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Independent State of Papua New Guinea v Kapo [2023] PGNC 210; N10286 (30 May 2023)

N10286

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 272 & 273 OF 2022

BETWEEN:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

AGAINST:

LEANNE KAPO &

REX KAPO also known as KENNY MINAME

-Accused-

Waigani: Tamade AJ

2023: 12^th,19^th, 20^th,21^st April; 30^th May

CRIMINAL LAW – offence of wilful murder – Sections 299 (1) and 7 – Criminal Code – circumstantial evidence – payback killing - killing occurred on highway – witnesses clearly identified accused persons in vehicle – defense witnesses not credible – verdict of guilty entered for both accused

Cases Cited

David v The State [2006] PGSC 22; SC881

Beng v The State [1977] PNGLR 115

State v Mausen [2005] PGNC 95; N2870

State v Kapil Omba [2010] PGNC 162; N4130

Jaminan v The State [1983] PNGLR 318

Stanley v State [2006] PGSC 43; SC1324

Pawa v The State [1981] PNGLR 498

The State v Waiyake Komane & Ors [1992] PNGLR 524

Legislation

Criminal Code Act

Counsel

Mr Jonathan Siminji, for the State

Mr David Kayok, for the Accused

30^th May, 2023

1. TAMADE AJ: On 12 April 2022, the State presented an indictment against both Leah Kapo of Kemas Village, Kompiam Ambum District in Enga Province and Rex Kapo of Kemas Village, Kompiam Ambum District in Enga Province that on 30 November 2020 at Ilavila Village, in Gulf Province, they both willfully murdered a Joe Tap Tan contravening section 299(1) and section 7(a) and (c) of the Criminal Code.
   
2. On arraignment, Leanne Kapo pleaded Not Guilty to the charge and Rex Kapo presented a demurrer pursuant to section 567 of the Criminal Code that he was not Rex Kapo but was known by the name Kenny Miname. The State sought an adjournment to file an Affidavit of the Investigating Officer and counsels made submissions on the demurrer. The Court ruled on the demurrer on 19 April 2023 refusing the demurrer (or objection) as it was an abuse of process as the Accused should have raised a misnomer pursuant to section 559 of the Criminal Code, a written ruling is published separately. The Court then proceeded to amend the Indictment pursuant to section 559 and 535 of the Criminal Code that the accused Rex Kapo is also known by the name Kenny Miname. The Accused Rex Kapo also known as Kenny Miname after presentation of the amended Indictment pleaded Not Guilty to the Offence and the State proceeded to open its case.
   
3. Mr Siminji of the State opened the State’s case with a brief statement that the State’s case is one of circumstantial evidence that the State will show that both accused in the company of others killed one Joe Tep Tan.
   
4. Both the counsel for the State and the Defence had agreed for the following exhibits to be tendered into evidence by consent:
   
   1. Death on Arrival Report of Joe Tep Tan by Dr John Opa (P1)
   2. Autopsy Report of Joe Tep Tan by Dr Seth Fosse (P2)
   3. Medical Certificate of Death by Dr Seth Fosse (P3)
   4. Search Warrant to MVIL Managing Director (P4)
   5. Company Extract of Alu Investment Ltd from IPA (P5)
   6. Minute explaining the purpose of an airbag by Department of Works (DOW) (P6)
   7. Letter from PILA LEAH KAPO, student status (P7)
   8. Record of Interview between Leah Kapo and CIP Moere in Pidgin (P8)
   9. Record of Interview between Rex Kapo and CID Moere in Pidgin (P9)
   10. Photographs by F/C Dabada Kobua (31 Original Photographs of the Crime Scene) (P10)
   11. Photographs by C/Sgt Joseph Numbos of the Crime Scene (P11)
   12. Photographs by Jeff Soka (1-8) of the Crime Scene (P12)
       

Evidence of Investigating Officer Retired Detective Chief Inspector Leane Moere

5. I will address the evidence of the Investigating Officer Retired Detective Chief Inspector Leane Moere which brings the case against the two accused now before this Court as it is the State’s case theory. Detective Chief Inspector Leane Moere is now retired however he was the investigating Officer in this case. He states in evidence that he attained a law degree from the University of Papua New Guinea and that he was the investigating officer into this case, a case he finds in his long career with the police, being about 43 years with the Police Force to be a complex case as it largely consists of circumstantial evidence. Detective Chief Inspector Moere was attached with the Regional OIC Criminal Investigations, Southern Regional Command, CID Matters. His area of jurisdiction covered Criminal Investigations in the Southern Command, in Gulf Province, Milne Bay, Oro and Central Province.
   
6. Detective Chief Inspector Leane Moere states in evidence that he was tasked to investigate a death at Ilavila Village along the Gulf /Central Trans Highway. The death had occurred on 30 November 2020. Detective Chief Inspector Moere states that on 25 November 2020, a group of highlanders had murdered a Goilala man along the Kerema Highway. The Goilalas then regrouped and murdered three highlanders, two Eastern Highlanders and one person from Wabag, Enga Province. This deceased from Wabag was known by the name of Lewa Pyawali and he is related to the two Accused. They are the Wabag community that live in Kerema Town. The Wabags, angry about the death of Lewa Pyawali then returned to Kerema town on 30 November 2021. They had met and they blamed the death of Lewa Pyawali on the Western Highlanders that the Western Highlanders had killed a Goilala person and therefore the Goilala’s had retaliated resulting in the death of Lewa Pyawali. In executing this plan of retaliation and revenge, the Wabags which included the two Accused travelled to Kerema in search of any Western Highlander or anyone from Mt Hagen. On Monday 30 November 2021, 11 Wabags, 10 men and 1 woman jumped into a ten-seater Landcruiser white in colour and drove down the Trans Highway to Kerema from Port Moresby in search of any Western Highlander. They drove along the highway to Meaporo Village along the highway and there they met one, Joe Tep Tan in a brown ten seater land cruiser and two others who were buying betelnut at the roadside market. Joe Tep Tan now deceased is said to be an innocent person at the road side market buying betelnut.
   
