PNG Law Reports 1994
[1994] PNGLR 20
N1217
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V
ANGAUN KAKAS, KAKALIA TULU,
SUKULIN PASSOMB AND KALAIN KULA
Mount Hagen
Injia AJ
16 March 1994
19 March 1994
21 March 1994
23 March 1994
25 March 1994
28 March 1994
EVIDENCE - Identification - Alibi - False alibis help corroborate evidence of sole eye-witness.
CRIMINAL LAW - Sentence - Wilful murder - Tribal fight/payback killing - Common purpose - Criminal Code ss 7 and 8 - Mitigation - Sentenced to 10 to 15 years imprisonment, depending on involvement - Reduced six months for each one who pays immediate relatives of victim K3,000 in compensation - Criminal Law (Compensation) Act 1991.
Facts
The four accused, all armed with dangerous weapons, confronted and killed the deceased in retaliation for the death of their clansman, killed earlier in the day. The accused offered alibi defences.
Held
1.       The deceased died at the hands of the four accused, contrary to s 299 of the Criminal Code.
2.       All four accused acted in concert in the prosecution of a common purpose within s 7(1)(c) and s 8 of the Code.
3.       Each is sentenced in accordance with the severity of his respective involvement in the killing. Each can shorten his sentence six months by the payment of K3,000 compensation to relatives of the victim.
Cases Cited
Papalamnan v Nuakona (1973) No 771.
R v Tam (1973) No 766.
Counsel
J Kesan, for the State.
B Tabai, for the defendants.
28 March 1994
INJIA AJ: The four accused are jointly charged with the wilful murder of Kurai Kindi Kindi, contrary to s 299 of the Criminal Code Ch 262 (The Code).
It is alleged by the State that on 18 October 1993 the deceased was among other people who attended a peace gathering between two warring clans at Kanak village, which is situated just outside Laiagam township, Enga. The gathering developed into a fight between the two clans. In the fight, a man from the four accused's clan was killed. In retaliation, the four confronted the deceased on the road whilst he was returning to Laiagam Health Centre, where he was employed as an aid post orderly. They were armed with bows and arrows, spears, axe, and home-made guns. They surrounded the victim and shot him in his back with a home-made gun, then chopped him with an axe on his right side, and speared him on his left chest. The man died instantly. The State alleges that the four accused, in so attacking the deceased, intended to kill him or cause his death and thereby contravened s 299 of the Code.
The State called two eye-witnesses, Mrs Jenny Dion Aron and Mr Morris Isingi. In addition, the State tendered by consent Dr John Watt's medical report and four records of interview in respect of the four accused. At the end of the oral evidence, the Court visited the scene of the killing on Saturday 19 March 1994. At the scene, Mrs Aron and Mr Isingi pointed out the various positions given in evidence in Court.
The four accused all gave sworn evidence. Their defence was one of alibi. This defence was raised in their respective records of interview. In addition, Sukulin Passomb called Pastor Kulump Waita of Mamale Apostolic Church to support his alibi. Pastor Waita also gave evidence in support of Kalain Kula's alibi. Kakalia Tulu called Sgt Poko Itapu, who is the Station Commander at Laiagam Police Station, to support his alibi. Agaun Kakas and Kalain Kula did not call any witnesses of their own to support their respective alibi defences.
The trial of this matter was initially scheduled for one day. Instead, it took more than a week to cover the evidence. This was mainly because all witnesses in the case were questioned at length by both lawyers and to some extent by myself.
The issues to be decided are both factual and legal. In my view, the case can be decided on the facts. The factual issues mainly relate to identification of the four accused by the two State witnesses. If the quality of their identification evidence is good, then I can safely proceed to assess its value.
Much of the identification evidence from the two State witnesses relates to personal identification of the four accused in broad daylight. They also say that, because they previously knew the four accused, their identification was made easier. As to the reliance to be placed on personal identification of the four accused, I would recite the six factors set out in Chalmers, Weisbrot, and Andrew Criminal Law and Practice of Papua New Guinea, 2d edn (Law Book Co Ltd 1985) at page 231.
"Where evidence of identity is given by a witness whose previous knowledge has not made him familiar with the appearance of the accused and where he has been shown the accused alone as a suspect and has on that occasion first identified him, the conviction of the accused is not safe unless his identity is further proved by other evidence. Per Prentice, J. Paul Papalamnan v Samson Nuakona (1973) No. 771.
