Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Korak [1995] PGNC 13; N1330 (23 March 1995)

Unreported National Court Decisions

N1330

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 808 OF 1994 (H)
STATE
v
CLEMENT KEPO KORAK

Mount Hagen

Injia J
8-9 March 1995
16 March 1995
23 March 1995

CRIMINAL LAW - murder - evidence - accused told another person to shoot the deceased - killing occurred to an area next to a tribal fighting area - identification - accused clearly identified in clear daylight - false testimony - motive - witness being part of a tribal group too general and not a good reason to lie - verdict of guilty to murder - Criminal Code Ch. No 262, s. 8, 300 (1) (a).

Cases Cited:

John Beng v The State [1977] PNGLR 115

Counsel:

S Carter for the State

B Aipe for the Accused

JUDGMENT

23 March 1995

INJIA J: The accused pleaded not guilty to a charge that on 15/2/94, at Kanamanda village, he murdered Yakapo Tamupae, a male person, thereby contravening s.300 of the Criminal Code. The State’s allegation is that he was a party to the killing in that he told another man one Koren Anton to kill the deceased by saying “kill him, kill him,” referring to the deceased and upon hearing these words, Koren Anton raised his shotgun and shot the deceased. The deceased died the same day at Sopas Hospital. The State relies on s. 8 of the Criminal Code.

The State called two eye-witnesses namely John Ipalain and Daniel Wanako both of whom the State says witnessed the killing. The State also tendered by consent the medical report of Dr. Watts dated 14 April 1994. That medical report showed that the deceased was admitted to Sopas Hospital at 7.30am with a shotgun wound on the right abdomen. He died within 1 hour of the admission due to damage to his liver from the shotgun wound. The State also tendered, by consent, the Record of Interview conducted between the police informant and the accused on 24/2/94 but is unsigned by the accused. In the absence of any sworn testimony by the police informant or corroborator supporting the contents of the interview, I do not intend to use it as evidence for the State.

The accused’s defence is one alibi. The accused gave sworn testimony supported by 3 alibi witnesses who say the they were with the accused when they heard a call that the deceased had been killed and that he was not and could not have been at the time and place of the killing. The defence witnesses are Nael Kaiman, Lucas Taupen and Nangan Anjo.

UNDISPUTED FACTS

The undisputed facts are that the victim, State witnesses Daniel and John and defence witnesses Nael and Lucas belong to the Mae tribe. Their main village is Kanamanda. The accused belongs to the Lyain tribe and his village is Lakayok. The defence witness Nangan belongs to the another clan whose name is not given and his village is Kamas. These tribes inter-marry. The accused’s paternal grandmother comes from the Mae tribe and he is married to a woman from Kamas. The other tribe involved here is the Sakaron tribe which occupy the land on which Sopas hospital is. These tribes occupy the land to the west of Wabag town. The distance from Wabag to Kamas is 1 mile according to the accused. The distance from Wabag to the place of the killing is about 10-15 kms according to John. The distance from the Sopas - Pogera road junction to John Ipalain’s house is like from the Mt. Hagen Court House to Hagen “T” School which is about 3/4 km. The distance from Lakayok to Kamas is about 3kms away or 20-25 minutes walk. There is no clear evidence as to the distance from Lakayok to the Sopas/Pogera junction. Nangan said the accused and others took 30 minutes to go from Lakayok to the Pogera - Sopas junction and back. He didn’t say if this was by car or by foot. If it was by car, it would have taken shorter than 10-15 minutes one way and if it was by foot, about 10-15 minutes one way. So the two places were close.

The accused is known to the deceased as his father. Joel also knew him through playing card games together and occasional visits to each others village. Daniel likewise knows the accused in a similar way. Daniel is also a village elder - a committee man. The accused operated a small trade store business at Lakayok in which the he had a generator to provide electricity and refrigerator to store fresh food. He also had a motor vehicle of his own. He was employed by the Secretary for Department of Enga, one Samson Amean, as the official driver. He was a well known person in the community.

