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State v Givikain [2019] PGNC 237; N7931 (19 July 2019)


N7931


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR No. 985 - 998 OF 2015


THE STATE


v


SAKARIAS GIVIKAIN & ORS


Lae: Numapo AJ
2019: 11th June – 13th June, 19th July


CRIMINAL LAW – Particular Offence – Wilful Murder – s. 299 & 7 of Criminal Code – General Denial - Plea of Not Guilty - Offensive Weapons Used – Voir Dire


Held:


(i) When voir dire is raised defence is required to sufficiently plead the grounds of threats and inducements to raise serious issues in the manner in which the confessions were made.

(ii) When identification is challenged it is incumbent upon the person challenging it to show that evidence before the court is not sufficiently corroborated or independently supported to establish the correctness of the identification.

(iii) Evidence that is riddled with lies, contradictions, inconsistencies, recent inventions, belated alibi and self-serving statements etc. tells the court one thing and that is that the witness is not telling the truth.

(iv) The manner in which the attack was carried out indicated that the murder was pre-planned, intentional and deliberate on the part of the accuseds.

(v) Accuseds each and severally found guilty of wilful murder.

Cases Cited:


The State v Beng [1976] PNGLR 471
Beng v The State [1977] PNGLR 524; [1977] PNGLR 115
Ono v The State (2002) SC 698
The State v Anis Noki [1993] PNGLR 426;
The State v Kakas & Ors [1994] PNGLR 20
Piakali v The State (2004) SC 771
Bate v The State (2012) PGSC 46, SC 1216 (20th December 2012)
The State v Ankelman Keith Cr. No. 785 of 2015 N7447
John Jaminan v The State (No 2) 1983 PNGLR 318.


Counsel:


J. Done, for the State
J. Huekwahin, for the Defence


RULING ON VERDICT


19th July, 2019


1. NUMAPO AJ: This is a ruling on verdict following a lengthy trial. The accused persons; Sakarias Givikain, Ilau Gubutau, Barnabas Buka, Sam Buka, Giamkisi Naptali, Naiman Yana, Francis Joe, Matarap Yassam and Nicko Thomas Waikesa were each and severally charged with two (2) counts of Wilful Murder pursuant to section 299 of the Criminal Code. The State also invoked section 7 (1) (c) of the Code. The accused persons all pleaded Not Guilty and the matter went to trial.


  1. BRIEF FACTS

2. The facts to which the Accuseds were arraigned were that; on the 20th of December 2014 at Galawo village, Mumeng, Bulolo District the accused persons armed themselves with bushknives, axes, sticks and stones and ambushed and killed two persons namely; Robert Nema and Andrew Tamai suspecting both to be rascals (criminals). The heads of the both deceaseds were chopped off and their bodies were cut up and thrown into the river. The bodies were discovered a couple of days later by villagers living downstream.


  1. THE LAW

Section 299. WILFUL MURDER


(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death.

3. The offence of wilful murder is made up of three essential elements namely;


(i) The accused (identification of the accused)
(ii) Unlawfully killed the deceased
(iii) With the intention of killing the deceased.

4. Prosecution must prove each and every elements of the charge to secure a conviction.


5. State further invoked section 7 (1) (c) of the Criminal Code and it must therefore, prove that the accused persons each and severally having had the intention to kill the deceased, did so unlawfully and did acts constituting section 7, in that they aided, counselled and procured each other to kill the two (2) deceased persons namely, Robert Nema and Andrew Tamai.


Section 7 Principal Offenders


(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 constitute the offence;
(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.
  1. DEFENCE TO THE CHARGE

6. Defence raised was one of identification and general denial.


  1. ISSUE

7. The first issue is: “Whether the accused persons each and severally having had the intention to kill the two deceaseds did kill them and therefore, were responsible for their deaths?”


8. The second issue is; “Whether the accused persons aided, counselled and procured each other to commit wilful murder?”


  1. VOIR DIRE

9. Defence filed Notices of Voir Dire on the 14th of November 2018 stating that it will object to three Records of Interview (ROI) conducted by Police for the Accused Sam Buka dated the 13th of January 2015; Accused Naiman Yana dated 19th January 2015 and Accused Niko Thomas Waikesa dated 03rd of February 2015 alleging that the confessions contained therein were obtained through threats and intimidation and therefore, were involuntarily and unfairly obtained. Particulars of the threats were set out in brief in the voir dire notices filed in Court alleging breach of section 28 of the Evidence Act and s 42 (2) of the Constitution.


