Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Kakiwi [2018] PGNC 3; N7067 (12 January 2018)

N7067

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 4, 5, 8, 10, 11, 13-22, 24-26, 29-32, 34-37, 39-41,
43-46, 48-50, 52-54, 56-61, 63, 65-67, 69-75, 77, 78, 80,
81, 83, 85-89, 91-93, 96-98, 100-110, 112-123, 612 & 1044 OF 2015

BETWEEN
THE STATE

AND

DONI KAKIWI, JACK TUKO, JOHN WAKU,

KANDE KOKI, KINDA YAMESE, LOUIE PETER,

MARTIN USI, MAX DAVID, MAXSON KOPORE,

MERA KIKI, OUA BINARU, PIU GWARO,

SIRRE ITOWO, TAI WAKKE & WANDOKO SOMANDA

OF SERENGO VILLAGE, RAI COAST DISTRICT,

MADANG PROVINCE

AND

BAKUN MOA, DENMARK KUTS, EDDIE INGEMA,

ENOS AWARE, GIBSON MASILI, IMEX GAOSA,

ISONO KAU, JACOB SISI, JAMES ONIRIO,

JEFFERY RONNY, JOE NICK, KIRORI GERUNGO,

KIRISO WAKE, KOKI KEWA, KUMA TOUKINI,

KUNDOKE PIYE, LOUIMACK AMANI, MAX UTO,

MENANGO KENGKE, MOMORIKE SEPE, NICK ISAHARA, NOGURO SUA, OKAPA MIMO, OSCAR USI,

PETRUS KOMA, POPPE DUMA, PUE KUPI,

ROBERT BURINGA, SIMON TOWERA, SIMON DUMA,

SIMON MANEWO, TAMSI VIO, TANUWAMA KEPA,

WAKS AWANDA, WAMBUNA TOSI, WANIX DOWENA,

WESLEY KAISOM, WINSON DOS, YAWENDA BENSON

& YUWOI KOKI

OF GOMUMU VILLAGE, RAI COAST DISTRICT,

MADANG PROVINCE

AND

AKINU DOWENA, EPPON MATA, JACK MOPI,

JOHN TULI, LAKI MIRAKA, LUCAS PETRUS,

MARCUS KISANGA, MARTIN JOHN, NDOUSI PORURU,

ONIRIO BOMA, PAUL PERAU, POURO BINARU,

REUBEN DAOMBON, SEPI YAMBA YAMESE, STEVEN DAVID, TEUWI BIAO, TIMITY JOE, TONY YURO,

ORAIYO URAIA MAX, WIKO MURU & YUO GOM

OF GOIRO VILLAGE, RAI COAST DISTRICT,

MADANG PROVINCE

AND

DONSI KUMBI, ISAAC HUYANGO, KEAO TIRA,

KOKI MARI, KONI TESIO, LOUIE IROA,

OPS GINU, ROBERT ARRE, SAI MEKU,

TIPE OUSI, YAMAKS NONOPA & YAMANGA KIREI

OF NININGO VILLAGE, RAI COAST DISTRICT,

MADANG PROVINCE

AND

AKEPE TUKO, ENOCH BUARA, JOHNSON KAFEMO,

KAMINDE PIYOMI, NASA TOKO, NASAKE WIKO

& ONI TITUKUN

OF NUMBAYA VILLAGE, RAI COAST DISTRICT,

MADANG PROVINCE

AND

TUKI GOWI & THOMPSON MUNGO

OF SARANGA VILLAGE, RAI COAST DISTRICT,

MADANG PROVINCE

Madang: Cannings J
2017, 22, 23, 24 March, 3, 4, 5, 8, 9, 10, 15, 16, 18, 23, 25 May,
11 August
2018: 12 January

CRIMINAL LAW – wilful murder – Criminal Code, Section 299(1) – elements of offence – whether any of the accused killed the deceased – whether killing unlawful – whether intention to kill – Criminal Code, Section 7 – whether any accused enabled or aided another in committing the offence – Criminal Code, Section 8 – whether offences committed in prosecution of common purpose.

Fact:

The 97 accused were each arraigned on seven counts of wilful murder. They each pleaded not guilty and a joint trial was conducted. The State alleged that all accused were members of a group of about 189 males (120 adults and 69 juveniles) who marched together along public roads for at least 10 kilometres, armed and with painted, warlike faces, in the direction of a particular village, with the intention of seeking out and killing alleged sorcerers who were residing in that village. It was alleged that on their way to that village some members of the group attacked and killed a bystander, intending to cause his death; that the group then proceeded to the village and raided it, destroying property including houses and food gardens, and threatening and chasing away many residents; and that at the village some members of the group attacked and killed six residents, intending to cause their death. The State argued that those accused who directly attacked and killed one (or more) of the seven deceased persons should be convicted under Section 299(1) of the Criminal Code of wilful murder of the relevant deceased. As to those accused in respect of whom there was no allegation of directly killing any of the deceased, or in respect of whom the Court decided that there was insufficient evidence of them directly committing the offence, the State argued that they should nonetheless be convicted of seven counts of wilful murder under each of Sections 7(1) and 8 of the Criminal Code. As to Section 7(1) it was argued that all the accused, by being actively involved in the group’s activities, did acts for the purpose of enabling and aiding those who directly committed the offences, to commit the offences, and aided them in committing the offences, making them guilty of seven counts of wilful murder. As to Section 8 it was argued that all the accused should be deemed to have committed seven counts of wilful murder as they were each members of a group that formed a common intention to prosecute an unlawful purpose (to raid the village believed to be harbouring sorcerers and to attack residents of the village and to kill sorcerers or persons connected with or harbouring them) and in the prosecution of that purpose, seven offences were committed that were of such a nature that commission of those offences was a probable consequence of the prosecution of that unlawful purpose. Fourteen (14) witnesses gave oral evidence for the State, nine of whom were village residents and presented as eyewitnesses, the other five being police officers who were in the vicinity of the incident or involved in investigation of the incident. Other evidence adduced by the State consisted of records of interview of the accused (none containing admissions); photographs of the village and locality, some of the deceased’s bodies and assorted weapons; witness statements; and documents relating to conviction of the accused of related summary offences. All accused remained silent and the only evidence adduced by the defence was a witness statement by one of the State witnesses, said to be a prior inconsistent statement. The Court identified four fundamental issues for determination: (1) was the offence of wilful murder (or any other offence) committed in relation to any of the deceased? (2) has the State proven beyond reasonable doubt that any of the accused directly committed any of the seven offences on the indictment? (3) has the State proven beyond reasonable doubt that any of the accused is guilty of any of the offences by virtue of Section 7(1) of the Criminal Code? (4) has the State proven beyond reasonable doubt that any of the accused is guilty of any of the offences by virtue of Section 8 of the Criminal Code?

