N7619
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1196, 1197, 1198, 1199, 1200, 1201 OF 2014

THE STATE

V

PATRICK SUMAI, BULU SUMAI, AUPIN SUMAI, JUSTIN YAKI WANJERI, RUBEN IMUS, JOSEPH JARANGU KWABEGI 
(No. 1)

Wewak:  Geita J 
2016: 6, 7, 11, 18, 19, 20 July; 19 October
2017:	9 August

CRIMINAL LAW – Trial – Wilful Murder – Failure to call defence alibi evidence or give notice of alibi likely to cast serious doubts on defence evidence and strengthen State’s case. 
CRIMINAL LAW – Trial – Wilful Murder - Failure not to include Interpretation Clause in Police Statement not fatal and easily corrected during oral evidence.  
CRIMINAL LAW - Wilful Murder – Section 299 (1) Criminal Code – Alternative verdict under section 539 (1) Criminal Code considered but not applied in the circumstances.  
CRIMINAL LAW - Wilful Murder – Section 299 (1) Criminal Code – All Elements successfully made out - Guilty verdict returned on all six accused. 

Cases Cited:
John Jaminan v State (No 2) [1983] 318
State v Bosco [2004] N2777
Counsel:
Mr. Paul Tusais, for the State 
Mr. John Alman, for the Accused

JUDGMENT ON VERDICT
9 August, 2017 

1.	GEITA J: 	The six accused persons were each and severally indictment on charges that they acted in concert in the murder of  one Christopher Hombimori on the morning of 12 May 2014 at Yamiyanda village in Wewak. The charge was laid pursuant to Section 299 of the Criminal Code, Chapter Number 262. On arraignment they all pleaded not guilty to the charge. 
Evidence for the Prosecution

2.	The State relied on four oral testimonies supported by six documentary evidence marked as exhibits 1 to 6, including a physical object marked exhibit 7. 
3.	The following materials were tended into Court by consent viz:
•	EXHIBIT “1” – Affidavit by Dr. Jimmy Kambo 28/5/14
•	EXHIBIT “2” – Medical Report by Dr Kambo 28/5/14
•	EXHIBIT "3” -  Coloured photos of deceased (3) 
•	EXHIBIT "4” (1) (a/b) – ROI Patrick Sumai (Pidgin & English).
•	EXHIBIT "4” (2) (a/b) -  ROI Bulu Sumai (Pidgin & English) 
•	EXHIBIT "4” (3) (a/b) -  ROI Aupin Sumai (Pidgin & English) 
•	EXHIBIT "4” (4) (a/b) – ROI Justin Yaki Wanjeri (Pidgin & English).
•	EXHIBIT "4” (5) (a/b) -  ROI Joseph Jarangu Kwabegi (Pidgin & English) 
•	EXHIBIT "4” (6) (a/b) -  ROI Ruben Imus (Pidgin & English) 
•	EXHIBIT "5”-   Police Statement for Augustine Marimri.
•	EXHIBIT "6”-   Police Statement for Annemarie Marimri.