10. A voir dire (trial within a trial) was conducted and witnesses including the lead Police Investigating Officer Senior Sergeant Caritas Forfin and the two other Police Corroborators Senior Constables Alphonse Takali and Michael Yomba were called in to give evidence. The ROIs tendered into Court by consent were also examined. The three accused persons also gave evidence.


11. In a voir dire the question is whether a confession made is voluntary in that it was not been obtained by fear or prejudice or hope or advantage, inducement exercised or held out by a person in authority or by oppression. In most cases, a statement made in consequence of violence or some powerful inducement is much less likely to be true than the one which was given freely. The truth of the confession is not directly relevant to the voir dire.

12. The onus is borne by the person seeking to tender the confession in as evidence. The prosecution must therefore, convince the Court that the confession was voluntary and that there was no threat or inducement or favour held out to obtain the confession. On the part of the person alleging impropriety, a pre requisite requirement of a voir dire is that the grounds of threats, intimidation or inducement to obtain a confession must be sufficiently pleaded to raise serious issues in the manner in which the confessions were made.

13. Having heard the evidence and arguments from both the prosecution and the defence in this present case, I make the following findings in relation to the voir dire:

14. Firstly, I have perused the respective ROIs of the three accused persons that were tendered to Court by consent including the evidence of the Police Officers conducting the interviews. I have also heard from the three accuseds regarding their respective ROIs. I have also examined the alleged nature of the impropriety raised by the defence but I am not able to find any evidence of irregularities or impropriety on the part of the Police Interrogators to show that the confession was involuntary and obtained contrary to the established rules of evidence. And I have no reason to believe that the confession was obtained by threats or inducement or favour held out to the accused persons either. I am satisfied that the confession was made voluntarily and therefore, admissible.

15. Secondly, I am also required to satisfy myself as regards to the voluntariness of a confession even if the accused does not specifically raise the matter and seek a voir dire. In the present case, however, I am not able to see anything irregular or improper about the ROIs and am satisfied that the answers provided to the questions put to the accused persons are well within the bounds of the Evidence Act and the rules of evidence.

16. Thirdly, in raising issues of voir dire defence is required to sufficiently plead the grounds of threats or inducements to raise serious issues in the manner in which the confessions were made. Defence has not done so to the satisfaction of the Court and therefore, the argument advanced on impropriety to warrant a voir dire has not been made out.

17. Accordingly, I rule that the purported confessions made by the three accused persons contained in the ROIs were made voluntarily without any threats, inducements or favour held out to the accused persons.


  1. STATE’S CASE

18. The State’s case is comprised of documentary evidence of 18 witnesses and sworn oral evidence of two (2) witnesses.


(a) The following documents were tendered to Court by consent:

(b) Oral Evidence on Oath

Witness No. 1 – Kele Kelopas Gambwa


19. In his sworn oral evidence to Court, witness Kele Kelopas Gambwa told the Court that he was at home at Gwasak village, Mumeng with his wife Rebecca Kelopas on the 17th of December 2014 when Robert Nema from Eastern Highlands Province arrived and told him and his wife that he wants to pan for gold in my area as he has some outstanding financial commitments and wants to make some money. Robert is known to both him and his wife as he has visited them on many occasions in the past when he needed help. Gambwa offered to help him out.


20. On the next day, Friday 18th December 2014 Andrew Tamai from East New Britain came to his village from Bulolo and also asked if he can pan for gold in his area. Andrew is also known to him and is a family friend. He wanted to raise some money so that he could pay for his school fees next year in Port Moresby.


21. Gambwa’s wife Rebecca went to the garden that day to collect some food but when she arrived there she noticed that the pandanus trees (mareta) in their garden were all cut down and destroyed by some people. She came back home and told her husband about it. Her husband then went to the main village of Galawo to report the matter to the village leaders and the ward councilor. Robert and Andrew also came along despite him insisting that both stayed back at his house. On the way to Galawo village Gambwa confronted one of the accuseds Nicko Thomas Waikesa and told him that they need to settle this long standing dispute. Gambwa suspected him of destroying his garden. Robert Nema asked Nicko Thomas if he was the one who destroyed Gambwa’s garden. On hearing that accused Nicko Thomas ran to Umbanga, a small hamlet nearby and told the people that Robert Nema was armed with a bushknife and Andrew Tamai was armed with a pistol and both are rascals (criminals) and are trying to attack him and his family. After that he ran all the way to Galawo village and told everyone there.