Held:

(1) The State proved beyond reasonable doubt that each of the deceased was unlawfully killed by persons who intended to cause their death. The offence of wilful murder under Section 299(1) of the Criminal Code was committed in relation to each of the deceased in the manner contended for by the State. The State proved (and it was not contested) that an incident, as alleged, actually occurred, ie that a group of about 189 males (120 adults and 69 juveniles) marched together along public roads for at least 10 kilometres, armed and with painted warlike faces, in the direction of the village, with the intention of seeking out and killing alleged sorcerers who were residing in that village and on their way to the village some members of the group attacked and killed a bystander (the deceased the subject of count 1) intending to cause his death, and the group then proceeded to the village and raided it, destroying property including houses and food gardens, and threatening and chasing away many residents and at the village some members of the group attacked and killed six residents, who are the deceased the subject of counts 2 to 7 on the indictment, in each case intending to cause death.

(2) It was not proven beyond reasonable doubt that any of the accused directly committed the offence of wilful murder the subject of count 1. As to the other counts, the State proved beyond reasonable doubt that in relation to: count 2, two of the accused directly committed the offence; count 3, four of the accused directly committed the offence; count 4, one of the accused directly committed the offence; count 5, two of the accused directly committed the offence; count 6, one of the accused directly committed the offence; and count 7, two of the accused directly committed the offence.

(3) The State proved beyond reasonable doubt that each of the accused was a member of the group that marched along the public roads in the manner alleged and raided the village, certain members of which group committed the seven offences of wilful murder the subject of the indictment. The only reasonable inference to draw from the evidence is that none of the accused left the group or engaged in any conduct that would suggest that he was an unwilling participant in all the group’s activities including killing the bystander on the way to the village, raiding the village, destroying property, threatening and chasing residents and killing six village residents. The State proved beyond reasonable doubt that by their participation in the group’s activities each of the accused did acts for the purpose of enabling and aiding those who directly committed the offences, to commit the offences, and aided them in committing the offences, the consequence being that each of the accused was by virtue of Sections 7(1)(b) and (c) of the Criminal Code guilty of seven counts of wilful murder, as charged.

(4) Further, the State, having proved beyond reasonable doubt that each of the accused was a member of the group that marched along the public roads in the manner alleged and raided the village and that certain members of the group committed the seven offences of wilful murder the subject of the indictment, and the only reasonable inference to draw from the evidence being that none of the accused left the group or engaged in any conduct that would suggest that he was an unwilling participant in all the group’s activities including killing the bystander on the way to the village, raiding the village, destroying property, threatening and chasing residents and killing six village residents, and further having proved that the members of that group had formed a common intention to prosecute an unlawful purpose (to raid the village believed to be harbouring sorcerers and to attack residents of the village and to kill sorcerers or persons connected with or harbouring them) and in the prosecution of that purpose, seven offences were committed that were of such a nature (involving death) that commission of those offences was a probable consequence of the prosecution of that unlawful purpose, it followed that the State had established beyond reasonable doubt the elements of criminal liability under Section 8 of the Criminal Code. Therefore each of the accused was deemed to have committed seven counts of wilful murder, as charged.
(5) For the avoidance of doubt it was stated that the findings of guilt under Sections 7 and 8 of the Criminal Code are made in respect of each of the accused and made independently of each of those provisions (Sections 7(1) and 8) and independently of the findings of direct guilt under Section 299(1) in respect of eight of the accused.

(6) The 97 accused were accordingly each found guilty of seven counts of wilful murder, as charged.

Cases cited:

The following cases are cited in the judgment:

Biwa Geta v The State [1988-89] PNGLR 153
Jimmy Ono v The State (2002) SC698
John Beng v The State [1977] PNGLR 115
John Jaminan v The State (No 2) [1983] PNGLR 318
Kampangio v R [1969-70] PNGLR 218
Rex Paliau v The State (2016) SC1537
The State v Jacky Vutnamur (2005) N2848
The State v Raphael Kuanande [1994] PNGLR 512
The State v Seth Ujan Talil (2010) N4082
The State v Todd Mari (2011) N4259
Willy Kelly Goya v The State [1987] PNGLR 51

Abbreviations

The following abbreviations appear in the judgment:

CID – Criminal Investigations Division
Const – Constable
CR – criminal file reference
Det – Detective
Insp – Inspector
km – kilometre
N – National Court judgment
No – number
Ors – Others
PNG – Papua New Guinea
PNGLR – Papua New Guinea Law Reports
PPC – Provincial Police Commander
PSC – Police Station Commander
RAIL – Ramu Agri Industries Limited
RPNGC – Royal Papua New Guinea Constabulary
SC – Supreme Court judgment
Sgt – Sergeant
Snr – senior
Supt – Superintendent
v – versus

Dates

The events referred to in this judgment occurred in 2014 unless otherwise indicated.

