N10240
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 287 OF 2022

THE STATE

V

PHILIP POWI

Ialibu : Miviri J
2023: 02nd 03rd 04th & 5th May

CRIMINAL LAW – PRACTICE AND PROCEDURE – Murder S300 (1)(a) CCA – Trial – Argument Over Money – Eruption of Fight – Defendant Assaulted Bleeding – Defendant Pursued Deceased with Bush knife – Deceased Body Found In River – Wound on Neck, left hand side Ribs & Right Hand side of Leg – Whether Caused By Bush knife – No Medical Report – Circumstantial Evidence – No Other Reasonable Hypothesis – Guilt of – Burden Of Proof Discharged – Guilty Of Murder.

CRIMINAL LAW – PRACTICE AND PROCEDURE – Murder S300 (1)(a) CCA – Trial – Prosecution Evidence – Biological Brother of Deceased – First Cousin of Accused – Truth & Veracity of – Defence Evidence – False – No Consistency – Credibility – Whom to Believe – Ring of Truth State Evidence – Intention to Cause GBH – Death as A Result – Burden Discharged – Guilty of Murder Section 300 (1) (a) CCA.

Facts:

Prisoner cut the deceased on his neck, left side ribs, and right-side leg causing massive bleeding from which he died.

Held:

Defendant assaulted by deceased & 2 others.
Bleeding nose & mouth.
Chased Deceased with Bush knife.
7 Days deceased missing.
Found Dead in river with 3 Bush knife wound.
No other with motive to.
Opportunity
False Evidence & Denials Corroboration.
Intent to cause GBH.
Death.
Guilty of Murder. 

Cases Cited: 

Papua New Guinean Cases
Bonu and Bonu v The State [1997] PGSC 11; SC528 
Beraro v The State [1988] PGSC 7; [1988-89] PNGLR 562 
John Jaminan v The State [1983] PNGLR 318 
James v State [2020] PGSC 39; SC1937 
Kwapena v The State [1978] PNGLR 4; [1978] PNGLR 316 
Kandakason v The State [1998] PGSC 20; SC558 
Mai and Avi, The State v [1988] PGSC 22; [1988-89] PNGLR 56 
Morris, The State v [1980] PGNC 87; [1981] PNGLR 493 
Pawa v The State [1981] PGSC 16; [1981] PNGLR 498 
Waranaka v Dusava [2009] PGSC 11; SC980 

Overseas Case
Barca v. The Queen [1975] HCA 42; (1975) 133 C.L.R. 82

Counsel:
P. Tengdui, for the State
P. Yer, for the Defendant
		
VERDICT
05th May, 2023

1.	MIVIRI J: 	This is the verdict in the trial of Philip Powi of Imihoma Mendi Southern Highlands who has been accused that he on the 15th of October 2020 at Wara Kolpa Imihoma murdered Bos Misin.

2.	On arraignment it was alleged that on the 15th October 2020, the Accused was approached by the deceased Bos Misin accompanied by his brother Samuel Misin and one other Petrus Hiu. They had gone to ask the Accused about some money which was collected by their fathers, Misin and Powi. An Argument arose as a result of that culminating into the three assaulting him, so that he was bleeding from the nose and mouth. He ran into his house and returned armed with a bush knife with which he chased the victim and killed him. After which he escaped to Mt Hagen where he was apprehended by Police, arrested, and charged with the allegation of murder.

3.	Relevantly the Indictment presented against him invoked Section 300 (1) (a) of the Criminal Code reading:

(1)	Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:–

(a) 	if the offender intended to do grievous bodily harm to the person killed or to some other person;

(b) 	if death was caused by means of an act–

(i) 	done in the prosecution of an unlawful purpose; and
(ii) 	of such a nature as to be likely to endanger human life;
(c) 	if the offender intended to do grievous bodily harm to some person for the purpose of facilitating–
(i) 	the commission of a crime other than a crime specified by a law (including this Code) to be a crime for which a person may only be arrested by virtue of a warrant; or

(ii) 	the flight of an offender who has committed or attempted to commit an offence referred to in Subparagraph (i);

(d) 	if death was caused by administering any stupefying or overpowering thing for a purpose specified in Paragraph (c);
(e)	 if death was caused by wilfully stopping the breath of a person for a purpose specified in Paragraph (c).
Penalty: Subject to Section 19, imprisonment for life.