22. On the next day, Saturday 20th December 2015, Gambwa, Robert Nema and Andrew Tamai went to accused Matarap Yassam’s house to report the problem. Matarap is a community leader there. Matarap wasn’t home so Gambwa told Matarap’s wife that he would return back in the afternoon to talk to Matarap. There has been some ongoing problems between Gambwa and the accused Nicko Thomas Waikesa and another person Philemon. They are Matarap’s in-laws. Gambwa wanted them to talk and resolve the issue once and for all. Matarap’s wife later told her husband that Gambwa, Robert and Andrew threatened to burn their house down which was not true. She went to Galawo village and said the same thing to the people there.


23. Gambwa, Robert and Andrew returned back to Gambwa’s house and were having their breakfast when they heard people shouting and yelling and running towards them. They were armed with bushknives, axes, sticks and stones and started attacking them. Gambwa ran away into the bush whilst Robert and Andrew kept fighting with them. He did not see what happened but after everything had calmed down he returned back to his house and his wife Rebecca told him that both Robert Nema and Andrew Tamai were killed and their bodies thrown into the river. His house was also burnt to the ground and he and his family lost everything they had.


24. He identified the attackers as Nicko Thomas Waikesa, Philemon Waikesa, Naiman Buka, Giamkisi Naptali, Ruben Miti, Morris Miti, Sam Buka, Barnabas Buka, Geamata Ngalau and Gilinde Titi Saku. Nicko Thomas Waikesa led the attack and cut Rebecca on her head using the same knife that he used to killed Robert Nema and Andrew Tamai. The bodies of the two deceaseds were cut up and thrown into the river. The bodies were discovered two days later downstream and taken to Angau Memorial Hospital in Lae.


Witness No. 2 – Rebecca Kelopas


25. The witness Rebecca Kelopas told the Court that on Wednesday 17th December 2014 she was at home when Robert Nema arrived and asked if he could pan for gold in our area. He wanted some money and needed our assistance. We helped him to pan for gold. On Friday 19th December 2015 Andrew Tamai arrived and also asked if he could pan for gold in our area. Both men are known to us and are good family friends.


26. She went to the garden to collect some pandanus fruits (mareta) to cook and noticed that all the pandanus trees were cut down and destroyed. She told her husband Gambwa about it. Gambwa was upset and decided to go and inform Matarap Yassam a village leader to solve this problem before Christmas. He went with Robert Nema and Andrew Tamai. Matarap wasn’t home. Nicko Thomas Waikesa jumped off from his house and ran away when he saw them coming. Gambwa, Andrew and Robert returned back to the house. That was on Friday 19th December 2014.


27. Early next day, Saturday 20th December 2014 Gambwa, Andrew and Robert went to Matarap Yassam’s house and informed him about the destructions caused to his gardens and the pandanus trees that were cut down. Gambwa told Matarap to solve this problem quickly. They returned back home to have their breakfast. Not long after a big group of people from Galawo village came down to Gambwa’s house armed with bushknives, axes, sticks and stones to attack them. They were caught by surprise. They threw stones and sticks at them. Gambwa was hit on the back with a big stone and he fell into a ditch and got up and ran into bush on the side of the river. Andrew Tamai also fell into a ditch and got up and ran away and stood on the side of the river. Geamata Ngalau shot him on his stomach with a fishing gun. Later Nick Thomas Waikesa ran towards him and cut him across the face with a bushknife. After that, Nicko Thomas Waikesa turned to Robert Nema and cut his hands off and Gilinde Titi cut his neck off with a bushknife. Philemon Waikesa was also involved to chopping up Robert Nema. Nicko Thomas Waikesa then held up Robert’s severed hand and made fun of it by waving at the people and later threw it into the river. Gilinde Titi then cut off Robert Nema’s neck and he fell to the ground and died instantly. Some youths standing there picked up the body and threw it into the river. Andrew Tamai was also killed and his body thrown into the river as well.