7. These 11 Wabags armed with bush knives came down from the car and attempted to attack Joe Tep Tan and the two persons who had accompanied him in the car. Joe Tep Tan and one other seeing that they were about to be attacked got in their vehicle and drove away, escaping from the Wabags. The other person accompanying Joe Tep Tan in the brown ten seater did not make it into the car and escaped to the village in hiding. The Wabags got back into their car and gave chase to the brown ten seater towards Kerema Town. The brown ten seater then turned for Port Moresby direction at the end of the bitumen road and headed for the direction of Port Moresby. The white ten seater continued the high speed chase along the Kerema Highway past Meaporo to Malalaua Station and continued to Lakekamu Bridge where the drivers realized that it was a one way bridge crossing, the brown ten seater with the deceased as driver stopped to allow a PMV to cross the bridge. As soon as the PMV crossed, the brown ten-seater quickly crossed the bridge and continued to get away from the white ten-seater of Wabags. Both vehicles continued the high-speed chase along the highway to Ilavila Village where the White Ten seater caught up with the Brown Ten Seater and bumped it at its rear causing the brown ten seater to veer off the road and into the nearby trees and shrubs to a standstill. The passenger in the brown ten-seater by the name of Mathew Yop broke the window of the vehicle and escaped to save himself. The Wabags in the white ten-seater proceeded to enter the brown ten-seater where the driver Joe Tep Tan was trapped in the driver’s seat and assaulted him when he was defenseless having just gone through the impact of the vehicle veering off the road hitting the trees and shrubs.
   
8. The Wabags in the white ten sitter after assaulting the driver of the brown ten-seater then left for Kerema. A police officer from Malalaua was then alerted of the incident and went and found the deceased in the brown ten-seater.
   
9. The body of the deceased was taken from Ilavila to the Kerema General Hospital mortuary. In April of 2021, a special police operation to Kerema gave a list of suspects into the murder of Joe Tep Tan which included the names of the two Accused as being in the White Ten-Seater that pursued the deceased in his brown ten-seater. The Two Accused were arrested and then charged.
   
10. Investigating Officer Retired Detective Chief Inspector Leane Moere said in evidence that he believed that both accused and the people that they were in the white ten seater with had a common purpose. That common purpose as that they would find anyone from Western Highlands along the Kerema highway and kill them. Because of the death of their relative Lewa Pyawale at the hands of the Goilala’s, they were seeking retaliation against anyone from Western Highlands as the Western Highlanders had murdered a man from Goilala resulting in the Goilala’s killing Lewa Pyawali.
    

Evidence of Paul Mek

11. This witness was with the deceased Joe Tep Tan on 30 November 2020 and one other named Mathew Yop. They left Port Moresby that day around 6am in the morning towards Kerema. About 4 to 5 hours into the trip, they took a stop at the Meaporo Market in Gulf Province to buy buai, smoke and drinks. The late Joe Tep Tan was the driver of the vehicle. Whilst at the market, Paul Mek saw a white ten seater coming to a stop about 5 to 6 meters from where their vehicle was parked. He then saw about more than 8 men emerge from the white ten seater armed with bush knives and weapons. He also saw a woman amongst the men. These armed men were shouting “that’s them!” pointing at the direction of Paul Mek and their vehicle. He said these men came to fight and therefore terrified, he ran into the village to escape any onslaught as he was quite a distance from the vehicle he came in and he could not make it back to the vehicle to get away. Joe Tep Tan and Mathew Yop whom they came together were able to quickly get into their vehicle, a brown ten-seater and drove off to escape from the armed men. Paul Mek was able to identify the Accused Leanne Kapo in Court as he said she was the only woman amongst the group of men that emerged from the white ten-seater and therefore he could identify her apart from the men.
    
12. When cross examined by the Defence that in his Statement given to the police, he never identified the Co-Accused Leanne Kapo in his statement to the police or told the police the number of people emerging from the white ten seater however Paul Mek maintained that he was telling the truth.
    

Evidence of Emmanuel Milara

13. This witness resides at Iesipi Village at Malalaua ,Gulf Province along the highway. On Monday 30 November 2020, he was sitting at the Manu Market between 10am and 1pm, he saw two ten seater land cruisers on a high speed chase sped past the Manu Market where he was sitting. He said he saw in front a brown ten-seater being chased by a white ten-seater from behind heading towards Port Moresby. He said he could recognize the white ten-seater as belonging to a businessman in Kerema namely Rolland Kapo. After about an hour and 45 minutes or so, he saw the white ten-seater return back towards Kerema without the brown ten-seater nowhere in sight.
    

