jeffrey Tee died on the way – Joel Giu drove to Ramu where he reported the incident to the Police – they headed back towards Assas but ran out of fuel at Dumpu.

In cross-examination defence counsel suggested to the witness that his evidence was not credible because if it were true that Andrew Manga stabbed Jeffrey Tee and that Andrew Beng stabbed Waips Paku, the Engans would have retaliated, but they didn’t retaliate, none of the Hagen men were injured, therefore the story that Manga stabbed Jeffrey Tee must be a fabrication – the witness replied that his evidence was true – events happened very quickly, he wanted to attack the Hagen group but he was unarmed and he could not find a bushknife and then they discovered that Jeffrey Tee was badly injured and needed urgent medical treatment.

He denied that Jeffrey Tee was found at 2.00 am – he was found soon after he was stabbed, and he was stabbed at about 11.00 pm – and then the situation was critical as he was near death. He (the witness) is related to Jeffrey Tee. He denied making up stories about what happened – he is giving truthful evidence so that the people responsible for the death of his relative can be punished.  
	
4	Paku Waips 	Deceased’s relative 	
Evidence	
He was staying at Assas at the time of the incident of 22 October 2011 – he was at Joel Giu’s club, drinking beer with other Engan men – then the Hagen men arrived, including the three accused. He correctly identified the accused. 

Hebron Tui Ekil was his friend – he also knew Andrew Beng as he lived locally – he did not know Andrew Manga at that time; he came to know who he was after the incident in which his cousin-brother, Jeffrey Tee, was injured.

The Engan group and the Hagen group were drinking in separate groups – things were peaceful until a fight broke out between one of his Engan wantoks, Ekip Yambi, and Hebron Tui Ekil – Jeffrey Tee came in and saw Hebron punching and kicking Ekip so Jeffrey punched Hebron – Hebron fell and called out to his Hagen friends for assistance – then Andrew Beng held Jeffrey Tee and Andrew Manga stabbed Jeffrey Tee – then he (the witness) threw a beer bottle at Andrew Manga – then Andrew Beng got Andrew Manga’s knife and stabbed him (the witness) in the ribs. He witnessed the stabbing of Jeffrey Tee from a distance of two metres – the lighting was OK and he saw what happened. 

He (the witness) ran towards the road – then Andrew Manga threw a beer bottle at him, hitting him on the chin and Andrew Beng stabbed him again, this time in the buttocks – then the Hagen men threw him (the witness) in the drain and left him for dead – he was badly dazed and blacked out – he regained consciousness some time later, perhaps an hour or so, it was still dark he staggered to his house about 250 metres away – his wantok put him on a truck and rushed him to Walium Health Centre and the next morning he was taken by ambulance to Modilon General Hospital in Madang – he was admitted to the Intensive Care Unit for two days and had a major operation and stayed in hospital for months. 

In cross-examination defence counsel put to the witness that his evidence was fabricated and that he was not present at Joel Giu’s club and that the injury he received was a result of some other incident, as Joel Giu and Steven Joel said nothing in their evidence about his being stabbed and he had not given a statement to the Police about what happened and it is not believable that he would be badly injured but not assisted by any of his wantoks – the witness was adamant that he was present and that he saw Andrew Manga stab Jeffrey Tee and that his story about being stabbed by Andrew Beng was all true – the Police did not visit him in hospital – he received K2,000.00 from the Hagen people as partial compensation and there was a bit of reconciliation – the whole  incident was over in about 15 seconds and the Engans (only seven of them) were outnumbered by the Hagens – he does not know what happened after the first incident in which Jeffrey Tee  was stabbed, as soon after that he was lying unconscious in the drain, having been left for dead by the Hagens and maybe his own people had run away and could not find him.
	
5	Snr Sgt Martin Howley	Police investigating officer 	
Evidence	
At the time of the incident, October 2011, he was OIC of the CID at Ramu Police Station – he investigated the incident and charged the three accused after interviewing them regarding the incident – he was present in Lae at the post-mortem investigation of the body of the deceased.