28. Nicko Thomas Waikesa then walked towards Rebecca Kelopas and asked for her husband and chopped her on the head. She was saved by his brother in-law and was taken away. They then set fire on their house and went away. On Monday 22nd December 2014 the matter was reported to Police at Bulolo.


  1. MEDICAL REPORT

29. The Post Mortem Report by Dr Lucas Komnapi of the two deceaseds revealed that deceased Andrew Tamai died from a fractured neck from blunt force trauma to the neck and also from acute blood loss from the multiple slash wounds to his body (‘Exh. 12A’). Deceased Robert Nema died from acute blood loss due to multiple fatal slash wounds to his body. His left arm was amputated at the wrist.


  1. DEFENCE CASE

30. The defence informed the Court that only three (3) of the accused persons will give evidence. The other six (6) accused persons have exercised their rights to remain silent.


Witness No. 1 – Sakarias Givikain


31. Accused Sakarias Givikain gave evidence on oath. He told the Court that on the day in question, 20th December 2014 he was in his garden the whole day and did not know about the incident that happened that resulted in the death of the two deceased persons Robert Nema and Andrew Tamai. He returned back to the village at Galawo in the evening and heard the story. A small child told him the story but he couldn’t remember his name. He said Galawo village is about 2 km away from Gwasap village where the killing took place. He said that this is all he had to say and that his co-accused Nicko Thomas Waikesa knew the full story and will tell the Court when he gives evidence.


32. It was put to the accused that the evidence he gave to the Court is totally different to what he said in the ROI in which he admitted to the police investigators that he was present at the time of the incident with the other villagers and took part in the raid that eventually led to the killing of the two deceased persons. He was asked which version of events the Court should believe, the one contained in the ROI or the evidence he just gave to the Court. Accused responded by saying that the version contained in the ROI is true. In the ROI the accused admitted taking part in the attack on the two deceaseds.


Witness No. 2 – Ilau Gubutau


33. Accused Ilau Gubutau gave his evidence on oath and told the Court that on the 20th December 2014 he was panning for gold at Galawo village and did not know what happened. He learned about the death of the two deceaseds when a small boy by the name of Matrus told him about it. He then went to Gwasap village where the incident occurred and realized that two people were murdered by the community. He also noticed that Kelopas’s house was also burned down. He heard that there was some problems between Kelopas Gambwa and Nicko Thomas Waikesa and the community got upset and retaliated.


34. In cross-examination however, he admitted that he was present at the time when the incident happened but he did not take part in burning Kelopas’s house or killing the two deceased persons. He was there but could not see much as he has problems with his eyes.


Witness No. 3 Nicko Thomas Waikesa


35. The third and final witness for the defence was Nicko Thomas Waikesa. According to the two previous witnesses he is their key witness as he was present at the crime scene and saw everything that happened.


36. Nicko Thomas told the Court that he was present at the crime scene with his other co-accuseds when the two deceaseds were murdered. He told the Court that there was a big group of people involved and the whole community of Galawo participated in attacking the two deceaseds as they were rascals (criminals) and had come to the village to cause trouble. It was a mob attack and therefore, it is difficult to identify the people involved in murdering the deceaseds. However, he named the following people to be responsible for the deaths of the two deceased persons and they are; Yamato Nalo, Philemon Waikesa, Gilinde Titi, Ruben Miti, Buamai Peter, Alisop Yasap and Guaneng Yasap. Those people are not present in Court as they all ran away and were arrested by Police.


  1. ASSESSMENT OF EVIDENCE
(i) Defence Evidence in Summary

37. I find some inconsistencies and contradictions in the defence case especially the accused’s versions of events relating to the incident that took place on the 20th of December 2014. The accuseds also contradicted themselves in what they said in their evidence in chief and the answers that they gave during cross examination. 38. For instance, accused Sakarias Givikain told the Court that he was not present when the incident happened but in cross examination he admitted that he was present when the two deceased persons Robert Nema and Andrew Tamai were murdered. He saw Nicko Thomas Waikesa killed the two deceaseds. This is also consistent with what he told the police during the ROI. He admitted been involved with the other villagers from Galawo village but denied taking part in the attack. However, the two State witnesses Kelopas Gambwa and Rebecca Kelopas identified him as one of those responsible in murdering the two deceaseds. I observed his demeanour as a witness and found him to be very unreliable and untrustworthy. His evidence is tainted with so many contradictions and inconsistencies that no reasonable tribunal would believe him. I doubt his credibility as a witness for himself and do not think that he is telling the truth.