Evidence - Theo Hombimori
4.	The deceased’s brother Theo Hombimori testified of seeing all six men chasing his brother on that fatal day as he and his wife were on their way to their garden. As his brother ran past them, covered in blood he saw accused Joseph Jarangu Kwabegi armed with a meter long bush knife in hot pursuit. He was closely followed by Ruben Imus, armed with a bush knife and an axe, followed by Patrick Sumai armed with a meter long bush knife and spear knife, followed by Bulu Sumai armed with a meter long bush knife and fishing gun, followed by Aupin Sumai armed with a meter long bush knife and spear knife, and Justin Yaki Wanjeri also armed with a meter long bush knife.
5.	The witness said he heard Joseph Jarangu Kwabegi call out to the deceased that he would catch up with him at his house and kill him. He said as he followed the attackers to his brother’s house, he saw Joseph Jarangu Kwabegi pull the deceased out of his house and smash his head with the handle of a wheel burrow. The six accused began to assault the victim as he tried to escape to his kitchen. The witness said he tried to protect his brother from his attackers but he was outnumbered as they came from all sides and assaulted the deceased. He said he could not assist his brother in fear of him being assaulted also. He said accused Ruben Imus came and cut the deceased’s fingers.
6.	He said as the deceased pleaded for mercy he called out to the six men to stop attacking his brother, saying he was a child of God. Joseph Jarangu Kwabegi responded by saying that he can now take his brother away. 
7.	As the witness assisted his brother onto a stump of a coconut tree Joseph Jarangu Kwabegi threatened to assault him further with the deceased further pleading for mercy and reminded him of his relationship with him as his in-law making reference to his wife Paula, the deceased’s sister. The witness said Joseph Jarangu Kwabegi began accusing the victim for pretending to be insane and acting smart. He accused the victim of having sex with his elder brother’s wife and to eat his mother’s vagina.   
8.	The witness said as Joseph Jarangu Kwabegi attempted to assault the victim for the third time Augustine Marimri intervened and told Joseph to stop. He said the six men all sat at a distance and began hurling abuses and mocking the deceased. Accused Bulu Sumai approached him and tied both his hands to his back with a bush vine. Accused Justin Yaki Wanjeri walked up to the victim and kicked him in the face.
9.	The witness said the victim’s s wife came along, comforted her husband and cleaned his wound when he died in her hands.
Re – Examinations
10.	During re-examination the witness said he had no grudges with all six men and they were all known to him personally and come from the same community. He said Emmanuel Kwabegi and Joseph Jarangu Kwabegi were brothers and he is their brother in law. The witness said the three (3) Sumai boys were from Maprik but grew up in the Suambukau Ward community and live within Joseph Jarangu Kwabegi’s hamlet.
Cross-examinations
11.	In cross examination the witness categorically denied that he was also a party to the attack. When suggested to him that all five accused men were not with Joseph Jarangu Kwabegi during the attack the witness maintained that they were all present and took part in the attack of the deceased resulting in his death.
Evidence – Augustine Marimri
12.	Witness Augustine Marimri gave testimony of meeting accused Justin Yaki Wanjeri at the road junction leading to the victim’s house, armed with a meter long bush knife and shouting in pidgin “ You go I will come and kill you, just because I am a sick man you are playing up wïth me.” As he and his wife stood there dumfounded Leo Kwabegi appeared and told them that Joseph Jarangu Kwabegi’s house was burnt by the victim and so Ruben, Aupin, Bulu, Patrick, Justin  and Joseph, all armed were chasing him. The married couple followed their bush track trail with blood stains and ended up at the deceased’s house. They saw the victim wounded and lying down covered in blood with his brother Theo Hombimori standing next to him. I saw Joseph Jarangu Kwabegi attempt to hit the victim with the handle of the wheel burrow but I stopped him from hitting the victim.
13.	The witness said as he looked around he saw Ruben Imus armed with a meter long bush knife and an axe, Justin Yaki Wanjeri was armed with a meter long bush knife, Patrick Sumai was armed with a bush knife and spear knife, Bulu Sumai was armed with his fishing gun and bush knife, Aupin Sumai was armed with a bush knife and spear knife and Joseph Jarangu Kwabegi also armed with a bush knife and the handle of a wheel burrow.
14.	The witness said as they assisted the victim to a shady area Justin Yaki Wanjeri came along and kicked him in the face causing him to fall down. As he lay on the ground helpless Justin hurled abuses and ridiculed him in Tok Pisin: “You play up with other people but not with us from Maprik and Waiwaya, you are going to die.” 
15.	He said accused Bulu Sumai then tied the victim’s hands to his back and also ridiculed him saying that they will come back and kill him after assessing the damage done to the house. As the victim lay in pain the men sat at a distance and hurled abuses at him and ridiculed him for pretending to be insane.
16.	The witness said after much convincing him and his wife walked Joseph Jarangu Kwabegi and the rest of the accused to their hamlet. Upon returning to the deceased’s house, his sister told him that the deceased had died. He then undertook to relay the news to Joseph Jarangu Kwabegi and his family. 