In cross-examination the witness denied that the three accused surrendered to the Police – he stated that he commenced his investigation soon after other Police had gone to Assas to calm down the situation, which was still tense on Sunday 23 October 2011 – he agreed that he had not searched any of the accuseds’ houses and that he had not found ‘the murder weapon’ – he conducted a crime scene visit soon after the incident but found no blood – he interviewed several eyewitnesses (those who became State witnesses at this trial) – he considers that there was evidence of an intention to kill and that is why he decided to charge the accused with wilful murder – he was not concerned that the witnesses he interviewed might be regarded as ‘not independent’ as they were eyewitnesses who were present in the immediate vicinity of the stabbing of the deceased and in his view they are good witnesses.
	
6	Dr Manna Ario	Post-mortem examiner 	
Evidence	
He examined the body of the deceased at Angau General Hospital, Lae, on 3 November 2011 – he observed multiple lacerations on the body, most seriously in the abdominal area – in his view the wounds were inflicted by a long, sharp object, probably a knife – there was an incision into and out of the stomach and into the liver – the deceased died due to excessive blood loss – there were various wounds of 5 cm to 7 cm in depth – the liver was pierced and a lot of internal bleeding into the abdominal cavity.

Answering questions in cross-examination the doctor stated that there were three major injuries – the major injury was caused by a sharp and long object, which went into the abdomen on the left side and pierced the stomach and liver, a distance of 30 centimetres.

Exhibits 

9.     The following exhibits were tendered by the State and admitted into evidence by consent:

No 	Description	
P1A, P1B	Record of interview, Andrew Beng, 19 Dec 11: he was at Joel Giu’s club between 8.00 pm and 11.30 pm, drinking beer – there was a fight between an Engan man and Hebron Tui Ekil – he stopped the fight and went back to the house he was staying in, at Assas, and went to sleep – he does not know anything about Andrew Manga stabbing anybody – he did not know the deceased. 	
P2A, P2B	Record of interview, Andrew Manga, 19 Dec 11: he was at Joel Giu’s club,  drinking beer – there was a fight between an Engan man and Hebron Tui Ekil – he was not in the immediate vicinity of the fight and did not get involved – he did not stab anybody.	
P3A, P3B	Record of interview, Hebron Tui Ekil,  3 Dec 12: he was at Joel Giu’s club,  drinking beer – he got drunk and fought with an Engan man but his wantoks came in and assisted him and stopped the fight – he knows nothing about anyone stabbing Jeffrey Tee. 	
P4	Affidavit, Dr Manna Ario, 3 Nov 11, annexing post-mortem report re Jeffrey Tee: the cause of death was hypovolaemic shock caused by a lacerated liver; other significant findings were multiple lacerations to the forehead, abdomen and loin, lacerated stomach, pierced right diaphragm. 	
P5	Medical certificate of death re Jeffrey Tee, 3 Nov 11: cause of death was hypovolaemic shock, secondary to lacerated liver.	

Evidence for the defence

Oral testimony

10.     Four witnesses gave evidence for the defence, including the three accused, each of whom gave sworn evidence. 

No	Witness	Description	
1	Hebron Tui Ekil	Third accused	
Evidence	
He went to Joel Giu’s club at about 10.00 pm,  after he completed dropping off people who had attended his son’s birthday party in the afternoon – he already had a few beers before he got to the club – he had one more then Ekip Yambi pushed him over – he felt pain so he got cross and punched Ekip Yambi – Andrew Beng came in and held him, Joel Giu also tried to hold him – then the fight stopped and he walked across the road to his father’s service station and fell asleep on the concrete at the front – he knew nothing about the death of Jeffrey Tee until the next morning – he was taken into Police custody with the assistance of his father.

In cross-examination he denied all knowledge of Jeffrey Tee – he did not live at Assas and did not know him – he did not know about anyone being injured until he was told the next morning – he was not aware that his vehicle had been used to drive the deceased to Ramu – he has been a close neighbour to Joel Giu for many years – he thinks that Joel Giu gave false evidence to get revenge against Andrew Beng, who had chased Joel Giu when Joel killed a Simbu man on the highway (which resulted in Joel being charged with dangerous driving causing death);  also Joel is married to an Engan woman and the vehicle he was driving at the time belonged to an Engan family – he knows Steven Joel but he was not at the club that night. 
	
