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State v Kakas [1994] PGNC 80; N1217 (28 March 1994)

N1217

PAPUA NEW GUINEA
[In the National Court of Justice]

CR. 18 of 1994(H)

THE STATE

v.

ANGAUN KAKAS, KAKALIA TULU,
SUKULIN PASSOMB & KALAIN KULA

MT HAGEN: INJIA, AJ.

1994: 16, 19, 21, 23, 25 & 28 MARCH

JUDGMENT

Criminal Law - Wilful Murder - identification evidence - defence of alibi - deceased killed in retaliation for the death of a man from the four accused's clan in a tribal fight - evidence of one eye-witness corroborated by accuseds' false alibi defences - all four accused found guilty and convicted of wilful murder - Criminal Code Ch. 262; S.299, S.7, S.8.

J. Kessan, for the State
B. Tabai, for the Accused

28th March 1994

INJIA, AJ: The four accused are jointly charged with the wilful murder of one Kurai Kindi Kindi contrary to Section 299 of the Criminal Code Chapter No. 262 ("The Code").

It is alleged by the State that on 18.10.93 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. 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 accused confronted the deceased on the road whilst he was returning to Laiagam Health Centre where he was employed as an Aid Post Orderly. The four accused were armed with bows and arrows, spears, axe and home-made guns. They surrounded the deceased and shot him on 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 deceased 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 Section 299 of the Code.

0The State called two eye-witnesses namely, Mrs Jenny Dion Aron and Mr Morris Isingi. In addition the State tendered by consent Dr John Watt's medical report and four record of interviews in respect of the four accused. At the end of the oral evidence, the Court visited the scene of the killing on Saturday 19.03.94. 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 record of interviews. 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. The accused Agaun Kakas and Kalain Kula did not call any witnesses of their own to support their respective alibi defence.

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 the issue of 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 relate to personal identification of the four accused in broad daylight. They also say 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 (6) factors set out in Andrews, Chalmers and Weisbrot, Criminal Law and Practices in Papua New Guinea, Second Edition at page 231 to 232.

"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 Juakona (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 support those proven facts or inferences where necessary.

Undisputed Facts

Sometimes between 10.00am to 12.00pm on 18.10.93 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 (MSC) gathered at Laiagam and departed for the gathering at about 10.00am in a Toyota Stout vehicle hired by Mr Solo. Among this Government party was the accused Kakalia Tulu who was then the Village Court 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 who was an Aid Post Orderly at Laiagam Health Centre, Mr Isingi who was a Security Guard at the said Health Centre and Mrs Aron whose husband worked as a "Doctor" at the same Health Centre.

The deceased, Mrs Aron and Mr Isingi all come from Kilo clan. Their clans were 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 Kms. 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. This village belongs to the Pyapilya clan. The Pyapilya clan was also not involved in the war between Andamali and Tamburan clans. Kanak village is also situated between Mamale and Wanepop.

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 Kms. 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 1Km from Mamale, about 2Km from Laiagam Village Court and 11/2 Km from Laiagam Health Centre. The scene of the killing is about 3Km 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 12pm-1.30pm, one of the clans refused to compromise peace and a fight broke out. Bows and 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 2.00pm. 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 3.30pm.

Before the deceased was killed, another man was killed in the fight which erupted between the Andamali and Tamburan Clans. This man was Kijia from Mamale village. No one knew why he was killed because his clan was not involved in this fight and one of their 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 taken to his small village for mourning.

Just like Kijia, the deceased was a totally innocent man. He was an elderly man aged 47-50 years old. 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. It pierced his heart. It was this spear wound which 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 Tambaran 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 may 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 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 establish 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 5Km stretch of road between Mamale and Wanepop in a space of some 6-8 hours. There were people gathering around and moving towards Wanepop for the peace gathering between 8.00am-10.00am; peace negotiations took place at Wanepop at 10.00am, fight broke out between warring clans after 12.00pm, people left the place of fight and dispersed in all directions, people from Laiagam township including the Government party returned to Laiagam town between 12.00pm-3.00pm, Kijia was killed in the fight, people went to Wanepop to collect Kijia's body and returned to Mamale, the deceased Kurai was attacked at Kanak village by a group of people between 3.00pm-3.30pm, people came to collect Kurai's body and mourned over it, Kijia's body was taken to Mamale in the late afternoon, Apostolic Youth clean-up going on at Mamale from 8.00am to lunch time, and Kijia's body being taken over to his small village and mourned over by Pyain clansmen including the members of the Apostolic Church youth group between 12.00pm-6.00pm. 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 6-8 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 Mr Dion 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.

Findings on 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.

What then is the evidence of the two State Witnesses?

Even though Mr Isingi gave evidence after Mrs Aron gave evidence, I will deal with his evidence first because he accompanied the deceased on their way back to Laiagam when the deceased was killed. In evidence in chief, he says he knows all the accused because their village is close to Laiagam Health Centre and they come around to the Health Centre and he use to go around with them. He and the deceased left the gathering place at 3.30pm in order to start work at 4pm-12pm. He says 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 the deceased 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 the deceased with a home-made gun but he missed. He was about 10-11m 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 3-4 weeks later, he 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 casts some doubt as to the reliability and accuracy of his observations. They are as follows:-

(a) 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.

(b) When he and the deceased walked along the road, Kurai was ahead. He did not know if someone including Kurai's son Thomas was with him after Kurai passed him and walked past a sharp corner. When Isingi came to the corner, he saw a lot of people coming pointing their guns so he moved to the side. Upon seeing them, he moved to the side of the road or a drain and stood about 11/2m from the edge of the road. He saw the men attack the deceased "within a little time".