39. As for the accused Ilau Gubutau I find his evidence rather interesting. On the day in question he was panning for gold at Galawo village. He heard about the death of the two deceaseds. They were murdered by the community according to him. He later went to Gwasap hamlet where the killing took place. He helped Kelopas to collect the roofing iron of his house that was burnt down by community. He did not see anything apart from that. When the State Counsel put to him if he had seen or observed any other things apart from the burning house the accused answered saying that he has ‘problems with his eyes’ and could not see much. He has just finished panning for gold a few hours earlier and didn’t seem to have any problems with his eye sight. The gold dust he was looking for are very fine particles yet he could clearly distinguish it from the ordinary sand but he could not see the fight that was going on in front of him. I find his evidence impressive but difficult to believe. He is not telling the truth.


40. Accused Nicko Thomas Waikesa appears to be the spokesman and the ‘ring leader’ in this attack. The two other accuseds in their evidence earlier told the Court that Nicko Thomas knew the full story regarding the murder that took place on that day and he will tell the Court on their behalf. Nicko Thomas in his evidence tried to divert the Court’s attention by telling the Court that those responsible for the death of the Robert Nema and Andrew Tamai are still at large and have not been arrested. They all ran away when the Police arrived at the scene. Those in Court today including him were not responsible for the death of the two deceaseds. However, when Mr Done for the State asked the accused during cross-examination that in his answer to question no 28 in the ROI he mentioned some names of people responsible for the killing as; Naiman Yana, Sakarias Givikain, Ilau Gubutau, Matarap Yassam, Giamkisi Naptali, Francis Joe, Barnabas Buka and Sam Buka and asked the accused if he can tell the Court if these people are present in court today to which he answered ‘yes’ and identified each and every one of his co-accuseds sitting in the dock. This was a direct contradiction to what he told the Court. Defence did not rebut this crucial piece of evidence that directly linked the accused persons to the murder. The identification of the accused persons were not only made out by the State witnesses but also by one of their own dubbed the “ring leader” in the form of Nicko Thomas Waikesa. According to evidence, Nicko Thomas Waikesa was the one who led the attack on the two deceased persons that subsequently led to their death and their bodies thrown into the river. He chopped of one of the deceased’s wrist of the arm and showed it to the crowd before they threw the bodies into the river.


(ii) State’s Evidence in Summary

41. The two State witnesses, Kele Kelopas Gambwa and Rebecca Kelopas are husband and wife. Both are from the same village of Galawo as the accused persons now before the Court. Both were able to positively identify the accused persons as the perpetrators responsible for the deaths of Robert Nema and Andrew Tamai on the 20th December 2014 at Gwasap. The same accused persons were also responsible for burning down their house and attacking them both as well. Kelopas escaped and ran away when the accuseds attacked him with sticks and stones. His wife Rebecca was chopped on the head by Nicko Thomas Waikesa. She identified him as the one who chopped her on the head after asking about the whereabouts of her husband.


42. Both witnesses positively identified the accused persons each and severally before the Court as those responsible for the deaths of the two deceaseds. Both witnesses corroborated each other in naming all the accused persons and identified them as; Nicko Thomas Waikesa, Sam Buka, Barnabas Buka, Sakarias Givikain, Francis Joe, Matarap Yassam, Giamkisi Naptali, Ilau Gubutau and Naiman Yana all from Galawo village, Mumeng. They knew them all as they all come from the same village and knew each other well for many years and could not have possibly mistaken them for other people.


  1. EVIDENCE ON IDENTIFICATION

43. Defence raised identification as its main defence against the charge. Mr Huekwahin urged the Court not to believe the evidence of the State witnesses Kele Kelopas Gambwa and Rebecca Kelopas relating to identification of the accused persons each and severally. Both witnesses are husband and wife and up to now their evidence on identification were not independently verified or corroborated therefore, it cannot be relied upon. Furthermore, there were some inconsistencies in their evidence in relation to identification of the accused person and Counsel submitted that the Court should not believe them. The only reason the witnesses named the accused persons is that they all came from the same village and it is easy to name them. Counsel further submitted that the accused persons now before the Court are not the ones who carried out the attack and were wrongly arrested and charged. Based on all that, Counsel submitted that the element of identification has not been established beyond doubt hence the Court should return a verdict of not guilty as identification is one of the main elements of the charge of wilful murder under section 299 (1) of the Criminal Code that must be proven.