2	Andrew Beng	First accused	
Evidence	
He was at the birthday party at Tui Ekil’s place in the afternoon – after the party he went with a few others to Joel Giu’s club where he was socialising and drinking with people from Ramonga – at 10.00 pm Hebron came in and bought some beer – the trouble started when Ekip Yangi pushed Hebron, causing Hebron to fall – Hebron was cross and got up and punched Ekip – they fought but he stopped the fight – Ekip was his workmate and he did not want to see the two of them fight – after he stopped the fight, he left the scene – he knows nothing about the death of Jeffrey Tee – he did not know anyone had died until the next morning, when Tui Ekil woke him up and told him – he did not know Jeffrey Tee.

He knows Joel Giu very well – Joel has a grudge against him due to him leading a group of men who were workmates of the Simbu man Joel bumped on the highway, who were angry with Joel over the death.

In cross-examination he stated that no alcohol was consumed at the birthday party, which was attended by many church people – he and his wantoks only started drinking when they went to Joel Giu’s club; though Hebron might have been drinking before he arrived at the club, as he looked as if he had had a few drinks – he was a bit drunk himself and the lighting was not that good – he does not recall Hebron singing out that he needed help – he does not know what Andrew Manga was doing at the time – he was not drinking with Andrew Manga – he was probably present but he did not see him – Joel Giu did not help him stop the fight – Jeffrey Tee did not join the fight – he cannot recall what time it was when the fight took place between Hebron and Ekil – he denied holding Jeffrey Tee, allowing him to be attacked by Andrew Manga. 
	
3	Andrew Manga	Second accused	
Evidence	
He is from Ramonga – he was at the birthday party in the afternoon – he went to Joel Giu’s club around 9.00 to 10.00 pm – he was drinking and telling stories with a youth, Robin Ekil, a cousin of Hebron  – they were outside the club on the lawn – there was a commotion and he realised that there was a fight – he does not know how it started and he was not involved – the fight was stopped soon after it started and he and the youth he was drinking with went back to the house he was staying in and had a few more beers and then he slept – he was not aware that a man had died until the next morning – that is when Tui Ekil told him that he must go to the Ramu police station with the others, as they had been drinking at Joel Giu’s club and that is where the deceased had apparently been attacked – he has no idea how Jeffrey Tee was killed.

In cross-examination he denied all involvement in any attack on Jeffrey Tee – he did not see Hebron at Joel Giu’s club – he knows nothing about the fight, he was six metres away, but he saw nothing and heard nothing – a big crowd was present and there was a lot of noise – he only saw Andrew Beng and four other men from their village – he did not stab Jeffrey Tee.
	
4	Tui Ekil 	Father of third accused	
Evidence	
He established his business at Assas in 2001 and has been there ever since – he has lived in the Ramu area since 1989 – he allowed his place at Assas to be used for the birthday party – the last guests left at about 8.00 pm and he drove in to Ramu town where he has a house and stayed there on the night of Saturday 22 October 2011 – he received a phone call from one of his cousins early on Sunday morning – he was told that there had been a fight between his boys and some Engans and an Engan man was dead – he phoned his boys but they were not aware of what had happened – he heard that the Engans were demanding that his boys be locked up – this put him under pressure as he had a lot of property at stake at both Assas and Ramu – he asked the Police to round up everyone who had been drinking at Joel Giu’s club but the Police said that they only needed three or four so he told Hebron and two of his nephews, Andrew Beng and Andrew Manga, to go to the Police to be locked up, so that the pressure would be cooled off – those three ended up spending one month in custody before being granted bail.

In cross-examination he stated that before the incident there was never any trouble between him and the Engan people who were his neighbours – the incident led to big tension – he agreed that he was not present when the fight took place at Joel Giu’s club and that his understanding of what happened was based on what he had been told by others.

