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State v Kagai (No 1) [2024] PGNC 240; N10907 (10 July 2024)

N10907

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 411 & 412 OF 2021

THE STATE

V

KIP KAGAI & GELING ANTON
(No 1)

Minj: Miviri J
2024 :03^rd & 10^th July

CRIMINAL LAW – PRACTICE AND PROCEDURE –Murder S 300 CCA –Blunt Trauma to Head & Abdomen – Internal Bleeding to Head & Abdomen – Body found In Ditch – Identification – Circumstantial Evidence – Death Undisputed – Intent to Cause GBH – Who Killed Deceased – No Other Reasonable Hypothesis Other Guilt – Motive & Opportunity to – Lies Concocted Out of Conscious Sense of Guilt – Accused Disassociating In the Face of Evidence to the Contrary – Accused Incredible Unthruthful Witness – Evidence of Fume Rage of Deceased Unsettled over His Gun In Possession of Accused – Weapon Blunt Object Used to Inflict Injury on Deceased – No Reasonable Doubt – Intent to Do Grievous Bodily Harm – Death As a Result – Guilty of Murder – Bail refunded - Remanded for Sentence x2.

Facts
Deceased was found dead in a deep ditch by his own grade seventh grade son. He had been hit over the head with a blunt instrument and in the abdomen causing his death. There was intent to cause GBH and death resulting.

Held
Death Undisputed.
Intent to cause GBH.
Who killed deceased?
Circumstantial evidence.
False Denials, alibi corroborative.
Deceased left in house of another.
Deceased gun not handed back despite his demands for.
Deceased angry with Accused over it when left in their company.
Warned to Stay.
No other reasonable hypothesis other than guilt.
Intent to cause GBH.
Death Resulting.
Guilty of Murder x2
Bail refunded x2
Remanded.

Cases Cited:

Papua New Guinean Cases
Hagena v State [2017] PGSC 55; SC1659 (11 December 2017)
Balbal v State [2007] PGSC 16; SC860 (22 February 2007)
John Jaminan v The State [1983] PNGLR 318
Pawa v The State [1981] PGSC 16; [1981] PNGLR 498 (27 November 1981)
Kandakason v The State [1998] PGSC 20; SC558 (7 July 1998).
Waranaka v Dusava [2009] PGSC 11; SC980 (8 July 2009).
Bonu and Bonu v The State [1997] PGSC 11; SC528 (24 July 1997)
Morris, The State v [1981] PNGLR 493
Kuanande, The State v [1994] PNGLR 512
James v State [2020] PGSC 39; SC1937 (24 April 2020)
Beng v The State [1977] PNGLR 115
Amoko, The State v [1981] PNGLR 373
Wani v The State [1979] PNGLR 593
Nare v Independent State of Papua New Guinea [2022] PGSC 87; SC2294 (7 September 2022)

Overseas Cases
Barca v. The Queen [1975] HCA 42; (1975) 133 C.L.R. 82 at p. 104; [1975] HCA 42; 50 A.L.J.R. 108 at p. 117.

Counsel:
F. K. Popeu, for the State
R, Mangi, for Defence

VERDICT

10^th July 2024

1. MIVIRI J: This is the verdict after trial of Kip Kagai and Geling Anton both of Tombil, South Waghi, Jiwaka Province for the murder of Tom Dale.
   
2. On the 20^th June 2020 around 10.00pm to midnight Kip Kagai and Anton Geling were consuming alcohol with Tom Dale at the Kurumul Tea Provincial headquarter at Jiwaka. Around midnight both accused told the deceased to follow them to go and look for more beer at Tombil village. One of the securities discouraged him but he followed both out. Between 12 midnight and 1am of the 20^th and the 21^st June 2020, the Accused Geling Anton returned to where they had earlier been drinking and left his small knife, then take the bush knife belonging to one of the securities and left again. On being asked about the whereabouts of the deceased, he replied to the effect that he Geling, had left the deceased with a woman in the woman’s house. But the next morning the deceased’s dead body was found lying in a drain some 40 meters or so away from the Kurumul Tea Provincial Headquarters.
   
3. When postmortem was conducted, Tom Dale was found to have died from Intra Cranial Haemorrhage because of a blunt force trauma to the head. And also, he suffered a splenic contusion from a blunt abdominal trauma. And the allegation against both accused were that they had acted together aiding abetting each other in luring the deceased away from the securities causing his death and then leaving him in the drain where he was found in the morning. And both had intended to cause him grievous bodily harm from which he died. Both aided abetted each other in the murder pursuant to section 7 (1)(a), (b) and (c) of the Code.
   
