State v Lare [2019] PGNC 183; N7909 (15 July 2019)

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CR Nos. 1043, 1044, 1045, 1048, 1050, 1051, 1053, 1054, 1055, 1056, 1060, 1061, 1062 and 1063 OF 2016

WILLIAM LARE, CAMILUS MARKUS, ALWINUS EMIL, NATHAN THOMAS, ALPHONSE LARE, NERIUS KUANG JNR, NATHANIEL KENMI, JOSHUA BRUNO, KALUBAN CASPAR, PASKALIS LARE, BRIAN BURE, BONIFACE RAPHAEL, BERRY BRUNO and JONAH BRUNO
(No 2)

CRIMINAL LAW – wilful murder – section 299 – Criminal Code Act Chapter No. 262 - confessions in statements and records of interviews – whether evidence obtained followed due process - whether more or less weight should be given to confessions obtained in records of interviews and in the statements of some of the co-accused – identification – whether witnesses evidence identify all, some or none of the accused – circumstantial evidence – whether the evidence were such that there were no other reasonable hypothesis to be drawn except that the 14 co-accused had wilfully murdered the two deceased – sections 7 & 8 of the Criminal Code – whether the 14 co-accused were principal offenders – whether the 14 co-accused had common intentions to carry out unlawful purposes or acts and in so doing they also committed wilful murders which were the probable consequences of their common intentions

State v. William Lare and 17 Ors (2019) N7851
State v. Joe Ngotngot (2016) N6306
State v. James Paru (2017) SC1632
State v Kelly Minong (2016) N6271
John Beng v The State [1977] PNGLR 115
Paulus Pawa v. The State [1981] PNGLR 498
State v. Cosmos Kutau Kitawal & or (No. 1) N2266
State v. Tom Morris [1980] PNGLR 493

Ms J. Batil with counsel assisting Ms Omena, for the State
Mr E. Paisat, for the Fourteen Accused

1. ANIS J: This matter was trialled in May and June of 2019. On 15 May 2019, the defence closed its case. Presentation of submissions proceeded on 12 and 19 June 2019. I reserved my decision on verdict to 1:30pm on 3 July 2019. My decision was not ready and the matter was further adjourned to today at 1:30pm.

3. The matter commenced like this. On 4 April 2019, the State presented 3 separate indictments against 18 co-accused. The names of the 4 co-accused who were subsequently discharged from this proceeding were Francis Suang, Blasius John, Bart Talcicius and James Oscar. The 3 indictments are summarised as follows:

Indictment No. 1: 2 counts of wilful murder of Bernard Mursing and Ereman Kle against each of the then 18 co-accused;

Indictment No. 2: 1 count of attempted to unlawfully kill one Patrick Tentau against each of the 18-co accused; and

Indictment No. 3: 9 counts of wilfully and unlawfully setting fire upon houses that belonged to 9 families, that is, against each of the 18 co-accused.

4. The State opted to trial the first indictment, that is, for the alleged wilful murder of Bernard Mursing and Ereman Kle (the 2 deceased). The charges in the first indictment were brought under section 299 of the Criminal Code Act Chapter No. 262 (Criminal Code). The State has indicated that it will pursue the remaining 2 indictments at a later date before a separate Court. This trial therefore proceeded dealing only with the first indictment.

5. At the close of the prosecution’s case, the defence made a no case to answer application. On 10 May 2019, I handed down my ruling. The application was partially granted in that co-accused Francis Suang, Blasius John, Bart Talcicius and James Oscar were found to have no case to answer to, and they were discharged from the charges of wilful murder. The decision was published on 10 May 2019 as State v. William Lare and 17 Ors (2019) N7851.

6. After the said ruling, the defence counsel requested time to seek instructions from his clients. When the matter returned on 15 May 2019, the defence counsel informed the Court that the 14 remaining co-accused have decided to exercise their rights to remain silent, and the defence closed its case. The matter was adjourned to 12 June 2019 for presentation of submissions on verdict. The defence counsel was not ready then, so it was further adjourned to 19 June 2019. When the matter returned, the defence counsel asked for more time. The application was declined. The Court then heard and received submissions from the parties. I received written submissions from the State. As for the defence, despite sufficient time being given, counsel did not prepare and file any written submissions.

7. The 14 co-accused come from Merai and Urai villages, in Pomio District of East New Britain. In relation to the first count, they, and I quote in part, stand charged that each and severally, on the 20^th day of January 2016, at Mak Village, Sinivit LLG, Pomio District, East New Britain Province in Papua New Guinea, wilfully murdered BERNARD MURSING. In relation to the second count, again, the 14 co-accused, stand charged that each and severally, on the 20^th day of January 2016, at Mak Village, Sinivit LLG, Pomio District, East New Britain Province in Papua New Guinea, wilfully murdered EREMAN KLE.

8. The brief facts that support the 2 counts of wilful murder read, and I quote in part:

9. The State called a total of 9 witnesses and tendered, without objection, a total of 32 exhibits. The 14 co-accused have exercised their rights to remain silent, and tendered, without objection, 1 exhibit.

10. The issues that arise are as follows. Firstly, whether the State has established beyond reasonable doubt that the 14 co-accused were present at the crime scenes at the material time with the group of people that attacked Mak village in the morning of 20 January 2016. The next issue is whether the circumstantial evidence prove beyond reasonable doubt that the 14 co-accused participated in the killing of the 2 deceased. And the third issue is whether the 14 co-accused unlawfully and intentionally killed the 2 deceased.

11. The parties are at common ground on the following. Firstly, that on the morning of 20 January 2016, a group of men from the 2 villages, namely, Merai and Urai, attacked the people of Mak and Sumsum villages, which are located in the Sinivit LLG of Pomio District of East New Britain.

12. The parties are also at common ground that on that day and morning, the 2 deceased were killed by their attackers at Mak village. The causes of their deaths are also not in issue, that is, they each died of loss of blood after they both sustained severe cuts to their bodies that morning during the attack at Mak village by the Merai and Urai people.

13. I prefer to address confessional statements and admissions made by some of the co-accused. At the outset, the State tendered without objection 14 records of interviews of the 14 co-accused. And of the 14, 6 appear to contain admissions. The State has also tendered 3 confessional statements.

14. The 3 confessional statements were tendered through State witness Detective Sergeant Aiyofa Faregere ( Sergeant Faregere). He was later cross-examined in relation to them. The 3 co-accused that gave confessional statements are co-accused Nathan Thomas, Kaluban Casper and Nerius Kuang Junior. Their statements are marked and described as follows:

15. The 6 records of interviews that have evidence of admissions, relate to the attack that occurred at Mak and Sumsum villages on 20 January 2016 by the people of Merai and Urai villages, and they also contain acknowledgments in relation to the deaths of the 2 deceased as a result of the said attack. I set them out herein,

Exhibit No.	Record of interview of	Date
P17	Accused Nerius Kuang Junior	30 January 2016
P16	Accused Alphonse Lare	2 February 2016
P15	Accused Nathan Thomas, who also gave a confessional statement ie Exhibit P30	30 January 2016
P13	Accused Camilus Markus	30 January 2016
P12	Accused Alwinus Emil	30 January 2016
P11	Accused William Lare	29 January 2016