On the early hours of day of the incident, there was tribal fight in progress between the Sakaron and the Lyain. It is not clear if the fight commenced the previous day or had been going on for some time. In this fight, the Mae were not involved. The people of Kamas were also not involved. The accused’s clan however was involved because his clan was Lyain. Fear of this fight erupting and loss of property caused the accused to remove his generator and refrigerator and take them to Kamas village for safe-keeping the previous day. He went to Kamas village with his vehicle and stayed there that night. This is not contested by the State. There is no dispute that the deceased was shot with a shotgun in the early hours of the morning between 6am - 8am or thereabouts. There is also no dispute that the Sakarons succeeded in chasing away the Lyain clansmen in this period and all the houses and properties of Lyain including the accused’s store was burnt, destroyed or damaged. The exact time the deceased was killed in relation to the fight in progress is in dispute. The exact place where the State witnesses say they saw the deceased was shot is not in dispute. It was on the side of the main Wabag/Pogera highway road. Where exactly that was in relation to Lakayok village or the Sopas - Pogera road junction is not clear.

DISPUTED FACTS

The disputed facts relate to four main areas:

(1) The timing of the movements of State witnesses and the deceased on one hand and the accused and his 3 witnesses to various places within the area between Wabag, Kamas, Lakayok, Sopas/Pogera road junction, the place of the killing and nearby areas and exactly when the deceased was killed.

(2) Identification.

(3) The motive for giving false testimony by either side.

(4) Motive for the killing.

1. TIME

The critical period involved here is between 6am - 8am or thereabouts. None of the witnesses for both sides wore any watch that day. They all gave estimates based on varying degrees of personal experiences. It is therefore not necessary to decide the whereabouts of the accused, the deceased and witnesses with reference to specific time. The time stated on the medical report when the deceased was admitted to Sopas hospital is 7.30am. That report was prepared in handwriting some two months later based information received. In the absence of any further evidence supporting this exact time, I am not prepared to accept that specific time frame either. I would place the killing and the movements of the accused and his friends between 6am - 8am or thereabouts, accepting that he was still able to go to work within time after going to Lakayok from Kamas, then to the Pogera/Sopas road junction, back to Lakayok and then get a PMV bus to go to work at Wabag.

It is clear from the evidence on both sides that the fight between the Sakaron and Lyain occurred in the very early hours of the morning in which the Sakaron succeeded in chasing the Lyain away and burning their houses, etc. It seems both clans prepared for this war the previous day or so because the accused feared this fight and removed his generator and refrigerator and took them to Kamas and spent the night there. It is reasonable to infer that the accused knew of this brewing fight the previous day and therefore evacuated himself and his valuable properties in the form of the generator, refrigerator and his private car. As expected, the fight broke out early next morning. It is reasonable to infer that the fight started at daybreak which is say between 5.30am to 6am or thereabouts. Indeed all the defence witnesses said they heard the call of this fight in the early hours of the morning. It is also clear from the evidence of the two State witnesses that the deceased was killed when the Lyain houses were burnt or destroyed and the Lyain had been or were been chased away and when the fight was still in progress.

What is critical here is the rate of travel to various places which very much depends on the mobility and the purpose of visits to various places in this period. As for the two State witnesses and the deceased, they were on the main road very close to their house and they were on friendly territory discussing and observing the fight. The deceased was having his breakfast chewing kaukau while Daniel was on his way to catch PMV. Daniel and the deceased walked a few meters ahead while John walked behind them. They had no reason to fear because their clan was not involved in this fight. That’s when they saw 3 men appeared - Koren Anton held a shotgun and came first, then John Amapyak and Kepo Korak (the accused). John Amapyak had an arrow wound. They walked towards the deceased and Daniel. Then an arrow was fired in the direction of Daniel and the deceased which missed Daniel and struck into the jacket worn by the deceased. Koren wanted to kill the deceased but John and Daniel told him he was another man, not his enemy, so Koren did not kill him. As Koren was turning to go away, the accused told Koren, “kill him, kill him,” referring to the deceased. He spoke in pidgin and the exact words he spoke according to Daniel is “Em Tasol, Sutim Em,”. So from a distance of 8 - 10m; Koren raised his gun and shot the deceased and they all went away. That is a brief summary of the evidence of the two State witnesses as to the killing incident. The two State witnesses and the deceased had not gone far from their own area, they did not have multiple purposes to attend to that morning, they were not in a hurry and they were walking on the main road. Their mobility was limited by means and purpose. Daniel who was on his way to catch a PMV and not in a hurry.