4. The indictment against both was pursuant to section 300 (1) (a) of the Criminal Code Act of murder 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.

5. Both accused denied the offence prompting the State to call on oath one Robert Philip originally from Kumbak, Jiwaka married with four children. He was employed as a security guard residing at the Kurumul Tea Provincial Headquarters on the night of the 20^th June 2020. At about 10.00pm he was inside the office of Tom Dale the deceased. He had come as of 5.00pm to the place of work. In the office he saw the two children of Tom Dale with two security women who were taking both to the house of Eunice Robert. He was on the veranda with the deceased when the two accused came with liquor that they mixed, and they all drank together. Other workmates came Paul Gau, Tongamp and all were together watching a movie.
   
6. And Tom Dale came in and Peter from Beripka told him to go and get your gun otherwise they might kill you for it. And the gun, a pistol was with Kip Kagai who did not return it with. So, Simon Brus went to get it, but Kip Kagai refused to give it back. Peter Gal also went to get it, but he also returned without it. And Tom Dale was angry, so he banged the table. At that Kip Kagai and Geling Anton called out to Tom Dale, and he came out. Together with Simon Brus who also came out. Both Accused said they will go to Tombil and look for beer. Simon Brus discouraged Tom Dale and told him that both his two children were sleeping, and he did not respond. He also followed them to find more beer. We went back into the office and watched movie.
   
7. About 12.00mid night to 12.30pm Geling Anton returned alone. I asked him about Tom Dale, and he told me that, he had left him at the house of a lady with the lady and was sleeping there so we should not disturb him. He left his small knife and got a bush knife belong to another security guard. He came out same time a vehicle came and scraped, we were scared and stayed inside. Later we heard Geling Anton call out, “Kui, Kui.” There was no noise, so we slept. In the morning Mosamp came to the office and was crying. This alerted that Tom Dale was dead in the drain. So, all went there stood and were crying for him. His body was lying face down in the drain. It was taken up from there after being photographed by Police.
   
8. This is also the evidence on oath by second witness for the State, Simon Brus. He also was a security guard employed there at Kurumul Tea Provincial Headquarters in 2020. On that night the 20^th June 2020, He too came on duty there, he was late arriving at 10.00pm. Tom Dale was told by one Peter to get his gun, so Tom Dale sent me to get the gun from Kip Kagai. I asked him for it, and he did not respond to me. So, I told Peter, he is your brother ask him and return it to Tom Dale. I returned without it, and Tom Dale destroyed the table as he was not happy. They said they wanted to go and look for beer at Tombil. I discouraged Tom Dale and told him that the two children were sleeping, and he should remain back. But they did not respond and went out to the road and left.
   
9. We left and, in the morning, 5.30 to 6.30am, a lady called and said Tom Dale was dead. We went and saw that he was dead but could not recognize him as his face was downward. It was 4 to 5 meters down. We went down and when we lifted the body, we realized it was Tom Dale. Police came picked him then transported to the Ambulance. He too recounts that Geling Anton came back later that night left his small knife and got a bush knife of one of the security’s and left. He identified both accused as the subjects of his evidence.
   
10. Exhibit D1is the Statement of this witness tendered by the defence as prior inconsistent Statement. It recounts that Tom Dale the deceased was drinking alcohol with the two accused. And all others there four (4), all were not drinking alcohol except for the two. He recounts that at about 1.00 in the morning, he was with Robert Philip, Peter from Beripka, Tongamp Kopal, when Geling Anton came alone back to the office where they were. Quickly he went and left his knife and got my bush knife that was underneath the drawer and came out.
    
11. And together with Robert Philip, we asked him for Tom Dale, and he said, I went and left him at the house of a woman. And Robert Philip asked if he could take his small knife, and together go and check him and return. But Geling Anton said, no we will disturb him so never mind. He took off leaving us and came and we slept at the office. This statement does not have any inconsistencies with the evidence recounted on oath by this witness. It is a consistent, credible, clear, and logical account of the movement of the accused with the deceased and sets out very clear that the persons who were consuming alcohol on the 20^th June 2020 were Tom Dale the deceased with the two Accused. This witness with all others there were sober, unaffected by alcohol consumption. It means their evidence will be credible because their memory is not affected by alcohol. They were giving accounts that were not fumed in any way, or guised in any way except what they saw did and heard. Which cannot be the same for the accused and the deceased who were affected by the alcohol. And who are accused in this matter. They have every reason to paint a picture that will exonerate them from this very serious allegation of murder. Both cannot corroborate each other by that fact: Hagena v State [2017] PGSC 55; SC1659 (11 December 2017). There must be independent verification of the account that the accused give because they are accomplices.
    