Glossary

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

Persons
Alex Solwo, Sgt – State witness #2
Anao Gunumi – the deceased, subject of count 7
Anton Lampabe, Snr Const – State witness #7
Awan Sete – Assistant Commissioner of Police for Momase Region
Bakun Moa – one of eight accused the subject of identification evidence
Baupa Dangingayo – the deceased, subject of count 5
Beramo Tipupu – the deceased, subject of count 4
David Jamute – State witness #9
Enos Aware – one of eight accused the subject of identification evidence
Francis Anis – State witness #10
Gesu Yambung – State witness #11
Hausman – group of people referred to as attackers in evidence
Imex Gaosa – one of eight accused the subject of identification evidence
Jeffery Ronny – one of eight accused the subject of identification evidence
Kande Popusewe – State witness #4
Kenneth Alutoa – State witness #6
Mina Biti – State witness #8
Nathan Aki – the deceased, subject of count 6
Nick Uria – the deceased, the subject of count 2
Noguro Sua – one of eight accused the subject of identification evidence
Nomusa Sakari – State witness #12
Patrick Gualit – Snr Const
Peter Gorek, Chief Sergeant – State witness #1
Sangiri Kiriwako – State witness #13
Serah Koworot – Snr Const, State witness #14
Sike Wamne – the deceased, the subject of count 1
Simon Duma – one of eight accused the subject of identification evidence
Simon Towera – one of eight accused the subject of identification evidence
Susan Yambung – State witness #3
Sylvestar Kalaut – Provincial Police Commander, Madang
Winson Dos – one of eight accused the subject of identification evidence
Yambung Nawoya – the deceased, the subject of count 3
Yonga Yawongan – Inspector, Madang Police
Yukui Sango – State witness #5

Places
Angau Memorial Hospital – Lae
Beon – correctional institution, near Madang
Bruce Jephcott Highway – highway in the area
Bumbu Creek – creek in the area
Damaende – village in the area
Dumpu – village in area of incident, also name of river in area of incident
Goiro – village, place of one group of accused within area of incident
Gomumu – village, place of one group of accused within area of incident
Gusap – area of incident
Hapwara – village in the area
Jiwaka – home province of deceased, Sake Wamne
Lae – capital, Morobe Province

Madang – town, capital, Madang Province
Modilon General Hospital – main provincial hospital, Madang town
Naho Rawa – Local-level government area
Niningo – village, place of one group of accused
Numbaya – village, place of one group of accused
Rai Coast – district
Ramu – town along Bruce Jephcott Highway, within area of incident
Ramu Sugar – another name for Ramu town
Ranara – village, within area of incident
Sangkiang Bridge – bridge in the area, near Ramu
Sakiko – village, place of incident
Sanirao – village in the area; Ramu Sugar
Saranga – village, place of one group of accused
Serengo – village, place of one group of accused
Tauta – Local-level government area
Usino-Bundi – District

TRIAL

This was the trial of 97 accused, each charged with seven counts of wilful murder.

Counsel

F K Popeu, A Kupmain & D Ambuk, for the State
J Mesa, J Morog & D Ephraim, for the Accused

12^th January, 2018

1. CANNINGS J: This is the verdict of the Court on 97 accused men who have been arraigned on seven counts of wilful murder. They each pleaded not guilty and a joint trial was conducted. The charges relate to the deaths of seven people – five men and two boys – at or near Sakiko village, near the town of Ramu, Madang Province, on the morning of Monday 14 April 2014.
   
2. The State alleges that all accused were members of a group of at least 189 males (120 adults and 69 juveniles) who marched together along the Bruce Jephcott Highway for about 10 kilometres from Ranara Village, armed and with painted warlike faces, in the direction Sakiko village, with the intention of seeking out and killing alleged sorcerers who were residing there.
   
3. It is alleged that on their way to Sakiko, some members of the group attacked and killed a bystander, intending to cause his death, that the group then proceeded to Sakiko and raided it, destroying property including houses and food gardens, and threatening and chasing away many residents, and that at the village some members of the group attacked and killed six residents, intending to cause their death.
   
4. The State argued that those accused who directly attacked and killed one (or more) of the seven deceased persons should be convicted under Section 299(1) of the Criminal Code of wilful murder of the relevant deceased.
   
5. As to those accused in respect of whom there is no evidence of directly killing any of the deceased, or in respect of whom the Court decides that there is insufficient evidence of them directly committing the offence, the State argues that they should nonetheless be convicted of seven counts of wilful murder under each of Sections 7(1) and 8 of the Criminal Code.
   
6. As to Section 7(1) it is argued that all the accused, by being actively involved in the group’s activities, did acts for the purpose of enabling and aiding those who directly committed the offences, to commit the offences, and aided them in committing the offences, making them guilty of seven counts of wilful murder.
   
7. As to Section 8 it is argued that all the accused should be deemed to have committed seven counts of wilful murder as they were each members of a group that formed a common intention to prosecute an unlawful purpose (to raid the village believed to be harbouring sorcerers and to attack residents of the village and to kill sorcerers or persons connected with or harbouring them) and in the prosecution of that purpose, seven offences were committed that were of such a nature that commission of those offences was a probable consequence of the prosecution of that unlawful purpose.
   
8. Fourteen witnesses gave oral evidence for the State, nine of whom were village residents and presented as eyewitnesses. The other five were police officers who were in the vicinity of the incident or involved in investigation of the incident. Other evidence adduced by the State consisted of records of interview of the accused (none containing admissions), photographs of the village and locality, some of the deceased’s bodies and assorted weapons, post-mortem reports, witness statements and documents relating to conviction of the accused on related summary offences.
   
9. All accused remained silent and the only evidence adduced by the defence was a witness statement by one of the State witnesses, said to be a prior inconsistent statement.
   

OTHER ACCUSED AND DETAILS

10. The 97 persons who are the subject of this judgment are part of a group of 122 persons charged with and committed for trial on the same seven counts of wilful murder arising from the incident at Sakiko on 14 April 2014.
    