Evidence of Samson Satoro

14. Samson Satoro is from Kerema and was residing at Ilavila at the time of the alleged incident on 30 November 2020. He heard that there was a vehicle accident and therefore he went into the house, got his bicycle and went to the place where the accident occurred. He said he saw a brown ten-seater and a white ten-seater involved in an accident. Samson said he saw 5 men coming out of the white ten-seater parked near the road. They were armed with bush knives. He also said he saw three males coming out of the brown ten-seater vehicle from the back, two were armed with bush knives and one was holding on to a black object which he could not clearly make out what it was. At the side of the brown ten-seater, he saw a woman standing there hitting the side of the brown ten seater. He said he saw a total of about ten men and a woman at the scene and described them as all from the Highlands region. He said these armed men were surrounding another local named Eka and that was how he was able to count them and from where he was standing, he could see that there was also a lady present but could not remember their faces. He saw the white ten-seater driving off towards the direction of Kerema town afterwards. He then came around the stationed brown ten-seater and saw a man dead in the driver’s seat. He called out to Eka and the locals who were there and they blocked off the road with branches of trees and rocks and they stayed with the brown vehicle until the police arrived to take the deceased in the brown vehicle.
    

Evidence of Carolyn Thomas

15. This witness is a female from Western Highlands Province and she is a betelnut trader who travels up and down Port Moresby and Kerema to buy betelnut to sell in Port Moresby. On 30 November 2020, she was at Mupa village along the Kerema Highway to buy betelnut when a white ten-seater vehicle came and stopped at Mupa at the market. She said she was afraid as armed men had come out of the vehicle and they were after Hageners so in fear, she ran into the house of a villager to hide from the armed men. The armed men followed her and even though the lady owner of the house stopped them from entering her house, they forced their way in and apprehended the witness and stripped her clothes off. They got money in which she hid in her bra and from her bag. They then pulled her into the white ten-seater. Inside the vehicle, this witness could see all men and one woman amongst them. Carolyn said that in the vehicle, one of the men threatened her and said that “if you were a man, I will cut off your penis and put it in your mouth”. Carolyn said that once inside the vehicle, the vehicle drove to Kerema town. She could see that the occupants of the vehicle were armed with bush knives as she said one of the man with a bush knife had cut her hand. Carolyn said there was a man in the car named Benny Kuringi who spoke up for Carolyn and told them not to harm Carolyn she is his in-law. Carolyn said she was threatened in the vehicle after being stripped off and man handled into the vehicle. She said that she could recognize the faces of the people in the vehicle because they were about to kill her. She recognized the Co-Accused Leanne Kapo as the lady in the vehicle and identified her in Court. Carolyn also identified the Co-Accused Rex Kapo as one of the men in the ten-seater.
    
16. The white ten-seater then took her to Kerema Police Station. There were two policemen present at the Kerema Police Station who enquired about why the occupants of the ten-seater had brought Carolyn to the police Station. Also at the Station, the police asked them whether they were aware of an incident that happened at Malalaua. Carolyn was able to say in evidence that when she was attacked by the occupants of the white ten-seater, they kept telling her this in pidgin, “you Hagen killed K-Town Lewa and you are here to buy betelnut.” She also stated in evidence that they took K6 000 in cash on her at the time she was attacked and taken in their vehicle to Kerema Police Station.
    

Evidence of David Javen

17. First Constable David Javen is a police Officer serving at Kerema Police Station at the material time. He recognized a vehicle driving into the Police Station between 4pm to 5pm om 30 November 2020 as one belonging to Rolland Kapo and identified that the people in the vehicle were Rolland Kapo’s relatives from Wabag as Rolland Kapo was a known businessman in Kerema town. He said he saw a lady come out of the vehicle with torn clothes and she was in fear. He rescued her from the occupants of the vehicle but could not effect any arrest as there was a conflict between highlands policemen at the Kerema Police Station and other policemen. He identified Leanne Kapo and Rex Kapo as coming out from the white ten-seater amongst others at the Kerema Police Station. He said he is familiar with the two Accused as they are related to Rolland Kapo the businessman in Kerema as his house is near the Police Station. First Constable Javen said that the Accused and the occupants of the white ten-seater said that they were there to report a dangerous driving incident up at Ilavila. As he was informed as well on seeing facebook posts of an incident at Ilavila, he then sought the assistance of a vehicle and drove to Ilavila.
    
18. That afternoon, Constable David Javen arrived at Ilavila and came upon the brown ten-seater with the deceased inside stationed on the side of the road. He observed that the brown ten-seater had an impact from the back and that the deceased was lying on his back with the driver’s seat down and his face facing up, the air bag was blown out or released due to impact. He also said that Mathew Yok the other occupant of the brown ten-seater who had gone into hiding during the incident had come out from hiding and told them what happened. They then arranged to transport the body of the deceased identified as Joe Tep Tan to Kerema Hospital mortuary.
    
19. The State then closed its case and the Defense presented a No Case Submission which was overruled. The Defense then called its witnesses.
    

Evidence of Rex Kapo also known as Kenny Miname

20. This accused is related to his Co- Accused Leanne Kapo as his cousin sister and he is also related to Rolland Kapo, the businessman in Kerema town. He states that he was the crew member of a PMV owned by a Lewa Pyawale who was his cousin. The PMV is called K-Town Lewa. He said that Lewa Pyawale was killed by Goilalas at Doa Plantation along with the other Eastern Highlanders. He does not know the reason why they killed Lewa Pyawale however he witnessed the Goilalas killing his cousin right before his eyes. Lewa Pyawale’s body was then brought to Port Moresby General Hospital and the house cry was held at 9 Mile in Port Moresby. He said that whilst at the house cry at 9 Mile, he was present with the driver of K-Town Lewa, Kelly Kenden. He states in evidence that during the house cry of Lewa Pyawale which lasted for about 2 weeks from 25 November 2020 to early December, he never went anywhere else. The body of Lewa Pyawale was later flown to Wabag for burial. This Accused denied ever being at Kerema or along the Kerema highway on 30 November 2020, five days after the murder of his cousin Lewa Pyawale and denied any insinuation that as a man from Wabag, he would have acted in retaliation and took revenge over the death of his uncle at the hand of the Goilalas.
    