Exhibits 

11.     The following exhibits were tendered by the defence and admitted into evidence by consent:

D1	Statement, Daniel Paul, undated: Andrew Beng grabbed Jeffrey Tee, then Andrew Manga stabbed Jeffrey Tee in the belly and his right leg.  	
D2	Statement, Joel Giu, undated: there was a fight between Hebron Tui Ekil and an Engan man - he pulled Hebron from the crowd and took him to his house – then Daniel reported that Jeffrey Tee had been stabbed, so he went to see what happened and saw that Jeffrey Tee was injured, then he got Hebron’s keys and drove Jeffrey Tee towards Ramu but he died on the way.	
D3	Statement, Steven Joel, undated: there was a fight between Hebron Tui Ekil and an Engan man – he pulled Hebron from the crowd and took him to Joel Giu’s house – then Joel said that and Engan man had been stabbed, so he went to see what happened and saw that Jeffrey Tee was injured, then he helped Joel, who got Hebron’s keys and drove Jeffrey Tee towards Ramu but he died on the way.	
D4	UPNG student transcript, Andrew Manga: indicates that the accused was a student at UPNG from 2009 to 2013.	
D5	Sketch plan, site of incident, Assas: shows that the “old club” which existed at the time of the incident, was close to the highway, while the recently constructed “new club” is further inside Joel Giu’s area, away from the highway.	

Did the second accused kill the deceased?

12.     Having weighed the competing evidence and the submissions of counsel I find that the State has proven beyond reasonable doubt that the second accused killed the deceased by stabbing him, for the following reasons:
(a)	The evidence of the four State eyewitnesses was convincing, credible and consistent.

13.     I have assessed Joel Giu, Steven Joel, Daniel Paul and Waips Paku as witnesses of truth. I was impressed by the demeanour of each of them. They were each subject to vigorous cross-examination. Each was unshaken in his evidence that he observed the following chain of events at Joel Giu’s club:

•	Ekip Yambi, an Engan, who was drunk, accidentally bumped Hebron Ekil, who fell;
•	Hebron Tui Ekil, who was drunk, got up, he was angry, and punched Ekip Yambi;
•	the deceased Jeffrey Tee, an Engan, who had not been drinking, came to the club and saw his wantok in trouble, and he punched Hebron Tui Ekil;
•	Hebron Tui Ekil called for help;
•	Joel Giu and Steven Joel held on to Hebron;
•	Andrew Beng and Andrew Manga entered the scene;
•	Beng held Jeffrey Tee around his waist, and allowed Andrew Manga, who possessed a knife, stabbed Jeffrey Tee three times.

14.     I accept that evidence and make findings of fact accordingly. I also accept the evidence of Joel Giu, Steven Joel and Daniel Paul about how they came to remove Hebron Tui Ekil from the scene and then to come to the aid of Jeffrey Tee and to drive him towards Ramu for medical treatment.

15.      I accept the evidence of Waips Paku about him being stabbed by Andrew Beng. Waips Paku was a very impressive witness. 

16.     I reject Mr Meten’s submission that the State witnesses’ version of events was too difficult to believe as they said that they stood by and did nothing to assist the man who was stabbed. I thought each gave a plausible explanation of why they did not immediately go to the assistance of Jeffrey Tee. It is not correct that they did nothing.  Each did something tangible under great stress on the spur of the moment. 

17.     I was not convinced by Mr Meten’s argument about major inconsistencies between the evidence of the State witnesses arising from the details they gave of how Andrew Manga stabbed Jeffrey Tee. It was a dramatic event. It is understandable that exact details of what happened could not be recalled. The witnesses were observing the event from different angles.

18.     I was unimpressed by the alleged inconsistencies between the oral evidence of Joel Giu, Steven Joel and Daniel Paul and their police statements. Far greater weight should be placed on a witness’s sworn testimony than what the police investigator has recorded the witness as having said in the course of an investigation. 