44. Mr Huekwahin also reminded the Court to be mindful of the fact that when an accused has been charged with a serious offence that carries a maximum sentence of life imprisonment or in this case the death penalty, the evidence presented by the State must be of very high quality untainted deserving of meeting the highest standard of proof beyond a reasonable doubt and the burden is on the State to discharge that beyond any shadow of doubt to secure a conviction. See; John Jaminan v The State (No 2) 1983 PNGLR 318.


45. Mr Done for the State submitted that identification of the accused persons each and severally has been made out and established beyond any doubt. The two State witnesses Kele Kelopas Gambwa and his wife Rebecca Kelopas have positively identified each and every accused persons now before the Court as those responsible for the wilful murder of Robert Nema and Andrew Tamai on the 20th December 2014 at Galawo village, Mumeng, Bulolo District, Morobe Province. Both witnesses corroborated each other in identifying the accused persons individually. There is no discrepancies or inconsistencies in the identity of the accused persons. Both witnesses knew the accused persons well as they all come from the same village and have lived together for many years and have prior knowledge of each and every one of them. They could not have mistaken them for other people. Except for some small flowers around the area there were no trees, bushes or houses to obstruct their view in observing what was going on at the time. Witnesses could clearly recognized each of the accused persons. Counsel submitted that the element of identification has been established beyond doubt based on the evidence before the Court and asked that a guilty verdict be returned.


(i) General Rule on Identification

46. There are some well-developed case laws and authorities on identification in this jurisdiction. When identification is raised as a defence there are certain considerations the Court must be mindful of that basically requires that identification must be properly established before a finding is made against the accused. I refer to some of the criteria below.


47. Firstly, the general rule on identification is that when the evidence against the accused person depends wholly or substantially on identification there is a need for caution before convicting the accused in reliance on the correctness of that identification.


48. Secondly, the Court should examine closely the circumstances in which the identification by each witness came to be made and whether such evidence is sufficiently corroborated to establish the correctness of the identification.


49. Thirdly, the witness’s observation of the accused at the time of the offence was not impeded or obstructed in anyway and the witness was able to clearly recognize the accused from the location he was observing.


50. Finally, evidence maybe further strengthened by the fact that the witness may have seen the accused before and have prior knowledge of him through perhaps as a close relative, a work colleague or neighbour etc.


51. The leading case authority is that of; The State v Beng [1976] PNGLR 471 and Beng v The State [1977] PNGLR 524; [1977] PNGLR 115 (02 May 1977).


52. In this case the Supreme Court held that:


“....where evidence of identification is relevant, the court should be mindful of all inherent dangers, the need for caution before convicting in reliance on the correctness of identification...the court should examine closely all the circumstances in which identification by each witness came to be made bearing in mind the 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 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.”


53. The rationale was later applied in a number of National and Supreme Court’s decision such as in Ono v The State (2002) SC 698 where the court said that because of the dangers inherent in the eye witness identification caution should be applied at all times on the correctness of the identification. See also; The State v Anis Noki [1993] PNGLR 426; The State v Kakas & Ors [1994] PNGLR 20 and the Supreme Court decision in Piakali v The State (2004) SC 771.


54. In the recent Supreme Court case of Bate v The State (2012) PBSC 46, SC 1216 (20th December 2012), the Court in applying the rationale in John Beng (supra) held that:


“In assessing identification evidence, relevant consideration include, that an honest witness can be mistaken and still be convincing that an identification witness must both be honest and accurate; whether the evidence is corroborated, whether the witness is purporting to identify a person who was a stranger or someone he recognized, the length of time the witness observed the accused (prolonged or fleeting glance), the emotional state of the witness at the time of the incident, the prevailing conditions, the line of sight (did the witness have a clear view of the front or the line of sight interrupted, did the witness just see the accused from the side)”.


55. The view held is that the Court should examine closely the circumstances in which the identification by each witness came to be made and whether such evidence is sufficiently corroborated to establish the correctness of the identification.