The reliance to be placed on personal identification will depend upon a number of factors, including inter alia;
(1)      the impression left by the eyewitness as to his reliability and accuracy;
(2)      the existence of a motive for giving false testimony as to the identity of the offender(s);
(3)      the circumstances in which the person to be identified has been observed;
(4)      the circumstances in which the eyewitness finds himself when making the observation;
(5)      the existence or otherwise of the evidence of other witnesses confirming or contradicting the evidence of the original eyewitness;
(6)      the existence or otherwise of other evidence, direct or circumstantial, of facts or circumstances independently proved. R v Uno Tam and Marau U'U (1973) No. 766"
In the instant case, I do not think it is necessary to set out in detail the evidence of both sides. I intend to decide the case on a number of findings of facts and inferences which I draw from proven facts. I will refer to the evidence which supports those proven facts or inferences where necessary.
UNDISPUTED FACTS
Sometime between 10 am and 12 pm on 18 October 1993, there was a peace gathering near Wanepop Catholic Mission between two warring clans, namely the Andamali and Tamburan clans of the Kulipu tribe. This gathering was a big event. People from neighbouring clans came to see the peace gathering. A government party comprising of the Assistant Secretary at Laiagam, Mr Solo; Laiagam Local Government Council President, Mr Kabilo; the Laiagam Police Station Commander, Sgt Poko Itapu; and other policemen and other members of what is called the Operation Mekim Save Committee gathered at Laiagam and departed for the gathering at about 10 am in a Toyota Stout vehicle hired by Mr Solo. Among this government party was the accused, Kakalia Tulu, who was then the clerk for the Laiagam Village Court. His job was to write out the "preventive order" and issue it to the two clans upon the successful negotiation and conclusion of the peace settlement.
Other interested people, including public servants in Laiagam, also went to the gathering. Among them was the deceased, Mr Isingi, who was a security guard at the health centre, and Mrs Aron, whose husband worked as a "doctor" at the health centre.
The deceased, Mrs Aron, and Mr Isingi all come from Kilo clan. Their clan was not involved in the war raging between the Andamali and Tamburan clans of the Kulipu tribe. It seems they just went to witness the peace gathering out of common interest or concern for the welfare of the two clans.
The four accused come from Mamale village. Although they come from different clans, they come from the Pyain tribe, whose main village is Mamale. Their tribe or clan were not involved in the fight between Andamali and Tamburan clans. Their clan was also not at war with the tribe of the deceased, Mrs Aron, or Mr Isingi. Thus, Kakalia Tulu had nothing to fear in going to the gathering as a key figure in the peace negotiations.
The distance between Mamale and Wanepop is about 5 km. Situated in between is Laiagam township. Laiagam Health Centre and Laiagam Village Court are located within, or in the immediate vicinity of, Laiagam township.
The scene of the killing is near Kanak village, which is also situated between Mamale and Wanepop. This village belongs to the Pyapilya clan. The Pyapilya clan was not involved in the war between Andamali and Tamburan clans.
The impression I get from the four accused is that Mamale is a long way from Wanepop and all the other places in between which I had mentioned above. In my view, having visited the scene for myself and driven from Wanepop to Mamale, I accept Sgt Itapu's evidence as to the distances. Mamale is clearly within walking distance from Wanepop. It is about 5 km. Both places are easily accessible by road. Mamale is situated just next to Mamale High School, also known as Laiagam High School. It is situated on the other side of the Lagaip river and just next to the main Laiagam - Porgera highway. Laiagam township is only about 1 km from Mamale, about 2 km from Laiagam Village Court, and 1 1/2 km from Laiagam Health Centre. The scene of the killing is about 3 km from Mamale and is situated on the main road, which branches out left from the main Laiagam-Porgera highway at the entrance to Laiagam township. The Laiagam-Kandep road is as big as the Laiagam-Porgera highway.
The people of Andamali and Tamburan showed no respect for the efforts of the government party and other people who came to help them negotiate peace. Between 12 noon and 1.30 pm, one of the clans refused to compromise and a fight broke out. Arrows were exchanged. The whole gathering was thrown into chaos and disarray. The government party could not do anything, so they returned to Laiagam town in the motor vehicle, which they went in at about 2 pm. Other people, including Mrs Dion, Mr Isingi, and the deceased, returned by foot to Laiagam town. It was during their journey back that the deceased was killed at Kanak village at about 3.30 pm.