17.	During examination in chief he maintained that during the attack, no attempts were made by any of the men to withdraw or stop each other from assaulting the deceased except him.
Cross-examinations
18.	When suggested to the witness that none of the accused were at the crime scene, he maintained that they were all there and took part in the assault. The witness said they were all armed with weapons and after the fight he and his wife accompanied them to their hamlet to prevent further assaults.  
Witness – Annemarie Marimri
19.	Witness Annemarie Marimri gave testimony of meeting accused Justin Yaki Wanjeri at the road junction leading to the deceased’s house, after stopping over briefly at Emmanuel Kwabegi’s house to see Clerah Hombimori. Clerah and her daughter had gone there to seek refuge away from her husband the deceased. Justin was armed with a meter long bush knife and as he came close to her he told her that the victim had set his house on fire and he was out to kill him. 
20.	He was soon followed by Leo Kwabegi who told her to go and stop Joseph as his earlier attempts to stop him were met with a bush knife attack in retaliation. The witness said as they arrived at the scene the victim was badly wounded with blood all over his body and her husband joined in to stop the assault with Theo Hombimori, the victim’s brother. She ran to Emmanuel Kwabegi’s house and returned with the victim’s wife who hid behind some trees but was assured by Joseph Jarangu Kwabegi that the womenfolk and children need not fear as the fight was not aimed at them. With that assurance the victim’s wife attended to her wounded husband and cleaned him up.
21.	She went up to her brother, the accused Ruben Imus and was given a betel nut to chew. He was armed with a bush knife and carried his axe on his shoulders. The witness questioned him why he joined in the assault as he would also be blamed for the attack. As she turned around she saw the three Sumai brothers all armed with weapons: bush knives, spear gun and spear knife, all with blood stains on them. Justin Yaki Wanjeri likewise was armed with his blood stained bush knife.
22.	The witness’s attempts to convince Joseph Jarangu Kwabegi and his men to return to their hamlet fell on deaf years. She cautioned Joseph of getting into further trouble should death occur and what would become of his family? She said Joseph went on and hit the victim on his head with a wheel burrow handle as he pleaded with him to stop, saying he would repay the damaged roofing irons. He kicked the victim on his side and hurled abusive words at him at the same time: “You eat your mother’s vagina”. As the attackers were getting ready to return to their place accused Bulu Sumai tied the deceased’s both hands behind his back.
23.	 During examination in chief the witness said all accused were known to her as they all lived in the same community. Joseph was his blood brother. She maintained that she had no grudges against all accused persons.
Cross examination
24.	In cross examination when suggested to her that none of the six men were at the victim’s place, the witness maintained that they were all present and she was telling the truth. When further put to the witness that no damage was done to the deceased’s house/property because they were never there, the witness reiterated that all six men were there and her and her husband accompanied them back to their hamlet after the attack.
Evidence – Clerah Hombimori
25.	Witness Clerah Hombimori was a late comer to the crime scene after being alerted by Annemarie Augustine that her husband was in a fight. She came and hid behind some trees in fear and later attended to her now badly wounded husband after assurance by Joseph Jarangu Kwabegi that she had nothing to fear as they were only interested in her husband. The witness identified and named all six accused persons armed with dangerous weapons all stained with blood in their hands. Joseph was also armed with a wheel burrow handle. She returned to their house and came with a shirt to clean her husband and cut the ropes from his hands. She described the husband as washed in blood or “waswas long blut”and his body “bagarap nogut tru”. The witness indicated to court seeing spear and knife wounds from the victim’s feet up to his head. She described her husband’s head wounds as mushy or like a swamp. Augustine Marimri and his wife offered to take them back to their house but Joseph Jarangu Kwabegi refused his requests, she said.
Cross examinations
26.	In cross examinations the witness agreed that she did not see who did what to the victim but she saw all six men at the crime scene armed with weapons. When questioned why she left her house and camped at Emmanuel’s house the witness said they were chased out from their house earlier in the day by the accused who was sick in the head. (longlong).
Close of State’s Case	 
27.	At the close of State’s case due to the unavailability of the Informant Defence Counsel applied to have that witnessed called and cross-examined. Having satisfied myself with both Lawyers on questions of procedure in this instance both Lawyers assured me that all was in order and no prejudice caused to anyone. This witness has given testimony and has been cross-examined. The informant deposed of collecting evidence from witness in pidgin and reducing them into writing in English, now evidence before the Court. The wheel burrow handle was also tendered into court and marked as exhibit No. 7. No objections were received to its tender.
Defence case
Evidence – Joseph Jarangu Kwabegi

