National Court of Papua New Guinea

Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment, as if he had himself done the act or made the omission; and he may be charged with himself doing the act or making the omission.”

“8. ټ OFFENCEFENCES COMMITTED IN PROSECUTION OF COMMON PURPOSE

When two or more persons form a common intention to prosecute an unlawful purposconjun wit another and in the prosecution of such such purpose an offence is committed of s of such auch a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”

I now deal with the evidence against each of the three accused on trial. I shall consider the case against the accused KEKO APARO first. The prosecution alleges that the accused person is a party to the offence by virtue of s.7(c) as a person who aids and abets another person in committing the offence. The prosecution’s case consists of evidence contained in two statements by the accused which are admitted into evidence. The first one (Exhibit 3) was taken on the 21st February, 1981 and the second one which is in the form of a record of interview (Exhibit 4) was dated the 25th February, 1981. The other evidence of some substance comes from the evidence of an accomplice Tindini Kelekele.

I observed the appearance and demeanour of the accused closely throughout the proceedings and as a witness in his own case. I have no hesitation at all to hold that he is a liar. Among other things, he has shifted his story to a certain extent in his evidence to the Court. His defence counsel conceded this diversion but claimed that his evidence in Court is the truth and not his previous statements to the police. The defence asked, why should he tell the police about the truth in the first place? Of course he is not obliged to tell the police the truth of the matter. However, he is naturally raising question as to his credibility by changing his story at the last minute. Nevertheless where there are however inconsistencies in the accused’s evidence, it is a question of fact whether or not his previous story or his latest one is reasonably consistent with the truth, so as to be accepted. It involves an objective test and to be examined against the evidence before the Court as a whole.

Another related claim by the defence is that records of interview are not sworn evidence. True they are not, however once an accused has acknowledged and adopted his record of interview by his signature and conduct to be true and correct, especially if the content of what he says amounts to certain admissions of the truth, it would require cogent evidence on his part to say later that what is said in his record of interview is false. When an accused gives his story in the record of interview, which is usually just after the alleged crime has taken place, he normally gives it when he is facing a moment of truth and in some cases when there are no extraneous factors affecting his mind yet at that stage to tell lies.

As I have found the witness Keko not to be a witness of truth, I reject his evidence given in Court. I prefer the statements which he told the police to the evidence given at the end of a long trial some months later: The Queen v. Sapulo Masuve and OrsN333.html#_edn735" title="">[dccxxxv]¹. True, even if he has changed his evidence at the trial, there is no reason why it should not be accepted. But the witness must convince the Court with plausible reasons as to why his evidence at the trial should be accepted and his previous statements disregarded. This he has not done. I should accept the evidence for the State contained in his two statements in Exhibits 3 and 4, not only because the statements are consistent with each other but that taken together the evidence therein is consistent with the possible version of what took place. Further, the witness (accused) had two opportunities to give his story. If he had considered that his first statement was not true and correct, he should have changed it when the second opportunity came. However he did not. He left it all along to change his story at the last hour. Moreover, the admissibility of the two statements is not challenged by the defence. And the contents in them are never challenged either as to their accuracy or clarity. It was just left open meaning, I suppose, that if the testimony in Court is rejected, the defence is impliedly conceding, subject to other considerations, that the version in the two statements is in fact true and correct.

I consider now the substance of the evidence in the two statements. Defence counsel further put to the Court that a record of interview is for purposes of admissions or confessions only and not for any other facts. What this means, I think, is that if there are no admissions in the record of interview, then the Court should not consider at all any other facts in it. The defence of course did not go as far as analysing the contents of the two statements to point out to the Court whether or not there were any admissions or confessions in them. But the very term “confession” is not so easy to define. In Attorney-General for New South Wales v. MartinN333.html#_edn736" title="">[dccxxxvi]², as to the meaning of the term “confession” O’Connor J. said:

“There are many definitions of what will amount to a confession for the purposes of the rule I am considering. They all agree in this, that it must be either a direct admission of guilt, or of some fact or facts which may tend to prove the prisoner’s guilt at the trial.”

In Mckay v. The KingN333.html#_edn737" title="">[dccxxxvii]³ Dixson J. said a.