12. Which leads in my view to the witness who will turn the evidence of the Accused whether they will make or break their case. Because this witness is not affected by alcohol. Or enticed by any motive to bring favour to anyone. Except that she took responsibility out of the goodness of her heart to look after two children who were not hers. But were brought to her to seek her to look after both. She is not related to the deceased in any way from the evidence that has been led. But she is related to both accused as they all are from the same tribe, Beripka. And also, the same council ward. She went to the extent of saying that when she was small, she knew the name of Kip Kagai. Despite that relationship she has in my view told the truth as it unfolded to her on that night of the 20^th June 2020. I do not find what the Defence has tried to show, inconsistencies. For all it’s worth the tender of the statement has strengthened the State case even more. She is a witness of the truth. She has not added nor subtracted her evidence because of a motive, or intent.
    
13. This is the witness Eunice Robert 29 years old, married with two (2) children, originally from Kurumul. She was in her house on the night of the 20^th June 2020 when two (2) security women, Tupai, and Mosamp Bobby brought the two children of Tom Dale to her house. The boy was in grade seven (7) in School and the girl was 5 or 6 months old, a little baby. And she was carried by the security woman. She felt sorry for them and said that they will sleep there. Both children were brought to her by the security women at about 4 or 5 0’clock. It was already late we were cooking. At 12 or 12.30pm Kip Kagai came and called for Mosamp three times. I responded asking who are you, he responded that the father of the two children would like to see the two children. I opened the door allowed them in, but they were drunk and making a lot of noise. They were Kip Kagai who is from the same council ward and also from Beripka tribe, together with Geling Anton, and Tom Dale. She feared that the little girl would be waken and they all left after that. Tom Dale did not remove his shoes and come into the house. All three left the house including Tom Dale together with both Accused. In the course of the night, she heard a big noise as if a tree was falling. And a vehicle rushed in, Then I heard the voice of Geling Anton saying “Kui, Kui.” Then She slept. She knows Geling Anton as they are from the same Beripka tribe same council ward and same village.
    
14. Geling Anton was with Kip Kagai who pulled his Shirt up and I saw a pipe of a gun. That gun seen by Eunice Robert in this manner was not returned to Tom Dale or anyone else in the course of that night 20^th June 2020. It by itself has a very hard surface capable of being used as a weapon. And if used as a club with a blow delivered from it to the head of the deceased, in my view will no doubt cause the fracture that is evident on the body and the skull of the deceased. It is a very heavy metal object and if compared with the skull’s surface will be no match if a blow is delivered using it to the skull. The possible basal skull fracture described by the Doctor at the base of the skull in the medical evidence set out here was more than probably caused by that weapon, directly in the possession and control of Kip Kagai. It was more than probable that there was a tussle, or tug of, over it by the deceased and the accused Kip Kagai. He wanted it and asked for its return evidenced by the evidence of those whom he tasked to get it back from the accused Kip Kagai. It is more than probable that it was used to hit the head of the deceased with it by Kip Kagai. And it may have been that he asked personally for its return that led to the tug over it. Kip Kagai was in possession over it. He did not comply, and a tussle ensued, tug over it that led to it being used as a weapon on the deceased head. That is more than probable because the deceased is heavily built compared to Kip Kagai who is athletic in built light quick and witty.
    
15. Or alternatively, Kip Kagai could have frozen the attempt of the deceased by pointing it at him threatening to shoot him, march him from the house of Eunice Robert to the drain directly set out by Photograph 10 of the crime scene officer, Sergeant Jason Tibau, experienced over 22 years’ service to the Constabulary. Who held certificates in crime scene examination obtained from the National Forensic Studies Centre Canberra Institute of Technology, ACT, Australia obtained over one year from 10^th October 2011 to the 18^th May 2012, Exhibit P4, P4 (1) to (11) & P12 Sketch Plan. He set out that a distance of 40 meters from the house of Eunice Robert to the drain immediately where the body of the deceased was found. That evidence ties in with that of Eunice Robert and Salvo Dale who both see the deceased leave the house in the company of both accused. From that house set out by Photograph 10 is direct to the drain a walk of 40 meters to his demise. He was hit on the back of the head with the gun which is metal object. Because Kip Kagai had him covered with the gun from the back hence the ability to deliver that blow consistent with the medical evidence. Which may have caused him to fall where he was directly kicked in the stomach causing the rupture of the splenic injury and pushed over into the drain 4 to 5 meters down to conceal what he had done. And it was done by both Accused together, hence the crying out by Geling Anton, “Kui, Kui.” excelling demarcating out a victory exclamation of the successful kill of the deceased. That exclamation “Kui, Kui” is very common in the highlands as of victory over the enemy, or shouts of jubilation. And that came out of the mouth of Geling Anton heard by Eunice Robert and Salvo Dale 40 meters set out by Photograph 10 and the sketch plan P12 of the crime scene officer directly to her house. It is the reason why Geling Anton comes back exchanges his small knife for the bush knife to be ready in case of retaliation over discovery of the body. He does this in haste expressing by his body language that fact.
    