16. Now, the 3 confessional statements and the 6 records of interviews as stated above, are in evidence for consideration. The defence counsel, in his closing submission and on point, submitted that the confessional statements given by the 3 co-accused should be struck-out. Counsel submitted that the co-accused were villagers and had not been properly or fairly treated by the police in that they were not fully informed of their constitutional rights, that is, before the confessions or the interviews were conducted. I note that I had informed counsel that it was late to raise such an argument since the evidence were already in and were before the Court for consideration. I had informed counsel that perhaps his submissions should be that little or no weight should be given to those evidence. I affirm my position. In the case, State v. Joe Ngotngot (2016) N6306, I said in part, and I quote:

A record of interview that is tendered without objection or by following due process, is good evidence and is open to the Court to assess and give appropriate weight to, even if the accused person or its author exercises his or her right to remain silent at the trial (case law followed: State v. John Yeon Bekeram (2011) N4298)

17. I adopt and apply the above herein. In this case, the 7 co-accused, namely, Nathan Thomas, Kaluban Casper, Nerius Kuang Junior, Alphonse Lare, Camilus Markus, Alwinus Emil and William Lare (i.e., those accused identified in the 2 tables above), with the other remaining 7 co-accused, have exercised their rights to remain silent. I also note that the defence did not request for a voire dire hearing to challenge the admissions of the 3 confessional statements and the 6 records of interviews. Had that been done, I would have, in addition to considering whether the these accused persons’ rights under the Constitution have been observed, considered section 28 of the Evidence Act Chapter No. 48, which states, A confession that is tendered in evidence in any criminal proceeding shall not be received in evidence if it has been induced by a threat or promise by a person in authority, and a confession made after any such threat or promise shall be deemed to have been induced by it unless the contrary is shown. That did not occur. However, that said, I note that the defence counsel has cross-examined Sergeant Faregere in relation to the confessional statements. If the cross-examination reveal that police did not follow the due process for obtaining the confessional statements, or show serious doubts in the manner which police had obtained the confessional statements, then obviously little or no weight must be given to them, that is, in my consideration on verdict. The same consideration or test can be said in relation to the records of interviews. I must add that the Court’s consideration would not be limited to what Sergeant Faregere has said but also this. I would be obliged, since the evidence are already before the Court, to also consider each of the confessional statements and records of interviews, to determine whether they reveal evidence of due process been followed, or on the same note, on whether due process has not been followed. So, I ask myself this. What is that due process? The Supreme Court in the case, State v. James Paru (2017) SC1632, I believe summarises it well. At paragraph 5, it stated, and I quote:

A confession made by an accused must be voluntary in that it is made in the exercise of a free choice to speak or remain silent: McDermott v The King (148) 76 CLR 501 at 511. The confession must be made under circumstances and conditions that are fair and allowed for a free exercise of an accused's mind. The failure to accord the accused his right to see a lawyer or to administer the caution before the confession is made per see are not grounds for rejecting a confession if the confession was made freely. It is not out of the ordinary for an accused person who feels compelled by the dictates of his own conscience about guilt to give the confession at the earliest opportunity to a law officer or policeman, however the confession must not be induced or coerced upon by threats of harm, assault or any other forms of intimidation that would have an overbearing effect on his mind. A confession may be voluntary even if he was not told of his right to remain silent: R v Gitinu Ileandi [1967-68] PNGLR 496; R v Suk Ula [1975] PNGLR 123. Failure to comply with Section 42(2) of the Constitution for that reason alone does not render a confession necessarily inadmissible: Constitutional Reference No. 1 of 1977 [1977] PNGLR 295. In determining the voluntariness of the admission, the trial Judge must advert to these principles in his or her judgement.

18. In the case, State v Kelly Minong (2016) N6271, I also stated, and I quote in part:

A record of interview that is tendered by consent of the parties at trial, which is not counter-signed by the accused, is good evidence before the Court for consideration provided there is evidence, which shows that the record of interview was legally obtained. For example, police must afford the accused his or her constitutional rights. Police must read out or translate the statement to the accused at the end of the interview. The accused must understand and agree with the content of the statement. The interviewer and corroborator may give sworn evidence or file statements to support the admissibility of the record of interview in question. (Cases followed: State v. Goi Mubin [1990] PNGLR 99; State v. Benjamin Garo (1996) N1521; The State v. Peter Raima [1993] PNGLR 230).

19. I find both the Supreme and National Court decisions relevant to the present case and so I adopt and apply them herein. When I consider the 3 confessional statements, I notice that despite the fact that they have not been signed, they were counter signed by Sergeant Faregere as well as by the corroborating officer Private Sergeant Vanesa Neil. The 2 officers also gave corroborating statements, that is, Exhibits P3 and P4. Sergeant Faregere also gave oral evidence on the subject matter. And he was cross-examined by the defence. In his replies during cross-examination, he denied accusations that the 3 co-accused did not sign their statements because they did not believe in them. Sergeant Faregere said the 3 co-accused gave their evidence at their own free will. He also denied accusations that police ought to have but had failed to insist upon the 3 co-accused persons to seek advice from a person of their choice or from a lawyer. Sergeant Faregere said that they had informed the accused of their rights to see a lawyer or persons of their choice. Further, Sergeant Faregere also denied accusations that the 3 co-accused persons were intimidated by police to give their confessional statements. Sergeant Faregere again said that the accused gave their confessions and statements voluntarily.

20. When I consider all that, I come to this conclusion and finding. Firstly, I note that the 3 confessional statements have been admitted into evidence and are before me for consideration. I find that this comes down to the question of weight, that is, how much weight I should give to them. I also find that the 3 statements, despite not being signed by each of the 3 co-accused, namely, Nathan Thomas, Kaluban Casper and Nerius Kuang Junior, have been obtained by police following the due process. I note from the confessional statements and from the evidence of Sergeant Faregere and Private Neil that police had followed the due process, that is, in terms of cautioning the 3 co-accused persons; in terms of reading out their rights under section 42(2) of the Constitution; in terms of providing them with the opportunity to talk to a lawyer or a person their choice; in terms of countersigning each confessional statement despite them not being signed by the 3 co-accused; and finally, in terms of providing corroboratory evidence to support how they have obtained the 3 confessional statements.

21. I am therefore satisfied that the 3 confessional statements have been duly obtained, and that they are available to me, and that I am at liberty to give more or less weight which could also depend on my consideration of the other evidence that are before me.

22. Let me consider the second point, that is, admissions contained in the records of interviews of the 6 co-accused. No real challenge was put up by the defence in relation to Exhibits P11, P12, P13, P15, 16 and P17. These records of interviews were tendered without objection. There are all not signed by co-accused Nerius Kuang Junior, Alphonse Lare, Nathan Thomas, Camilus Markus, Alwinus Emil and William Lare. In my view, I would adopt the same reasons as stated above in my consideration of the 3 confessional statements. I find that Exhibits P11, P12, P13 P15, P16 and P17 contain evidence that have been properly tendered and are before me for consideration. I also find that they had been obtained by police who had followed the due process. Let me elaborate. Perusal of these records of interviews themselves show compliances with the due process. Police personnel responsible had counter-signed on the 6 records of interviews, and they attest evidence, which is before me, of how they had each witnessed or participated in these records of interviews. And Mr Faregere, in addition to his tendered statement, gave oral evidence in Court where he also defended the process, that is, due process in the manner in which the statements and the records of interviews had been obtained by police from the 14 co-accused.

23. I am satisfied that the 6 records of interviews were duly obtained by police. Under the circumstances, I note therefore that I am also at liberty to give appropriate weight on them depending on my findings or considerations with the other evidence that are before the Court which I will now address.