As for the accused and his three witnesses, the situation is different. The accused and Nangan were highly mobile. His two other witnesses were also mobile. The accused also had equally competing interest or purposes to attend to at various destinations within the area all within the time frame of 6am - 8am or thereabouts. The combined evidence of the accused and Nangan is that they woke up at Kamas and both got dressed up to go to work and checked the oil and water of the vehicle. Then they heard the call that the fight between Sakaron and Lyain was in progress and “someone” had been shot. So they got on the vehicle with 4 other guys and drove to Lakayok and saw that the accused’s trade store had been burnt. After seeing this, the accused and the other guys left behind Nangan to gather the remains of the burnt house, in particular, the iron roof, and went to the Sopas/Pogera road junction. It is not clear from their evidence whether the accused drove to the road junction or walked down. They returned to Lakayok after some thirty minutes. He handed over the car keys to Nangan and then walked down to the bus stop to catch a PMV bus to go to work. While he went to work, Nangan used the vehicle to ferry to and fro between Lakayok and Kamas transporting the burnt materials. The accused arrived at the workplace and proceeded to ask his boss for permission to go and attend the funeral service of the deceased. Then he went and bought some blankets and bedsheets for the deceased’s burial, took them up presumably by PMV, and handed them over to Nael at the Sopas/Pogera road junction to take to the deceased’s funeral place. According to Nael, this was sometimes after 12 o’clock.

Defence witness Nael arrived at the Sopas/Pogera road junction well after the killing and he saw the accused there. Later he received the blankets and bedsheets for the accused. The accused was not with him before the killing so his evidence is not material to the accused’s alibi defence.

Lucas Taupen heard the deceased had been killed while he was at the house. His evidence is relevant only where he says John Ipalain was with him when they heard the call that the deceased was killed and therefore, he could not have been at the scene of the killing. However, his evidence as to where exactly he was, whether inside his house, on the way to the village market place or at the market place, was vague. He was also evasive and vague as to where exactly he first met John Ipalain. He is an unreliable witness. I would reject his evidence on that basis.

On the whole of the evidence, I am left with the only rational factual conclusion that it is practicably possible, for the accused to be physically present at the scene of the killing in the material period. He had the means, the motivation or purpose to be in the area of the fighting and the scene of the killing. Indeed he was at Lakayok which was already a battle field. He moved around at will between Kamas, Lakayok, Pogera - Sopas junction and the road between Lakayok and the main road in the material period.

2. IDENTIFICATION EVIDENCE

There is not much in dispute about the identification evidence. It was in the morning and the day was clear. The alleged incident occurred on the side of main road and not in the bush. The accused was dressed up for work. The two State witnesses and accused know each other. They saw him come with the other two. They heard his voice and the specific words spoken. The accused is well known figure in the community. He is related to the deceased’s line through his paternal grandmother. The deceased is like a father to him according to the accused. There was a fight in progress but they had nothing to fear because their tribe was not involved in the fight. They themselves were not involved in the fight. Their thinking faculty, vision and other senses were not distorted by fear of getting killed. There is no doubt that the two witnesses saw the accused, Koren Anton and John Amapyak clearly. I am aware of the dangers inherent in accepting eye-witnesses evidence as to identification, even in cases where they witnesses is able to recognise someone he knows. I remind myself of the principles in that regard set out in John Beng v The State [1977] PNGLR 115. But I think the evidence of identification in this case is of good quality.

3. MOTIVE FOR GIVING FALSE TESTIMONY

That being the case, the real issue is whether the two State witnesses are lying and if they are lying, what motive do they have for lying. The related issue is whether the accused and his witnesses are lying and if so, what motive would they have for lying. Both sides flatly accused each other of lying. It is difficult to find that they are lying in a situation like this. I think the litmus test is the motive for lying.

