N7298

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1163, 1164, 1165 OF 2014

THE STATE

V

MARKINGTON HAYABA

AND
GIBS KAVANINGA

AND
DOI KIOPI

Popondetta: Koeget, AJ
2017:13th, 14th, 15th, 16th June, 19th & 25th July.

CRIMINAL LAW - Indictable offence – Murder pursuant to section 300 of the Criminal Code Act chapter 262 – Conviction after trial – Maximum sentence – Discretion under section 19 of Criminal Code Act.

CRIMINAL LAW – EVIDENCE -	identification of accused at the crime scene, accuseds was known to the witnesses prior to commission of offence – good moon light when identification of accused made.

Facts

On 3rd of October 2012, the deceased and his family members camped at their garden place near Tahama village, Afore District in the Northern Province.  The family built a hut as a shelter and between 9 o’clock and 11 o’clock at night, as they were about to sleep, they heard a sound of fire cracker and someone said “this is a hold-up” so the other family members fled leaving the deceased behind as he was fast asleep.

The three men armed with bush knives surrounded the hut and attacked the deceased in his sleep.  The deceased tried to escape but the armed men continued to attack him with bush knives.

He sustained severe knife wounds to his body and was unable to move.  The villagers arrived at the scene that night and carried the deceased to the village on a stretcher.

The State alleged that those persons that attacked the deceased on the night of 3rd of October, 2012 were Markington Hayaba, Gibs Kavaninga and Doi Kiopi and that they acted in concert when wounds were inflicted on the deceased.  So the State invoked section 7 of the Criminal Code Act.

Case cited:

The State v Paul Kundi Rape [1976] PNGLR 96
The State v Roka Pep (No2) N407

Counsel:	

 L. Toke, for the State
 E. Yavisa and C. Namono, for the Accused

25th July, 2017

1.	KOEGET, AJ: INTRODUCTION. The accused and two others are charged with one count of Murder pursuant to section 300 of the Criminal Code Act.  

Evidence of State Witnesses

2.	A trial proceeded and State called its witness to testify in the trial of the three accuseds.  

Witness 1 – Adrian Mambare (Sworn)

3.	He is an adult villager from Tahama village in the Afore District of the Northern Province and is married with four young children.  The family reside in the village.

4.	He knows the accused Markington Hayaba as they married sisters.  The accused Markington Hayaba married the older sister and he married the younger sister and her name is Ones Mambare.

5.	The accused Markington Hayaba is from Bua village located several kilometres from Tahama village but he lived most of his married life at Tahama village in the witness’s house and he is regarded as a family member.

6.	On 3rd of October 2012, he was at the garden with his wife and children and later in the afternoon retired to a hut he built for the family to sleep near the garden.  The deceased Gideon Mambare is his younger brother.  He too was in his garden with his wife and children during the day but in the afternoon all retired to spend the night in the same hut he built near their gardens.

7.	At night all had their dinner and prayed and as they were ready to sleep, a noise of a fire cracker was heard nearby so he stood up and heard someone say:  “this is a hold-up”.  He saw two persons come to the hut and as he walked out of that hut, he met Markington Hayaba who was very close to him and it was a very good and clear moon light so he was able to identify him clearly.  The accused did not utter any words to him as he walked past him so he ran to the village to seek assistance from the villagers. The distance between the garden hut and Tahama village is approximately 7-8 kilometres.  He informed the villagers and returned with able men to the garden hut.  When he arrived at the garden hut, he noticed the injuries on the deceased’s body. There were three deep wounds (cuts) on the back of deceased’s back shoulder and one deep wound from the back of the heard over the temple region extending towards the forehead.  The deceased died before he returned to the garden hut with men from the village.

8.	A search was conducted around the hut and where the deceased laid and a bush knife belonging to Markington Hayaba was found.  The distinct feature of the bush was that the tip was broken and the accused normally carried that bush knife whenever he went gardening or hunting.  The bush knife was later given to the policeman when the incident was reported to them.

Witness 2 – Ones Mambare (Sworn)

9.	She is an adult female from Tahama village in the Afore District of the Northern Province.  She is married to Adrian Mambare also of Tahama village and both have young children, none of them in school.