24. The State is vested with the standard of proof, that is, beyond reasonable doubt. In this case, the main issue relates to identifying or determining whether each of the 14 co-accused was present with the other attackers of Merai and Urai villages, at Mak village at the 2 crime scenes in the morning of 20 January 2016.

25. I will caution myself by adopting what was stated in the case, John Beng v The State [1977] PNGLR 115, that is, “In proceedings where evidence of identification is relevant, the Court should be mindful of all the inherent dangers, the need for caution before convicting in reliance on the correctness of identification, the possibility that a mistaken witness could be a convincing one and that any number of such witnesses could all be mistaken; the Court should examine closely all the circumstances in which the identification by each witness came to be made bearing in mind that recognition may be more reliable than identification of a stranger, but that even where the witness is purporting to recognize someone he knows mistakes can be made. When the quality of the identification evidence is good the matter should proceed to a verdict, when the quality of identification evidence is poor, unless there is other evidence which goes to support the correctness of the identification, an acquittal should be entered.”

26. Let me begin by addressing the 3 co-accused who gave confessional statements. The first co-accused is Nathan Thomas. His admissions are contained in his record of interview and his confessional statement. They are marked exhibits P15 and P30, and are dated 30 January 2016 and 22 January 2016 respectively. Both documents are not signed by the accused. However, I note that I have already addressed that above in my judgment so both documents are properly before me. In the record of interview, the accused said that in the morning of 20 January 2016, he and men from Merai and Urai villages, attacked Mak village. He said that it was a planned attack. He said he held a knife and kept a watch at the roadside whilst the others went inside Mak village and burnt down the houses. He said because he was outside, he did not know who killed the 2 deceased. He also said the following in answer to question 8 of his confessional statement, and I quote:

Yes. We mobilized at Merai village and came down to Mak village. We came near the village and came in group. Large group went into the Mak village and destroyed houses and we some stood guarding on the road. When the group of men went in and came out we walked to the village. Big group of men went into the village so I wouldn’t know who killed those two men. We walked to the village and I heard that there were killings. I stayed at Gar village and when I went to Merai village the plan was already there for us to go to Mak village. At that time, we came down, the Ward member Leonard Wandrem also came down with us and stayed at his block where his copra dryer is. After that move we came back and stood at the ward member’s block. Some group of men went to Sumsum village came and met us. Many men went to Sumsum village, I wouldn’t know, who were they.”

27. State witness Bosco Kuta also identified accused Nathan Thomas in his oral testimony. Witness Bosco is from Mak village. He said he was at his house at that morning on 20 January 2016. He said it was around 6am when the sun was already up. He said he was still asleep that morning and was awoken by the sound of noises from stones that were thrown onto the houses. He said he also heard the sound of houses burning nearby. He said from his house he saw the accused burning the houses nearby. He said the accused was close by his house. He said he recognised him because they come from the same ward and they played sports or games together. He said the accused was partially dressed in traditional attire. He said the accused held a knife and a sling shot on his hands. He said the accused ran down towards where he was and said something like this, “Ol iron man blo yupla wer, mipla come lo painim ol iron man blo yupla.” When translated, it reads, “Where are your iron men? We are here to look for your iron men.” He said another man Francis Blaze approached the accused and told the accused to let him go. He said he later fled after his family into nearby bushes. Witness Bosco identified the accused in Court.

28. The defence declined to cross-examined witness Bosco’s testimony. As such, his evidence remains unchallenged and intact. In my view, I find witness Bosco to be a credible witness. I cannot find any reason to doubt his evidence which he gave under oath. His evidence appears to partially corroborate what the accused had stated in his record of interview, namely, that the accused was at the vicinity of the crime scene and was holding onto a knife. I am satisfied beyond reasonable doubt that co-accused Nathan Thomas was at Mak village at the material time and that he was part of the large group of men from Merai and Urai villages (the Bainings) that attacked Mak and Sumsum villages in the morning on 20 January 2016. I am also satisfied that he was within the vicinity of the crime scenes at Mak village where the 2 deceased were killed.

29. The second co-accused that gave a confessional statement is Kaluban Casper. His confessional statement is marked Exhibit P31. It is dated 22 January 2016. His record of interview is also tendered and is marked as Exhibit P21. It is dated 2 February 2016. Both documents were not signed by the accused. However, I have already made a finding on these above in my judgment, so in this case, both documents are properly before me for consideration. In the record of interview, the accused denied all the events and of his involvement in the incident. But in his confessional statement, this is what he said to question 8:

That time we came, we came with the committee of Merai village. We came as a group and we went in. We went in and destroyed the houses. Lit the houses. But regarding the deaths, I came and the group of men were still there, and the deaths have already occurred. We many men stayed around. When I came the group of men were already staying in the house where the man died. Big group rounded the house.

30. The accused has exercised his right to remain silent. As such, his 2 inconsistent statements remain without corrections. It is left to the Court to decide whether to accept one or the other version, or reject both versions. In my view, I will accept the accused confessional statement and reject his denials in his record of interview. To me, the accused’s above quoted admissions is corroborated with the accounts as recalled by co-accused Nathan Thomas. His accounts are also corroborated by the statements of co-accused Nerius Kuang Junior and the accounts recalled by the State witnesses, as I will cover below in my judgment.

31. For this purpose, I am satisfied beyond reasonable doubt that co-accused Kaluban Casper was part of the group of men from Merai and Urai villages that attacked Mak village in the morning of 20 January 2016. The attack involved destructions of properties. It also resulted in the death of the 2 deceased. I am satisfied that he was within the vicinity of the crime scenes at Mak village at the material time.

32. Let me consider the 3^rd confessional statement, that is, of accused Nerius Kuang Junior. The statement is marked Exhibit P32. It is dated 26 January 2016. The accused’s tendered record of interview is marked Exhibit P17. It is dated 30 January 2016. The accused has admitted in both documents as a participant with the Merai and Urai village people that attacked Mak and Sumsum villages on 20 January 2016. In his record of interview, the accused said that he accompanied the group of men from Merai and Urai villages to Mak village. But he said when they arrived there, he stood next to the road to Mak village whilst the group of men went inside the village. He said he held a knife whilst he stood there on the road. In his confessional statement, he said the following in answer to question 8:

Okay, I didn’t know about this move. I stayed at the block at Illi village. When I came up to Merai village, this move to go down to Mak village was already set. We all men from Merai village went into that group. True that we went down to Mak village and stood on the road and saw those men went and burnt down Sulka people’s house. Night time too so we wouldn’t know who really burnt it. The men from Sulka living at Mak and Sumsum villages usually chased us and do anything to us so we organised up at Merai village, agreed upon and came down to Mak village and did that move. Some of us stayed at Mak village and went back and some men came to Sumsum village and went back.

33. The accused has exercised his right to remain silent. Both his confessional statement and his record of interview, were unsigned. However, I note that I have already address this issue. And in this case, I note that both statements of the accused are corroborated by the confessional statements of co-accused Nathan Thomas and Kaluban Casper. I am satisfied beyond reasonable doubt that co-accused Nerius Kuang Junior had participated in the attack at Mak and Sumsum villages in the morning on 20 January 2016. I am also satisfied beyond reasonable doubt that he was also present at Mak village within the vicinity of the crime scenes where the 2 deceased were killed.