Before the deceased was killed, another man was killed in the fight between the Andamali and Tamburan clans. This man was Kijia from Mamale village. No one knew why he was killed. His clan was not involved in this fight, and one of his clansman, Kakalia Tulu, was involved in the peace process that morning. Perhaps he may have been involved in the fighting, perhaps not. It seems clear to me that he was an innocent man, at least from his clan's point of view. In that sense, his people would no doubt have been inflamed or angered by his killing.
Kijia's body was taken in a motor vehicle back to Mamale. There is no evidence on whether people from Mamale travelled to Wanepop to collect his body upon hearing of his death. It is possible they could have done so, because, as I have said, Wanepop is within walking distance from Mamale. His body was taken to Mamale and then to his small village for mourning.
Kurai Kindi Kindi was an innocent man. He was an elderly man, aged 47-50 years. He was brutally murdered. The medical report of Dr Watt shows that he received a deep 6cm long axe wound to his right chest, a gun shot wound to his left back, and speared at his left chest. The spear pierced his heart and caused his death. He was killed in foreign and neutral soil belonging to another clan which was not involved in the fight between the Andamali and Tamburan clans.
How does one explain the killing of two innocent men in terms of reason? In relation to Kijia, I am not too sure whether he was completely innocent, because he was killed in the fight. As for Kurai Kindi Kindi, I am sure he was completely innocent in every sense of the word. Perhaps these two killings tend to show the existence of a custom or practice in that area where one kills another person just to hurt or place burden on the two fighting clans or the people who own the land on which the person is killed, in terms of making them liable to pay-back killing or compensation payments. I am just surmising, because there is no evidence as to this customary practice. If it is a customary practice, then I think it is a very bad custom or practice, which should be discouraged. It is the actions of savages or uncivilized people. If that is what they are, then it badly reflects upon people in that area. It badly reflects upon not only ordinary tribesmen but also leaders like councillors, Village Court officials, church leaders, youth group leaders and so on. On one hand, these leaders are supposed to stand out among ordinary men because of their goodness and trustworthiness. On the other hand, they may be weak, corruptible, and untrustworthy when it comes to stopping tribal fights and detecting and reporting thieves and murderers. They may also be involved in supporting fights and even killings. And so, in this case before me, I cannot take for granted their leadership positions in the village as tending to show, or as conclusively establishing, their innocence.
The evidence from both the State witnesses and the defence witnesses is that various events involving mass movement of people took place along the 5 km stretch of road between Mamale and Wanepop in a space of some six to eight hours. There were people gathering around and moving towards Wanepop for the peace gathering between 8 and 10 am. Peace negotiations took place at Wanepop at 10 am. Fighting broke out between warring clans after 12 noon. People left the place of fight and dispersed in all directions. People from Laiagam township, including the government party, returned to Laiagam town between 12 noon and 3 pm. Kijia was killed in the fight. People went to Wanepop to collect Kijia's body and returned to Mamale. Kurai Kindi Kindi was attacked at Kanak village by a group of people between 3 and 3.30 pm. People came to collect Kurai's body and mourned over it. Kijia's body was taken to Mamale in the late afternoon. Kijia's body was taken over to his small village and mourned over by Pyain clansmen, including the members of the Apostolic Church youth group, between noon and 6 pm.
In this situation, it is possible that a man or group of men from either Kurai's group or Kijia's group could be at different places between Mamale and Wanepop at different times within the six to eight hours period, depending on where he wanted to be, why he wanted to be there, what he wanted to do there and, after doing what he set out to do, to return to where he wanted to go. It is also possible for one person or a group of persons to be present at a particular place more than once.
The defence admits that Kurai was killed in retaliation for Kijia's death. That being so, it supports the evidence of Mrs Aron and Mr Isingi that Kurai was killed by Pyain clansmen from Mamale village on their way back to Mamale after collecting Kijia's body at Wanepop. The only question, therefore, is whether it was the four accused who killed Kurai.
DISPUTED FACTS
The State case is that the evidence of the two witnesses as to identification is very strong and that the strength of their evidence negatives the alibi defence of each accused and the evidence of witnesses who support them.