16. And if that is not enough, it is then cleverly attempted to be conceal by the creation of an alibi in court by both Accused, blame it on the fact of leaving him at the house of Eunice strongly and persistently urged by both Accused in echo and in concert, that the deceased was very drunk unable to walk. And in fact, had taken off his shoes and socks to sleep. If that was so why was the shoe found with the deceased in his bosom at the bottom of that drain. The version of both accused is not corroborated. Could a drunken described as Geling Anton and Kip Kagai get up from his slumber and go 40 meters to fall into a drain and die. That is not the evidence of Doctor John Gabriel supported further by the Director of Medical Services Mt Hagen General Hospital, Doctor Jonah Kurabi, Master of Internal medicine degree holder who has been practising medicine for over 24 years. He did not immediately die from these injuries. He did not land first on his head. There was no spinal injury consistent. He was hit with a blunt instrument to cause the injuries on the head. He was kicked direct to the abdominal area causing the splenic injury. He did not die immediate as a result of these injuries is the expounded evidence on oath by these doctors, man of learning versed in saving countless human lives. Equipped and qualified with experience attired over life span careers, obviously they were telling the truth verified by medical science as professionals, as opposed to the Accused, lay persons with motive and opportunity to exterminate the deceased over the subject gun. I prefer the evidence of the professionals over that of the accused both. I reject their evidence as lies that have been concocted out of a conscious sense of guilt over the demise of the deceased at their hands. What they both have done is in law seriously corroboration of the assertions of the State. There can be no doubt considering that both had a very big part in concert aiding and abetting each other in the demise of the deceased. There is opportunity and motive for the crime to be committed as alleged by the State against both Accused. It would be erroneous to ignore that fact because it is not consistent that an acquittal is in view considering, but a conviction against both on the Indictment preferred by the State.
    
17. They had motive over that gun with the deceased. It was readily in the possession of Kip Kagai; it was the subject of the fume and rage by the deceased. Which was not settled, and he was called out by this Accused, Kip Kagai and Anton Geling on the pretext to get more beer. Lure him away for both to carry out his extermination. It is evidence of a preplanning in this way by the Accused. Both have insisted on leaving him at the house of Eunice Robert. Which has not been the subject of their prior interviews with the Police on the 11^th September 2020 in the case of Kip Kagai, exhibit P1(a) and P1(b). In the case of Geling Anton on the 10^th September 2020 a day earlier than his co accused, exhibit P2(a) and P2(b). These assertions have turned negative because of the evidence of Eunice Robert supported by Salvo Dale. It has not been retrieved in any way or form. The assertion of Kip Kagai that it was given back by him to the owner is self-serving and has no other evidence to confirm or deny that fact. It is the very weapon that was in issue on this night and was in the possession of Kip Kagai despite the intent of the deceased to retrieve it which is confirmed by the evidence of the witnesses set out above. Its retrieval led to the deceased going up in fume and rage from the description of the witnesses, Simon Brus and Robert Philip, both of whom were sober unaffected by alcohol and the like. They were concerned for the safety of the deceased. One Simon Brus pleaded Tom Dale to stay and not go out in view of his two children who were asleep at Eunice Robert’s house. Tom Dale destroyed the table as he was not happy.
    