19.     Mr Meten argued that the State unfairly introduced Waips Paku as a witness as no statement by him was included in the District Court depositions. I am not convinced. No successful objection was made to his giving evidence, and every opportunity was given to the defence to cross-examine him. He was cross-examined strongly and he remained a good witness. I reiterate he was a very impressive witness.

20.     I reject Mr Meten’s submission that the State witness’s evidence was unsatisfactory and that other Engan men who were present, in particular Ekip Yambi, should have been called. It was desirable that Ekip Yambi be called, but not necessary as the evidence that was presented was strong and sufficient.

21.     Mr Meten suggested that the police investigation was poor but this proposition was not squarely put to Senior Sergeant Howley and in any event it lacks merit. The State presented four eyewitnesses to a stabbing that happened within a few metres of each of them. The police investigation was adequate. Mr Meten also criticised the police for not presenting any physical evidence such as the alleged murder weapon or photos of the crime scene or the deceased’s clothes. These are fair points. Yes, the police investigation could have been more thorough, but this is a criminal trial, not an assessment on the thoroughness of a criminal investigation. The focus must be on the evidence and whether it supports the State’s case beyond reasonable doubt. It does. 

(b)	No clear motive for the State witnesses giving false testimony was established 

22.     Mr Meten put to each of the four eyewitnesses that he was lying but failed to convince me that in fact any of them had a motive for lying. It was relevant that Joel Giu had been charged over a motor vehicle incident in which he allegedly while driving a vehicle, hit and killed a Simbu man who was a workmate of Andrew Beng. But Joel Giu was not convicted and there was no evidence of animosity of Joel Giu to any of the accused over this incident. The proposition that he would give false testimony to get back at Andrew Beng who apparently was instrumental in getting Joel Giu arrested was a weak one. I reiterate that the four State eyewitnesses were convincing and credible witnesses. They were present and saw what happened.  

(c)	Medical evidence consistent with the State’s case.

23.     The evidence of Dr Ario and the post-mortem report are consistent with the State’s case that the deceased was stabbed several times and suffered a fatal wound in the area or the stomach and liver, which caused excessive blood loss and internal bleeding. 

(d)	Evidence of the accused was not convincing and was uncorroborated.

24.     None of the accused was a convincing witness. Their demeanour was poor. They were over-keen to distance themselves from involvement in or knowledge of stabbing of the deceased. Given the strength of the evidence of the State eyewitnesses, their evidence had to be credible, so as to cast doubt on the State’s evidence. It was not credible. Andrew Manga was particularly unimpressive. He said that he was six metres away when there was apparently a fight between his cousin-brother, Hebron Ekil, and another man, yet he did not see what happened or hear anything in particular and did not get involved. That evidence is too incredible to believe.

25.     While the accused did not bear any obligation at all to prove their innocence, it must be observed that their evidence was uncorroborated. It is accepted that other men from their village were present. Surely those other men saw what happened. If, in fact, what happened was what the accused say happened – that they have no knowledge of how Jeffrey Tee was killed, and that neither Andrew Beng nor Andrew Manga had any involvement – those other men would come forward and give evidence. None gave evidence, leaving the unconvincing evidence of the three accused uncorroborated. 

(e)	State’s theory of the case is sound

26.     I uphold the submission of Senior State Prosecutor, Mr Popeu, as to the theory of the State’s case: there was only one fight, during the course of which Andrew Manga stabbed the deceased, killing him. There were four eyewitnesses. Their identification of Andrew Manga was clear and strong. The lighting was sufficient. The eyewitnesses were in close proximity to the event. The medical evidence was consistent with their evidence. 
27.      I find that the State has proven beyond reasonable doubt that Andrew Manga directly killed the deceased. The first element of wilful murder is proven.  
2	WAS THE KILLING OF THE DECEASED UNLAWFUL?

28.     Section 289 of the Criminal Code (homicide) states:

It is unlawful to kill a person unless the killing is authorised or justified or excused by law.

29.     The second accused did not rely on any specific excusatory defence such as accident, compulsion, insanity, provocation or self-defence. His killing of the deceased is therefore not authorised, justified or excused by law and is deemed by force of Section 289 of the Criminal Code to have been unlawful. The second element is proven beyond reasonable doubt.