Even though Mr Isingi gave evidence after Mrs Aron gave evidence, I will deal with his evidence first because he accompanied the deceased on the way back to Laiagam, when the deceased was killed. In evidence-in-chief, he said he knows all the accused because their village is close to Laiagam Health Centre, they come around to the Health Centre, and he used to go around with them. He and Kurai left the gathering place at 3 pm in order to start work at 4 pm. He said the deceased was walking in front of him with his son Thomas. The accused were among the first group of men who returned from Mamale after collecting Kijia's body. They were armed with weapons, including home-made guns. Upon seeing them, he moved to the side of the road because he was frightened they might kill him. He stood on the side of the road and saw what happened. Sukulin Passomb shot Kurai first with a gun on the left side of the back, below the shoulder. Then Kalain Kula speared him on the left side. Kakalia Tulu then cut the deceased with an axe on the right side of the back near the back. Finally, Angaun Kakas shot at the deceased with a home-made gun, but he missed. He was about 10-11 m away from the deceased when he was killed. From my visit to the scene, I could see that, from where he stood, there was nothing in between him and the deceased to obstruct his view, because the deceased was killed on the main road. Some three to four weeks later, Mr Isingi gave his statement to the police at his village. In his statement, he gave the names of the four accused. In Court, he correctly identified the four accused by their names.
There are certain aspects of his answers in cross-examination which cast some doubt as to the reliability and accuracy of his observations. They are as follows:
1.       He saw a lot of men running towards him and the deceased, pointing their weapons. The four accused came first, followed by many others. As they covered their faces with mud, he did not see their faces. Among those who covered their face were Sukulin Passomb and Kalain Kula.
2.       Kurai was ahead. Mr Isingi did not know if someone, including Kurai's son Thomas, was with him after he passed a sharp corner. When Mr Isingi came to the corner, he saw a lot of people coming, pointing their guns, so he moved to the side of the road or a drain and stood about 1 1/2 m from the edge of the road. He saw the men attack the deceased "within a little time".
3.       After Kurai was killed, Mr Isingi called out, saying the Kalato clan of Mamale killed Kurai. This is contrary to the accused's assertion, which I accepted, that their clan's name is Pyain. Also, even though he knew the names of the attackers, he did not specify the names of the attackers when he called out.
4.       When the police came to get his statement at Wanepop, he only gave them the names of Kakalia Tulu and Sukulin Passomb. He then ran away without giving the names of Angaun Kakas and Kalain Kula, because there was a fight in which another man was killed. Also, he did not give their names to police later because he forgot to.
During my visit to the scene, Mr Isingi gave me a different version of where he was before the killing and during the actual killing. He saw the first group of armed men at a distance of 30 m coming behind him, followed by the second group of men, who came about 30-40 m behind the first group. The deceased was about 30 m in front of him, within clear view. Upon seeing them, he ran forward for about 70 m and then went over to the right side of the road onto the top of the ditch and stood directly in front of the deceased at a distance of 15 m. By this time, the deceased had moved another 40 m forward before he was killed. Both the deceased and Mr Isingi had run past the corner to get to where they were before the actual attack took place.
These and other answers he gave in cross-examination leave me with the impression that he was a terrified man whose judgment or concentration was affected by the impending attack on him and the sudden attack on his clansman, the deceased. In a situation like this, the Court should not require a high standard of precision in the evidence of witnesses like Mr Isingi. It may be argued that the Court must accept the evidence of Mr Isingi, because he is trying his best to give an account of observations made when his mental faculties were affected by his state of fear for his own safety, and that his evidence, albeit distorted, should be accepted as evidence of the truth.
I am not impressed by his evidence. I have reached this conclusion because he could not clearly recollect the events when his memories were still fresh. He had three to four weeks to recollect his observations and give a full account of his story to the police at Wanepop. He gave only two names of the four he says he observed. I do not accept the reasons he now gives in Court for not giving the names of the other two accused. If he knew them before the incident, he would have given the names of all four accused without difficulty. I think the truth is that he was also on the run from the attackers and did not see who attacked the deceased. The only valuable evidence I can discern from his evidence is that Kurai's attackers were related to the deceased Kijia and that Kurai was killed sometime between 3 and 3.30 pm.
I am now left with the evidence of Mrs Aron. I must say at the outset that I am impressed by the quality of her identification evidence and her strong demeanor. She maintained her evidence-in-chief in the face of strong and thorough cross examination.