28.	Joseph Jarangu Kwabegi gave testimony of accompanying his wife Paula to make sago at the swamp around 8 am on 12 May 2014. Upon realising that the sago making strainer was left behind, Paula returned home to collect it. Upon noticing their house on fire Paula raised the alarm and her husband rushed to her aid unarmed. He said the deceased escaped as soon as he saw him coming and he followed him. 
The witness said he called out to the deceased’s brother Theo Hombimori of what had happened to his house. Theo attempted to prevent the deceased from escaping and rebuked him for causing disharmony within the family, including burning their Uncle’s house.  He said he met Patrick Sumai on the road and told him that Theo Hombimori had taken his brother away and so he was returning to his house. Both men returned home and met Patrick Sumai, Ruben Imus and Justin Yaki Wanjeri.
The witness said he lost two permanent buildings, whilst his brother and sister also lost their buildings during the fire. He said around 4 p.m that afternoon Committee member John Mike brought news that Christopher Hombimori had died, adding that he died elsewhere and not in their company. 

29.	In examination in chief the witness denied hitting the deceased with the handle of a wheel burrow and categorically denied that he was at Yamiyanda village, the crime scene.

30.	In cross examination he admitted that he lost equipment and property worth more than K20,000.00. Despite the loss of equipment and property the accused maintained that he harboured no grudges or anger towards the deceased. He admitted that the deceased was related to him through marriage as brother in law. Augustine Marimri likewise was related to him as his uncle. When questioned why his brother in law and uncle would come and testify against him, he said they were all telling lies and his story was to be believed. During aggressive cross examination for the witness to suggest reasons for his close relatives telling lies to Court, he offered no suggestions but maintained that his version of events was the correct version and should be believed over any evidence given by state witnesses, including those given by his sister Annemarie Mirimri and Clerah Hombimori (his tambu meri). He said Annemarie and Clerah told lies to court under oath.

Evidence – Patrick Sumai

31.	Patrick Sumai gave testimony of recalling what happened on the day the houses got burnt down. (12 May 2014). He was in the garden with his son when told about Joseph’s house being burnt down by his wife, with Joseph chasing after him. He walked on and met Joseph in between the sago patches but was told to return home as he had just tied up the hands and legs of the culprit.

32.	In examination in chief the witness denied all suggestion of being seeing at the crime scene and said all state witnesses told lies to Court and that his version of events was to be believed.

33.	During aggressive cross examinations the witness admitted growing up in Suambukau area but denied knowing state witnesses Theo Hombimori and  his brother Christopher Hombimori, Augustine Marimri and his wife Annemarie Marimri and the deceased’s wife Clerah Hombimori. The witness denied seeing any of the State witnesses on 12 May 2014. The witness maintained throughout that his version of events was to be believed and that all state witnesses were not witnesses of truth. 

Evidence – Aupin Sumai

34.       Aupin Sumai’s testimony relates to being at home with his wife on the day in question. Upon hearing noise coming from the village they went along and saw Joseph’s house guttered with fire. He denied any knowledge of the incident of death. He maintained that all five accused persons were at the scene of the fire. He denied all suggestion of being seeing at the crime scene by three (3) state witnesses and said they were all telling lies to Court. 

35.	In cross examination the witness said Patrick Sumai was seen at Joseph’s house and later returned to his house. When suggested to him that one of them wasn’t telling the truth he said his version was the correct one. In spite of knowing most State witnesses besides Augustine Marimri and his wife Annemarie and bearing no grudges against them and them likewise he maintained that their stories were not true. He further denied owning a spear knife and a bush knife. When questioned further what he uses for gardening or make sago the witness said he has a short bush knife with short handle. 

Evidence – Bulu Sumai

36.	Bulu Sumai gave testimony of being at home with his wife on 12 May 2014 and upon hearing shouting and screaming from the village went to investigate and saw four houses burning. In examination in chief he denied all suggestions that all state witness evidence given to court were lies and his version was to be believed. He also denied suggestions of being in company of the group of men in hot pursuit of the deceased. Furthermore he denied that he was at the crime scene and never tied the deceased’s hands to his back.