It is the two State witnesses against the accused and defence witness Nangan because I have already rejected the evidence of Lucas Taupen and Nael Kauman as being unreliable. As for the two State witnesses, the accused says they are lying against him to take revenge because he gave evidence as a witness against 5 men from their clan accused of killing a man from Teremanda. That is Enga custom he says. That may as well be a reason to lie in a general sense. But I think this reason lacks particularity as per the specific characters involved in this trial, that is, the two State witnesses as against the accused. It is not disputed that prior to the incident, the two State witnesses and the deceased had no differences between them, rather they were on friendly terms. So how come they have differences now? When did this killing of the Teremanda man take place, were they convicted as a result of the accused giving evidence, how are the two witnesses related to those five men on grounds other than tribal affiliation. Perhaps it may be that the accused is from another clan and does not know. Nael and Lucas should know because they are from the same clan as the two State witnesses. But they did not mention anything about this. In any case, Nael and Lucas broke tribal ranks to join the accused in his defence. I think being part of a tribal group alone is not a good motive why the two State witnesses would lie. It is too broad a claim which I cannot accept.

The accused says he cannot tell someone to kill the deceased because the deceased was like a father to him. When he learned that the deceased was killed by someone from his clan, that is the Lyain clan, he bought blankets and bedsheet for the deceased’s burial and passed it on through Nael. He also says Nael and Lucas broke tribal ranks to come and give evidence for him because they knew he was innocent. The two State witnesses say Nael and Lucas are lying because they are related to the accused by marriage and they fought on the Lyain side after the killing. Nael admits that he joined the Lyain side and went to war with the Sakaron over the killing. He says he followed the instructions of an elder who spoke and told them at Sopas hospital after the deceased was pronounced dead, to divide up between the Sakaron and the Lyain and go to war. I have already rejected the evidence of Lucas and Nael as being unreliable. I would also reject their evidence being biased. They showed no respect for their slain tribesmen, well knowing he was slain by the Lyain, and went to war with the Lyain and fought the Sakarons who no doubt were supported by the Mae after the deceased was killed.

Now I come to the combined evidence of accused himself and Nangan. There is much to be desired of their evidence, their credibility and their demeanour. Nangan is an in-law of the accused. The accused stayed with Nangan the previous night at Kamas and it is at his house that the accused sought refuge in time of need occasioned by war. They both worked in the same office and were well attired for duty. Yet when they heard of the fight, they loaded up other guys and went to Lakayok and upon seeing the destruction, the accused and others went to the Sopas/Pogera road junction while Nangan stayed back to collect the burnt iron roof. Nangan valued so much the burnt iron roof. Then when the accused and others returned after some 30 minutes, Nangan chose to stay back and attend to collecting and transporting the accused’s burnt iron roof whilst the accused himself valued his job more than the burnt iron roof and went to work by PMV. Nangan also distanced himself from the accused at the critical times - that is when the accused and others went to the Sopas/Pogera junction, then returned to Lakayok,then went to the bus stop to catch PMV to Wabag. It is unrealistic for a young man like Nangan to forget his office job and set to work for somebody else for no immediate monetary reward, risking his life, and driving the accused’s vehicle in a battlefield when tensions are so high and the fight involving use of firearms is in progress, and when the accused’s store would still be burning at this time and the corrugated iron roof would still be hot. I think he is an unreliable witness. I also think, to the extent that he seeks to totally remove the accused from the scene of the killing, he is lying. The accused was a highly mobile person who left him twice in the material period - the first time to go to the Pogera/Sopas road junction and the second time to catch a PMV bus to work. Nangan would not have seen or known what the accused did when he was away at these times.

As for the accused, there are several things. First, his demeanour. He appeared to be a quick, alert and mentally and physically active person when he gave evidence. He answered questions quickly and appeared to have an air of arrogance in his outlook. He was no doubt a quick thinker. His own evidence of what he did the previous day, and on the day of the incident between 6am - 8am or thereabouts and for the rest of the day just demonstrates how alert, quick and active kind of a person he is. The combined evidence of the accused and Nangan is that he was quick to apprehend danger and evacuate himself and move his valuable properties to Kamas the previous night, quick to wake up the next morning and get ready and attired for work, quick to check the oil and water in the car, quick to hear the call of the fight, quick to load up 4 other guys and drive up to Lakayok, quick to inspect his burnt store, quick to go and check at the Pogera/Sopas road junction, quick to come back to Lakayok, quick to deliver the car keys to Nangan and give him instructions as to what to do, quick to walk to the main road to catch bus, quick to catch a bus and arrive at Wabag in time for work, quick to get permission from his boss to attend the funeral, quick to buy blankets and bedsheets for the burial, quick to catch PMV back to the Pogera/Sopas road junction, quick to locate Nael and give him those things and so on. These are the things he said he did. What of the things he says he didn’t do which the two State witnesses say he did and said? They say he came up and uttered words and in no time, Koren Anton shot him. I find that the accused had the physical ability and ability in character to be present at the scene within the material period and utter these words.