34. I now deal with accused Alphonse Lare. His tendered record of interview is marked Exhibit P16. It is dated 2 February 2016. The accused refused to sign his record of interview. But as I have found above, the evidence obtained by police had followed due process and therefore are properly before me for consideration. The accused has denied therein to ever participate in the attack with people from Merai and Urai villages against Mak and Sumsum villages. He did however acknowledge that the attack was well planned and executed by his people against Mak and Sumsum villages. He has exercised his right to remain silent. But I note that the accused was identified by State witness namely Henry Clement. Witness Henry said that on that morning, he was at a haus krai (mourning house) at Mak village. He said about 6am that morning, he walked down the village towards the main road. He said he heard loud bagging on houses. He said as he approached the main road, he could see about 10 people approaching from the Merai village direction. He said he approached them and one of the men grabbed hold of him. He said he recognised the man. He said it was the accused. He said the accused had lime on his face and he was partially dressed in traditional attire that worn for battle or fights. He said the accused was armed with a knife, a slingshot and with stones. He said the accused asked him about boys from his (i.e., Henry’s) village. He said he recognised him because their villages were close by and they see each other often. Witness Henry also identified the accused in Court. The defence declined to cross-examine the witness so his evidence in this case went unchallenged.

35. I see no reason to doubt witness Henry’s testimony. I find him to be a credible witness. I did not see any material inconsistencies in his testimony. I am therefore satisfied beyond reasonable doubt that co-accused Alphonse Lare was present at the vicinity of crime scenes where the 2 deceased were killed, that is, at Mak village in the morning of 20 January 2016. I am satisfied that he was there with his fellow men from Merai and Urai villages.

36. The next co-accused is Camillus Markus. His record of interview is marked Exhibit P13. It is dated 30 January 2016 and it is unsigned. But as I have ruled earlier, due process had been followed by police in obtaining these evidence, and so for this case, the record of interview is properly before me for consideration. The accused has exercised his right to remain silent. In the record of interview, the accused made some startling admissions. For this purpose, he admits that he participated in the attack at Mak and Sumsum villages, with his people from Merai and Urai villages in the morning of 20 January 2016. He said on that morning at Mak village, he held a stick and kept watch at the main road of Mak village; he said he waited there to hit anyone from Mak village that may decide to flee in his direction; he said no one from Mak village had come by his way.

37. Accused Camillus Markus was also identified by State witnesses Jacob Stanley and Henry Clement. Witness Jacob said his house was about 10 meters away from deceased Bernard Mursing’s house. He said at about 6am on that morning, he heard loud noises outside his house. He said he came out of his house and from there he saw men approaching deceased Bernard Mursing’s house. He said he recognised the accused as the second person. He said the accused partially painted his face with lime and partially dressed in traditional attire that is worn for battle or fights. He said he recognised him because the accused was his friend, and he said he knows him well. He said when he first got married to his wife, the accused used to live with them at their house. He also identified the accused in Court. The defence did cross-examine witness Jacob. However, its line of questioning only challenged the time when the incident was said to have begun at Mak village. The second State witness Henry Clement also identified the accused to be present at the crime scenes at Mak village on 20 January 2016. He said the accused was one of the 10 attackers that he recognised that morning. He said the accused had his face partially painted with lime and also partially wore traditional attire that is worn for battle or fights. He said he knew the accused before the incident because their villages were close by to each other. Witness Henry also identified the accused in Court. The defence declined to cross-examine witness Henry. As such, witness Henry’s evidence where he has identified the accused was not challenged or disturbed. I find nothing seriously wrong or inconsistent in relation to the testimonies of the 2 State witnesses on the issue of identification. I am therefore satisfied beyond reasonable doubt that co-accused Camillus Markus was present at Mak village and also that he was at the vicinity the crime scenes at the material time.

38. I turn to co-accused Alwinus Emil. His record of interview is marked Exhibit P12. It is dated 30 January 2016. He did not sign his record of interview after he was interviewed. As I have found and ruled above in my judgment, the confessional statements and records of interviews, which includes Exhibit P12, had been obtained by police following due process. It is therefore properly before me for consideration. The accused has admitted to participating in the attack at Mak village in the morning on 20 January 2016. He also gave revealing evidence of what had happened on that day. He said the attack was planned by his people the Bainings of Merai and Urai villages. He said they all arrived and ran as a group towards the houses at Mak village. He said they shouted and scared away the people. He said he posted himself outside the houses whilst other people went in. The accused was also identified by State witnesses, namely, Jacob Stanley, Henry Clement, Langerius Kape and Margaret Bernard. None of these State witnesses’ evidence were tested by the defence in relation to where they have identified the accused as present at the vicinity of the crime scenes. For this purpose, I am satisfied beyond reasonable doubt that co-accused Alwinus Emil was present at the crime scenes at the material time.

39. Let me address co-accused William Lare. His record of interview is marked Exhibit P11. It is dated 29 January 2016. The accused did not sign his record of interview. As I have ruled above, the evidence was duly obtained and therefore is properly before me for consideration. The accused admits the incident of 20 January 2016. He admits following the men from Merai and Urai villages to Mak village. But as he puts it, he followed them from behind. He said he carried a bag with him over there. He said when they arrived at Mak village, the men, did the move. He said he ran away after that. He said he ran and told his aunt to also run away. To me, this witness has put himself at the crime scenes at Mak village where the 2 deceased were killed. But not only that. State witnesses Jacob Stanley, Henry Clement, Jacinta Lucas and Margaret Bernard have all also identified him at the crime scenes. They each have also identified him in Court. I do not find any real reasons to doubt the testimonies of these State witnesses in relation to them identifying the accused at the crime scenes. The defence counsel did not test the 3 State witnesses regarding their accounts of how they each recognised and identified the accused. For this purpose, I am satisfied beyond reasonable doubt that co-accused William Lare was present at Mak village on 20 January 2016, and he was also at the vicinity of the crime scenes at the material time.

40. The next 7 co-accused have denied ever being involved in the incident of 20 January 2016. They are co-accused Nathaniel Kenmi, Joshua Bruno, Paskalis Lare, Brian Bure, Boniface Raphael, Berry Bruno and Jonah Bruno. Let me deal with them individually.

41. I refer to accused Nathaniel Kenmi. His tendered record of interview is marked Exhibit P18. It is dated 1 February 2016. As stated, the accused has denied all the allegations that were put to him in the record of interview. He has also exercised his right to remain silent. State witness Henry Clement has identified the accused in his oral testimony. He also identified him in Court. The defence declined to cross-examine witness Henry’s evidence. This is what witness Henry said about the accused. He said the accused was with the group of 10 men when he saw him. He said the accused was with Alphonse Lare, William Lare, Paskalis Lare, Mathias, Cosmas, Robert, Alwinus Emil and Boniface Raphael. He said he knew the accused before the incident. He said the accused comes from a neighbouring village called Urai village. He said that was why he was able to recognise and identify him when he saw him with the 10 men at Mak village that morning on 20 January 2016. For this purpose, I am satisfied beyond reasonable doubt that co-accused Nathaniel Kenmi was present within the vicinity of the crime scenes that morning at Mak village on 20 January 2016.