Appendix A to the judgment provides the status of each of the 122 persons. Of those 122:

• 97 are the subject of this judgment;
  
• 22 are the subject of warrants for their arrest due to breach of their bail conditions, in particular failure to appear at the trial;
  
• 2 were named on the indictment that was presented but have since been discharged on procedural grounds;
  
• 1 was arraigned but died during the course of the trial.
  

Appendix B provides the names in alphabetical order of the 97 accused who are the subject of this judgment, cross-referenced to their file reference numbers.

UNDISPUTED FACTS

11. A number of undisputed facts have emerged from the evidence and from submissions of counsel:
    
    • Early on the morning of Monday 14 April 2014 a large group of men and youths walked together along the Bruce Jephcott Highway, at least from the Sangkiang Bridge, where the armed group was at about 5.30 am, several kilometres from the western end of Ramu town.
      
    • They were armed with assorted weapons including bushknives and homemade guns. Their faces were painted with charcoal. This armed group was known as “the Hausman”. The group comprised men and youths from villages including Gomumu village in the mountains to the west of Ramu town. The group was formed following concerns about a number of deaths in and around Gomumu attributed to sorcery. Some suspected sorcerers had fled to and taken up residence with relatives in Sakiko village.
      
    • The Ramu Police Station Commander, Chief Sgt Peter Gorok, received a report of the armed group walking along the highway. He attempted to intervene but was short of weaponry. He drove a police vehicle towards the group and instructed them, using a loud-hailer, to stop. But the group did not stop.
      
    • Chief Sgt Gorek contacted police in Madang town and requested armed reinforcements as a matter of urgency.
      
    • The armed group was heading to Sakiko village to confront suspected sorcerers blamed for causing the deaths in and around Gomumu.
      
    • The armed group proceeded along the highway, through Ramu, and at about 6.00 am turned left at the eastern end of town, close to the Ramu Sugar mill. It was there that they came into contact with a number of employees of Ramu Agri Industries Ltd (RAIL), who lived in that area and were walking to work. Some members of the armed group attacked and killed one of the male RAIL employees:
      
      • ➢ 35-year-old Sike Wamne (the deceased the subject of count 1 on the indictment).
        
    • Chief Sgt Gorek drove to Sakiko via an alternative route and used a loud-hailer to warn the villagers that the Hausman were approaching and proceeded to the far end of the village where he parked his vehicle.
      
    • The armed group went to Sakiko village and raided it, destroying property including houses and food gardens. They threatened and chased away many residents. Some members of the armed group attacked and killed six village residents. The residents killed, all male, were:
      
    • ➢ 20-year-old Nick Uria (the deceased the subject of count 2);
      
    • ➢ 70-year-old Yambung Nawoya (the deceased the subject of count 3);
      
    • ➢ 73-year-old Beramo Tipupu (the deceased the subject of count 4);
      
    • ➢ 70-year-old Baupa Dangingayo (the deceased the subject of count 5);
      
    • ➢ 3-year-old Nathan Aki (the deceased the subject of count 6);
      
    • ➢ 5-year-old Anao Gunumi (the deceased the subject of count 7).
      
    • All of the deceased died at the scene.
      
    • Soon afterwards police reinforcements arrived. Also arriving at the village around that time were two senior members of the Police Force who happen to have arrived at Ramu for other Police business: Assistant Commissioner for Momase Region, Awan Sete, and the Madang Provincial Police Commander, Sylvestar Kalaut.
      
    • The police told a group of armed males who were in the area of the village to congregate on a sports field, a flat, open, grassy area, in the centre of the village. That group of armed males did as they were told and offered no resistance. That group consisted of at least 120 adults and 69 juveniles, a total of 189. (The defence does not concede that any members of that group of 189 were members of the armed group that had earlier that morning raided Sakiko village, some members of which group had, on the way to Sakiko, killed Sake Wamne, and, at Sakiko, killed Nick Uria, Yambung Nawoya, Beramo Tipupu, Baupa Dangingayo, Nathan Aki and Anao Gunumi.)
      
    • The group of 120 adults and 69 juveniles walked, escorted by police, to the highway. They then boarded an open back truck, which transported them, in several loads, to Ramu Police Station. Members of that group continued to cooperate and offered no resistance. They remained at Ramu Police Station overnight.
      
    • The next day, Tuesday 15 April, the police charged each member of the group of 189 with offences under Sections 7(a) (provoking a breach of the peace) and 12(1) (carrying offensive weapons) of the Summary Offences Act.
      
    • On Wednesday 16 April a Magistrate from Madang District Court, his Worship Robert Teko, arrived and conducted a hearing en masse outside Ramu Police Station. Each member of the group of 189 pleaded guilty. For the purpose of the hearing, the group of 189 was divided into adults (120) and juveniles (69).
      
    • On Thursday 17 April his Worship convicted each of the 120 adults and sentenced each of them to six months imprisonment and convicted each of the 69 juveniles and imposed a fine on each of them.
      
    • Soon after that, the 120 adults were transported to Beon Correctional Institution, near Madang town, to serve their sentences, and the fines of the 69 juveniles were paid and they were released from custody.
      
    • While they were in jail each of the 120 adults was charged with the seven counts of wilful murder that are the subject of the present trial.
      
    • In August 2014 the 120 adults completed their prison sentences (one-third of the sentence having been remitted in accordance with the Correctional Service Act 1995) but remained in custody on remand in relation to the seven wilful murder charges they were each facing.
      
    • On 8 December 2014 each of the 120 adults was committed for trial.
      
    • There were two others also charged, separately, with the same seven counts of wilful murder that are the subject of the present trial, and they were committed for trial on different dates and remanded in custody.
      
    • Altogether, 122 persons have been committed for trial on the seven counts of wilful murder the subject of the present trial.
      
    • On 20 February 2015 each of those 122 persons was granted bail by the National Court. They were subsequently released from custody on bail on various dates depending on when their cash bail was paid.
      