18. I recount the emotional and heart-breaking evidence of daddy’s first-born son of the deceased; Salvo Dale was called on oath. He was 16 years old in Kurumul Junior High School doing grade 10. And on the 20^th June 2020 in seventh grade then. He was with his father Tom Dale and 10 months old small sister at Kurumul. And had followed his father there because he was drunk. They were at the bus stop then went to the office. At that time mother was at Kundiawa. Then he went off leaving him and sister. They were both taken to the house of Eunice where after dinner they played a movie and watched after they went to bed. Then father came back to see both there and then went off leaving them. Early in the next morning together with small sister both were taken back. Along the way he was leading and saw a man in the drain he did not recognize him as his face was downward. It was early morning, and he could not recognize immediately, but then came to realize that it was his dad. He was dead and in the drain. He described how he was laid in the drain. And was very emotional. He cried and so the Court adjourned to allow him to recompose himself. That was done and he continued with obvious emotional glaring and dominating the pain of the loss expression as he went on in his evidence.
    
19. After the emotional evidence of the son was Doctor Jonah Kurubi of the Western Highlands Provincial Health Authority. He was the director of the medical health services there with 24 years’ experience in practise, initially with a MBBS and then a Master of Internal Medicine. He was very familiar with the conduct of postmortems. And the relevant forms that accompanied when one was done. That records of any postmortems would be kept by the director of medical services his current position in the Western Highlands Provincial Health Authority. When produced the postmortem report done by one Doctor John Gabriel, he confirmed that he was an employee of that Authority and hospital. And the subject postmortem report was part of the records that he was responsible for looking after. It pertained to the deceased Tom Dale that was conducted by Dr John Gabriel on the 25^th June 2020 at the Mt Hagen General Hospital which report was Exhibit P3 dated 20^th June 2020 autopsy number 48/20. Relevantly the head, “left upper brow swelling with bruising and erythema. Neck left peri-orbital hematoma, bleeding from the left Nose. Left chest abrasions. Abdomen Splenic lacerations (superior pole). The above findings are suggestive of blunt head, chest and abdominal trauma leading to intracranial haemorrhage (possible basal skull fracture), bowl and splenic contusion.” This is echoed out by Exhibit P3(a) the medical certificate of death. Which also attaches the affidavit of the said doctor dated the 25^th June 2020. It also attaches three photographs, one of the deceased as he lay in the drain where he was discovered from a distance and pulled up close by the camera. There is no bolder or hard surface to cause the injuries found in the medical accounts set out above. These are photographs immediate after death and very credible evidence. They fall in line with the medical evidence to sustain what is alleged by the State. Then of two depicting his postmortem confirming the medical accounts.
    
20. Explaining that evidence on oath he said unless the body fell on hard surface it would sustain the injuries as seen. Pressure would be applied direct to the area of the trauma. The skull fracture was the cause of death as there was bleeding within the brain. But death would not be immediate. It would take some time. And he was bleeding through the left nose. The spine would be broken if he fell headfirst. In the case of the splenic injury kicking directly on the tummy to sustain. He did not comment to the suggestion that the deceased had fallen into the drain and sustained the injuries because of the level of his drunkenness. But that pressure was applied to the left side for the injury. And he confirmed the conclusion that the injuries observed were consistent with a blunt head, chest and abdominal trauma leading to the intracranial haemorrhage (possible basal skull fracture) bowel and splenic contusion.
    
21. In my view this evidence points that it is safe to hold that the deceased was assaulted with a blunt and hard instrument that caused the injuries that were depicted out on his body. Whoever had used that force intended that the deceased suffer grievous bodily harm. Life-threatening injury to the head and to the abdomen. Which injuries were directly the cause of the death of the deceased. Deducing from the evidence as he went out from the veranda called out by the two Accused, he is not supported by anyone as he walks out. But it is immediately after his fume with his gun not returned to him in the possession of the accused, Kip Kagai. And he is warned to take it back by Peter from Beripka who told him to go and get your gun otherwise they might kill you for it. It is clear from the behaviour of Kip Kagai that he was not going to return the gun back to Tom Dale despite being told to by the various persons who went to get it from him. In my view it clearly fumed Tom Dale because he in the evidence of Simon Brus, Tom Dale destroyed the table as he was not happy. There is therefore bad blood between the deceased and Kip Kagai when they leave out. In fact, Simon Brus pleads with him to stay pleading on behalf of the two children who were sleeping, to no avail. That to my mind shows the concern for the safety of Tom Dale by this witness even late when Geling Anton returns alone at about 1.00 in the morning, he was with Robert Philip, Peter from Beripka, Tongamp Kopal, when Geling Anton came alone back to the office where they were. Quickly he went and left his knife and got my bush knife that was underneath the drawer and came out. And together with Robert Philip, we asked him for Tom Dale, and he said, I went and left him at the house of a woman. And Robert Philip asked if he could take his small knife, and together go and check him and return. But Geling Anton said, no we will disturb him so never mind.
    