(2)	In a case to which Subsection (1) (a) applies, it is immaterial that the offender did not intend to hurt the particular person who was killed.

(3)	In a case to which Subsection (1) (b) applies, it is immaterial that the offender did not intend to hurt any person.

(4)	 In a case to which Subsection (1) (c), (d) or (e) applies, it is immaterial that the offender–

(a) 	did not intend to cause death; or
(b) 	did not know that death was likely to result.”

4.	State alleged that he had intended to cause grievous bodily harm to the deceased from which he died as a result of the injuries that were inflicted. Grievous bodily harm is defined by section 1 of the Criminal Code as, “means any bodily injury of such a nature as to endanger or be likely to endanger life, or cause or be likely to cause permanent injury to Health;” This is express intention within that section, the assault must be perpetrated with the intention to cause grievous bodily harm upon the victim. And from which the deceased succumbed to his death. The State is obligated to prove beyond all reasonable doubt that Philip Powi intended to cause grievous bodily harm upon Bos Misin from which he died. He assaulted Bos Misin with a bush knife inflicting the injury to the neck, the left side of the ribs, and the right side of the leg. These injuries were grievous, they endangered the life of the deceased, and that they were likely to cause permanent injury to the health of the deceased, Bos Misin. And in fact, they were the basis upon which death followed. All were at the hands of the Accused.

5.	Firstly, intention to cause grievous bodily harm is a basic element here. And where it is not express, it may be inferred from the general circumstances of the offence, and evidence of animosity prior is one such factor to be considered to establish, James v State [2020] PGSC 39; SC1937 (24 April 2020). It would not be erroneous for me to go down that path here. And secondly there must be death. And both are attributed principally to the accused. It must be beyond all reasonable doubt that he is the author of the crime. In this regard I take due account that circumstantial evidence establishing the role of the Accused in the offence is good law, Pawa v The State [1981] PGSC 16; [1981] PNGLR 498 (27 November 1981), and in my view is applicable here where there is no direct evidence as to the role of Accused in the offence. There must be no other reasonable hypothesis other than the guilt of the Accused. Further that the actions of the Accused against the deceased is not in the same as observed in Kwapena v The State [1978] PNGLR 4; [1978] PNGLR 316 (1 September 1978). He is not acting to self-preserve himself from imminent danger to life and limb.
6.	The evidence by consent to sustain the indictment included; Exhibit P1 (a), the pidgin original record of interview of the Accused conducted with Police on the 15th April 2021 with the Accused. Exhibit P1(b) was the English translation of that record of interview.  Accused elected in response to each of the questions posed him, “Bai mi tokim kot”, I will tell the Court. In this regard the defence of the Accused would unfold in Court. As it was, there was nothing in the record of interview that explained what the position of the Accused was in respect of the charges that were laid. He has every right to have the State prove the allegation levelled against him. But it pays to speak one’s side at the first given opportunity as it lays the foundation as to the credibility of the assertion one raises, as is the case here. That is not to say the accused must always open up, it is a choice that he makes. And it does not follow that if he has chosen not to open up, he is now lying and fabricating to get out of the allegation.
7.	But by the same, it is human nature that one does not sleep over blood that is bleeding to drain out life. One must avoid the pain of the allegation by asserting at the first given opportunity to air. To be in custody over a long period of time when the evidence is glaring that one is not the perpetrator of the allegation, it must be the case that protest is made at the first given opportunity. The law has accorded the right to silence and the protection of the law, which in my view does not extend to lying low when the evidence is glaring that one is innocent of the allegation. In all fairness therefore to assess the credibility of a belated defence is not distancing with the rule of law, but according what is due its circumstances before the Court deliberately, diligently to enhance Justice. That in my view is applicable here given the facts that have since come out in defence. And which I set out under after evidence by the State.

8.	Exhibit P2 of the State evidence was the statement of Ray Tasman Police corroborator in the record of interview with the Accused.  Exhibit P3 was the statement of the Police Corroborating Officer as the first corroborating officer was called out on duties to Moro. He did not return so this witness was the corroborator for the remaining to the completion of the record of interview. Exhibit P4 was the statement of the Arresting Officer Raymond Poki. Their evidence is undisputed as to the due conduct of the record of interview now before the Court.