Her evidence is that she knew the four accused. Her knowledge goes back to 1988, when she attended Mamale High School for two years. I do not doubt her knowledge of the four accused in 1988 because all the four accused are not ordinary men from Mamale. They each stood out among their clansmen and were chosen as Laiagam Village Court clerk in the case of Kakalia Tulu, a village elder and deacon of the Apostolic Church at Mamale in the case of Agaun Kakas, a youth leader of Mamale Apostolic Church in the case of Sukulin Passomb, and a peace officer with Laiagam Village Court in the case of Kalain Kula. Mamale High School is situated next to Mamale village, and Mrs Aron has given detailed account of how she saw them at Mamale village trade store. Subsequent to this, she had seen the four accused at different places at Laiagam township, at Laiagam Health Centre, Laiagam Village Court and so on.
The four accused all said they never knew her. They said they saw her for the first time when she gave evidence in Court. Sukulin Passomb and Angaun Kakas both said Mrs Aron's husband, who was remanded at Baisu jail with them, must have given their names to her. When Sukulin was asked by the Court how he knew she was Mr Aron's wife, he said he figured this out from the resemblance of her last two names, Dion Aron, which is her husband's name, which he knew at Baisu.
I consider that the evidence of Mrs Aron as to prior knowledge is so strong that it outweighs the four accused's denial. As I have said, the accused are no ordinary men. Kakalia Tulu and Kalain Kula are officials of Laiagam Village Court, which has jurisdiction over Laiagam township's village disputes. Mamale is only 1 to 2 km from Laiagam township, Laiagam Health Centre, and Laiagam Village Court. Mrs Aron's husband works at Laiagam Health Centre as a "doctor". I do not think they have never seen her before. I consider they are all lying in this aspect of the evidence.
What then is Mrs Aron's evidence as to her observations? She says she went to Wanepop in the vehicle used by the government party. After the fight broke out, she found out that the government party had left. She followed another road and arrived at Kanak village. At this time, she was carrying her husband's files. There, at the junction of Kandep road and Laiagam-Porgera road, she looked around for her husband's motor vehicle and her friends. Not finding them there, she went back towards Wanepop. She passed the market at Kanak village and came close to a corner. Upon reaching the corner, she saw some people in a motor vehicle carrying the body of a man who was killed in the fight. The body was wrapped in canvas. She then moved further up and heard a call saying they were killing a different man. She moved past the sharp corner and saw some men surrounding Kurai and pointing a gun at him. So she moved back and crawled underneath a wire fence and to the grass and hid there. From there she observed everything. She saw Sukulin shoot the deceased with a short home-made gun on the deceased's left side of his back, just below the shoulder. Then Kalain Kula drove a spear into the deceased's left chest. This was followed by Angaun Kakas, who shot at him with a home-made gun but missed. Finally, Kakalia Tulu chopped the deceased with an axe on his right side and pushed the deceased down into the river. There were some other people near the scene of the killing. They called out that the deceased was being killed. The deceased died instantly.
At the scene of the killing, Mrs Aron pointed out the various positions. The following is a summary of those positions.
1.       Upon reaching the corner and seeing the men surround the deceased at a distance of about 30 m, she climbed through a 2 m ditch and entered the other side. She then travelled another 5 m closer and, from there, she observed what was happening.
2.       There are flowers, elephant grass, and pitpit growing at the scene now. She said that at that time, the flowers were not there and the elephant grass and pitpit were not thick. She could clearly see what was happening.
After hearing her in Court and visiting the scene, I conclude that she clearly saw what was going on before her, especially in view of the fact that she was determined to see the attackers of her in-law. Her vision was not affected by any fear, as was the case of Mr Isingi.
It is clear from the evidence of Mr Isingi and Mrs Aron that the killing of Kurai took place at around 3 pm.
The accused Kakalia's alibi defence is that he was dropped off at Laiagam and went straight to Mamale. Sgt Poko Itapu says Kakalia and the others were dropped off at the District Office at about 2 pm. Kakalia does not make any mention of the killing of Kijia. He heard of Kurai's killing when he was at his house between 2 and 3.30 pm. In terms of timing, Kakalia's alibi does not in any way directly conflict with Mrs Aron's evidence. Between 12 and 3.30 pm, he had ample time to learn of Kijia's death and do what he wanted to do to investigate the circumstances of it.
Angaun Kakas said he was at Mamale market that afternoon. He heard that the deceased had been killed, so he went home later in the afternoon. He gave no evidence of knowing of Kijia being killed.
Kalain Kula said he went to attend a sitting at Laiagam Village Court that morning, but because all the Court officials were not there, he returned to Mamale and stayed there till the afternoon. There he saw Angaun and Kakalia at Mamale market and Sukulin at the mission station. Then he went back to his small village (Angale) at about 4 pm. The next morning, he heard that someone from Wapola (referring to Kijia) was killed. He saw his body on Tuesday.