The Evidence of Kelly Kenden

21. This witness is the driver of the bus known as K-Town Lewa and is related to the deceased one, Lewa Pyawale. He was present at the time Lewa Pyawale was murdered and stated that he was at the house cry at 9 mile with the Accused Rex Kapo and also said he never lost sight of the Accused for the entire two weeks of the house cry. He stated that he was being compensated with money and a carton of coke for witnessing the death of Lewa Pyawale. He denied that he reacted out of anger, retaliation, and revenge for the death of Lewa Pyawale and stated that he simply accepted the death without any feelings of retaliation.
    

Evidence of Frank Koi

22. Frank Koi is from Winikos Village, Kompian Ambum District in Enga Province. He is employed as a Personal Assistant to the Governor General. He is a cousin to both Rex Kapo and Lewa Pyawale and he is an uncle or father figure to Leanne Kapo. He attempts to provide an alibi for Rex Kapo and Leanne Kapo that they were always at the house cry at 9 mile for Lewa Pyawale. He states in evidence that he does attend work during the day and in the afternoons, he returns to the house cry. In cross examination, he insists that Rex Kapo and Leanne Kapo were all the time at the house cry. When asked by the Court whether he grew up in Wabag, he said that he was born and raised in Wabag and moved to Port Moresby.
    

Evidence of Leanne Kapo

23. Leanne Kapo is the Co- Accused. From records, her name was stated as Leah Kapo however from the record of interview, she confirmed that her name is Leanne Kapo. This was also confirmed when she testified in Court. She is related to the Co-Accused Rex Kapo and to Rolland Kapo, the businessman in Kerema. She states that she resides at Makana at the 9 Mile Settlement in NCD. She is related to Lewa Pyawale, the deceased whom she states is her uncle and that she was at the house cry for the entire 2 weeks of house cry. She denied that on 30 November 2020 that she was at Kerema and denied that she was involved in the killing of Joe Tep Tan from Western Highlands. She gave the same response when asked how she felt or reacted when her uncle was killed by Goilalas and she calmly responded that Goilalas were difficult people and that they could not do anything. She also confirmed that the Goilalas also killed two Eastern Highlanders at the time her Uncle Lewa Pyawale was killed.
    

Inconsistencies of Statements as raised by the Defence

24. The Defence has raised that there is inconsistencies in the evidence of Paul Mek, and Constable David Javen as their sworn evidence was not consistent with their Statement given to the police. The Defence has referred to the case of David v The State^[1], in which the Supreme Court (Salika, Cannings and Gabi JJ) ) held amongst others that:
    

“If there are inconsistencies in the evidence the trial judge should identify them, assess their significance and give reasons for regarding them as significant or insignificant, as the case may be.”

25. I find that the objection raised by the Defence does not sustain the ground of inconsistent statements. An inconsistent statement would be two different versions of facts that are inconsistent and or conflicting accounts of facts. In the statements of Paul Mek and Constable David Javen, the facts that were stated in brief in the Statements given to police were expounded on in their testimonies in Court. These witnesses gave more detailed information as to the description of the Accuseds and identification of the Accuseds in Court. I accept that a witness at the time of giving their Statement to the police may not recall the entirety of the events. In Court, a witness can remember and give more description or added information as to certain events and people. There are no inconsistencies in the evidence of Paul Mel and Constable David Javen in contrast to their statements to police. These two witnesses gave more clarity to what was in their Statements given to the police. The objections by the Defence as to inconsistent statements is therefore refused.
    

1. Analysis of evidence
   

26. The State has the burden to prove beyond reasonable doubt the elements in the offence of section 299(1) of the Criminal Code. Section 299(1) of the Criminal Code is as follows:
    

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.

27. The elements of the offence are therefore:
    
    1. a person
    2. who unlawfully kills
    100. another person
    4. intending to cause his death or that of some other person
       
28. Where a case is entirely dependent on circumstantial evidence, the Supreme Court held in David v The State^[2] that:
    

“(1) In a case substantially dependent on circumstantial evidence the question to be asked is: do the proven facts lead reasonably to only one conclusion – that the accused did all the things constituting the elements of the offence? If yes, the accused is guilty. If no, the accused is entitled to an acquittal.

(2) It is an integral part of a judge’s decision-making process in a criminal trial to state clearly the elements of the offence. If the elements are not stated and applied, an error of law will be made.

(3). In a homicide trial in which conviction turns on circumstantial evidence, the trial judge should make clear findings as to who killed the deceased and where, when, how and why the deceased was killed. Failure to do so will constitute an error of law...”

The medical reports and evidence tendered in by consent of parties as exhibits before the Court.

29. The evidence tendered showed that the vehicle the deceased was in was a brown ten seater registration number BEU 447.
    
30. The photographs of the scene are consistent with the evidence of the State witnesses. The brown ten seater had veered off the road hitting banana trees, bush and shrubs, there are no big trees that would cause a huge impact to the brown ten seater. The photographs show the deceased in the driver’s seat with the seat down and his face facing up.
    