9.	The first witness on oath was Samuel Misin the brother of the deceased Bos Misin. On that day 15th October 2020, together with the deceased and Petrus Hiu they went to see Philip Powi about money. Who said the money was taken by Misin Waka, father of the Misin brothers, and Peter Powi brother of Philip Powi. And because of that an argument erupted over and the three of them, Samuel, and Bos Misin together with Petrus Hiu, assaulted Philip Powi who sustained bleeding nose and mouth with swollen face. Philip Powi ran into his house and came out with a bush knife that he used to chase the three with. Samuel Misin and Petrus Hiu both ran into the house of Misin Waka and stayed there. Whilst Bos Misin took the road towards their mothers’ village. Philip Powi followed him and cut him.

10.	Then I went to my mother’s house, and he wasn’t there. I returned and looked for him checking the river where I found him after seeing his footprints. Seven days he was in the water when I found him. My uncle took him out of the river. There were three marks on his body. I saw them one on the neck, second on the left-hand side of the ribs. And the last on the right-hand side of the leg. They were bush knife marks. I took the body to our mother’s village. We shouldered it. We are all biological cousins, three of us and Philip Powi. Our fathers are, first brother is Powi Wak, father of Philip Powi, second brother is Paul Wak, also known as Misin Wak, who is our father, Myself and Bos, and third brother is Hiu Wak, whose son is Petrus Hiu. Philip Powi cut Bos Misin so he on that same day escaped to Mt Hagen.
 
11.	In principal and in all material particulars this is the evidence of this witness. In all fairness after cross examination, it is clear he was not present when the accused delivered the blows with the bush knife, he held sustaining in the cuts that he observed described on the body of the deceased set out above. So, there must be evidence led to establish that the Accused was the perpetrator of the injuries seen by this witness on the body of deceased. There is no dispute that Bos Misin died an unnatural death his body being found in the river with the wounds. And this witness’s evidence confirms that there was bush knife wounds to the back of the neck the side of the left ribs and right side of the leg.

12.	The next evidence tendered for the State were three photographs through the second witness for the State on oath, Wanpis Ungiapei. Initially they were marked for identification as MF1, 2, and 3. But when tendered became Exhibit P5 which had the inscription, “The deceased Bos Misin 22 years old taken out of Wara Kolpa & wrapped & dressed due to being smelly and flies view from the legs.” Exhibit P6, also had similar description at the outset, except it ended with, “View from the head.” And Exhibit P7, had similar description at the outset, except ending with, “view from the right side of the body.” Clearly there was no other person dead except Bos Misin depicted by the Photographs. And it would appear from the people covering their nose and mouth in the photographs that the body was decomposed to such an extent that the smell was unbearable. It would explain also why no medical autopsy was undertaken. But the fact is that this was a death immediately after he was last pursued with a bush knife by the Accused. If that is the finding open after the defence evidence.

13.	This witness was a community leader. He had taken the subject three photographs set out above when called out on the discovery of the body in the river, which was about a few days later after the 15th October 2020. And then when it was taken up and laid out as in the photographs he took. He did not take them without the covering exposing the body with the wounds in each case, as that would have erupted into fighting. The tension then was very high. He wanted to install peace. And so did not want to ignite by exposing the wounds on the body. There were three, one on the leg, another on the rib side and lastly on the neck. He was urged in cross examination by Defence counsel that there were no wounds, he stated; “What I saw with my own eyes is what I say.” Maintaining in essence that there were wounds to the body of the deceased who he identified as Bos Misin. That was the initial basis of his response to the call from his council ward into the neighbouring. He acted with a sense of logic and common sense given the level of tension with a dead body found a couple of days in the river depicting the injuries which he in my view knew of but did not uncover for fear of a full-scale tribal warfare. I do not have any reservations in considering his evidence as the truth of what he witnessed on that day.
14.	The state evidence closed. Defence responded with no case submission that was overruled. Essentially deceased had met his death after he and the two surviving brothers had assaulted the Accused who was bleeding from his nose and mouth as a result. And he chased the deceased armed with a bush knife after which the deceased was found 7 days later with bush knife wounds in the river. Prima facie there was evidence sufficient to call the Accused to answer the charge laid. The full reasons are on the transcript of the proceedings.
 