22. He may have been drinking from 4 or 5 0’clock in the afternoon to about 11.30 to 12.00 when he went out accompanying both accused to the house of Eunice Robert, where they arrived at about 12.00 to 12.30pm. He was walking of his own accord there seen by Eunice Robert but was talking a lot. She feared that the sleep of the small girl would be disturbed but they all left, Tom Dale, and the two Accused. The Accused Geling Anton has painted that Tom Dale was very drunk and he had to be helped to sleep there where both left him and went out. This is creating an alibi by both co accused, Kip Kagai and Geling Anton. It is a false alibi because it is not corroborated at all by any independent evidence: Balbal v State [2007] PGSC 16; SC860 (22 February 2007), and Hagena (supra). It is recently created because there is no notice in accordance with the Criminal Practise Rules Order 4 Division 2 Notice of alibi:

“4. An accused person shall not upon his trial on indictment, without the leave of the Court, adduce evidence of an alibi unless, before the expiration of the prescribed period, he gives to the Prosecutor written notice of particulars of the alibi and unless the notice contains the name and address of any person whom he claims can support the alibi or, if such name or address is not known to him at the time he gave the notice—

(a) he gives in the notice all information in his possession that may be of material assistance in locating that person; and

(b) the Court is satisfied that before giving that notice he had made all reasonable attempts to obtain that name and address and that thereafter he continued to make all reasonable attempts to obtain and to inform the Public Prosecutor of that name and address.

5. A notice under this Section shall be duly given if it is delivered to or left at the office of the Prosecutor responsible for the conduct of the trial or sent by certified mail addressed to him at that office.

6. Evidence tending to disprove an alibi may, subject to a direction by the Court, be given before or after evidence is given in support of the alibi.

7. A notice purporting to be given under this Section on behalf of the accused person by his lawyer shall, until the contrary is proved, be deemed to be given with the authority of the accused person.

8. In this Division—

"evidence of alibi" means evidence tending to show that by reason of the presence of the accused person at a particular place or in a particular area at a particular time he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission;

"the prescribed period" means the period of 14 days prior to the date of trial of the accused person.

23. Both Accused have desperately tried to disassociate that they were the last persons with the deceased. But that is contrary to the evidence of both Eunice Robert and the son Salvo Dale. Both are not affected by alcohol as are the accused. And who are accused of a very serious offence of murder. They therefore have every reason to disassociate themselves from the deceased who is found dead in the morning down a drain. By this fact it is upon them to give a notice of alibi in accordance with the rules set out above. To not enlightened by a notice does not benefit their defence. Because it is false and corroborates in law: John Jaminan v The State [1983] PNGLR 318, the assertion of the State showing that the Accused had the opportunity and the motive to carry out the allegation of the Indictment against both Accused. There is clear motive and bad blood over the gun belonging to the deceased Tom Dale that was in the possession of one of the Accused Kip Kagai. If this is not enough there is bad blood from the evidence of Testing Barel who clearly gives an account that Geling never settled down over the death of his brother Kerry Geling in Lae at the hands of relatives of Tom Dale. And he expressly stated that he would kill one of you heard by this witness. It would seem clear from the evidence of Simon Brus that this is the fear for the life of Tom Dale particulars I set out above.
    
24. If this is glossed with the law set out in Pawa v The State [1981] PNGLR 498, I ask myself is there any other reasonable hypothesis other than the guilt of the Accused. And that it is the only hypothesis and no other open on the evidence. In this regard I am firm that the accused have no obligation in law to prove their innocence. What is firmed out is that which is seen by Sergeant Jason Tibau of the Regional Forensic Science Branch Crime Scene Examiner based in Mt Hagen whose statement Exhibit P4, with P4(1) to (11) the crime scene photographs he took of the scene of crime. In addition, P4(12) the sketch plan that he drew upon reconstruction by the witnesses at the scene. The death of the deceased was suspicious in his view deduced from the scene. There were no rocks or boulders that may have been the hard surface upon which the injuries were sustained upon the deceased. Comparably the more recent photographs would be part of Exhibit P3 attached to the affidavit of Doctor John Gabriel dated the 25^th June 2020. It is of the deceased as he lay at the bottom of the drain on the shallow water. There is nothing showing hard surface immediately there warranting possibility of injuries emanating therefrom. These comprised in material the State case against both accused.
    