    • In early 2017 the 97 accused who are the subject of this judgment on verdict appeared before the Court, and in accordance with an agreement between counsel for the State and defence counsel, endorsed by the Court, their bail was suspended and they were remanded in custody.
      
    • The 97 accused who are the subject of this judgment on verdict are members of the original group of 120 adults, ie those who were assembled on the sports field at Sakiko on 14 April and subsequently taken to Ramu and tried before the District Court and sentenced to six months’ imprisonment, then committed for trial, granted bail, released on bail, then returned to custody in early 2017 when their bail was suspended.
      
    • No identification parade or any other formal identification procedure was conducted at any time.
      

ISSUES

12. There are four fundamental issues for determination:
    
    1. Was the offence of wilful murder committed in relation to any of the deceased?
       
    2. Has the State proven beyond reasonable doubt that any of the accused directly committed any of the seven offences on the indictment?
       
    3. Has the State proven beyond reasonable doubt that any of the accused is guilty of any of the offences by virtue of Section 7(1) of the Criminal Code?
       
    4. Has the State proven beyond reasonable doubt that any of the accused is guilty of any of the offences by virtue of Section 8 of the Criminal Code?
       
13. Before addressing these issues it is convenient to summarise the evidence.
    

EVIDENCE FOR THE STATE

14. It consisted of:
    
    • oral testimony of 14 witnesses
    • records of interview
    • photographs
    • medical evidence
    • witness statements
    • District Court records.
      

Oral testimony

Records of interview

15. All 97 accused undertook a formal police interview. A record of interview was prepared for each of them, none of which contained any material admissions.
    

Photographs

16. Photographs of the bodies of the deceased persons, the subject of six of the counts on the indictment, clearly depicting injuries received, were admitted into evidence. The body of Baupa Dangingayo (the deceased the subject of count 5) was not available for photographing as it had been reduced to ashes.
    

Medical evidence

17. Dr Sanoh Tahon of Angau General Hospital, Lae, conducted post-mortem examinations on the bodies of six of the deceased at Lae on 29 April 2014 and prepared post-mortem reports, which are summarised in the following table. The body of Baupa Dangingayo (the deceased the subject of count 5) was not available for examination as it had been reduced to ashes.
    

18. Witness statements
    

District Court records

19. These were records of the Ramu District Court proceedings of 16-17 April at which 120 adults and 69 juveniles were convicted of offences under the Summary Offences Act relating to the events of 14 April.
    

EVIDENCE FOR THE DEFENCE

20. All accused remained silent. The only evidence presented by the defence was a witness statement by Susan Yambung, State witness #3, which was claimed to be a prior inconsistent statement.
    

21. That completes the summary of the evidence. I will now determine the four fundamental issues identified earlier.
    

1 WAS THE OFFENCE OF WILFUL MURDER COMMITTED IN RELATION TO ANY OF THE DECEASED?

22. The offence of wilful murder is created by 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.

23. The three elements of the offence are that:
    
    • (1) a person killed the deceased;
      
    • (2) the killing was unlawful; and
      
    • (3) there was an intention to cause the death of the deceased (or some other person).
      
24. As to element (1) it must be considered that under Section 291 of the Criminal Code a person “kills” another person when he or she causes the death of the deceased, directly or indirectly, by any means.
    
25. As to element (2) Section 289 of the Criminal Code provides that it is unlawful to kill another person unless the killing is authorised or justified or excused by law. The killing of a person is justified and lawful if, for example, the elements of the defence of self-defence are made out for the purposes of Sections 269 or 270 of the Criminal Code.
    
26. As to element (3) it is the state of mind of the person who killed the deceased at the time that the act of killing was committed 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). It is particularly relevant to assess the degree of viciousness of an attack, the number of wounds or blows inflicted on the deceased and whether such wounds or blows were directed at vulnerable parts of the deceased’s body.
    
27. The Court must determine whether those elements have been proven beyond reasonable doubt in relation to the death of each of the seven deceased persons.

Count 1: Sike Wamne

28. Direct evidence as to the circumstances of his death has been given in the form of witness statements by RAIL workers, Taime Lucas, Dorum Sikil, Kindim Mike, Alex Taul and Silia Jacob. Their evidence is uncontested. The post-mortem report corroborates the evidence in the witness statements that the deceased suffered multiple wounds with bushknives and other weapons and that he died instantly. No particular person has been named as attacking the deceased. However that is not necessary for the purposes of proving beyond reasonable doubt, and I find, that:
    
    • (1) a number of persons killed the deceased;
      
    • (2) the killing was unlawful (as no specific defence has been asserted);
      
    • (3) there was an intention to cause his death, which is clearly evident from the ferocity of the attack, the number of wounds inflicted and the number of wounds to vulnerable parts of the body (eg head and skull, chest, abdomen and back).
      
29. I find that the State has proven beyond reasonable doubt that the offence of wilful murder was committed against the deceased.
    

Count 2: Nick Uria

30. Direct evidence as to the circumstances of his death has been given in the form of oral testimony by David Jamute, Gesu Yambung and Nomusa Sakari. They were subject to cross-examination particularly in relation to the identification by two of those witnesses of the persons who were among the group who attacked the deceased. Their evidence as to the circumstances of the death were not strongly contested. I assess them as honest and reliable witnesses. The post-mortem report corroborates their evidence that the deceased suffered multiple wounds, including having his left leg and left arm severed, with bushknives and other weapons and that he died instantly. It has been proven beyond reasonable doubt that:
    
    • (1) a number of persons killed the deceased;
      
    • (2) the killing was unlawful (as no specific defence has been asserted);
      
    • (3) there was an intention to cause his death, which is clearly evident from the ferocity of the attack, the number of wounds inflicted and the number of wounds to vulnerable parts of the body (eg head and skull, neck, severed limbs).
      