3 	DID THE SECOND ACCUSED INTEND TO CAUSE THE DEATH OF THE DECEASED?

30.     It is at this point of a wilful murder trial that the Court is required to consider the accused’s state of mind:

•	Did he intend to kill the deceased? If yes, the third element of wilful murder is proven and the accused will be guilty as charged (eg The State v Moses Nasres (2008) N3302).

•	If he did not intend to kill, did he intend to inflict grievous bodily harm or did one of the other circumstances prescribed by Section 300(1) of the Criminal Code apply? If yes, the accused will be convicted of murder, not wilful murder (eg The State v David Yakuye Daniel (2005) N2869; The State v Ephraim Ria Boa (2008) N3436; The State v Abaya Ulas (2010) N4009). If no, the accused will be guilty of manslaughter, not wilful murder or murder (eg The State v Paul Gambu Laore & 11 Others (2007) N5026; The State v Melchior Kapus (2010) N4114; The State v Jenny Dei (2011) N4231, The State v Sapik Tommy (2014) N5575).

31.     It is an accused’s state of mind at the time that he committed the act of killing that is critical. In assessing the state of mind at that time, evidence of his conduct (a) before, (b) at the time of, and (c) subsequent to, the act of killing, can be considered (Fei Stanley v The State (2006) SC1324, The State v Raphael Kuanande [1994] PNGLR 512). 

32.     Here, I find nothing in the conduct of Andrew Manga before he stabbed the deceased that he had a premeditated intention to kill him. Likewise there is nothing in the conduct of Andrew Manga after the stabbing that supports the contention that he had an intention to kill. I find that this was a spur of the moment attack by a drunken man, upon an innocent man who had entered an area in which a drunken fight had erupted. However, on the spur of the moment, Andrew Manga stabbed the deceased with such viciousness and intensity, not once but at least three times, that the only reasonable conclusion can be that he intended to kill the deceased. I find that the State has proven beyond reasonable doubt that Andrew Manga intended to kill the deceased. 

4 	IS THE SECOND ACCUSED GUILTY OF WILFUL MURDER?

33.    Yes, as all elements of the offence have been proven beyond reasonable doubt. 

5	ARE THE FIRST OR THIRD ACCUSED GUILTY OF ANY OFFENCE?

34.      The criminal liability of the other accused must now be considered in the light of Section 7(1) of the Criminal Code:

	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.

35.     As to the first accused, Andrew Beng, the State has presented a strong case that he was actively involved in the killing of the deceased. I find it proven that Andrew Beng held on to the deceased and that this allowed Andrew Manga to stab the deceased. There is also evidence that Andrew Beng stabbed Paku Waips (but Andrew Beng is not charged over his attack on Paku Waips). However, it has not been proven beyond reasonable doubt that Andrew Beng assisted Andrew Manga with the intention of killing the deceased. I find Andrew Beng not guilty.

36.     As to Hebron Tui Ekil, there is evidence that he started the fight that led to the altercation in which Andrew Manga stabbed the deceased. I have rejected much of Hebron Tui Ekil’s evidence. He was not a witness of truth. However, I accept the evidence of the State witnesses, in particular Joel Giu and Steven Joel, that they removed Hebron Tui Ekil from the scene and he took no active part in the attack on the deceased. I find that Hebron Tui Ekil did not aid or assist Andrew Manga in killing the deceased. Hebron Tui Ekil is not guilty. 

VERDICTS

37.     Verdicts for Andrew Beng, Andrew Manga and Hebron Tui Ekil, having each been indicted on a charge of wilful murder under Section 299(1) of the Criminal Code, are entered as follows:

1.	Andrew Beng: not guilty of any offence;
2.	Andrew Manga: guilty of wilful murder, as charged;
3.	Hebron Tui Ekil: not guilty of any offence. 

Verdicts accordingly.

____________________________________________________________
Public Prosecutor: Lawyer for the State		
Meten Lawyers:  Lawyers for the Accused