Sukulin Passomb said that at about lunch time he went to work at Mamale Apostolic Church to clean up the church area for a baptism ceremony and youth gathering which was to take place that week. While he was working with Pastor Kulump Waita and others, they heard a call that a man was killed, so they left what they were doing and came down to the main road to find out. He went to see Kijia's body at the junction of the road to Mamale High School. When they were about to attend to the mourning, another "call" came. From there, "they took Kijia's body to his village, which is some distance away; he is from another committee area, from the Pyain Kambun clan". Asked where he went from there, he said, "I stayed there until the afternoon and I went back home in the evening." Sukulin said he has never been to Wanepop and does not know the distance between Mamale and Wanepop. Pastor Kulump Waita said he and Sukulin Passomb stopped the clean-up at the mission station and went to Kijia's village to mourn. Pastor Waita said Sukulin was with him at Kijia's funeral throughout that whole afternoon.
FINDINGS
I have already found that the deceased was killed at about 3 to 3.30 pm. I have considered the four accused's evidence and find that their respective alibis are false alibis. In the case of Kakalia Tulu, he was dropped at 2 pm. He had ample time of 1 to 1 1/2 hours to go to Mamale, learn of Kijia's death, and make his way over to Wanepop by foot or by motor vehicle to collect Kijia's body and return. It is most unlikely that he learnt of Kijia's death and Kurai's death only when he was at his house between 2 and 3.30 pm. As a Village Court clerk, he would have known of Kijia's death when he was at Mamale High School junction before and at the time Kijia's body was brought over. In relation to Angaun Kakas, he is an elder in the village and a deacon of Mamale Apostolic Church. It is most unlikely that he would learn of Kurai's death and just go back to his house when everyone else, including his Pastor Waita and youth members, were going to attend Kijia's funeral that afternoon. In relation to Kalain Kula, as a peace officer of Laiagam Village Court, he would have known of Kijia's death and seen his body that afternoon at Mamale, not learn of it and see Kijia's body the next day. He was at Mamale that whole day, and he would have seen everything and also attended Kijia's funeral. In relation to Sukulin Passomb, his evidence conflicts with Pastor Waita's evidence. Whilst he said he went back home after learning of Kijia's death, Pastor Waita said they both went together to Kijia's small village for the funeral that afternoon. It is also simply not true that he has not been to Wanepop Catholic Mission.
The evidence of Mrs Aron is supported by the medical evidence of Dr Watt as to the nature and location on the deceased's body of the various wounds inflicted by the accused. The accused had the ability, the motive, and the opportunity in time and place to kill the deceased. As for Angaun Kakas, four of his fingers on his right hand are severed. He evidenced his disability by dropping the Bible, which he was told to hold for purposes of taking the oath. It is true that he might be unable to hold a gun and fire it. At the same time, it is not a complete impossibility. The fact that he missed the shot is consistent with the disability with his right hand.
The four accused have not given any sound reason why Mrs Aron would lie. It is submitted on their behalf that, because her in-law was killed, she has lied to this Court to get even by sending them to jail. It is submitted that, because she is related to the deceased, there is a need for independent witness to corroborate her testimony. It is further submitted that in view of the lack of independent witnesses and the unreliability of the evidence of Mr Isingi, it is unsafe to convict the four accused.
The four accused say that they have been falsely accused because of their leadership positions. They say the people who killed the deceased are still outside. They seem to say they do not know the persons who killed Kurai because they did not see who killed Kurai.
The four accused say that Mrs Aron does not know them and know their names. They say that if she knew them by their names, it is because she was only given these names by her husband, who was at Baisu with them.
In my view, the issue in this case has been narrowed down to the issue of whether I accept Mrs Aron's evidence or the four accused's stories. It is conceded by the defence that someone from the Pyain clan killed the deceased in retaliation for Kijia's death. The only question is, who in the Pyain tribe killed the deceased?
I do not see the logic behind these assertions made by the four accused. I accept that they are leaders in their own right. But that is one of the main reasons why Mrs Aron says she knows them by face and name. She is not confused about who is who and where and when she came to see them at Mamale, and at Laiagam township, Laiagam Health Centre, and around Laiagam Village Court.