31. I find that the State has proven beyond reasonable doubt that the offence of wilful murder was committed against the deceased.
    

Count 3: Yambung Nawoya

32. Direct evidence as to the circumstances of his death has been given in the form of oral testimony by Susan Yambung. She was subject to cross-examination particularly in relation to her identification of the persons who were among the group who attacked the deceased. Her evidence as to the circumstances of the death were not strongly contested. I assess her as an honest and reliable witness. The post-mortem report corroborates her evidence that the deceased suffered multiple wounds, including having his left leg and both arms severed, with bushknives and other weapons and that he died instantly. It has been proven beyond reasonable doubt that:
    
    • (1) a number of persons killed the deceased;
      
    • (2) the killing was unlawful (as no specific defence has been asserted);
      
    • (3) there was an intention to cause his death, which is clearly evident from the ferocity of the attack, severed limbs, the number of wounds inflicted and the number of wounds to vulnerable parts of the body (eg frontal bone of skull with missing brain matter).
      
33. I find that the State has proven beyond reasonable doubt that the offence of wilful murder was committed against the deceased.
    

Count 4: Beramo Tipupu

34. Direct evidence as to the circumstances of his death has been given in the form of oral testimony by Mina Biti. She was subject to cross-examination particularly in relation to her identification of the persons who were among the group who attacked the deceased. Her evidence as to the circumstances of the death were not strongly contested. I assess her as an honest and reliable witness. The post-mortem report corroborates her evidence that the deceased suffered multiple wounds, including having both feet and right arm severed, with bushknives and other weapons and that he died instantly. It has been proven beyond reasonable doubt that:
    
    • (1) a number of persons killed the deceased;
      
    • (2) the killing was unlawful (as no specific defence has been asserted);
      
    • (3) there was an intention to cause his death, which is clearly evident from the ferocity of the attack, severed limbs, the number of wounds inflicted and the number of wounds to vulnerable parts of the body (eg open skull fracture with multiple body mutilation).
      
35. I find that the State has proven beyond reasonable doubt that the offence of wilful murder was committed against the deceased.
    

Count 5: Baupa Dangingayo

36. Direct evidence as to the circumstances of his death has been given in the form of oral testimony by Yukui Sango. She was subject to cross-examination particularly in relation to her identification of the persons who were among the group who attacked the deceased. Her evidence as to the circumstances of the death was strongly contested. However, I assess her as an honest and reliable witness. Members of the Hausman attacked the deceased and forced him into his house and locked the door and burned down the house while he was inside. It has been proven beyond reasonable doubt that:
    
    • (1) a number of persons killed the deceased;
      
    • (2) the killing was unlawful (as no specific defence has been asserted);
      
    • (3) there was an intention to cause his death, which is clearly evident from the manner in which the deceased was forced into a building and then locked inside while the building was set alight.
      
37. I find that the State has proven beyond reasonable doubt that the offence of wilful murder was committed against the deceased.
    

Count 6: Nathan Aki

38. Direct evidence as to the circumstances of his death has been given in the form of oral testimony by Kande Popusewe and Francis Anis. They were subject to cross-examination particularly in relation to the identification by Kande Popusewe of the persons who were among the group who attacked the deceased. Their evidence as to the circumstances of the death were not strongly contested. I assess them as honest and reliable witnesses. The post-mortem report corroborates their evidence that the deceased, a three-year-old boy, was wounded, on at least three occasions with a bushknife and that he died instantly. It has been proven beyond reasonable doubt that:
    
    • (1) a number of persons killed the deceased;
      
    • (2) the killing was unlawful (as no specific defence has been asserted);
      
    • (3) there was an intention to cause his death, which is clearly evident from the ferocity of the attack, the number of wounds inflicted and the number of wounds to vulnerable parts of the body (eg open skull fracture, right temporal).
      
39. I find that the State has proven beyond reasonable doubt that the offence of wilful murder was committed against the deceased.
    

Count 7: Anao Gunumi

40. Direct evidence as to the circumstances of his death has been given in the form of oral testimony by Sangiri Kiriwako. He was subject to cross-examination particularly in relation to the identification of the persons who were among the group who attacked the deceased, and the circumstances of the death. However I assess him as an honest and reliable witness. The post-mortem report corroborates his evidence that the deceased, a five-year-old boy, suffered multiple wounds with bushknives and that he died instantly. It has been proven beyond reasonable doubt that:
    
    • (1) a number of persons killed the deceased;
      
    • (2) the killing was unlawful (as no specific defence has been asserted);
      
    • (3) there was an intention to cause his death, which is clearly evident from the ferocity of the attack, the number of wounds inflicted and the number of wounds to vulnerable parts of the body (eg three open skull fractures).
      
41. I find that the State has proven beyond reasonable doubt that the offence of wilful murder was committed against the deceased.
    
2. HAS THE STATE PROVEN BEYOND REASONABLE DOUBT THAT ANY OF THE ACCUSED DIRECTLY COMMITTED ANY OF THE OFFENCES?
   
42. The State argues that a number of accused should be convicted of specific counts on the indictment due to their being identified by State witnesses as directly killing some of the deceased. The following table summarises for each of counts 2 to 7, those accused who were identified in the courtroom as being persons who attacked and killed the deceased, the subject of each count. It will be observed that there was no identification evidence in respect of count 1, involving the deceased Sike Wamne.
    
43. The State argues that those accused named in column 4 of the table should be convicted (independently of their conviction under Sections 7 or 8 of the Criminal Code) of the wilful murder of the relevant deceased. For example Imex Gaosa and Simon Duma should be convicted on count 2, wilful murder of Nick Uria and so on.
    