He says he got permission from his boss to attend the funeral service knowing that his own clan was responsible for the deceased’s death. The story that his clan was responsible for the killing did not matter to him because the deceased was like a father to him. State witnesses deny this and say one cannot buy burial clothes for someone you or your clan kills. I accept this statement of the two State witnesses. The deceased’s clan was at war with the accused’s clan over his death. There is no time for a funeral and a decent burial on the same day he was killed. Nael who is from the deceased’s clan broke ranks and fought alongside the Lyain, which is the accused’s side. There is no way he would have accepted those clothes and given them to the deceased’s relatives. Otherwise, he would have incensed their feelings and provoked an attack on him or he would have been killed. That is also the reason why the accused didn’t attend the funeral or go near it, if there was one. If he was innocent and the attendance of the funeral was foremost in his mind when he first went to work, then he would have taken his own vehicle to the workplace, bought the clothes and quickly driven to the funeral, attended the funeral, handed over the clothes to the deceased’s relatives and broken ranks with his own clansmen and speak to the deceased’s relatives and distanced himself from the actions of his other clansmen. I find that he and Nael are both lying about the burial clothes. I also find that the accused is lying about not being present at the scene of the killing and uttering the words “ Em tasol, Sutim em.”

The two State witnesses say the accused did not shoot the deceased himself. There was no one else there except the accused, John Amapyak and Koren Anton on one side and the deceased and the two State witnesses on the other side. The other men were fighting further away. These three men came on the road where there was no fighting. All that these 2 State witnesses are saying is the accused instructed, excited, incited or encouraged Koren Anton to shoot after he was told the deceased even though Koren Anton was reluctant to shoot after he was told the deceased was a different man or not any enemy. If the two State witnesses wanted to lie, they would have easily concocted the story that the accused shot the deceased. I find them as truthful witness and the accused and his witnesses as untruthful or unreliable witnesses or both.

4. THE MOTIVE FOR THE KILLING

The State witness John Ipalain says the accused told Koren Anton to kill the deceased because the “Sakaron killed plenty of the accused’s clansmen and they killed the deceased to make the Sakaron feel bitter to put weight on the Sakaron.” Now on the face of that assertion, that sounds illogical to me. Why would the Lyain kill an innocent man from a tribe they are not at war with? The Sakaron were the accused’s enemy. I think one needs to know the customs and tradition of these people to really understand how this works. There is no evidence of custom on this so I will not dwell on this suggestion.

I think there is another motive for this killing. On the accused’s part, he lost his trade store at the hands of the Sakaron. He would no doubt have been incensed by this and set out to find the persons responsible. He was with Koren Anton and John Amapyak when he set out. The fight was still in progress at that time. An arrow fired in that direction landed on the deceased after it missed Daniel. Koren Anton was cautious. The accused, as quick as he was, most likely interpreted the landing of the arrow on the deceased as a sign of guilt on the deceased’s past and uttered these words, knowing that even though the deceased’s clan was not involved, they may have played a role in the fight and burning his store. Then Koren Anton relied on the accused’s judgment and shot the deceased. That is the only rational and reasonable inference of motive for the killing I can find on the evidence.

I should however point out that motive is not an element of the offence. It is relevant when it comes to the credibility and reliability of witnesses testimony. I think the inference of motive I have found is consistent with the total circumstances of the killing including the conduct of the accused.

5. CONCLUSION

In conclusion, I accept the evidence of the 2 State witnesses as evidence of the truth. I reject the evidence of the accused and his 3 alibi witnesses as been untruthful or unreliable. I am satisfied beyond reasonable doubt that the accused and Koren Anton in conjunction with each other formed a common intention to kill the deceased and in the prosecution of that unlawful purpose, Koren Anton shot dead the deceased. The accused’s actions in telling Koren Anton to kill the deceased is covered by s. 8 of the Criminal Code. I find him guilty of committing an offence under s. 300 (1) (a) in conjunction with s. 8 of the Code.