I have found that the defence concedes that the deceased died at the hands of the Pyain clansmen of Mamale in retaliation for Kijia's death. By virtue of their leadership positions, they would be the first ones to know, or at least provide, some valuable information to this Court as to who those responsible persons may be. Then the Court would have some basis to form the view that there exists some reasonable doubt as to the involvement of the four accused. I am not saying that the four accused should have adduced further evidence to prove their respective defences. Indeed, there is no legal burden on them to do so. All I am saying is that, given their position in the community, they would know who the deceased's attackers are. Given the strong affiliations which exists throughout PNG between members of the same tribal group, members of a clan try to keep in strict confidence information regarding involvement of their clan in murders arising from tribal conflicts. Such information may be peculiarly within the knowledge of the clan members.
The law does not require an accused person to disclose information which incriminates himself. But it is the duty of every citizen, especially leaders in tribal groups, to disclose the identity or involvement of other clan members. All that was required of the four accused in this case is to provide some valuable lead or information as to which of their clan members were involved, which in turn would then provide some reasonable basis to doubt the evidence of State witness Mrs Aron.
I have reservations about some aspects of Mrs Aron's evidence. They include the reason as to how or why she happened to be at the scene of the killing at the right time; the fact that the State has not called Thomas Kurai, who was said to be with his father when he was killed, even though Thomas was available in the vicinity of the Court house to give evidence; and the fact that the State has not called other witnesses whom Mrs Aron says were in the vicinity of the scene of the killing. I am also mindful of the dangers inherent in convicting the four accused on the identification evidence of Mrs Aron alone. Mrs Aron is only a woman, who is more vulnerable to human weaknesses than men like Mr Isingi in the face of an ensuing tribal fight and attack by a group of men on another man.
But I have already found her evidence to be of good quality. Her evidence not shaken in any material way by the defence in cross examination. I find her to be an independent woman who demonstrated immense courage on that day and also before me. Her education, no doubt, would have had an impact upon her mental attitude. I also find her conduct in returning to Wanepop from Kanak village in search of her husband and friends not unreasonable because, like many other people, she and her husband and her friends were displaced by the sudden outbreak of war between the two clans at Wanepop.
It is true to say that Mrs Aron is a close relative of the deceased and, therefore, she might be inclined to tell lies to the Court. However, the four accused have not given any good reasons as to why she is lying. All they say is that she is just lying to avenge the death of the deceased. Furthermore, the defence has not pointed out any clear lie told by her in her evidence. Her evidence is supported by the medical report of Dr Watt. The four accused's false alibi defences further corroborate her evidence. Her evidence is clear, strong, and convincing. It leaves no room for further corroboration by independent witnesses.
The evidence is that the four accused came in a group, they were all armed with dangerous weapons, they attacked in close sequence the same man for the same, or common, purpose. They intended to kill the deceased. They acted in concert. They knew he was dead and threw him in the river and left. They aided each other to achieve the same desired purpose.
The medical report shows that the spear wound inflicted by Kalain Kula caused the death of the deceased. It said the "other wounds were serious and contributed to his death but on their own would probably not have been fatal". The axe wound inflicted by Kakalia Tulu measured 6 cm long and entered the pleural cavity and fractured three ribs. The shotgun wound inflicted by Sukulin Passomb was superficial because "the pressure of the gun was low as there was little penetration". Angaun Kakas fired his gun directly at the deceased, but due to the disability on his right hand, he missed. But his intention was clear - to aid the other three accused. He fired directly at the deceased before Kakalia Tulu axed him. I consider all the four accused covered by s 7(1)(c) and s 8 of the Criminal Code.
I am satisfied beyond reasonable doubt that the four accused wilfully murdered Kurai Kindi Kindi, contrary to s 299 of the Code, and convict each one of them accordingly.
SENTENCES
I have found each of you guilty of wilful murder of Kurai Kindi Kindi contrary to s 299(1) of the Criminal Code. Prior to 1991, the maximum penalty for this offence was of life imprisonment. The Criminal Code (Amendment) Act 1991 (No 25 of 1991), increased the maximum sentence to one of death. To my knowledge, this sentence has not been handed down by the National Court, maybe because the administrative machinery for carrying out the death sentence is not in place.
The crime of wilful murder is one of the most serious of all crimes defined in the Criminal Code. The maximum sentence of death just shows how serious the crime is regarded by the people in Papua New Guinea today.