ACCUSED IDENTIFIED IN COURTROOM

44. I have considered the State’s argument in light of the principles on identification evidence in the leading Supreme Court cases of John Beng v The State [1977] PNGLR 115, Biwa Geta v The State [1988-89] PNGLR 153 and Jimmy Ono v The State (2002) SC698. Having been reminded by defence counsel to do so, I have considered the inherent dangers of relying on the correctness of identification to support a conviction and caution myself, as the tribunal of fact, accordingly. If the quality of the identification evidence is good the matter should proceed to verdict. However, if the quality of the evidence is poor an acquittal should be entered unless there is other evidence that goes to support the correctness of the identification.
    
45. I remind myself there is always the possibility that an honest witness can be mistaken and still be a convincing witness. I have assessed all State witnesses who gave identification evidence as being honest witnesses. I acknowledge the risk that they were mistaken about who they saw. The court must be satisfied that a witness is both honest and accurate.
    
46. In assessing the quality of the identification evidence, relevant considerations include:
    
    • whether the witness is purporting to identify a person who was a stranger or someone he or she recognised;
    • the length of time that the witness observed the accused (eg a prolonged period or a fleeting glance);
    • the emotional state of the witness at the time of the incident; the prevailing conditions (eg was it broad daylight or at dusk or dawn or inside or outside?);
    • the line of sight (eg did the witness have a clear front-on view or was the line of sight interrupted or did the witness just see the accused from the side?).
      
47. If there are discrepancies in the identification evidence the court should consider them and assess whether they are explicable in terms other than dishonesty or unreliability.
    
48. The defence counsel argued that the identification evidence was unreliable for a number of reasons:
    
    • the incident happened three years before the witnesses gave their evidence and this was the first time that they were being asked to identify suspects as there was never any identification parade or any other identification procedure put in place by the police – it should have been done immediately after the incident when a number of suspects were in custody at Ramu Police Station;
      
    • it was a traumatic and chaotic event and the State witnesses were in fear of their lives, hence they could easily be confused as to who they thought they saw attacking the deceased;
      
    • there were many Hausman (more than 200) raiding the village and they had their faces black and were running in different directions, making their identification difficult;
      
    • the courtroom identification procedures had a large margin of error given the number of accused in the courtroom, making reliable identification difficult;
      
    • in most instances of a so-called positive identification in the courtroom the name given by the witness did not match the name of the accused on the indictment.
      
49. Having considered those competing submissions and having full regard to the inherent danger of determining guilt on the basis of identification evidence, I find that I am satisfied beyond reasonable doubt that the accused identified by the State witnesses attacked and killed the relevant deceased persons, for the following reasons:
    
    • I assess each identification witness as honest, with sound witness demeanour, and reliable;
      
    • though the incident happened three years before the witnesses gave their evidence and this was the first time that they were being asked to identify suspects and though there was no identification parade or any other identification procedure undertaken, they were each identifying persons known to them, so this was a case of recognition evidence;
      
    • though it was a traumatic and chaotic event and the State witnesses were in fear of their lives, and though this gave rise to a risk of confusion as to identity, their natural tendency would be name those who they actually saw;
      
    • though there were many Hausman (more than 200) raiding the village and they had their faces black and were running in different directions, making their identification difficult, most State witnesses gave evidence of being in very close proximity to the actual attack that he or she witnessed;
      
    • the courtroom identification procedures were challenging logistically but cannot reasonably be regarded as unsafe or unreliable or prone to false identification;
      
    • the fact that in most instances of positive identification in the courtroom the name given by the witness did not match the name of the accused on the indictment is inconsequential as judicial notice is taken of the fact that it is not uncommon for people, particularly those in villages, to have more than one name and in any event in most instances the name of the accused on the indictment closely resembled the name given by the identifying witness.
      
50. I therefore find that the State has proven beyond reasonable doubt that the accused shown in the following table directly committed the offence of wilful murder and are convicted under Section 299(1) of the Criminal Code on the counts shown.
    

ACCUSED FOUND TO HAVE DIRECTLY COMMITTED WILFUL MURDER

3. HAS THE STATE PROVEN BEYOND REASONABLE DOUBT THAT ANY OF THE ACCUSED IS GUILTY OF ANY OFFENCES BY VIRTUE OF SECTION 7(1) OF THE CRIMINAL CODE?
   
51. The criminal liability of the accused must now be considered light of Section 7(1) of the Criminal Code, which states:
    

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.

52. The State argues that each of the accused was a member of the Hausman group that walked along the highway through Ramu, armed and with painted faces, and then walked to Sakiko, attacking and killing Sike Wamne along the way and then raiding the village, going on a rampage and wilfully murdering six village residents.
    
53. It is argued that all the accused, by being actively involved in the group’s activities, did acts for the purpose of enabling and aiding those who directly committed the offences, to commit the offences, and aided them in committing the offences, making all 97 accused guilty of seven counts of wilful murder under Sections 7(1)(b) and (c) of the Criminal Code.
    
54. The defence countered with two main propositions. First that the State failed to rule out the possibility that the 97 accused were not part of the Hausman that were observed walking on the highway and then went on the rampage at Sakiko. It was likely that the accused were members of a second group that happened to enter Sakiko after the deceased had been killed. The defence argued that the evidence supported this alternative hypothesis in that it was clear that there were many routes leading in to and out of Sakiko, and there was also evidence that the Hausman staged their raid from many different directions and in a sense partially surrounded the village before raiding it.
    
55. Secondly the defence argued that even if it is accepted that the accused were members of the Hausman group that raided the village and that some members of the group directly killed the deceased (as well as Sike Wamne, before the group entered Sakiko) only those against whom there is direct evidence on the criminal standard of proof of beyond reasonable doubt, should be convicted. Thus even if the eight or so accused who were identified in the courtroom as being involved in the killings are convicted, that should not count against the remaining 89 accused as there is no evidence against them. Reliance was placed on the Supreme Court decision in Rex Paliau v The State (2016) SC1537: presence of an accused at a violent incident involving death, does not by itself result in the conclusion that the accused participated in the incident or commission of the crime. Something extra must be proven: that he did something tangible to aid or assist those who actually did the acts constituting the offence.
    