10.	On 3rd October 2013, during the day she worked in the garden with her husband and in the afternoon retired to the bush hut built by the husband for the family to spend the night.
11.	She saw the deceased Gideon Mambare come to the same bush hut with his wife and children to spend the night.  The deceased Gideon Mambare is the younger brother of her husband Adrian Mambare.

12.	The families in the hut had dinner and prayed then shortly thereafter heard a sound of a fire cracker.  She was shocked so went and stood outside the hut.  She saw the accused Markington Hayaba come close to her and he flashed a torch into her face.  She was frighten so ran after her husband but turned back because her daughter was calling her name.  She did not return to the hut but hide in the nearby tall grass and watched the men attack the deceased as he laid in the hut.
She waited in the grass until her husband returned with men from Tahama village.  A search was conducted at the scene where the deceased’s body laid and a bush knife was found, about 3 feet away from where the deceased’s body laid under the hut.  The bush knife’s tip was broken and it was blunt and she identified the knife as belonging to the accused Markington Hayaba.  The accused carried that bush knife wherever he went in the village or in the garden.  She told the people gathered at the garden hut that the bush knife found near the deceased’s body belongs to the accused.  She saw there were five deep wounds on the body of the deceased.  The wounds were seen on left shoulder blade, the head (temple region), left hand side of head above left ear lobe, at the back extending from spine towards left hand and at the back of the body.

13.	She saw the other two men in the company of Markington Hayaba at the crime scene but did not recognise them because they were strangers and she had not seen them before the incident. 

14.	At the end of the State’s case, counsels for the accuseds made a No Case to Answer Submission.  There were two prong submissions, first that there were no evidence connecting the accuseds Gibs Kavaninga and Doi Kiopi to the crime of murder.  In other words, although there were three persons at the scene when the deceased was attacked with bush knives, only Markington Hayaba was identified at the scene, but Gibs Kavaninga and Doi Kiopi were not identified by any of the State witnesses.

15.	The second submission was that although there were some evidence of identification of Makington Hayaba at the scene when deceased was attacked with a bush knife, the evidence was unreliable because it was dark and difficult to properly identify him in the moon light.

16.	The court ruled that there was no evidence of identification of the accuseds Gibs Kavaninga and Doi Kiopi at the scene in company of Markington Hayaba.   There was absolutely no evidence that they were the ones that attacked the deceased with bush knives that night when Markington Hayaba stood and watched.  So the accuseds Gibs Kavaninga and Doi Kiopi had no case to answer. They are discharged from the indictment.  

17.	However, the accused Markingto Hayaba had a case to answer and so the trial continued.

18.	The accused gave sworn evidence in the trial and he admitted that on the afternoon of 3rd October 2012, he was at his village playing soccer at the primary school premises.  When the soccer game finished, he went with Gibs Kavaninga and Doi Kiopi to the location in the bush where he hide his betel nuts and took them to the village and sold them at the market.

19.	He remain with his wife and children whole night in the village in his house and did not go out.  He denied being with Gibs Kavaninga and Doi Kiopi that night.  He denied being at the scene when the deceased was attacked by two men with bush knives.  

Analysis of the evidence in the trial

20.	The State witness Adrian Mambare stated that he and the accused married sisters so the accused practically lived with him and family for 1-3 years in his village, make gardens and live in his house.  He regarded him as a brother.

21.	On the night of 3rd October 2012, as he jumped down from the platform to the ground after hearing a shot, he saw Markington Hayaba standing very close to him.  The accused did not utter anything to him.  He recognised him in the moon light as it was a good moon light.  He saw the other two men go to where his brother slept.  He did not know what happened as he fled to the village to get assistance from the villagers.

22.	When he returned to the scene that night with some villagers, his younger brother was badly injured and the attackers had left.

23.	The second witness for the State was Ones Mambare and she is the sister of the accused’s wife.   She recognised her brother in-law arrive at the scene with two other men.  The accused stood few meters away while the deceased was attacked by two men with bush knives.  The accused Markington Hayaba flashed a torch into her face before she fled and ran after her husband.