42. Let me consider co-accused Joshua Brumo. His tendered record of interview is marked Exhibit P20. It is dated 2 February 2016. . As stated, the accused has denied all the allegations that were put to him in the record of interview. He has also exercised his right to remain silent. That said, the accused was identified by 3 State witnesses, namely, Langerius Kape, Matias Leo and Margaret Bernard. The defence declined to cross-examine the 3 witnesses. Their evidence where they have identified the accused to be present at the vicinity of the crime scenes at Mak village where the 2 deceased were killed, were not contested or challenged. This is what witness Langerius said in relation to the identity of the accused. He said on that morning, he was near the creek between Mak village and Sumsum village. He said it was around 8am in the morning. He said from there, he saw some boys crossing the creek and heading towards Sumsum village from Mak village. He said the boys faces were painted in charcoals. He said they were less than 10 of them. He said they had bags and they were armed with stones and knives. He said he could only recognise 3 of them. He named one of them as the accused. He said the accused carried a knife and stones. Witness Langerius said he knows the accused because they come from the same ward, namely, Merai ward. He also said that the accused comes from Urai village. Witness Langerius also identified the accused in Court. The 2^nd State witness Matias Leo identified the accused as follows. He said he was in Mak village that morning and he learnt of the death of deceased Bernard Mursing. He said he went over to the deceased house to see his dead body. After that, he said he walked down to the beach to a haus boi (work shed or house) with Ereman Kle who was then alive. He said from the haus boi, he went to the beach to relieve himself. He said when he returned, a group of attackers appeared and gave him a chase. He said he ran for his life back to deceased Bernard Mursing’s house. He said the attackers caught him before he could reach the house. He said the attackers were about to cut him when 5 of the boys who were with the attackers defended him and stopped the others from cutting him. He said the 5 men knew him so they told the others not to cut or hurt him. He named the 5 boys and called out the name of the accused as one of them. He said the accused was a good friend of his. He said he knows the accused very well. He said they had been friends for a while. He said the accused was also partially dressed in traditional attire that is worn battle or fights. He identified the accused in Court. The 3^rd State witness who identified the accused is Margaret Bernard. She was the wife of the deceased. She said after her husband was killed and their house broken into, she returned to his dead body which was still inside their house. She said she remained in there and grieved over him. She said from inside her house, she was able to see the attackers through an opening from a broken wall. She said some of the men who had gone to destroy Sumsum village had returned to Mak village. She said these men stood at the main road of Mak village. She identified the accused as one of the men. The witness had refer to the accused as Jonathan in her testimony. But I note that this was later clarified by counsel for the State Miss Batil where she got the witness to retract her earlier references to the name Jonathan. Witness Margaret said she knew the accused before the incident which was why she was able to identify him. She said she used to feed him from time to time at her house at Mak village. She identified the accused in Court before she retired.

43. I have considered the evidence. I have no strong reason to doubt the evidence of the State witnesses. I am satisfied beyond reasonable doubt that co-accused Joshua Bruno was present at the crime scenes at the material time of the incident at Mak village on 20 January 2016.

44. Let me consider co-accused Paskalis Lare. His tendered record of interview is marked Exhibit P23. It is dated 2 February 2016. The accused has denied all the allegations in his record of interview. He has also exercised his right to remain silent. Despite these, the accused was identified by 3 of the State witnesses. They are witnesses Jacob Stanley, Henry Clement and Jacinta Lucas. The defence declined to cross-examine these witnesses regarding the identity of the accused. As such, their evidence where they have identified the accused to be present at the vicinity of the crime scenes at Mak village where the 2 deceased were killed, remain uncontested or unchallenged. This is what witness Jacob said on the identity of the accused. On that morning on 20 January 2016, he was at his house at Mak village. He said he heard noises outside so he came out. He said it was around 6am in the morning. He said he saw men surrounding the deceased Bernard Mursing’s house. He identified the accused as one of the men who was present there. He said he was partially dressed in traditional attire that is worn for battle or fights. He said the accused also partially painted his face with lime. He said the accused was his best friend and that he had known him well. He said when he first built his house, the accused used to live with him. He also identified the accused in Court. The next witness is Henry Clement. He said he was at the haus krai at Mak village, and at about 6am, he walked down to the main road. He said he went there after he heard loud noises or banging on the walls of houses. He said he was held there by the attackers and in particular co-accused Alphonse Lare. He said at that moment, he also saw the accused. He said the accused was partially dressed in traditional attire that is worn for battle or fights. He said he knew the accused because the accused lives in Merai village but comes around to Mak village regularly. He also identified the accused in Court. The 3^rd State witness who identified the accused is Jacinta Lucas. She said she was at her house at Mak village in the morning of 20 January 2016. She said she sat inside her house and looked outside through her door. She said she saw the accused and co-accused William Lare. She said they were both partially dressed in traditional attires. She said they both had dirt on their faces. She said they both stood outside at the front of her door and told her to follow them back to Meri village. She said after they had said that, they both left the house and went away. She just said that she knows the accused. She also identified him in Court.

45. I find no serious errors to doubt the evidence of the 3 State witnesses concerning the identity of the accused at the crime scenes. I am satisfied beyond reasonable doubt that co-accused Pascalis Lare was present at the crime scenes with the other attackers, that is, at Mak village in the morning of 20 January 2016.

46. The next co-accused is Brian Bure. His record of interview is marked Exhibit P25. It is dated 2 February 2016. The accused denied all the allegations that were put to him by police in the record of interview. And he has exercised his right to remain silent. The accused was identified by one State witness. She is Margaret Bernard. The defence declined to cross-examine the witness. This is what she said in relation to the accused. She said on the day and morning in question, she was inside her house mourning the death of her husband Bernard Mursing, that is, after he had been killed earlier by the attackers. She said the sun was already up. She said some of the attackers who had gone to Sumsum village had returned to Mak village. She said the walls of her house were broken as a result of the attack on her house, so she said she was able to see through a space of her house wall onto the main road of Mak village. She said the distance from her house to the road was about 10 meters. She identified the accused with other co-accused persons who were standing on the main road at Mak village. She said the accused was partially dressed in traditional attire, and he also had charcoal painted over his body. She said she knew and recognised the accused because the accused and the others used to come to her house from time to time to eat. She also identified the accused in Court.

47. I have already found this witness testimony to be credible earlier in my judgment. I am satisfied beyond reasonable doubt that the co-accused Brian Bure was present at the crime scenes at the material time at Mak village in the morning of 20 January 2016, that is, around the time when the 2 deceased were killed.

48. The next co-accused is Boniface Raphael. His tendered record of interview is marked Exhibit P26. It is dated 3 February 2016. The accused denied all the allegations that were put to him by police in the record of interview. And he has exercised his right to remain silent. The accused was identified by State witness Henry Clement. This was how the witness identified the accused at the crime scenes. He said that at the time when he was grabbed by co-accused Aphonse Lare with about 10 other attackers at the front of the road at Mak village, he also recognised and saw the accused. He said he later freed himself and ran over to a flower garden to hide. He identified the accused in Court. The defence declined to cross-examine the witness.

49. I did not find any serious flaws to doubt the evidence of this witness. I find him credible and I am satisfied beyond reasonable doubt that co-accused Boniface Raphael was also present at the crime scenes at the material time at Mak village in the morning of 20 January 2016.