56. I find no merit in the first argument. I uphold the State’s submission that the only reasonable inference to draw from the evidence is that there was only one Hausman group. There was no evidence adduced by the defence to challenge that inference. That group made its way to Sakiko and members of that group and no other group committed seven wilful murder offences in or in the vicinity of Sakiko. The fact that there are other routes in to and out of Sakiko is inconsequential. The evidence of the police officers present is clear that it was the members of the Hausman group that was initially observed walking along the highway at Sangkiang Bridge who committed the offences. Some members of the group (but not all) were assembled on the Sakiko field and then conveyed to Ramu Police Station and then charged with wilful murder. The State has proven beyond reasonable doubt that there was only one Hausman group and that all 97 accused were members of that group.
    
57. The defence’s second major argument carries more weight. It is true that there is no specific evidence as to what each of the 89 accused against whom there is no direct evidence actually did to aid or assist those who directly committed the offences. However, while conscious of the general principle that presence alone does not give rise to guilt, the special and extraordinary circumstances of this case militate towards a conclusion that in fact each member of the Hausman group was not merely present. This was a mass raid, a rampage, a massacre. There is no evidence that any member of the group withdrew or exhibited any hesitation about continuing to be involved. I find that each member of the group was actively involved at least by contributing to the mayhem and terror that was wrought upon the residents of Sakiko (and before them on Sake Wamne).
    
58. I conclude that the State has beyond reasonable doubt that each of the 97 accused was a member of the group that marched along the public roads in the manner alleged and raided the village, certain members of which group committed the seven offences of wilful murder the subject of the indictment. The State proved beyond reasonable doubt that by their participation in the group’s activities each of the accused did acts for the purpose of enabling and aiding those who directly committed the offences, to commit the offences, and aided them in committing the offences.
    
59. Each of the accused is by virtue of Sections 7(1)(b) and (c) of the Criminal Code guilty of seven counts of wilful murder, as charged.
    
4. HAS THE STATE PROVEN BEYOND REASONABLE DOUBT THAT ANY OF THE ACCUSED IS GUILTY OF ANY OFFENCES BY VIRTUE OF SECTION 8 OF THE CRIMINAL CODE?
   
60. The criminal liability of the accused must now be considered light of Section 8 (offences committed in prosecution of common purpose) of the Criminal Code, states:
    

Where—

(a) two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another; and

(b) in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of the purpose,

each of them shall be deemed to have committed the offence.

61. The leading Supreme Court case on the application of Section 8 is Willy Kelly Goya v The State [1987] PNGLR 51. For an accused to be criminally liable under this provision, the following matters must be proven beyond reasonable doubt:
    
    • (i) the accused formed a common intention with at least one other person to prosecute a purpose in conjunction with one another;
      
    • (ii) it was an unlawful purpose;
      
    • (iii) they prosecuted that purpose;
      
    • (iv) when doing so an offence was committed;
      
    • (v) the commission of the offence was a probable consequence of the prosecution of the purpose (see generally The State v Jacky Vutnamur (2005) N2848, The State v Seth Ujan Talil (2010) N4082, The State v Todd Mari (2011) N4259).
      
62. I find that the State has proved beyond reasonable doubt that:
    
    • each of the accused was a member of the Hausman group that marched along the public roads in the manner alleged and raided the village and that certain members of the group committed the seven offences of wilful murder the subject of the indictment;
      
    • none of the accused left the group or engaged in any conduct that would suggest that he was an unwilling participant in all the group’s activities including killing the bystander, Sike Wamne, on the way to Sakiko, raiding the village, destroying property, threatening and chasing residents and killing six village residents;
      
    • the members of that group had formed a common intention to prosecute an unlawful purpose (to raid the village believed to be harbouring sorcerers and to attack residents of the village and to kill sorcerers or persons connected with or harbouring them); and
      
    • in the prosecution of that purpose, seven offences were committed that were of such a nature (involving death) that commission of those offences was a probable consequence of the prosecution of that unlawful purpose.
      
63. I conclude for the purposes of Section 8 that the State has proven beyond reasonable doubt that:
    
    • (i) each of the accused formed a common intention with other members of the Hausman group, to prosecute the purpose of killing people who were suspected sorcerers or those thought to be harbouring them, at Sakiko, in conjunction with each other, and I find that there was a clear intention to kill people – not just cause them grievous bodily harm – that was the common purpose which each accused shared with other members of the Hausman group;
      
    • (ii) that was an obviously unlawful purpose as they were proposing to take the law into their own hands;
      
    • (iii) they prosecuted that purpose in that they acted together with the aim of implementing the course of action that they had agreed and embarked on;
      
    • (iv) in doing so, the offence of wilful murder was committed against the seven deceased persons who are the subject of counts 1 to 7 on the indictment;
      
    • (v) the commission of those offences was the probable (ie likely) consequence of the prosecution of that purpose.
      
64. Each of the accused is therefore by virtue of Section 8 of the Criminal Code guilty of seven counts of wilful murder, as charged.
    

CONCLUSION

65. I emphasise that the findings of guilt under Sections 7 and 8 of the Criminal Code are made in respect of each of the accused and are made independently of each of those provisions (Sections 7(1) and 8) and independently of the findings of direct guilt under Section 299(1) in respect of eight of the accused.
    

VERDICTS

66. Each of the 97 persons named as an accused on the indictment presented on 22 March 2017, as amended, being the 97 persons whose names are listed in alphabetical order in Appendix B to this judgment, is found under Section 299(1) of the Criminal Code guilty on each of the seven counts of wilful murder on that indictment, as charged.
    

Verdicts accordingly.

________________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Accused

APPENDIX A: STATUS OF 122 PERSONS COMMITTED FOR TRIAL

APPENDIX B: NAMES IN ALPHABETICAL ORDER OF 97 ACCUSED