37.	In cross examination he said he saw Patrick Sumai at Joseph Kwabegi’s house. When put to him that Patrick was not there, the witness said Patrick was at the fire area and later returned to his house. When questioned that because of his closeness to Joseph he went and assisted Joseph when his house got burnt the witness said: “I don’t know about that.” He denied knowing Theo Hombimori and said his evidence was not true and Theo was telling lies to the court. The witness denied suggestions that the three Sumai brothers went to assist Joseph, saying he was at his house at the time. When suggested to the witness that state witnesses Augustine, Annemarie and Clerah Hombimori all saw him at the scene of the crime he denied knowing any of them but said their evidence was false and his version was to be believed. When asked if they all had any past grudges again him he said there was none and him likewise against each of them.

Evidence – Justin Yaki Wanjeri:

38.	Justin Yaki Wanjeri gave testimony of being at home on the day the fire burnt down four houses. He denied kicking the deceased at Yamiyanda and being part of the group of men who chased the deceased.  He said all state witnesses’ evidence were not true and his version was the correct one. When suggested to him that he was very angry at the time because his brother’s house got burnt down he said he wasn’t angry. When suggested to the witness that all state witness were from Suambukau ward area and known to him he denied. Despite growing up in the area he never knew any one of them. All gave evidence of seeing him in hot pursuit with eventual assault of the deceased to which he said were all false. He said he never owned a bush knife or a small knife. When suggested to the witness that because he was an asthmatic patient he was the last person chasing Christopher Hombimori, he said that was not true.

Evidence – Ruben Imus

39.	Ruben Imus left his home Yarabi, Kubalia District on the morning of 12 May 2014 between 9 am and 11am to buy betel nut for his wife to market and arrived at the “haus fire” around 11.30 am. He was with his wife and children. He saw no one along the way and saw all five men at the scene of the burnt houses with other community members. He later returned home. In examination in chief he said he heard that a Chris Hombimori burnt the houses. He admitted Theo Hombimori’s story of seeing him follow Joseph Kwabegi and chasing the deceased but denied that he was carrying a meter long bush knife. He denied suggestions that he cut the deceased’s fingers with the bush knife. He learnt of the death of Chris Hombimori at night around 7 pm and was never at the deceased’s place at all.

40.	In cross examinations he said he went to Sumbukau, a distance of 6-7 km to buy betel nut because his sister (Linda Imus) was married there to Joseph Kwabegis’s family. The witness denied knowing Annemarie Hombimori and said if she was indeed his sister she would not come to court and testify against him. The witness admitted that he had no grudges with the Marimri family. The witness knows most state witnesses and has no issues with them save their evidence in court, saying they were all false and not to be believed. When suggested to him that he was at the wrong place at the wrong time he said he came to the scene later and was only suspected. 

Defence submission

41.	The main thrust of defence submissions is that of the six defendants only Joseph Jarangu Kwabegi may be held criminally liable for an alternative verdict of manslaughter and not wilful murder. Arguing that State failed to prove that he had the intention to kill the deceased. The five remaining defendants be acquitted. Mr. John Allman for the defendants pointed out some inconsistencies in evidence however I did not think those inconsistencies are fatal in any significant way as there appears to me very convincing and credible eye witness account of all aspects of all elements successfully made out to my satisfaction.  

42.	Mr Allman’s attempts to discredit key State witness evidence because they were written in English and signed later by the deponents is rejected outright. Furthermore there were procedural irregularities on the part of the committing magistrate. This assertion is also rejected. The two intimations above, are requirements during committal hearings pursuant to Sections 94 (1A) & 94C (2). Notwithstanding their importance, there is no evidence or suggestion that the accused challenged the committal court’s findings. In fact in the case before me the indictment was presented and the accused on arraignment pleaded not guilty.

43.	In the present case all four key State witnesses including the Investigation Officer also gave oral statements and were cross examined by their Lawyer Mr. Allman. The accused were not prejudiced in any way and their rights protected. This intimation of procedural irregularity is likewise rejected.     

Prosecution Submission 

44.	Prosecution submits that on the strength of defence acceptance of accused Joseph Jarangu Kwabegi’s  direct involvement as the primary offender, the test of this crime proven beyond reasonable doubt successfully made out. It follows that the rest of the accused persons be held criminally responsible for the death of Christopher Hombimori. They argued that all necessary elements required to make out a case of wilful murder under section 299 of the Criminal Code has been successfully met.