56. I adopted the rule and expounded further in The State v Ankelman Keith Cr. No. 785 of 2015 N7447 and included some questions to further establish the correctness of the identification by posing questions such as for example; ‘How long did the witness have the accused under observation? And at what distance? Under what light? Was the observation impeded or obstructed in anyway, even momentarily, by say, a passing vehicle or a building, or a crowd of people or a bright flashing light or the accused fleeing the scene etc.? Had the witness ever seen the accused before? If so, how often? If only occasionally, had he had any special reason for remembering the accused? How long a time elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance’?


57. All these are matters for consideration by the Court. When identification has been established it must be sufficiently corroborated by further evidence to establish the correctness of that identification.


  1. FINDINGS

58. Applying these rules to the present case, I am satisfied that the identification of each of the accused persons has been sufficiently made out and the circumstances under which the identification was made by each of the witnesses is sufficiently corroborated and the correctness of that identification is established beyond doubt. I find the evidence of Kele Kelopas Gambwa on identification was sufficiently corroborated by Rebecca Kelopas when both positively identified all the accused persons sitting in Court as those responsible for the deaths of the deceaseds Robert Nema and Andrew Tamai. The witnesses knew all the accused persons as they are all related to each other and all come from Galawo village and have lived together for many years. They could not have mistaken them for other people. Furthermore, there is nothing for the witnesses to gain by lying to the Court and both are aware of the risks of being ostracized and rejected by the community for testifying against their own relatives. I observed their demeanour and found them both to be credible and reliable witnesses and I have no reason to doubt them. Both were firm and steadfast in their evidence right throughout and hold their ground firmly even under intense scrutiny during cross examination. I am convinced that both told the truth of what they saw and heard on that fateful day. The State case is water-tight for their efforts.


59. I am convinced beyond doubt that the prosecution has sufficiently established the requisite elements of the charge of wilful murder under section 299 (1) of the Criminal Code. In that the accused persons now before the Court each and severally on the 20th December 2014 at Galawo village did, with an intention to kill, unlawfully killed the two deceaseds Robert Nema and Andrew Tamai.


60. On the other hand, I find the defence evidence through its witnesses to be riddled with lies, contradictions, inconsistencies, recent inventions and self-serving statements to the point that it is difficult to believe any of them. Defence did not in any substantial way discredit the incriminating evidence against the accused persons each and severally that directly linked them to the murder that took place on the 20th December 2014 nor did it present any evidence to the contrary that the accused persons may not have been the ones responsible for the deaths of the two deceaseds.


61. The demeanour of the witnesses leaves a lot to be desired. I found them less credible and unreliable. I could tell they were making up stories as they went on. They paused a lot as they gave evidence. They tried to create an impression that they were innocent. Perhaps the most damning evidence of all came from the accuseds themselves when the three accused persons who gave evidence became hostile to the defence case and started naming the other co-accuseds in the dock as the perpetrators and described in vivid details the role each played in killing the two deceaseds. For instance, accused Sakarias Givikain in his response to a question put to him during cross examination as to which version of events the Court should believe said that the Court should accept his version of events contained in the ROI. In the ROI he admitted taking part in the attack with his other co-accuseds now present in Court and identified each and every one of them by name (Q & A 20). He saw Nicko Thomas Waikesa killed the two deceaseds and chopped their hands off (Q & A 17, 18 & 19). Accused Ilau Gubutau said he was present at the scene of the crime with his other co-accuseds but did not take part in the attack. He didn’t see much but knew that his co-accuseds took part in the attack as the entire village was involved. He was sorry for what happened on that day (Q & A 25). It couldn’t get any better. He went on to say that Nicko Thomas Waikesa was leading the attack.


L. VERDICT


62. Based on the findings made above, I rule that the accused persons namely; Sakarias Givikain, Ilau Gubutau, Matarap Yassam, Barnabas Buka, Sam Buka, Giamkisi Naptali, Naiman Yana, Francis Joe and Nicko Thomas Waikesa each and severally are guilty of Wilfully Murdering Robert Nema and Andrew Tamai on the 20th December 2014 at Gwasap hamlet, Mumeng, Bulolo District, Morobe Province.


63. I also find that the accused persons each and severally having had the intention to kill the deceased, did so unlawfully and did acts constituting section 7, in that they aided, counselled and procured each other to kill the two (2) deceased persons namely, Robert Nema and Andrew Tamai.


64. Accordingly, I find them all guilty of Wilful Murder pursuant to section 299 (1) of the Criminal Code.


Orders Accordingly.


Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Defence


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