31. There is a photograph of the deceased that has distinct marks on his forehead. They are consistent with being hit on the forehead with a sharp and hard object. I make this observation as the air bag of the vehicle was released on impact. Exhibit P6 is a note from the Department of Works, Plant and Transportation Division regarding the location of the airbag in the vehicle and the purpose of the airbag. It is stated that air bags are designed to deploy once on collision and deflate quickly thereafter. The Statement says that the air bag should provide a safety cushion between the vehicle occupant and the steering wheel, dashboard panel, head liner and the windshield. The air bag therefore should cushion the impact of the crash to the driver of the vehicle, Late Tep Tan however the marks on the deceased forehead suggests that they were not caused by the impact of the crash as the air bags were released on impact.
    
32. In the Medical Certificate of Death by Dr Seth Fose, it is stated that the deceased died of Acute myocardial infarction & right-side subarachnoid hemorrhage due to coronary artery narrowing and blunt force trauma due to coronary atherosclerosis. The Medical Report also stated a history of physical assault for less than 1 hour. This is therefore consistent with the marks on the deceased forehead that he was physically being assaulted with blunt force trauma to the head by his assailants using the bush knives that his assailants had. The Autopsy Report also attributes the cause of death to a motor vehicle accident however given the full medical and autopsy report, the deceased would not have died due to the impact of the motor vehicle accident as the air bag was released on impact. The medical findings as to blunt force trauma and physical assault are consistent with the acute cut marks on the deceased’s forehead.
    
33. The assailants had entered the deceased’s ten-seater from the back door and assaulted the driver when he was in his seat. They had pulled him back in his driver’s seat and physically hit him on his head. I find that the cause of death is not due to a motor vehicle accident but due to physical attack from his assailants whilst he was in the driver’s seat helpless and blunt force trauma was applied to his head from sharp and hard objects consistent with bush knives as evident from the marks to his forehead in the photographs in evidence.
    

State’s evidence

34. In addressing the evidence of the Investigating Officer Retired Detective Chief Inspector Leane Moere, the Defence has objected that Chief Inspector Leane Moere’s evidence is largely hearsay and the Court should not put any weight on it. The Court had proceeded to hear the evidence of Chief Inspector Leane Moere as it was relevant given the State’s case was entirely on circumstantial evidence. The Court would therefore proceed with caution with the evidence of Chief Inspector Leane Moere. Chief Inspector Leane Moere’s evidence is largely the State’s case theory as stated at the outset.
    
35. The Court in Beng v The State [1977] PNGLR 115 identified the principle in regard to identification where it was held that:
    

“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.

R. v. Raymond Turnbull & Ors. (1976) 63 Cr. App. R. 132 followed,

The State v. John Beng [1976] P.N.G.L.R. 471 upheld.”

36. Justice Cannings adopted the above principle in the John Beng case to the case of State v Mausen [2005] PGNC 95; N2870 (4 August 2005) and states these:

“In assessing the identification evidence I have applied the principles set out by the Supreme Court in John Beng v The State [1977] PNGLR 115, Prentice DCJ, Williams J, Kearney J; Biwa Geta v The State [1988-89] PNGLR 153, Kidu CJ, Bredmeyer J, Los J; and Jimmy Ono v The State (2002) SC698, Hinchliffe J, Sevua J, Kandakasi J. In particular:

• I have considered the inherent dangers of relying on the correctness of identification to support a conviction and caution myself, as the tribunal of fact, accordingly.

• It is particularly dangerous to rely on the correctness of identification where there is only one witness giving evidence of identification. However, provided the evidence is carefully examined the evidence of one witness can suffice.

• It is not necessary to have an identification parade.

• If the quality of the identification evidence is good the matter should proceed to verdict. But if the quality of the evidence is poor an acquittal should be entered unless there is other evidence that goes to support the correctness of the identification.

• There is always the possibility that an honest witness can be mistaken and still be a convincing witness. The court must be satisfied that the witness is both honest and accurate.

• If the accused has not given evidence the court must not take that into account when considering the quality of the identification evidence, as no inference of guilt ought to be drawn from a failure to testify.

• In assessing the quality of the identification evidence, relevant considerations include: whether the witness is purporting to identify a person who was a stranger or someone he or she recognised; the length of time that the witness observed the accused (eg a prolonged period or a fleeting glance?); the emotional state of the witness at the time of the incident; the prevailing conditions (eg was it broad daylight or at dusk or dawn or inside or outside?) the line of sight (eg did the witness have a clear front-on view or was the line of sight interrupted or did the witness just see the accused from the side?)

• If there are discrepancies in the identification evidence the court should consider them and asses whether they are explicable in terms other than dishonesty or unreliability.”

37. The Court in State v Kapil Omba [2010] PGNC 162; N4130 (23 August 2010) made these observations in relation to identification of Accused person:

“It has been said trial judges should warn themselves that the reliability of an identification of a person depends upon the circumstances in which the witness observed the person who he or she has identified as the accused and any one of those may possibly lead to error. For example:

* How long was the period of observation;
* In what light was it made;
* From what distance was it made;
* Was there anything about the person observed which would have impressed itself upon the witness;
* Was there any special reason for remembering the person observed;
* How long afterwards was the witness asked about the person seen; and
* How did the description then given compared with the appearance of the accused...”