45.	Prosecution further submit that the failure by defence to give notice or to call alibi evidence is fatal. The evidence of Patrick Sumai, Aupin Sumai and Bulu Sumai wanting alibi defence, hence casting serious doubts on their evidence and has strengthened the State’s case, Mr Paul Tusais submitted. (State v Bosco (2004) N2777 and John Jaminan v State (No 2) [1983] 318.)

46.	Mr Tusais submitted that the failure by State not to include an interpretation clause in Police Statements was not in itself fatal and easily curable during evidence. He argued that this defect has been cured in oral evidence by both the state witnesses and the arresting officer. 

47.	Prosecution submits that the State has proven beyond a reasonable doubt that all the accused unlawfully killed the deceased intending to cause his death. There is ample evidence of their involvement each and severally and caught under section 7 as principal offenders.

Issues

48.	All six accused relied on the defence of general denial. Since there are multiple defendants I will attempt to analyse them separately in the order their evidence was received.

Identification & Criminal Culpability.

1)	Joseph Jarangu Kwabegi contends that he returned to his house after being told by Theo Hombimori that the deceased had been taken care off and that the deceased died elsewhere and not in their company. The evidence shows that no independent witness was called to corroborate his evidence.

Prosecution evidence on the other hand shows that he was seen armed with a meter long bush knife pursuing the deceased with six other men that fatal day. He was heard calling out to the deceased that he would catch up with him at his house and attack him. He was seen dragging the deceased out from his house and assaulted with a broken wheel burrow handle. He was heard hurling abuses at the deceased as he lie wounded in pain. He was seen attempting to attack the deceased the third time when Augustine Marimri intervened and stopped him. The accused was heard telling the deceased’s brother Theo Hombimori to come take his brother away after the assault.

Therefore the accused contention that he played no part in the murder of Edward Hombimori has no merit.

2)	Patrick Sumai contends that upon meeting Joseph Jarangu Kwabegi in the sago patches he was told to return to his house as Joseph had tied up the hands and legs of the deceased. He denied being seen at the crime scene and contents that all state witnesses were telling lies and his story was to be believed. No independent witnesses were called to corroborate his evidence.

The evidence shows that the accused was seen armed with a meter long bush knife and spear knife chasing the deceased with a group of men. The accused was seen in front of the deceased’s house armed with his weapons.

Therefore the accused’s contention that he played no part in the murder of Edward Hombimori has no merit.

3)	Aupin Sumai contends that he was at home with his wife and upon hearing noise coming from the village, went over and saw Joseph Kwabegi’s house guttered in fire. He denied any knowledge of the death of the deceased and maintained that all five accused were with him at the scene of the fire. No independent witnesses were called to corroborate his evidence.
  
The evidence shows that the accused was seen armed with a meter long bush knife and spear knife chasing the deceased with a group of men. The accused was seen in front of the deceased’s house armed with his weapons.

Therefore the accused’s contention that he played no part in the murder of Edward Hombimori has no merit.

4)	Bulu Sumai contends that he was at home with his wife and upon hearing shouts and screaming coming from the village, went over and saw four houses burning. He denied suggestions of being in a company of a group of men in hot pursuit of the deceased. He contends that he was not at the crime scene and never tied the deceased’s hands to his back. No independent witnesses were called to corroborate his evidence.
  
The evidence shows that the accused was seen armed with a meter long bush knife and fishing gun chasing the deceased with a group of men. The accused was seen tying the deceased’s both hands to his back as the same group of men sat at a distance and mocked him as he lie in pain in front of his house. 

Therefore the accused’s contention that he played no part in the murder of Edward Hombimori has no merit.

5)	Justin Yaki Wanjeri contends that he was at home on the day the fire burnt down houses and was not in the company of a group of men who chased the deceased at Yamiyanda. He contends that he never owned a bush knife or a small knife. No independent witnesses were called to corroborate his evidence.
  
The evidence shows that the accused was seen armed with a meter long bush knife chasing the deceased with a group of men. He was seen at a road junction leading to the deceased’s house armed with his meter long bush knife in hot pursuit and shouting in pidgin: “You go I will come and kill you, just because I am a sick man you are playing up with me.” The accused was seen kicking the deceased in the face causing him to fall down from the shady area he was resting. He was heard hurling abuses and ridiculing the deceased in pidgin: “You play up with other people but not with us from Maprik and Waiwaya, you are going to die.”  The accused was seen with a weapon in hand and telling his sister Annemarie Marimri that the deceased set fire to his house and he was out to kill him.