50. The next co-accused is Berry Bruno. His tendered record of interview is marked Exhibit P27. It is dated 4 February 2016. The accused denied all the allegations that were put to him by police in the record of interview. And he has exercised his right to remain silent. Despite these, the accused was identified by 3 State witnesses, namely, Langerius Kape, Matias Leo and Margaret Bernard. The defence declined to cross-examine the 3 witnesses so their evidence remain uncontested. This was how witness Langerius identified the accused. He was in a bush next to a creek that morning when he said he saw some of the attackers, crossing over it. He said it was around 8am in the morning. He said they were heading towards Sumsum village from Mak village. He said they were armed and they all painted their faces black. He said he recognised the accused amongst them. He said he knew the accused because they come from the same ward. He also identified the accused in Court. The second witness, Matias Leo identified the accused as follows. He said he was at Mak village at the beach on that morning with the second deceased Ereman Kle when he was chased by the attackers. He said he ran back towards deceased Bernard Mursings’s house, but he said he was caught by some of the attackers. He said the attackers tried to attack him with weapons but 5 of the attackers knew him and so they stopped the others from hurting him. He called out their names including the name of the accused. He said the accused was partially dressed with traditional attire but he recognised him because he was close by. He said he knew the accused well as a friend before the incident. And he identified the accused in Court. As for State witness Margaret Bernard, this was how she identified the accused at the crime scenes. She said when she returned to her house after the first attack, she saw her deceased husband Bernard Mursing’s body inside their house. She said she grieved her husband’s death inside her house which had been partially destroyed. From where she was inside, she said that she was able to look outside, through a gap on a broken wall, onto the main road of Mak village. She said she saw some of the attackers return from the direction of Sumsum village. She said the distance was about 10 meters, that is, from where she was to the attackers on the main road. She identified the men on the road including the accused. She said she saw the accused standing with his 2 brothers Jonah and Joshua. She said the accused came close by the house so she was able to recognise him. She said she knows the accused well. She said he normally comes by her house from time to time and she shares her food to feed him and the others. Witness Margaret identified the accused in Court.

51. I did not find any serious flaws to doubt the evidence of these state witnesses. I am satisfied beyond reasonable doubt that co-accused Berry Bruno was present at the crime scenes at the material time at Mak village in the morning of 20 January 2016, that is, at or around the time when the 2 deceased were killed.

52. The 14^th co-accused is Jonah Bruno. His tendered record of interview is marked Exhibit P28. It is dated 6 February 2016. The accused has denied all the allegations that were put to him by police regarding the attack on Mak village in the morning on 20 January 2016. And he has exercised his right to remain silent. He was however identified by the State witness Margaret Bernard. The defence declined to cross-examine the witness generally and in regard to her evidence where she has identified the accused. Her evidence is therefore not contested. This is how witness Margaret identified the accused as being present at the crime scenes. She said that as she set inside her broken house that morning and mourned the death of her husband, she looked outside through an opening on the wall and, from about 10 meters away, she saw men returning from their second attack at Sumsum village. She said amongst them, she recognised the 3 brothers and she named them as Joshua (whom she had mistaken called Jonathan, but which was later clarified when she identified him in Court), Jonah and Berry. She later called out their father’s name as Bruno. She was asked whether she knew Jonah before the incident. She said she knows him. She said she used to look after him and feed him and that he comes to her house from time to time. She said he had charcoal over his body, and he was partly dressed in traditional attire. She said his face was partially painted. She also identified the accused in Court.

53. Again, I did not find any serious flaws to doubt her evidence. I find this witness to be credible and I am satisfied beyond reasonable doubt that co-accused Jonah Bruno was present at the crime scenes at the material time when the 2 deceased were killed at Mak village in the morning of 20 January 2016.

54. In summary, I find that all the 14 co-accused were present at the vicinity of the crime scenes at Mak village in the morning of 20 January 2016 at or around the time when the 2 deceased were killed. I also find as a matter of fact that the attack occurred or started at 6am or even well after that at Mak village. I do note that there were some inconsistencies with timing with a few of the witnesses saying 4 O’clock, or 5 O’clock or that it was dark or still night-time. The inconsistencies in my view are explainable. This was in a village setting. The witnesses did not have access to clocks or watches and they were simply estimating time based on their observations of the sun or the dawn sunlight that morning. The other factor to note is that the attack was sudden and without any warning to the Mak people that the witnesses simply did not have time to check and record what was going on. Witness Jacob Stanley was vigorously questioned on the timing of the incident, that is, when it actually started. The defence tendered the witness’s earlier statement which he made to police. It is marked as Exhibit D1 and is dated 22 January 2016. In his statement, the witness said that the incident occurred between 4am and 5am in the morning. This was inconsistent with his sworn testimony where he said that the incident occurred at around 6am. When the witness was pointed to the said inconsistency, he maintained that the incident occurred around 6am, and he said that the sun was already up at the time. He also stated in cross-examination that he had no watch or mobile phone, and that his estimate of the time was based simply by looking at the sun that morning. When I take into account all the evidence, I find as a fact that the attack occurred at around 6am or well after that, at Mak village on 20 January 2016.

55. The State evidence is based on circumstantial evidence. None of the State witnesses who gave evidence actually saw the 2 deceased being killed.

56. Deceased Bernard Mursing was killed first at Mak village. This was how he died, according to evidence adduced by the State. Witness Jacob Stanley said the following. He said he was deceased Bernard Mursing’s neighbour. He said his house was about 10 to 12 meters away from the deceased’s house. He said at around 6am on 20 January 2016, he was at his house. He said he was awake and was making coffee. He said his wife was still asleep. He said he then heard loud noises coming out from the village. He said he woke his wife up and sent her away to hide. He said he stood up outside his house and observed what was going on at his neighbour Bernard Mursing’s house. He said he saw co-accused Alphonse Lare broke down the door with his leg. He said he also saw co-accused namely, Camillus Markus, William Lare and Pascalis Lare also present there at that time with Alphonse Lare. He also called out the name of a person by the name of Cosmas, but he said that he was not in Court. He said the deceased was still inside his house at the time. He said the deceased’s family were at a haus krai so they were not there with the deceased inside the house. He said the men surrounded the house and threw stones at it. He said they were all armed with weapons namely, sling shots, stones, sticks and bush-knives. He said when they say him, they threw stones at him so he ran off into the bushes. He said the deceased was still inside his house when he ran off. He also said that from the time when he ran away, he did not actually see any of the 5 co-accused enter the deceased’s house.

57. The 2^nd State witness who witnessed the deceaed’s house being broken into, is State witness Henry Clement. He said he was at the haus krai that morning. At around 6am, he walked towards the main road because he said he heard loud noises of banging on the walls of houses. At the main road he said he met up with the attackers. He identified Aphonse Lare whom he said was the person that came up to him and held him. He also identified the others. He said he later freed himself from the attackers and ran away and hid beside some flowers next to deceased Bernard Mursing’s house. He said the flowers were tall up to his chest height. He said the distance from where he stood to the deceased’s house was about 10 meters. He said he stood there and observed Alphonse Lare and the others breaking into the deceased’s house. He identified the others who were there with Alphonse Lare as William Lare, Paskalis Lare, Camillus Markus, Nathaniel Kenmi, Mathias, Cosmas, Alwinus Emil, Boniface Raphael and Robert. He said he saw them breaking and entering into Bernard Mursing’s house. He said he did not see the attackers do anything after that because he ran away into the bushes. He said he later returned back to the deceased’s house. He said he was the first to enter it and there, he said he saw the deceased lying dead inside. He said they had cut him up. He said he called out to the family of the deceased and they arrived, including the deceased’s wife Margaret. He said that not long, another group of attackers came and chased them. He said he ran away into the bushes to hide.