38. I find the State witnesses as truthful witnesses. Carolyn Thomas was an innocent buai trader who was assaulted just because she is a Western Highlander. She was in the vehicle with her assailants who brought her to Kerema police Station. She was assaulted, wounded and abused. She clearly identified both accused as being with her in the vehicle that took her to Kerema Police Station. She clearly remembered that they were telling her, “you Hageners killed K-Town Lewa and now you are here to buy betelnut.” Carolyn appeared to be a woman very vocal and firm in her demeanor when she was giving evidence.
    
39. Constable David Javen is also a truthful witness. He was at Kerema Police Station and saw Carolyn Thomas come out of the white ten seater. He identified both Accused, Leanne Kapo and Rex Kapo as also coming out of the white ten-seater. He recognized them as being related to Rolland Kapo, a businessman in Kerema town whose house was near the Kerema Police Station. He has seen them before. There is no doubting his evidence as he is an officer of the law and he also has no reason to make up a story.
    

Defence evidence

40. In the case of Jaminan v The State [1983] PNGLR 318, where a defence of alibi is raised, if there is some evidence of it and not speculation, the Court is tasked to consider the matter and where there is reasonable doubt on the alibi, acquit the Accused. Justice Bredmeyer (as he then was) said this in regard to the defence of alibi):
    

“...I do not consider it particularly helpful to clear legal thinking to say that the prosecution must disprove an alibi raised by evidence beyond reasonable doubt. The prosecution must prove beyond reasonable doubt the guilt of the accused — that he committed the offence of sexual intercourse without the consent of the girl. If the prosecutrix says she was raped at place A at 8.00 p.m. and the accused, and/or witnesses called by him or favourable to him, give evidence that he was at place B at that time and therefore could not have committed the offence, it is incumbent on the prosecution to prove beyond reasonable doubt that he committed the offence at place A. If the evidence of alibi creates a reasonable doubt in the mind of the tribunal of fact, the accused should be acquitted. The State may prove guilt by relying on its witnesses that the accused was at place A outweighing the accused and/or his witnesses that he was at place B; or in addition the prosecution may lead rebutting evidence by a witness who was at place B and who says that the accused was not there at the relevant time. To say that the prosecution has to disprove the alibi once raised is correct if it means that the prosecution has to prove its case beyond reasonable doubt but is incorrect if it implies that it has to call a witness to say that the accused was not at place B at the relevant time.

The onus of proof remains on the prosecution throughout; there is of course no onus on the accused to prove his innocence. But if there is no evidence from the prosecution witnesses in support of the alibi, in practical terms it is incumbent upon the defence to lead some evidence of alibi. One can, I think, speak correctly of an evidentiary onus or burden on the accused. In practical terms in that situation the accused must lead some evidence of alibi and it must be of sufficient weight or sufficiently credible or sufficiently “convincing” — I will allow the word used by the trial judge — to create a reasonable doubt in the mind of the tribunal of fact to gain an acquittal. How strong or credible or convincing that evidence must be, depends on the strength of the prosecution witnesses: if their evidence is very strong then the defence evidence of alibi needs to be reasonably strong to raise a reasonable doubt...”

41. All the witnesses for the Defence are related or connected to both Accused and are all related or connected to the deceased Lewa Pyawali who was killed by the Goilalas and therefore they are not independent witnesses. The evidence of Kelly Kenden cannot be believed. This witness attempts to provide an alibi for Rex Kapo however I find his evidence unreliable and untruthful as it is not possible for him to keep an eye on the Accused Rex Kapo for the entire duration of the two weeks the house cry for Lewa Pyawala was held. On 30 November 2020, I find that he never saw Rex Kapo on that day, he simply covers up for Rex Kapo that he was with Rex Kapo at the House cry at 9 mile and says nothing peculiar about that day. The State has argued that this witness received cash and money as compensation for witnessing the murder of Lewa Pyawali and he would lean towards protecting Rex Kapo and Leanne Kapo.
    
42. I also do not believe the witness Frank Koi as it is not possible for him to confirm with certainty that Leanne Kapo and Rex Kapo were at the house cry on 30 November 2020 as he was away at work during the day. During cross examination, he agreed that he was not at the house cry on that particular day as he was at work but insists that Rex and Leane Kapo were at the house cry. I disregard his evidence and as not truthful.
    
43. Frank Koi is an Engan man born and raised in his village in Enga Province and has a strong affinity to his culture and his people. I find it impossible to believe that he had no reaction in anger, or retaliation whatsoever to the killing of his cousin Lewa Pyawale by the Goilalas, and that he simply acknowledges his cousin’s death. His evidence follows the same narrative as given by Rex Kapo, Kelly Kenden and Leanne Kapo. They portrayed to the Court that they quietly and with humility accepted the death of their family member Lewa Pyawale, a story hard to believe from the nature of people from Enga Province who are known to be aggressive and reactionary in situations that trigger fights and especially in their tribal culture.
    
44. In regard to the evidence of Leanne Kapo, I find a similar denial in her reaction to the killing of her Uncle Lewa Pyawali which is consistent with the denials in Rex Kapo, Kelly Kenden and Frank Koi’s evidence. I depict some form of collusion in their similar statements to deny the whereabouts of Leanne Kapo and Rex Kapo as being present at the house cry of Lewa Pyawale on 30 November 2020.
    
45. The alibi given by both Accused and supported by their witnesses are not credible and are untrue. The Defence witnesses have all agreed to say the same thing to the Court, lie to the Court even though they took oaths to tell the truth about their testimonies. I find it hard to believe that four people from Enga province would accept the killing of their relative by Goilalas even though two witnessed the killing of their relative Lewa Pyawali but said they were never angry or felt revengeful for the murder of their relative. This indicates to me that both Accused persons and their witnesses are untruthful witnesses.
    