(c) After Kurai was killed, he 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.

(d) 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 at the scene before the killing and during the actual killing. He saw the first group of armed men at a distance of 30m coming behind him followed by the second group of men who came about 30-40m behind the first group. The deceased at this point in time was about 30m in front of him within clear view. Upon seeing them he ran forward for about 70m 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 15m from the deceased. By this time the deceased had moved another 40m forward before he was killed. Both the deceased and 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 leaves 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. It is true to say that 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.

In my view, 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 3-4 weeks to recollect his observations and give a full account of his story to the police at Wanepop. When police came to Wanepop 3-4 weeks after the incident 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 their 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 the deceased was killed sometimes between 3.00pm - 3.30pm.

I am now left with the evidence of Mrs Dion. I must say at the outset that I am impressed by the quality of her identification evidence and her strong demeanour. She maintained her evidence in chief on 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 2 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 in the case of Kalain Kula, a Village Peace Officer with Laiagam Village Court. Mamale High School is situated next to Mamale village and she 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 say they never knew her. They saw her for the first time when she gave evidence in Court. Sukulin Passomb and Angaun Kakas both say Jenny's husband Aron who was also remanded at Baisu must have given their name to her. When Sukulin was asked by the Court how he knew she was Aron's wife, he said he figured this out from the resemblence 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 four accused are no ordinary men. Kakalia Tulu and Kalain Kula are officials of Laiagam Village Court which court has jurisdiction over Laiagam Township's village disputes. Mamale's only 1-2Km from Laiagam township, Laiagam Health Centre and Laiagam Village Court. Her 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 same vehicle used by the Government party. When the fight broke out, she found out that the Government party had already 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 deceased 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 surround the deceased 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 shot the deceased with a spear (bows and arrows) on the deceased's left chest. This was followed by Angaun Kakas who shot 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 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 she pointed out the various positions. The following is a summary of those positions.

(a) Upon reaching the corner and seeing the men surround the deceased at a distance of about 30m, she climbed over a 2m high ditch (from the road) and entered the other side of the ditch. She then travelled another 5m closer and from there she observed what was happening.

(b) There are flowers and elephant grass as well as local pitpits growing at the scene now. She said at that time, the flowers were not there and the elephant grass and pitpits 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 Mr Aron and that the killing of Kurai took place at around 3pm.

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 2.00pm. Kakalia does not make any mention of the killing of Kijia. He heard of the deceased's killing when he was at his house between 2pm - 3 or 3.30pm. In terms of timing, Kakalia's alibi does not in any way directly conflict with Mrs Aron's evidence in terms of time because between 12.00pm-3.30pm or thereabouts, he had ample time to learn of Kijia's death and do what he wanted to do to investigate the circumstances of Kijia's death.

Angaun Kakas says on 18.10.94 he was at Mamale market. He heard that the deceased had been killed so he went home later in the afternoon when the sun was setting in the west. He gave no evidence of knowing Kijia being killed.

As for Kalain Kula, on Monday 18.10.94 he went to attend Village Court sitting at Laiagam Village Court 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 Village) at about 4.00pm. The next morning he heard that someone from Wapola, (referring to Kijia) was killed. He saw his body on Tuesday.

As for Sukulin Passomb, he said 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. After they brought Kijia's body to Mamale, he went to see the body at the junction of the road to Mamale High School. There they brought the body of Kijia. When they were about to attend to the mourning over his death, another "call" came. From there "they took Kijia's body to his village which is some distance away, he (Kijia) 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." He has never been to Wanepop and does not know the distance between Mamale and Wanepop. Pastor Kulump Waita says he and Sukulin Passomb stopped the clean-up at the Mission Station and went to Kijia's village to mourn. Pastor Kulump said Sukulin was with him at Kijia's funeral throughout that whole afternoon.

I have already found that the deceased was killed at about 3.00-3.30pm. I have considered the four accused's alibi and consider that their respective alibi as false alibi. In the case of Kakalia Tulu, he was dropped at 2.00pm. He had ample time of 1-11/2 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 2.00pm - 3.00pm or 3.30pm. 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, 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 Kulump 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 on Monday 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 Kulump's evidence. Whilst he himself says he went back home after learning of Kijia's death, Pastor Kulump says 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 accuseds. The three 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 Dion 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 she does not know them and know their names. They say 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.

In my view 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 she 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 they 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 informations 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 of 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 Jenny Dion.

I have some 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 Courthouse 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 Dion alone. Mrs Dion is only a woman who is more vulnerable to human weaknesses than men like Mr Isingi in the face of ensuring tribal fight and attack by a group of men on another man.

But I have already found her evidence to be of good quality and 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 on one hand Mrs Dion is a close relative of the deceased and therefore she is inclined to tell lies to 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 Watts. The four accuseds' 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 similar dangerous weapons, they attacked in close sequence at the same man and 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. 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 6cm long and entered the pleural cavity and fractured three ribs. The shotgun wound inflicted by Sukulin Passomb was shot at close range but the wound 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 four accused. He fired directly at the deceased before Kakalia Tulu axed him. I consider all the four accused covered by S.7(c) and S.8 of the 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.

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Lawyer for the State: Sir Kina Bona, PUBLIC PROSECUTOR
Lawyer for the Accused: Ellenas Batari, PUBLIC SOLICITOR