15.	Accused opened in defence on oath, he was from Posipol village. And that on the morning of 15th October 2020, he was in the house with his wife. And at 6.00am they went to their garden and worked on it until 9.00 o clock the three brothers came shouting. I do not know what they were thinking. My garden is next to my house so I came from there.  And they said you never stay here. You stay in Mt Hagen, so you have to go. We argued over it, and I said, I will not go this is my father’s land. They were cross and they beat me up and spoilt my face, booted me. I did not retaliate. They attacked and beat me. We fought with our hands. I held the bush knife because I had come from the garden when they came at the same time. But it fell down when they attacked and beat me. And the deceased walked away in front of all the people who were looking on. They were there sunbathing. The two Samuel and Petrus came out and second time we fought. Petrus Hiu had an axe and Samuel had a bush knife, and we had an argument. There were a crowd on the road, who said you are brothers leave the bush knife and stop arguing. Petrus threw his bush knife on the side of the road and one Julie Joe picked it. We had no bush knife. I came to the house same day and we left for Mt Hagen, because my family is in Hagen where I went over to stay.

16.	I was suspected of the murder. I did not escape on the same day. I was travelling in bus when stopped by Police in Mt Hagen. They signalled with High beam so the bus stopped. They came out, I saw Pius Ira a brother came out to search for me in the bus. He was my brother so I called out to him put my hands up, as I knew nothing so I surrendered, and they put me in the Town cell at Mt Hagen. I was travelling to town when they got me. I did not think this would happen to me.

17.	In cross-examination he denied that he followed the deceased and cut him with the bush knife and killed him. He reasoned that they were all brothers. And when they fought, it was with their hands not weapons including bush knives. And the reason they fought was because the deceased uncle had K40, 000.00. And the first-born brother of the Accused got K40, 000.00. The total was K150, 000.00. K110, 000. 00 was for the school and used there. I do not know how they shared the money. What happened was in the public and I did not chase them with a bush knife. He is my brother I did not kill him.

18.	Essentially, he denied that he authored the death of his brother. And he could not have done what was alleged as it was in broad day light with people looking on what was happening. And that he had gone to Mt Hagen to be with his family as he felt pain from the assault by the three brothers which included the deceased. But he did not call anyone of the onlookers to support his version of events. It was in his home and those who were there presumably from the same village. He chose not to call anyone within who could support that evidence with logic and common sense. He tailored his evidence so that he was not chasing the deceased with the bush knife. And he wants the Court to believe that he was badly beaten by the three, but he did not react even in the face of a bleeding nose and mouth and swollen face. He was at the receiving end, but he chose to leave his 6 months effort of building a house, making a garden with a new wife at Imilhoma Posipol just immediately after to Mt Hagen. Three of the assailants were his cousins not his enemies, but he was prepared to leave in a haste immediately after they beat him up badly to Mt Hagen. At face value his evidence was incredible given and did not accord with common sense and logic given. To accept his evidence given would be an erroneous exercise given.

19.	Second witness for the defence was Petrus Robert. He insisted that was his name and no other. That his father’s name was Robert. He was asked if he recalled the incident in Posipol involving the Accused now in Court. He answered that he could not recall the date as it was a long time ago and he forgot. But the day was a Wednesday. He could not recall the month. He said with two others they went together and assaulted the Accused Philip, “one side”. Philip got blooded nose and mouth as a result of the assault. He fell and fainted there. People held us back and stopped the fight. Philip fell and he was there for one (1) hour thirty (30) minutes before he woke up. Bos left for his home. Then he went into his house changed and came up, and walked up to where they were singsing. The argument was over the first brother who got the money and went away so we attacked the second brother. We were Bos and Samuel Misin, and me Petrus Robert. Philip is the son of the first father. Misin Brothers are sons of the second father and I am of the last father. We are first cousins. And we all left Bos Misin went to his house. Samuel also and I returned to my mother’s place.

20.	In cross-examination when asked if he was Petrus Hiu, he said he was Petrus Robert and not the former. Then he acknowledged that his father did have a village name Hiu. And that he was not aware that he was a witness for the state named on the Indictment now before the Court. He said someone else put and opted his name to the police. He did not put his hand as a witness and was not aware. He said he did not give his statement to the Police because they were brothers. Philip the Accused was his brother including the deceased and the other. It was put that he abstained as he did as he did not want a brother to jail after the other had died also. He answered that he was not aware of the death. Because Philip did not kill Bos, and therefore he had told Samuel that they must go back to our brother make peace and stay together. Because in the fight they were using “boxing,” fists and did not fight with weapons. In re-examination he said, Philip was falsely accused and detained of the crime and that I want to be his witness in the Court to tell the truth of that fact.