58. The 3^rd State witness who said he saw the attack on the deceased Bernard Mursing’s house is Matias Leo. He said he was at a haus krai with his family on that morning at Mak village. He said he and his family left the haus krai because of the attack. He said as they went past the village church they heard shouts that Bernard Mursing had died. He said they walked to the deceased’s house. He said they all stayed with the body of the deceased for a while. He said he later left them and walked over to a haus boi at the beach that belonged to one of his brothers with Ereman Kle who was then alive.

59. The 4^th State witness who said she saw the deceased’s body immediately after his death is Margaret Mursing. She said she went back to her house with her children and saw her husband’s death body.

60. Deceased Ereman Kle was also killed at Mak village during the attack by the people of Merai and Urai villages that morning on 20 January 2016. The only State witness who last saw him is State witness Matias Leo.

61. So, after Matias Leo left the deceased Bernard Mursing’s house and walked over to the haus boi at the beach, he said the following. He said he walked towards the haus boi with Ereman Kle who was then still alive. He said he then left the deceased and went over to the beach to relieve himself. When he returned, he said some of the attackers were already there and they chased him. He said he fled for his life back towards deceased Bernard Mursing’s house. He said the attackers caught up with him, but he said his life was spared after 5 of the attackers told the other attackers that they knew him. That was when he identified these persons, namely, Berry Bruno, Joshua Bruno, Florian, Sammy and Kenneth. He said when he returned back to the haus boi shortly after to check on Eereman Kle, he saw his chopped up body there inside the haus boi.

62. I take note of Sergeant Faregere’s testimony. He said after the incident at Mak village on 20 January 2016, they brought the 2 bodies by boat down to the beach at Kokopo where they were later taken over to the Nonga Base Hospital. He said they were the bodies of Bernard Mursing and Ereman Kle. He said he and policemen from the task force travelled up to Mak village to assess the crime scenes. He said from Mak village they travelled on to Merai village. He said they left Merai village and went to the junction of Urai village. He said the people there had chopped down a tree to barricade the road. He said men with black painted faces mended the barricade. He said they were armed with sticks, knives, stones and spears for shooting pig. He said they asked the villagers to remove the barricade. He said the village people there complied. He said they also asked the men why they had set up the barricade. He said they told him that they were keeping a lookout in case the people from Mak village or the Sulka people may try to retaliate after they had burned down their houses and as a result of the 2 deaths that had occurred at Mak village.

63. I also take note of the evidence of Senior Constable Robert Tobung. He is attached with the scientific branch within the Criminal Investigations Division at the Kokopo Police Station. His evidence is contained in a statement with attachments of his findings that also include photographs and a sketch map of Mak village. The statement was tendered by consent and is therefore before this Court for consideration. It is marked Exhibit P29.

64. And thirdly, I take into account the medical reports. They are marked Exhibits P7, P8, P9 and P10. These evidence have been admitted without objection. Exhibits P7 and P8 firstly confirm the dead body of deceased Bernard Mursing. Exhibit P8 is the medical report of the deceased. The cause of death is stated therein, and I quote, The deceased died of cardiorespiratory arrest from massive bleeding as a result of multiple bush knife wounds to his upper and lower limbs sustaining major lacerations and fractures. Under the heading Significant Findings, it states, and I quote in part,

65. The medical report of the deceased Ereman Kle is marked Exhibit P10. The cause of death is stated therein, and I quote, The deceased died of cardiorespiratory arrest of massive bleeding as a result of multiple bush knife wounds to his head, left upper and lower limbs sustaining major lacerations, fractures and complete amputations of the left wrist and ankle joints. Under the heading Significant Findings, it states, and I quote in part,

Complete amputation of the left tibia/fibula bones at the level of the ankle joint with a deep laceration measuring 12.0cm long x 3.0cm wide x 8.0cm deep

66. Section 299 of the Criminal Code states the elements of the offence, wilful murder. They are, (i) a person, (ii), killed the deceased, (iii), the killing was unlawful and (iv), there was an intention to cause the death of the deceased.

67. In my view, there are no real issues with elements (ii), (iii) and (iv). The evidence, in my view, are overwhelming. Firstly, the people of Merai and Urai villages in the Baining area of East New Britain, planned the attack on their neighbouring villages, Mak and Sumsum villages. The attackers partially dressed themselves in traditional attires that are worn for battles or fights. They armed themselves with dangerous or lethal weapons. They then attacked the 2 villages in the morning on 20 January 2016. They caused massive destructions to these villages. In the process, the 2 deceased were killed at Mak village. These deceased were Bernard Mursing and Ereman Kle. Bernard Mursing was killed first in the first wave of attack. And when the rest of the attackers from Merai and Urai villages returned after they had attacked Sumsum village, they attacked and killed Ereman Kle. I find these to be like the blue print, so to speak, of how the incident unfolded on 20 January 2016.

68. The killings of the 2 deceased persons were unlawful. And I must also say that the killings were barbaric, and there is no legal justification for that.

69. I also do not have any issue in finding that the killers had intended to cause the deaths of the 2 deceased. Evidence of these, in my view, are as follows. Firstly, the Merai and Urai village people had planned the attack including the killings and the destructions, in Mak and Sumsum villages. The confessional statements and admissions from the 7 co-accused reveal these. The second reason is this. Witnesses who saw the attackers at Bernard Mursing’s house, saw the men surrounded and broke into the house. In other words, the attackers specifically targeted Bernard Mursing’s house. The third reason is this. Both deceased were severely chopped up. All their limbs to their bodies were cut. The injuries received were fatal in that both deceased suffered massive loss of blood which caused their deaths. These are confirmed by the medical reports. The fourth reason of their intentions to kill the 2 deceased is this. The manner in which the 2 deceased were killed or chopped up, is quite telling. Both deceased were not stabbed or cut in their abdomens. Instead, the attackers only cut, fractured and almost completely amputated all the four limbs of their bodies. This to me suggest execution type killings or killings following a pattern, style or ritual. It is as if the attackers were trying to send some kind of message to the people of Mak village or to the Sulka people. And finally this. When police went up to investigate the next day, the attackers barricaded the entrance to one of their villages and kept a watch for possible retaliation by the people of Mak and Sumsum villages. All these, in my view, consist of overwhelming evidence of the intentions of the attackers of Merai and Urai villages which include the 14 co-accused, that is, that they had intended to murder the 2 deceased persons plus other people in Mak village that morning on 20 January 2016.

70. In relation to the first element, that is, person, I note that I have already determined that the 14 co-accused were present at the 2 crime scenes at Mak village. They were present as part of the attack group that came from Merai and Urai villages. The others got away in the sense that they were not identified by witnesses. As for the 14 co-accused, they were identified and I have already determined that beyond reasonable doubt, in my judgment.

72. I find that at about or after 6am on 20 January 2016, the Merai and Urai village people, who are also known as the Bainings, conducted barbaric attacks on their neighbouring villages, namely, Mak and Sumsum villages who are known as the Sulkas. The Bainings had planned their attack. That morning, the attackers all partially dressed themselves in traditional attires that are worn for battles or fights. They also armed themselves with dangerous weapons such as bush-knives, sticks, slings with stones and spears. They firstly attacked Mak village. At the time of the attack, some of the attackers surrounded the house of deceased Bernard Mursing. He was inside his house at that time. These attackers and co-accused namely, Aphonse Lare, Camillus Markus, William Lare, Alwinus Emil, Paskalis Lare, Nathaniel Kenmi and Boniface Raphael surrounded the deceased Bernard Mursing’s house. They broke down the door to his house, and attacked his house whilst the deceased was inside. Nathan Thomas was also seen within the vicinity of the crime scene. No one saw what happened after that. Shortly after, State witnesses discovered the body of deceased Bernard Mursing inside his house. He was chopped on all four limbs of his body. The second group of attackers went over to Sumsum village. Some of them were identified near a creek between Mak Village and Sumsum village, as co-accused Alvinus Emil, Berry Bruno and Joshua Bruno.