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“The very term confession illustrates the difficulty of laying down general propositions. For its meaning extends from the most solemn, spontaneous, express, and datailed aledgements of the facts cons constituting a crime to casual admissions of some only of the specific facts involving guilt.”

Further, in Jayalal Anandagola v. The QueenN333.html#_edn738" title="">[dccxxxviii]⁴, the Privy Council held that the test whether a statement is a confession is an objective one, whether to the mind of a reasonable person reading the statement at the time and in the circumstance in which it was made it can be said to amount to a statement that the accused person committed the offence or which suggested the inference that he committed the offence. The appropriate test is whether the words of admission in the context expressly or substantilly admit guilt or do they taken together in the context inferentially admit guilt.

From the statement (Exhibit 3) and the record of interview (Exhibit 4) I find the following facts. During the week prior to the 21st February, 1981 about five meetings were held by the Tari men. Two related matters were discussed which were in regard to their attempt to obtain compensation for the death of one of their men, who was alleged to have been killed by the Bukas in 1980. It was agreed that if their attempts to obtain compensation failed, they would carry out a payback mission upon any Buka man whom they would meet on the road, to settle the status quo. claims of compensation were made through the Government District Co-ordinator at Tinputz and also through the police there. They were not getting anywhere with it. Their feelings about their cause were at that stage quite high. The meetings which were then held were of great intensity as can be seen by their regularity and recurrence before the murder took place. They held meetings on Sunday the 15th, Monday the 16th, Tuesday the 17th, Wenesday the 18th and Friday the 20th February, 1981. All these meetings were held at Sabag Plantation. The accused was one of the main spokesmen at these meetings. On the night in question which was Saturday the 21st February, 1981 the accused accompanied his tribesmen to a village where the murder of the Buka man Dennis Vosivan was effected. On the way, while his men were trying to enter the village, he told them not to attack people in the open - meaning in the village and under lights. He was angry and told them that that was not the best way of executing a killing of a man. And that if they had to kill a man, they had to do it on the road away from the public. He was among the men who actually met the three Bougainvillians on the road, and he was in fact in close proximity with members of his group when the crime was committed. Further, he actually saw the deceased being axed and struck down to death. However he never admitted that he himself had taken part in inflicting wounds on the man. It also emerged from the material that the accused Keko was engaged for a K500 reward by the co-accused Andane Akwia who is from the same family line as the deceased for whom compensation was being sought. He was engaged to make up the numbers strength of the group involved.

What I have outlined are clear admissions of facts that should certainly tend to prove the accused’s guilt. There are two sets of events that can be established. First is the agreement to carry out the common purpose; and the other is the involvement in the actual commission of the crime by the accused. The evidence therfore establishes as a matter of fact that the accused actually participated in the commission of the crime whilst acting in perpetration of the common purpose. The guilt of the accused can also in the context of the evidence undoubtedly be inferred.

I deal now with other evidence before the Court. This was given at the trial under oath by the witness TINDINI KELEKELE who is an accomplice. He has earlier been convicted and sentenced for the same offence by the National Court before another judge.

Kelekele told the Court that the accused Keko had come to his place and asked him to join them to kill a Buka man as they did not have the numbers to do it themselves. The witness said Keko had told him that a man, Andane Akwia (co-accused in this trial), had given Keko K500 to give to the witness Kelekele as a reward if he joined up in the group to kill a Buka man. And that under that promise of the K500 reward he had gone along and taken part in the killing of the deceased. This evidence was not challenged by the defence. This witness also stated that Keko had gone with them on the night in question, was present at the scene of the crime and also took part in the actual commission of the crime. However it is not quite clear what actual weapon he had used. After the deceased had been axed to death, Keko had also struck out at the other Buka friend of the deceased who was later taken to hospital with wounds to his ribs. The witness had seen all this and as I have earlier said, I have no hesitation in holding this evidence as fact. The evidence shows that the accused was there not as a mere by-stander or by accident, but with full intention and appreciation as to why he was there. He was there to take part in the commission of a crime and whether a man dies and one is wounded, that matters not. The point is that a crime has been committed for which the facts as established show that the accused is a party to it.