21.	When cross examined that he was the only witness amongst all to say that Philip Powi was unconscious, that he had fainted, and was down for one (1) hour thirty (30) minutes, he explained that his blood dropped and he was down, “Liklik ya.” It became clear that he was a material witness to the allegations as he was one of the assailant in the matter who accompanied the deceased Bos, and Samuel to assault the Accused. But he it appeared deliberately and conveniently attempted to change his name from Petrus Hiu named on the Indictment as witness number 3 for the state to Petrus Robert. And his reasons were that he wanted to help his brother Philip Powi “because he was falsely accused and detained so I want to be his witness.” That his father’s village name was Hiu. He wanted to avoid any connection to that name when he in chief said he had no other name except Petrus Robert. 

22.	He deliberately in his evidence deviated and placed himself with Samuel not in the house, but outside seeing the deceased as he went away, not chased by the accused. And crushing his evidence beneath his feet was the assertion that Philip Powi was unconscious for one (1) hour thirty (30) minutes after which he came around. This was not the evidence of Philip Powi on oath. Nor was it the evidence of the two state witnesses. It was evident that this witness was alone in that assertion. And this was evidence intended to disassociate the Accused, with following chasing the deceased with a bush knife after couple of days later of finding the body in the river with the wound’s dead with bush knife wounds. He is in my view an incredible witness who defies common sense and logic. He is not an independent witness because his admission are clearly to and in favour of getting the Accused out who has been detained without just cause.

23.	The next witness for the Defence was Wilson Omei from Imilhoma village Mendi. Asked by counsel about the date he could not recall. And the year was 2019 according to his calculations of three years that the accused had been in custody since being taken in. He was not certain about it. His evidence in principle was that the three (3) brothers fought against the accused Philip Powi. He stopped the fight between them, Samuel Misin, Bos Misin and Petrus Hiu who had attacked Philip Powi. And in the course of which he sustained “Bikpela Bagarap” accused got a bleeding nose and mouth. His face was swollen as a result of the assault by the three.

24.	I stopped them from fighting, Bos followed main road and went. Samuel and Petrus, I took them back to the house. I told them to stay there. Philip Powi went changed at his house, face with blood he told me to escort him. He was afraid of the three (3) boys they will ambush him. So, he asked me to escort him to the main ples singsing to get phone number and come back. Together he got his wife and left for Mt Hagen where his family is resident. I will not add or subtract anything, nature is present, I am giving my statement.

25.	On cross examination his account differed with the evidence of Philip Powi who said that both assailants, Petrus Hiu had an axe, and Samuel Misin had a bush knife. He also seriously contradicted both the State account as well as that by Philip Powi that he stopped the fighting. And that he led both Samuel and Petrus back to the house and told them to stay there. His evidence was without any corroboration from both Samuel Misin and Petrus Hiu. And also, Philip Powi. He said the date was 2019 clearly contradicting the date of the offence 15th October 2020. He said he was calculating from the time the accused was detained and remanded. He did not firm out the date coupled with the major and material inconsistencies set out above, clearly, he was not helping the defence case. He was desperately trying to make out evidence that wasn’t there in the first place. Because Philip Powi never said he went to his house changed and then went to get a phone number from security guard Ben Sharp accompanied by this witness. In so doing he was lying on oath and uprooting his own evidence. In the final I am not swayed to consider his evidence in the defence case. I reject his evidence outright for the reasons I have set out above. As to its overall effect on the case I will determine after laying out the other defence evidence called.

26.	The next witness for the defence was Michael Solo from Posipol Mendi. He recall the incident for which Philip Powi was in court over. And that he was at the singsing ples and Bos came. And I lit my smoke and Bos went to his house. Philip came with Blood. He said he was attacked by three (3) Boys.