25. In defence Kip Kagai gave sworn evidence to rebut what was alleged. Originally from Tombil in 20^th June 2020 he was working as a security guard at the Kurumul Provincial Headquarters. And on that day 20^th June 2020 he was drinking alcohol with Tom Dale. It was 4.00pm he was at his workplace. The deceased was drunk and had bought beer and was drinking at his veranda of his house. It was afternoon Geling Anton came and together they were there, and Tom Dale said he would go and sleep with the two children. And we left him with the two children at Eunice Robert’s house with his two children. We came out onto the highland’s highway, and I came to my house at Tombil. In the morning, I walk up to bus stop to come and there was crowd of people gathering who said the deceased had died. I was taken to the headquarters by the CEO of the Province and the police got me right up to now. Before GOD and the Court, I have no knowledge of the death of the deceased. And this is the truth I am telling the Court. That is all my story.
    
26. He agreed that the firearm of the Deceased Tom Dale was in his possession given to him by the deceased. And he held onto it because the deceased was drunk. And he was the only person with him at that time. He agreed in cross examination that on that day 20^th June 2020 he together with Tom Dale, the deceased together with Geling Anton were the only ones who were drinking alcohol. And that they were drinking from 4 to 5 to 10pm in the night. The other securities, Robert Philip and Simon Brus did not drink. And they could see the accused both drinking with the deceased. Also, they could hear what was being said by the accused and the deceased. But he denied that they had told the deceased to come out to look for more beer. But that the deceased said he wanted to go and see his two children and sleep there. And that was at the house of Eunice Robert to whom they took the deceased to and left him there to sleep with his two children.
    
27. That he saw Eunice there and left the deceased there and came out onto the main highlands highway and went home to Tombil. He stated that the evidence of Eunice Robert was not the truth that they all had left after seeing the two children. He also said that the evidence of the son Salvo Dale that the father did not sleep at Eunice house was a lie. But in the record of interview with Police conducted on the 11^th September 2020, Exhibit P1(a) pidgin P1(b) English, he did not tell the police this evidence. He never said anything to the police in exactly the same as in Court. It was suggested that he lied in Court. He said it was the truth.
    
28. Geling Anton gave sworn evidence in defence. Originally from Tombil he was resident at Pepik since 1994. He was not employed, but was in 2020 and was at his place of work on the 20^th June 2020. Saturday at 7.00pm the vehicle left him at the Provincial headquarters which was the place of work. Up to 10.30 to 11.00pm Kip Kagai and Tom Dale, I met them drinking on the veranda. I was there and Tom Dale asked me to escort him to the house of Eunice to leave him there. And I escorted him with Kip Kagai. And we came to Eunice’s house and left him there and returned. I left him there and returned to the road. After 10 minutes Kip Kagai came out and we met. He went to Tombil, and I went to the office. Before I took a knife there. I picked up a bush knife. Robert Philip was alone. Simon Brus asked me where did you put him. I put him at Eunice Robert’s house. I say true before GOD and Court and family of his late Tom Dale that I did not kill him or touch his body. I am telling the truth to the court.
    
29. Accused admitted into evidence Exhibit P2(a) pidgin P2(b) English his record of interview conducted with Police on the 11^th September 2020, he never told the police this evidence. No inferences will be drawn from an accused election to remain silent. It is his right because he is presumed innocent until proven otherwise. And the responsibility is always upon He who alleges to prove that fact. But pertinent before me is the question, why have the accused tried to disassociate themselves from the deceased, by asserting that he was left at the house of Eunice Robert. If She is alone in her evidence there would be doubts, but where she is supported by the grade 7 son of the deceased, Salvo Dale that his father Tom Dale, now deceased left the house with the other two, it begs why have they tried to disassociate any contact with him, because they are persons who are responsible and would know of his whereabouts after leaving the house of Eunice. One Geling Anton says he was very drunk, and I helped him in to put him there. He had taken off his shoes indicating that he was going to sleep. It is not the evidence from both Eunice Robert and Salvo Dale. The latter is the son of the deceased, if he is alone there would be doubts because it is his father who has passed away. He would have motive naturally to get back at those implicated to answer for his death. But he is supported by Eunice Robert who has stepped out of her way to accommodate two children.
    