Therefore the accused’s contention that he played no part in the murder of Edward Hombimori has no merit.

6)	Ruben Imus contends that he arrived at the “haus fire”area around 11 am that day after leaving his home Yarabi in the Kubalia District. He was out to buy his wife’s betel and saw none of the five men along the way but only saw them at the haus fire place and later returned home.  He contends that he never cut the deceased’s fingers with a bush knife. No independent witnesses were called to corroborate his evidence.
  
The evidence shows that the accused was seen armed with a meter long bush knife and an axe chasing the deceased with a group of men. The accused was seen attacking the deceased with a group of men as he attempted to escape them by running into his kitchen. He was seen cutting the deceased’s fingers as he lay helpless in front of his house.  The accused was seen with the three Sumai brothers at the crime scene by his sister Annemarie Marimri and offered a betel nut to chew and exchanged conversation. 

Therefore the accused’s contention that he played no part in the murder of Edward Hombimori has no merit.

The Relevant Law	
49.	Section 299 Criminal Code Act creates the offence of wilful murder and it is in the following terms:
       S. 299 Wilful Murder
(1)	Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.
(2)	A person who commits wilful murder shall be liable to be sentenced to death.”
Elements of the Offence
50.	The elements of the offence of wilful murder are:
1)	That the accused killed the deceased.
2)	That the killing was unlawful.
3)	That the accused had the intention to kill.
Undisputed Facts
51.	There is no dispute that the deceased Christopher Hombimori died as a result of a fight at his hamlet at Yamiyanda village, Suambukau Ward in Wewak. There is no dispute that accused Joseph Jarangu Kwabegi was the principal perpetrator. All accused persons lived within close proximity to the crime scene and were known to State witnesses by name.
Disputed Facts
52.	The facts in dispute were whether Joseph Jarangu Kwabegi intended to cause death or alternatively grievous bodily harm to Christopher Hombimori. The rest of the accused denying involvement in the attack and killing of the deceased. Defence of alibi raised however found wanting. 
Findings

53.	Having identified the principle of law applicable under the circumstances I ask myself this question. Is there any evidence before the Court to show that somebody else may have been responsible for the death of the deceased? For the moment all six accused remained silent during their record of interview and will tell their stories to their lawyer. They all gave oral evidence in Court. Generally they all said they were either at their houses with their wives or were in their gardens. Indirectly raising defences of alibi in their record of interviews. Although the accused through their lawyer advanced that they were not at the crime scene the overwhelming eye witness account of three (3) State witnesses clearly pinned them to the scene. None of their eyewitness accounts were discredited by defence and remain intact. There is no other evidence before this Court to suggest that some other persons were responsible for the death of the victim. Their flimsy attempts to raise alibi defence were not founded as no notice of alibi or alibi evidence was forthcoming from them. Inferentially therefore it is open to this Court to infer that their defences remain wanting and unexplained. It follows that serious doubts now cast on their evidence and has a tendency to strengthen the State’s case. This court is entitled to find that they all were responsible for the death of the victim either individually or collectively. Therefore the accused’s contention that they were not responsible for the death of Christopher Hombimori either individually or collectively is flawed and not supported by credible evidence. 
Is there any evidence before the Court to show that the accused may have been responsible for the death of the deceased?
54.	There is credible eye witness account of seeing all six accused at the scene of the crime. Save for the deceased’s wife Clerah Hombimori’s evidence, eye witness accounts from Theo Hombimori, Augustine and Annemarie  Marimri all said they saw all six men attacking the victim in front of his house with bush knives, fishing spears and spear knives etc. All six men were no strangers and known to all witnesses personally having come from the same community. Witness Annemarie Marimri is accused Joseph Jarangu Kwabegi’s blood brother and familiar with all five accused’s relationship with Joseph. The three Maprik boys all live in Joseph’s house and accused Ruben is a close relative of hers. 
The evidence shows that all six were seen at the murder scene still holding on to their weapons, stained with blood. The graphic description of wounds found on the victim’s body by state witnesses including the victims wife: “waswas long blut,” the head injury likened to a swamp in my view are very convincing inferences that connects the injuries to the type of weapons described to be carried by the six accused during the assault: spear knives, bush knives, spear gun and a wheel burrow handle.
In the absence of any evidence to the contrary I am satisfied  that all six men were responsible for the death of the deceased from the time of hot pursuit and ending in front of his house at Yamiyanda village. 
 Are there evidence of all elements of the offence of wilful murder that would support the six (6) accused convictions? 