27.	On cross examination he lived in the village and never got to school. And didn’t know about mobile phone. Also, he did not know how to read. But it was his evidence that an hour after Philip came with Blood. He denied being coached in his evidence. His evidence did not add to the Defence case. He was not corroborated by Philip Powi in his evidence. Because he did not carry on the evidence of Wilson Omei who said he escorted Philip Powi to the singsing ples. Clearly if Wilson Omei accompanied Philip Powi, he would have been sighted by this witness who also sighted the deceased. And for a man who had never being to school nor had a mobile phone he was able to say it was an hour after that Philip Powi came. He too does not put date and time and year to the offence consistent so as to strengthen his evidence. He again has tried desperately to create what is not there corresponding to the 15th October 2020. He has deliberately lied to conceal but has fallen short that he does not draw the events he purports to witness to the 15th October 2020. Given all set out above I reject his evidence outright. It will have no bearing in the defence case. As to its overall bearing on the case I will determine at the end of all.

28.	The final witness for the defence was Loben Kunjap sworn in Pidgin, recalls the incident that led to the arrest of Philip Powi now in Court. He too could not put the date and time to his evidence. It was also an open-ended evidence that did not tie in with the accused evidence and case. He stated that he saw the body of Late Bos Misin in the river. That it did not contain any injuries or marks consistent with bush knife injuries. He said the body was safe and there was nothing wrong with it. It did not depict what was stated by Samuel Misin. He said he put his trousers on the body of the deceased who was naked. I have observed him and compared him with the photograph of the deceased. In the state that the body was in his size would not have fitted a decomposed swollen body in the photographs depicting. He is small in size and would not have a trousers readily available for a naked decomposing body swollen in the river. This is yet another attempt to make out evidence that defies common sense and logic. A small size cannot fit an oversized swollen decomposing body here. And this view is borne out in the cross examination that followed of the calibre and credibility of this witness. He was another witness who was lying outright on oath.

29.	In cross examination when he was shown the photographs Exhibit 5, 6, & 7 he changed his evidence, that the body was rotting and was not safe as he had put initially. Because when it was carried on the road it rotted away so had to have a mosquito net wrapped into a makeshift stretcher to carry it. And three bags more were used to wrap it in. It was clearly rotting from the photographs set out above. This was yet again another desperate and low-lying attempt to create evidence that was never there in the first place at all. Relevantly it was never there on the 15th October 2020 because he did not tie it down there. He if indeed was at the scene when the body was taken out of the river would have seen what Samuel Misin saw on the body with Wanpis Ungiapei who came later to the scene. His evidence is self-serving not corroborated by the photographs or the evidence of the two witness above. He is yet again a fellow villager from Posipol who has tried to shape out what was not there on the 15th October 2020. He does not tie his evidence by this date time and year. His evidence for all its worth does not give legs for the defence of the defendant Philip Powi. There is nothing apparent or identifiable or overt to consider his evidence in the defence of the accused. The body is smelling badly as observed by all in the photographs with their mouths and nose covered with their hands. It was decomposing decaying such that it was smelling very bad. For the reasons I set out above I reject his evidence outright as lies that have been created out desperately, without reason and logic to believe it. And their effect in totality is corroborative of the assertion of the Prosecution. Because they have tried in vain by false evidence to bring accused away from the offence.

30.	In this regard it has been held that assessment of logic and common sense and consistency in evidence are important tests for credibility of witnesses and their testimony. Any serious unexplained inconsistency in evidence and evidence not in keeping with logic and common sense are basis for rejection of such evidence: Kandakason v The State [1998] PGSC 20; SC558 (7 July 1998); Waranaka v Dusava [2009] PGSC 11; SC980 (8 July 2009). That is not the case against witnesses of the State but is the case for the defence as I have set out above particularized. And in law their evidence suffers that fate. Their evidence will be rejected on that basis and will not be considered. The accused has a right to be heard but he must bring evidence according to law, not against law to be considered: Mai and Avi, The State v [1988] PGSC 22; [1988-89] PNGLR 56 (3 June 1988). If it is against or in contravention of the law it will not be admitted nor considered. That is the case for the defence in the evidence led.

31.	The aggregate of all is that each defence witness has deliberately and calculatedly lied. And these lies have been concocted with a conscious sense to help their fellow villager from Posipol, and brother, the accused out of the realm of the law. And in this regard consistent with the law in John Jaminan v The State [1983] PNGLR 318 (29 September 1983), that has amounted to corroboration of the account of the Prosecution case. And particulars of this assertion can be found in the evidence of Petrus Robert alias Hiu. And particularly to disassociate the accused a blood brother from the net of criminal responsibility for the death of the deceased Bos Misin. All defence witness are not witnesses likened to Beraro v The State [1988] PGSC 7; [1988-89] PNGLR 562 (21 December 1989) where the eyewitness was a child 4 years 3 months old. Here are grown adults who deliberately lied under oath in their evidence urging to disassociate accused from the allegations by the State. And to align to urge the Accused be freed from the allegation now levelled.