46. The Court held in the case of Stanley v State [2006] PGSC 43; SC1324 (3 November 2006) that:
    

“To find an intention to kill, based on circumstantial evidence, it must not only be a rational inference, it must be the only rational inference, that the accused intended to kill (The State v Tom Morris [1981] PNGLR 493, Paulus Pawa v The State [1981] PNGLR 498 applied).”

47. The following excerpt in the Stanley v The State is important to cite in this case as to intention:
    

“17. The issue of "intention to kill" has been the subject of a number of judicial pronouncements by the Supreme Court as well as the National Court. In the Supreme Court Reservation No 4 of 1984, The State v James Pah [1985] PNGLR 188, that was the case where the appellant was indicted with two offences, one of attempted murder and the second one a charge of unlawfully doing grievous bodily harm. On discussing the element of 'intent' on the charge of attempted murder under Section 304 of the Criminal Code and 'offences of which the causing of some specific result is an element', Kidu CJ said at page 190 that the requisite elements on a charge of attempted killing are (1) an intention to actually kill; and (2) that such intention is put into execution of an overt act, (see also R v Bauoro Dame [1965-66] PNGLR 201.

18. The appeal before us is one on the charge of wilful murder. As Injia J (as he then was), rightly observed in the wilful murder case of The State v Raphael Kuanande [1994] PNGLR 512 at 514:

Intention is a matter which goes to the state of mind of the accused at the time he acted. It may be proven by direct evidence of the accused's expression of intention followed by the act itself or by circumstantial evidence. In either situation, it is necessary to examine the course of conduct of the accused prior to, at the time and subsequent to the act constituting the offence.

19. Before the trial judge, there was evidence from the two State witnesses that they each heard the appellant and the victim argue over money. After that argument, they fought from inside the wind house to the door and outside to the immediate precincts of the house. At page 98 of the Appeal Book lines 20 to 33, the trial judge made the following observation on the issue of the circumstantial nature of the evidence:

So the evidence against the accused in that respect is largely circumstantial. I have already discussed the accused's version of how the deceased was stabbed and if I was to accept her story, it certainly would appear that the deceased accidentally fell on the knife which the accused was holding, in which case the accused is entitled to acquittal. I therefore need to have a careful and a closer look – analysis of the accused's evidence to determine whether the accused is telling the truth. This has to be determined on the whole of the evidence. The principle to be applied in cases where the evidence is wholly circumstantial or largely circumstantial was stated in the case of Paulus Pawa v The State [1981] PNGLR 498. There the Supreme Court said that the accused should be acquitted unless all the circumstances are such to be inconsistent with any other reasonable hypothesis than the guilt of the person charged.

20. It is our view that for the trial judge to find the appellant guilty of wilful murder there ought not to have been any lurking doubt in his Honour's mind. An inference to be drawn on the guilt of an accused person must not only be a "rational inference but it should be the only rational inference that the circumstances" of the evidence would enable him to draw: The State v Tom Morris [1981] PNGLR 493, Paulus Pawa v The State [1981] PNGLR 498, (see also cases of Barca v The Queen [1975] HCA 42; (1975) 50 ALJR 108, Peacock v The King [1911] HCA 66; (1911) 13 CLR 619, Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234, Thomas v The Queen [1960] HCA 2; (1960) 102 CLR 584).

21. As stated in Peacock v The Queen in order for an inference to be reasonable it "must rest upon something more than mere conjecture". The 'Oxford Advanced Learner's Dictionary' gives two meanings for the word "conjecture". On the first definition it means "an opinion or idea that is not based on definite knowledge and is formed by guessing" or "guess". The second meaning given is "the forming of an opinion or idea that is not based on definite knowledge". To this Court, what it means is that, for the trial judge to find the appellant guilty of wilful murder there ought to have been clear evidence showing there was intention to kill. As in cases of attempted killing brought pursuant to Section 304 of the Criminal Code, charges brought under Section 299, the elements of intention to kill and the act of killing are very crucial elements to be proved by the prosecution...”

48. The State has clearly presented in their evidence in the case theory by the Investigating Officer Leane Moere and its witnesses that both Accused are related to the deceased one Lewa Pyawali who owns a PMV vehicle known as K-Town Lewa. Lewa Pyawali was said to be murdered by Goilala’s in retaliation over the killing of one of their man by highlanders. In retaliation the Goilala’s killed Lewa Pyawale and two other men from Eastern Highlands. Rex Kapo aka Kenny Miname and Kelly Kenden were present when the Goilala’s murdered Lewa Pyawale. They took Lewa Pyawale’s body to Port Moresby and at the house cry at 9 Mile, both Accused and their relatives came up with the plan to travel back to Kerema and find anyone from Western Highlands and kill them in revenge or retaliation of their relative Lewa Pyawale as it was the Western Highlands who had provoked the Goilala’s to kill Lewa Pyawale. The alibi of both accused as being at 9 Mile on 30 November 2020 at the house cry at Lewa Pyawali is untrue, not credible and can not be believed.
    

Conclusion

49. Both Accused, Rex Kapo and Leanne Kapo were in the company of others when they travelled along the Kerema Highway looking for any Western Highlander that they could take revenge on and ultimately kill as a result of the murder of their relative Lewa Pyawali who was murdered by Goilalas in retaliation of highlanders killing a Goilala man. This intention is displayed in the Accused and their relatives carrying with them bush knives in a white ten -seater and relentlessly pursuing the deceased until they killed him whilst he was helpless in the driver’s seat in his car.
    