55. 	I answer in the affirmative as there is more than ample direct evidence that the six accused took part in the murder of the victim as set out in Section 299 (1) of the Criminal Code. Similarly Section 7 of the Criminal Code that would make them criminally liable for the murder committed. Having considered all the evidence in the circumstances of this case I am satisfied beyond reasonable doubt that all the requisite elements of wilful murder is successfully made out: All six accused were responsible for the death of Christopher Hombimori; Christopher Hombimori was unlawfully killed by the six men and they all had the intention to kill Christopher Hombimori.  
The only rational inference to be drawn here is that during that fatal morning the six men were in hot pursuit of the victim when he burnt Joseph Jarangu Kwabegi’s house and collectively attacked him after removing him from within the confines of his house.  I draw inference from eyewitness testimony of the chase, all men armed with dangerous weapons, all six men seen at the crime scene and eventual attack in front of his house. This evidence has not been rebutted and remains intact. Furthermore I draw inferential evidence from the medical doctor who conducted the post moterm examination of the deceased with findings that the deceased’s death resulted from multiple stab wounds and head injuries or skull bone fracture. The doctors’ findings and observations on the wound especially the skull bone fracture is supported by deceased’s wife testimony that her husband’s fractured skull likened to a swamp. Again this evidence remains intact.
56.	The third crucial element of intention is easily made out in my view in light of overwhelming eye witness accounts to the six men in hot pursuit, various utterances of intention to kill Christopher Hombimori and dragging him out from within the confines of his house. Furthermore there is no evidence before me to suggest that either one of the accused withdrew from hot pursuit, attacking the victim or attempted to stop the group in pursuit or attack. I restate State witness accounts of utterances by accused persons: Joseph Jarangu Kwabegi whilst in hot pursuit , calling out to the victim that he would catch up with him at his house and kill him; Accused Joseph Jarangu Kwabegi continued to attack the victim as he lay helpless and begged for mercy; Justin Yaki Wanjeri said  “You go I will come and kill you, just because I am a sick man you are playing up wïth me.”; “ You play up with other people but not with us from Maprik and Waiwaya, you are going to die.” 
In light of overwhelming eye witness account of the events leading up to the death of the deceased I have no doubt in my mind that the six accused persons had one common intention and that was to apprehend the victim and kill him to death. Similarly my findings above, points conclusively beyond reasonable doubt that the element of intention conclusively made out in the manner described in evidence. 

57.	Applying those principles alluded to above to the facts of this case I am satisfied beyond reasonable doubt that the guilt of the six accused persons is the only rational inference that the overall circumstances can enable the Court to draw from: A guilty verdict must follow logically from all the facts and circumstances. 
58.	Prosecution has invoked Section 7. Section 7 Criminal Code provides that it is possible for those who are not the main perpetrators to be also guilty however there must be some evidence of the wrong committed by that person (s) within the meaning of the provision. Only a single act or omission or a series of them is sufficient in Sections 7 or 8. I find here that there is evidence that the six persons seen that fatal morning did some of those things. To this end I make finding based on all evidence before me that all of the elements of the offence of wilful murder are present and so the six of you must as a matter of law be lawfully convicted. In view of overwhelming evidence on the intention of all 6 accused persons in this crime, an alternative verdict of manslaughter is not available to them and is therefore not considered. 
Verdict	
56.	Accordingly, I return a verdict of guilty of wilful murder against the six of you and have you all convicted accordingly. 

1.	Joseph Jarangu Kwabegi		Guilty
2.	Patrick Sumai			Guilty
3.	Aupin Sumai			Guilty
4.	Bulu Sumai				Guilty
5.	Justin Yaki Wanjeri		Guilty
6.	Ruben Imus				Guilty
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Public Prosecutor: Lawyer for the State	
Alman Lawyers: Lawyer for the Accused