The evidence also establishes that on the strength of the offer of the K500 reward by the co-accused Andane Akwia, the accused Keko had gone around to engage the winess Kelekele in the payback mission for reward. This evidence shows in a concrete way the intension of the accused in the role that he played in the commission of the crime. It further supports the evidence about his share of criminal responsibility in effecting the offence.

In Papua New Guinea the law permits conviction on the evidence of a accomplice alone. In Papua New Guinea the evidence of accomplices, in the experience of the Judges, is usually given not in a spirit of vindictiveness; but with a sense of justice very much in mind. It is more than possible that in many cases it is done also with an intent to avoid a payback upon the unconvicted man’s family or clan. Nevertheless it is still regarded as dangerous to convict on an accomplice’s evidence alone: The State v. Titeva FinekoN333.html#_edn739" title="">[dccxxxix]⁵. I assessed the witness Kelekele as one who gave his evidence not in a spirit of vindictiveness but with a sense of justice very much in mind. That view is supported by other factors at the trial. His evidence is consistent with other evidence before the Court. He was not shaken during cross-examination, nor was it put to him by the defence that he was lying about certain aspects of his evidence. He was giving evidence against keko Aparo only. I am sure that if he had any grudges against others he would also have implicated Kawasoba Para and Andane Akwia who have pleaded not guilty to the charge. However he has not. The sense of justice that has mainly influenced him to pursue against Keko Aparo is for the reward of K500 which Keko had promised him if he joined in the mission to murder a Buka man as a payback. This accords with the kind of mentality that traditional man like this witness Kelekele has. Whether Keko is finally convicted and sentenced to jail, I am sure, that has no greater impact on his mind than his hope for the K500 reward. I do not doubt his credibility at all or the substance of his evidence for that matter. I find therefore that his evidence contains elements of truth upon which I shall act. The evidence though is only to support other evidence which is already before the Court.

The accused is of course charged under s.7(c) of the Criminal Code. The case law held in relation to parties to offences under the section is quite clear. If it is established beyond reasonable doubt that the accused was present at the scene with the intention of encouraging or assisting in the killing of the deceased, and thereby aiding in the commission of the offence, the accused would then be quilty of wilful murder: The State v. Nataemo WanuN333.html#_edn740" title="">[dccxl]⁶. It is correct that mere presence at the commission of a crime does not of itself constitute a person an aider and abettor: R. v. Opu Anuma & OrsN333.html#_edn741" title="">[dccxli]⁷. It is generally accepted that there can be no aiding for the purpose of s.7(c) where a person merely stands by and does nothing to aid in the commission of the offence: R. v. Witrasep BinengimN333.html#_edn742" title="">[dccxlii]⁸. It is not enough that the presence of the accused has, in fact, given encouragement. It must be proved that the accused intended to give encouragement, that he wilfully encouraged. There must be an intention to encourage and encouragement in fact: Agiru Aieni and 12 Ors v. Paul T. TahainN333.html#_edn743" title="">[dccxliii]⁹. But the question whether the presence of the accused at the scene of the crime was for purposes of aiding and abetting, is of course one of fact. It is obvious therefore from my findings of fact that the accused Keko was in fact present at the scene of the crime and was for purposes of encouragement and assistance in the commission of the crime.

It was stated in R. v. Potosi & 3 OrsN333.html#_edn744" title="">[dccxliv]¹⁰ that if the physicasence ofce of the accused at the scene bespeaks encouragement of, and support to, those engaged in the actual crime, the accused may be regarded as a principal. If presence at the commission o crime is relied on, as diss distinct from any act or words of assistance, the presence must be willed, not accidental, and with the intention of encouraging or assisting the commission of the crime charged. In some circumstances the fact that a person was voluntarily and purposely present at the commission of a crime and offered no opposition to it, although he might reasonably be expected to do so or at least to express his dissent, might afford cogent evidence that the wilfully encouraged the commission of the crime: R. v. William Taupa ToVarula & OrsN333.html#_edn745" title="">[dccxlv]¹¹ (per Minogue .

As toAs to the proximity of the accused to each other, it was said in The State v. Laiam Kiala and Meiri GomosiN333.html#_edn746" title="">[dccxlvi]¹² that wheo accused assaultedulted a victim, their proximity to each other, their previous actions and continuing presence must have encou, facilitated, and shielded the assault from interuption and rendered each an aider within thin the meaning of s.7(c) of the Criminal Code.