I have covered the circumstances of the killing in my judgment. It was a brutal killing. The deceased was an elderly man who was completely innocent and who was unarmed. He was attacked by the four of you in concert, without warning. Sukulin Passomb first shot the deceased with a gun. The deceased sustained superficial wounds at his back, which measured 7 cm radius. Then Kalain Kula speared him at his left chest. The spear pierced the pericardium and left ventricle of the heart, causing internal bleeding. This was followed by Angaun Kakas, who shot at the deceased but missed him because of the disability associated with his right hand. Finally, Kakalia Tulu axed the deceased on his right chest. The wound measured 6 cm in length. It entered the pleural cavity and fractured three ribs and lacerated some veins. In accordance with the medical report of Dr Watt, I have found that the main cause of death was the spear wound of Kalain Kula. The other wounds were serious, and they contributed to Kurai's death, "but on their own would probably not have been fatal". I have found that you acted in concert in aid of each other in the prosecution of a common purpose under s 7 and s 8 of the Code. All of you are liable to the same punishment as Kalain Kula. And so, as far as the extent of your involvement is concerned in terms of intention to cause the death of Kurai Kindi Kindi, there is not much to distinguish you.
All of you have little or no formal education. You come from a society where traditional values and ways still play a predominant role in your way of life. This explains why you reacted without prior pre-planning upon hearing the death of your clansman, Kijia, that afternoon. This also explains the fact that you killed an innocent man whom you thought to be an enemy clansman.
There is also not much difference in the personal background of the four of you. Angaun Kakas is aged around 50 years, Sukulin Passomb about 29 years, and the other two are in their 30s. You are all leaders of some kind in the Mamale community. Angaun Kakas is an elder and a deacon of Mamale Apostolic Church. Kakalia Tulu is a clerk of Laiagam Village Court, having got the job in 1990. Sukulin Passomb is a youth member and associated with the Apostolic Church youth at Mamale. Kalain Kula is a peace officer with Laiagam Village Court. You all have no prior convictions.
You are all married and have dependants to look after. Angaun has five children. Kakalia has five children. His first child is doing Grade 7 while his second and third children are in community school. Sukulin has two children. Your wife is young and your mother is very old. Kalain is married with no children. You have no brothers. Your only surviving parent is your old father. You are all concerned for the welfare of your children and surviving parents.
You all voluntarily surrendered yourselves to police at Laiagam when your names were mentioned by police.
You have all asked me to be lenient to you in my sentence. I accept all the above factors as mitigating factors. I will take them into account in your favour in considering sentence.
I must also take into account the interest of the community. As I said in my judgment, this is a case of brutal killing of an unarmed and innocent man in broad day light for no reason. It is not a good thing. It is the practice of uncivilized people. Such practice must be discouraged by the Courts. This cannot be achieved unless a strong deterrent and punitive sentence is imposed on the offenders. That is what I intend to do in this case.
In considering the sentence, I have had regard to the mitigating factors I have set out above. As to your concern regarding your dependants, I think they are normal consequences which fall on any offender, and I do not intend to place too much weight on them.
I have had regard to the nature of the wound inflicted by each one of you and the type of weapon used. I have also had regard to sentences imposed by other judges of the National Court in this kind of killings. In 1993, sentences in contested cases range from 10 years to life imprisonment. I consider an appropriate sentence for each of you is as follows:
Angaun Kakas: 10 years less 5 months 2 days in custody.
Sukulin Passomb: 12 years less 5 months 2 days in custody.
Kalain Kula: 14 years less 5 months 2 days in custody.
Kakalia Tulu: 15 years less 5 months 2 days in custody.
You have offered to pay K1,500 plus 80 pigs, each valued at K200. I am required by the Criminal Law (Compensation) Act 1991 to take that into account. You have all offered to make these payments as a group. I am told that these payments will be made by your relatives. For my purposes, I would express the payments offered in pigs in money terms. The total payment offered is K17,500. I would also divide this amount into equal amounts between the four prisoners. Hence, I take it that each prisoner is offering to pay K4,375. This amount is within the maximum amount of K5,000 prescribed by s 5 of the Act. The maximum default penalty prescribed by the Act for value of compensation exceeding K3,000 is six months imprisonment.
I would make the following orders in respect of compensation: that the four prisoners pay K3,000 each to the immediate relatives of the deceased within six months. If they pay this amount, their respective sentences should be further reduced by six months.
Lawyer for the State: Public Prosecutor.
Lawyer for the defendants: Public Solicitor.