24.	There were no grudges against the accused prior to 3rd October 2012, as they lived happily as one family unit.  She hid some meters in the grass and watched as the two men attacked the deceased with bush knives.

25.	The accused gave sworn evidence and denied any involvement in the killing of the deceased as he was in the village with his wife and children.  He did not state in evidence that the State witnesses are lying about sighting him at the crime scene with two other persons.

26.	The accused remained silent during the record of interview with the police but in court he gave evidence, merely denying that he was not at the crime scene when the deceased was attacked with bush knives.

27.	The State witness Ones Mambare gave evidence of sighting accused Markington Hayaba at the scene.   She ran few meters and hid in the tall grass and watched the men attack the deceased. 

28.	The two men arrived at the scene in company of the accused.  The deceased was attacked by the two men whilst the accused stood and watched.  She maintain that accused stood and did not participate in attacking the deceased with the bush knife he carried that night.

29.	The State witnesses evidence is credible and can be believed.  

30.	The witness Ones Mambare had no reasons to give false evidence against the accused in the trial, as the accused married her biological sister and they lived happily at Tahama village for many years prior to the 3rd October, 2012.

31.	The State witness Adrian Mambare had no reasons to give false evidence in court against the accused as he had no grudges against him as well.  They lived happily and he regarded the accused as a brother and a family member.

Findings of Court

32.	Evidence of identification of the assailants.

33.	There is good evidence about identification of accused at the crime scene because he is known to the State witnesses and it was a good moon light so the accused was properly identified by the State witnesses.  The State witness Ones Mambare identified the accused when he flashed a torch into her face.

34.	Although, the accused merely stood and watched the two men attack the deceased, he was in company of them.   He did nothing to prevent them from assaulting the deceased with a bush knife so his presence at the crime scene was no innocent.  His presence encouraged the two men to attack the deceased with the bush knives and inflicted severe injuries from which he died.

35.	The State invoked section 7 of the Criminal Code Act and so the accused is found guilty as a principal offender by operation of that section.

VERDICT

36.	The accused is found guilty of the murder of Gideon Mambare on the night of 3rd of October 2012.

SENTENCE

Personal Particulars
37.	The prisoner is 39 years of age and is married with 7 children.  All the children are in the village with their mother.  None of them are in school.

38.	His parents are deceased and he is the first born in the family of four siblings. He is a subsistence gardener and resided in Bua village at the time of the offence.

AGGRAVATING FACTORS

39.	The offence was committed at night when the family members were about to sleep.  It was a vicious attack on an unarmed person and weapons were used.  The deceased was asleep when attacked by the men with bush knives.

40.	Such offence is prevalent in the country and deterrent sentence must be imposed to deter would-be-offenders in the future.

MITIGATING FACTORS

41.	The prisoner is remorseful and has been in custody awaiting disposal of the case for four years.

42.	The maximum sentence for such an offence under section 300 of the Criminal Code Act is imprisonment for life.

43.	In this case the court has discretion under section 19 of the Criminal Code Act to impose a lesser sentence.

44.	The Supreme Court has in recent times set out the guide lines regarding sentences for such offence in the case of Manu Kovi –v- The State (2005) SC 789.

45.	The suggested tariff in that case for such an offence is sentence ranging from 12 to 20 years. The defence counsel submitted the prisoner did not participate in the attack of the deceased.  He stood and watched so a lesser sentence than suggested in Manu Kovi’s case should be imposed.

46.	I don’t agree with this submission because the prisoner is an adult person married with children.  The prisoner and two other persons planned and executed it resulting in the death of the deceased.

47.	The prisoner went along with two others and he stood and watched when the deceased was attacked in his sleep by the two of them.  His presence is willed and gave encouragement to the attackers to commit the offence.  So by virtue of 7 of the Code he is regarded as a “principal offender”.

48.	He is sentenced to be imprisoned for 20 years in Hard Labour.  The pre-trial custodial period of 4 years is deducted.  He is to serve the balance at Biru Corrective Institution Services.

__________________________________________________________________
Public Prosecutor: Lawyer for State
Public Solicitor: Lawyer of Accused