As to the nature of the assault, when several persons being present together attack at the same time the same man, using similar weapons or directing similar blows with the common intention to injure and that man dies as a result of injuries so inflicted, each of the attackers is guilty of wilful murder, murder, or manslaughter, according to the intent proved, because each of those several persons is acting in concert with the others at the time, each did the acting constituting the offence under sub-s. (a), and each aided the others under (c) of s.7: R. v. Sapulo Masuve & OrsN333.html#_edn747" title="">[dccxlvii]¹³. In The State v. John Badi Woli & AnorN333.html#_edn748" title="">[dccxlviii]¹⁴ it was held that wherh accu accused were responsible

I have also held that the accused was acting with a common purpose: s.8 - to kill the deceased as a payback. To come with7(c), intentional encouragement of the crime is sufficient,ient, whether by words, action or even by mere presence. Where presence is prima facie not accidental, it is evidence, but no more than evidence for the jury, but if some of the accused had joined in the common purpose to kill and did no physical act other than that of being involved in being present and walking about the scene, findings of fact depending on the circumstances may be open that they aided by their presence and readiness to assist (followed R. v. Wendo & OrsN333.html#_edn749" title="">[dccxlix]¹⁵, R. v. Abia Tambule & OrsN333.html#_edn750" title="">[dccl]¹⁶).

In the light of those authorities I consider that the evidence which I have found, categorically establishes not only in fact but in law that the accused is a party to the offence by virtue of s.7(c) as an aider and abettor. The accused could even be caught by s.7(a) as a person who actually does the act constituting the offence.

I might add here that even apart from the evidence of the accomplice, the State case still stands. Or even apart from the evidence about the common purpose, in my opinion, the State can still sustain its case. In any event, in all the circumstances of the case, I am satisfied beyond reasonable doubt that the accused KEKO APARO is guilty as charged. I therefore find him guilty and convict him accordingly.

I shall now deal with the case against the next accused ANDANE AKWIA. He is charged with wilful murder. The State alleges that he is a party to the offence by virtue of s.7(d) as a person who counsels and procures other persons to commit the offence - that he counsels and procures a common purpose contrary to s.8 which is to kill a Bougainvillian man as a payback in conjunction with other persons and in the prosecution of such unlawful purpose the crime is committed. The evidence against this accused comes mainly from his own record of interview, and from the evidence of the witness Keko Aparo who is one of the co-accused in this trial and whom I have already dealt with.

The accused’s conduct and demeanour throughout the proceedings and when giving his evidence as a witness in support of his own case gives me concern and prompts me to be very cautious with his evidence. He strikes me as an untruthful witness. He was cautious and evasive in giving his evidence, not only in what he told the police in his record of interview but also in his testimony in Court. When testifying in Court he did attempt to make several deliberate different versions from what he said in his record of interview. This is of great importance when one considers his credibility as it is only too obvious why he was trying to do it at the last minute. For instance, in his record of interview it appears that he was the one responsible for convening the meetings. However at the trial he says that he was merely putting up notices for the meetings to be held. He also denied that he was a leader. Also out of his own accord in the examination-in-chief he referred to the story the co-accused Keko Aparo had told the police, which is about the K500 reward to be given by him (Andane) to Keko Aparo if he joined up with the group to carry out the payback killing. He raised this point and gave the reason that Keko had told this story to convince the police. Further, in the examination-in-chief leading questions were asked in regard to questions 55 and 58 and their respective answers contained therein in his record of interview. I state the questions and their respective answers:

Q.55 Other suspects statad thu you discussed in the meeting to carry out a payback killing and you said that this is not true?

Answer ҈&<;< < That is corree . Wposed ined in the meeting that if some wantoks kill a Buka man outside Sabag Plantation, that would be just a payback for our wantok who was killed and that would settle and end the matte>

#160; What What did tdid the me ting agree to do after no successful answer gained?

Answer &#T60; eee mg aineed rhat what we try and if nothing eventuates from it we would leave it, and wait until we meet a man e roa killas a ck ans wouttle nd the matter.