50. Paul Mek was a witness with the deceased on that day and identified Leanne Kapo at the Meaporo market as the only woman among the men who tried to attack them. An eye witness saw the car chase between the white ten seater in which both accused were in and the brown ten seater in which the deceased and another were in along the Kerema Highway. A witness at the scene of the crime saw the female highlander beating the side of the brown ten seater which was stationary and told her to stop. This witness also saw men coming out of the brown ten seater at the back.
    
51. After both Accused and their relatives in the white ten seater had assaulted and killed the deceased in his stationed vehicle, they drove back to Kerema town. On their way, they picked up Carolyn Thomas and terrorized and abused her. The evidence of Carolyn Thomas with no doubt identified both accused in the company of other Wabags who she said nearly killed her, a Western Highlander when she was in Kerema trying to buy betelnut. Both Accused in the company of their other male relatives drove Carolyn Thomas to Kerema Police Station to report the motor vehicle accident at Ilavila. They brought her to the Kerema Police Station to unsuspectingly report a motor vehicle accident at Ilavila, the motor vehicle accident that they had caused and killed the deceased. Both Accused were identified there again by Constable David Javen.
    
52. The deceased Joe Tep Tan died as the medical evidence showed from physical assault and from blunt force trauma to his head consistent with the photographs of his wounds to his head. The decease did not die from the motor vehicle accident as the vehicle he was driving crashed into banana trees, bush and shrubs and not into big trees that would cause a high hitting impact. The evidence also showed that the vehicle’s air bag in the deceased vehicle was deployed on impact of collision and therefore it would have cushioned the deceased from the crash.
    
53. In Pawa v The State [1981] PNGLR 498, the Court (Kearney DCJ as he was then) said these:
    

“I am in agreement with Miles J. in The State v. Tom Morris[dcclxxix]⁴ when he said:

“I take the law as to circumstantial evidence in Papua New Guinea to coincide with what was said in the High Court of Australia in Barca v. The Queen ((1975) [1975] HCA 42; 50 A.L.J.R. 108 at p. 117):

“When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: Peacock v. The King [1911] HCA 66; (1911), 13 C.L.R. 619 at p. 634.

To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’: Plomp v. The Queen [1963] HCA 44; (1963), 110 C.L.R. 234, at p. 252; see also Thomas v. The Queen [1960] HCA 2; (1960), 102 C.L.R. 584, at pp. 605-606. However, ‘an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence.’: Peacock v. The Queen at p. 661. These principles are well settled in Australia. It was recently held by the House of Lords in McGreevy v. Director of Public Prosecutions, [1973] 1 W.L.R. 276, that there is no duty on a trial judge to direct the jury in express terms that before they could find the accused guilty they should be satisfied that the facts proved were inconsistent with any other reasonable conclusion than that the accused had committed the crime. That decision goes only to the form of direction necessary to be given to the jury, and although its effect may be that the practice in this respect is less rigid in England than in Australia, it does not reflect upon the correctness of the principles stated, which are really principles of logic and common sense’.”

I think that in this case it was reasonably open to the tribunal of fact to find that the guilt of the accused was the only rational inference that the circumstances would enable it to draw...”

54. In regard to the satisfaction of the elements of the offence of willful murder under section 299(1) of the Criminal Code, the circumstantial evidence in this matter clearly identifies both Rex Kapo also known as Kenny Miname and Leanne Kapo in the company of their other male relatives, that they are regarded as principal offenders under section 7(a) and (c) of the Criminal Code who actually did the act and or aided in the commission of the offence. Both Accused in the company of others unlawfully killed one Joe Tep Tan, an innocent man from Western Highlands and that they intended to cause his death in retaliation of the killing of their relative Lewa Pyawali who was killed by Goilala’s in allegedly a provoked attack by Western Highlanders. Both Accused acted with a common purpose, that purpose took them from Port Moresby along the Kerema Highway to a high speed car chase with the deceased. The car chase continued. There was opportunity along the way for the Accused to abort their mission, they could have given up the chase at the end of the bitumen road turning back to POM, they could have given up at the Malalaua Station or at the one lane Lake Kamu bridge. They could have also aborted their mission when the brown ten seater had veered off the road crashing into the shrubs. At the sight of the Late Joe Tep Tan being helpless in the drivers seat, they could have at every one of those opportunity in the full three or more hours of car chase, they could have made a decision to stop and turn back because they do not know this innocent man. Their relentless pursuit of the deceased Joe Tep Tan until they killed him is evident of their intention to unlawfully kill. This was a sadistic tribal killing spurred on by a group of people who have tribal instincts. There was nothing civilian about it. The State had not relied on section 8 of the Criminal Code however I find that the execution of this offence was for a common purpose. The State v Waiyake Komane & Ors [1992] PNGLR 524.
    
55. I am satisfied beyond reasonable doubt that the guilt of both accused is the only rationale and reasonable inference from the circumstances of this case as there are no other inferences to be drawn having excluded the alibi of both accused as being untrue and not credible.
    
56. I therefore render a verdict of GUILTY for both Rex Kapo also known as Kenny Miname and Leanne Kapo.
    

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Office of the Public Prosecutor : Lawyers for the State

Office of the Public Solicitor: Lawyers for the Accused

[1] [2006] PGSC 22; SC881 (22 November 2006)

^[2] Ibid