32.	The effect of this concerted and joint enterprise by all is that their evidence by the lies and deceit in total will not only be rejected outright, but they have jointly corroborated the assertion of the State. That, Philip Powi was a very angry man after he was beaten badly by Bos and Samuel Misin, accompanied by Petrus Hiu resulting in, “Bikpela Bagarap,” bleeding nose, mouth, and swollen face. He chased Bos Misin with a bush knife from his house. And followed him and cut him up on the back of the neck, the left side ribs, and the right side of the leg. And then left and concealed the body in the river where it was found by Samuel Misin. There was no other person in that area who had a serious grievance with the Accused on that day 15th October 2020, other than the three who assaulted him, amongst whom was also the deceased. And it culminated immediately in the chase by the Accused. He chased the deceased angry and armed with a bush knife, who was missing after he had chased him with the bush knife. Only to be found seven days later with bush knife injuries in the river Kolpa. No one chased the deceased with a bush knife on that day except the accused Philip Powi. He did so because he was badly assaulted by the deceased accompanied by the two others set out above. He had the motive and the opportunity to do what is alleged. Coupled with the fact that his demeanour as a witness of truth with all his five witnesses are full of inconsistencies that I have particularized above. They defy common sense and logic and will not be considered on the same as the state evidence. I prefer the latter over their evidence. Because there is overwhelming and spiralling ring of truth that must be accorded in favour of the Indictment.

33.	There is no other reasonable hypothesis that has been invited to by the Defence. The only rational reasonable hypothesis is that provided by the State which is the guilt of the Accused, Pawa (supra). And this is so because where the circumstances of death are best beknown to the accused who tries all in vain to disassociate himself from that fact, it has been held a material fact eventual to the guilt of the accused in the allegation Bonu and Bonu v The State [1997] PGSC 11; SC528 (24 July 1997). That has been the theme of the defence case. Because when a case against an accused person rests substantially upon circumstantial evidence, the question for the court is whether the guilt of the accused is the only rational inference that all the circumstances would enable it to draw, Morris, The State v [1980] PGNC 87; [1981] PNGLR 493 (28 May 1980). Which approved and endorsed Barca v. The Queen [1975] HCA 42; (1975) 133 C.L.R. 82 at p. 104; 50 A.L.J.R. 108 at p. 117. 

34.	In my view that is the case here, given all the discussion set out in the evidence and law, there is no other hypothesis given all. The only common sense logical and only rational inference is that Philip Powi was assaulted badly by the deceased accompanied by Samuel and Petrus Hiu. He suffered a bleeding nose and mouth. His face was swollen. He reacted in retaliation naturally and ran into his house coming out with a bush knife. With which he chased the Bos Misin caught up with him, cut him on his body with it. On the neck, on the left side of the ribs, and on the right side of the legs. Then he left and concealed the body in the river. It was discovered seven (7) days later by Samuel Misin who followed the footprints to where the body was in the river where it was recovered. Because of that fact Philip Powi immediately came back took his wife and escaped to Mt Hagen. He did not stay to tender his house or the garden he had worked on to bring in 6 months. He was escaping the face of murder that he had committed. 

35.	He intended to cause grievous bodily harm as shown by the injuries that were seen by Samuel Misin and Wanpis Ungiapei. They were bush knife wounds consistent that he was the only person chasing him with the bush knife after which he did not return. Samuel Misin searched and found his brother Bos in the river. And death resulted as a direct result of that fact. The author of the grievous bodily harm and death is Philip Powi of Imihoma Mendi Southern Highlands. And he is guilty of the murder of Bos Misin committed on the 15th October 2020 at Wara Kolpa Imihoma. 

36.	I convict him of the crime of murder pursuant to section 300 (1) (a) of the Criminal Code as indicted.

Ordered Accordingly.
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Public Prosecutor:  Lawyer for the State 
Peter Yer Lawyers: Lawyer for the Defendant