30. These are very serious unexplained inconsistencies that do not hold up the evidence of the Accused in defence. Both Accused have deliberately lied that they left Tom Dale, the deceased in the house of Eunice Robert. He left that house with them and was with them when he died. That is the reason why Geling Anton went back at 1.00am to leave his small knife and get the bush knife of Simon Brus that was underneath the drawer and came out. He had committed murder. He had assaulted Tom Dale very badly and thrown him over and into the drain with the help of Kip Kagai. Who now succeeded to get the gun of Tom Dale having now killed him over it. He came and took the bush knife in case the body was discovered and there was retaliation over the fact that he was last with him before he died. It is basis for me to reject their evidence outright. Because no amount of incarceration and detention, whether it be for three weeks or more, Geling Anton would not forget that fact. He would insist on it in his record of interview, which was closer to the offence, two months apart. He denies in the record of interview that he went and left his small knife and got the bush knife.
    
31. He explains this inconsistency in his evidence in that he was in the police cells for three weeks and was not in good mood when he gave that answer. Yet in the same record of interview, he acknowledges that he sat comfortably and gave his story. It is clear he has strenuously tried to disassociate himself from the deceased last moments when he was alive. That to my mind are facts in law serious unexplained inconsistency in evidence and evidence not in keeping with logic and common sense which 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). Here therefore, common sense and logic denote that accused both were with the deceased before his demise. They must account for his last moments of life when he was breathing.
    
32. Here in my view is the same footing as in Bonu and Bonu v The State [1997] PGSC 11; SC528 (24 July 1997). Whatever happened to the deceased is best known to both accused. He was last seen alive for the last time by his own son and Eunice Robert leaving her home in their company. The only 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 [1981] PNGLR 493. Which approved and endorsed Barca v. The Queen [1975] HCA 42; (1975) 133 C.L.R. 82 at p. 104; [1975] HCA 42; 50 A.L.J.R. 108 at p. 117.
    
33. In my view that is the only reasonable hypothesis on all the material that I have set out above. I have no doubts in my mind after due consideration of all that the only inference given is that the accused Kip Kagai and Geling Anton intended to cause grievous bodily harm to Tom Dale. It is clear and can be inferred from the medical report set out above. Because intent is personal unto the accused, and maybe deduced from the totality of the evidence: Kuanande, The State v [1994] PNGLR 512. I find no reason not to follow in view of all set out above. And because there is clear evidence of animosity which is relevant in the determination of his mental status, James v State [2020] PGSC 39; SC1937 (24 April 2020). The deceased Tom Dale destroyed his own table over the fact that his gun was not returned to him from and by Kip Kagai despite his repeated requests evidence set out above. And that is clear expression set out by Peter from Beripka who told him to go and get your gun otherwise they might kill you for it. This is the gun that is tucked into the hips of Kip Kagai that he pulls up his shirt and shows Eunice Robert in her house. This is not the case of a fleeting glance of a masked hood on a dark street corner leading Tom Dale out. Both Accused are identified by the witnesses Eunice Robert and Salvo Dale as Kip Kagai and Geling Anton within the principles in this area of the law set out in Beng v The State [1977] PNGLR 115.
    
34. Both are perpetrators of the allegation before the Court for the death of Tom Dale. Their roles in part and partial of that offence is clear as principal offenders in Amoko, The State v [1981] PNGLR 373, It is very clear both accused are an aider and abettor within Wani v The State [1979] PNGLR 593. There is evidence that together they were in company with the deceased before he met his demise. It is more than probable that they aided and abetted each other in the commission of the murder of the deceased. Because the defence has not placed plausible alternatives to the demise of the deceased, Nare v Independent State of Papua New Guinea [2022] PGSC 87; SC2294 (7 September 2022). Because no alternatives have been placed by evidence in court in defence. The State evidence is uncontradicted and intact, that there is no alibi effectively to shield the defence. The identification evidence of the State witnesses remains uncontradicted. And which is material to the State case. It places both accused as the last persons who were with the deceased on bad blood before his demise. They had the opportunity and the motive and carried that out by inflicting the injuries depicted by the medical report set out above. Then they dumped his body down that drain found by his son Salvo Dale early the next morning.
    
35. I am satisfied beyond all reasonable doubt that the Accused Kip Kagai and Anton Geling both of Tombil, South Waghi, Jiwaka Province are guilty of the murder of Tom Dale committed on the 20^th day of June 2020 at Kurumul Tea Provincial Headquarters.
    
36. The verdict is guilty of murder pursuant to section 300 (1) of the Criminal Code Act against both defendants. I order in consequence refund of their bail moneys forthwith. And that remand warrant be issued instead against both to await sentence.
    

Orders Accordingly

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Office of the Public Prosecutor: Lawyer for the State

Office of the Public Solicitor: Lawyer for the Defendants