73. I also find as follows. When the group of attackers that went to Sumsum village had returned to Mak village, they continued with their attacks at Mak village. That was when the deceased Ereman Kle was killed. The deceased was killed next to the beach inside a haus boi. Some of the attackers chased witness Matias Leo, who was with the deceased at the time, from the beach or the haus boi up to deceased Bernard Mursing’s house. Amongst these attackers were co-accused Berry Bruno and Joshua Bruno. Other co-accused who were identified at Mak village in the second attack were co-accused Brian Bure and Jonah Bruno.

74. I will say this to the 7 co-accused, namely, Nathan Thomas, Kaluban Casper, Nerius Kuang Junior, Alphonse Lare, Camilus Markus, Alwinus Emil and William Lare (i.e., those that have admitted to being at the crime scenes either through their confessional statements or their record of interviews). I give weight to their evidence where they have said that they were present at the crime scenes at Mak village in the morning of 20 January 2016. I, however, reject their evidence or confessions that are inconsistent with the evidence and testimonies of the State witnesses, and in their stead, accept the evidence of the State witnesses in relation to these 7 co-accused persons’ locations at the material time of the attacks at Mak village and also in relation to what the State witnesses have said on what they (i.e, 7 the co-accused) each have done. I find the State’s witnesses and its other tendered exhibits, to be accurate.

75. Below is table which shows the 14 co-accused with a summary of the name(s) of the person(s) or evidence that identified each of them to the crime scenes.

No.	The 14 co-accused persons	Identified by whom?
1	William Lare	Identified by Jacob Stanley; identified by Henry Clement; identified by Jacinta Lucas; identified by Margaret Bernard
2	Camilus Markus	Identified by Jacob Stanley; Identified by Henry Clement
3	Alwinus Emil	Identified by Jacob Stanley; identified by Henry Clement; Identified by Langerius Kape; identified by Margaret Bernard
4	Nathan Thomas	Identified by Bosco Kuta; identified through confessional statement he gave
5	Alphonse Lare	Identified by Henry Clement
6	Nerius Kuang Jr	Identified through confessional statement he gave
7	Nathaniel Kenmi	Identified by Henry Clement
8	Joshua Bruno	Identified by Langerius Kape; identified by Matias Leo; identified by Margaret Bernard
9	Kaluban Caspar	Identified through confessional statement he gave
10	Paskalis Lare	Identified by Jacob Stanley; identified by Henry Clement; identified by Jacinta Lucas
11	Brian Bure	Identified by Margaret Bernard
12	Boniface Raphael	Identified by Henry Clement
13	Berry Bruno	Identified by Langerius Kape; Identified by Matias Leo; identified by Margaret Bernard
14	Jonah Bruno	Identified by Margaret Bernard

76. I ask myself this. Did the deaths of the 2 deceased occur at Mak village during the attack by the people from Merai and Urai villages, in the morning on 20 January 2016? My answer to that is, “yes”. My next question is this. Where the 2 deceased wilfully murdered by the attackers from Merai and Urai villages? My answer to that is, “yes, the attackers that came from Merai and Urai villages, had carefully planned the barbaric attacks and they wilfully murdered the 2 deceased.” My next question is this. Which one of the 14 co-accused were present at the crime scenes and had participated in the wilful murder of the 2 deceased persons? My answer to that is, “all 14 co-accused namely, William Lare, Camilus Markus, Alwinus Emil, Nathan Thomas, Alphonse Lare, Nerius Kuang Jr, Nathaniel Kenmi, Joshua Bruno, Kaluban Caspar, Paskalis Lare, Brian Bure, Boniface Raphael, Berry Bruno and Jonah Bruno, were present at the crime scenes and had participated in the wilful murder of the 2 deceased.”

77. I find the circumstantial evidence overwhelming. Given the undisputed evidence of the carefully planned attacks by the Merai and Urai villages, over the Mak and Sumsum villages, and given the undisputed evidence that the 2 deceased were killed from the said attacks, it really comes down to identifying those persons of Merai and Urai villages, who were at the vicinity of the 2 crime scenes at Mak village at the material time. In this case, all the 14 co-accused have been identified. And I have to ask myself this final question. Are there any reasonable hypothesis to be drawn other than the guilt of the 14-co accused? My answer to that is, “no, there are no reasonable hypothesis to be drawn other than the conclusion that it was these 14 co-accused together with other members of their villages that attacked Mak village and in so doing, wilfully murdered the 2 deceased.” The law on circumstantial evidence is settled in that inferences drawn as to the guilt of the accused person must also make sense and follow logically from all the facts; and circumstances of the case. See cases: Barca v. The Queen [1975] HCA 42; [1975] 133 CLR 82, Paulus Pawa v. The State [1981] PNGLR 498; State v. Cosmos Kutau Kitawal & or (No. 1) N2266 & State v. Tom Morris [1980] PNGLR 493. In the present case, who else could have chopped up the bodies of the 2 deceased persons other than the attackers of Merai and Urai villages that attacked Mak village that morning? It was no one else except the attackers which included the 14 co-accused that have been identified.

78. The State invokes sections 7(1)(a)(b) and (c) and 8 of the Criminal Code. It argues that the 14 co-accused should be held liable under them. These sections read, and I quote in part:

(1) When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:—

(a) every person who actually does the act or makes the omission that constitutes the offence; and

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and

(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,

79. I find all the 14 co-accused to be principal offenders in the wilful murder of the 2 deceased within the meaning of section 7 of the Criminal Code. I find that the 14 co-accused aided and abetted each other in committing the offence, wilful murder, on the 2 deceased contrary to section 299 of the Criminal Code. I also find that the 14 co-accused and other men from Merai and Urai villages, had carefully planned the attack. They partially dressed themselves in their traditional attires for battle or fights. They armed themselves with dangerous weapons. They then all came together as a group in the morning and walked to Mak and Sumsum villages where they conducted their attacks. Their common intentions were to attack and destroy the 2 villages and the people within these villages. Such purposes were of course unlawful. And in execution of their intentions to commit these unlawful acts, they wilfully murdered the 2 deceased. The wilful murder of the 2 deceased were probable consequences that resulted from the unlawful intentions of the attackers and the 14 co-accused persons.

80. It did not stop there. When the 14 co-accused and other men from their villages returned, they set up barricades and guarded their villages against possible retaliations from the Sulkas.

81. I find the 14 co-accused persons liable under sections 7 and 8 of the Criminal Code.

82. I find each of the 14 co-accused guilty as charged on 2 counts each, for the wilful murder of Bernard Mursing and Ereman Kle, at Mak village on 20 January 2016.
________________________________________________________________
Office of the Public Prosecutor: Lawyers for the State
Daniels & Associates: Lawyers: Lawyers for the Fourteen Defendants

Exhibit No.	Confessional statement of	Date
P30	Accused Nathan Thomas	22/01/16
P31	Accused Kaluban Casper	22/01/16
P32	Accused Nerius Kuang Junior	26/01/16

National Court of Papua New Guinea

State v Lare [2019] PGNC 183; N7909 (15 July 2019)