National Court of Papua New Guinea

However, witness denied seeing the tool box before coming to court. Butre the group went to toto town with Francis Kup, they told witness that they were going to steal a motor vehicle. He agreeh FraKup who gave gave evidence first that he never went on a ride into town that night butt but stayed in the village. That iswitnes discharged oged of this charge. He admits he drank from Sunday (6/11/94) mornimorning till about 5 pm by sharing 4 carto beer amongst a lot of them but was not affected by alcohol.

In cross-examination heon he said there were less then 7 of them ent on the vehicle drinkingnking. His explanation of number of beers drank is that first in the morning they began drinking the beer which Dr. Makut had from which he had 2 bottles. Then thee to town and boug bought a 12 pack and drove to Avi whilstking it. At Avi they they drank about 3 cartons with the rest of the people at the party. Then theye back and he rece recthat those of them sitting ting at the back of the Ute were himself, Muksy, Poning and a relative of the driver whose name he does not kno60; He was then asked by defence Counsel whether he heard sard some shots being fired whilst at Avi and witness said - yes, I did. The next and following questions and answers confirm that this witness was with the accuseds and others on the vehicle that took them to Avi, attended party and returned to the village:

Q. ; W60ld yuu agree that some some of those persons who were travelling in vehicle with you were in a drunken stage?

A. ـI 6ouree.

Q.& ـ &#160 Whilst ylut you weou were were drre driving back with the same group, you had some beer in the vehicle?

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Q.&#1Q. < &ـ And thad that time whenarru arrived home, what time was it?

A. ـ I was t pm to 6.30 pm.

Q.&##160;;ټ That’s whu last cost cost consumensumed it?

A. &##160; Not that time, when we to e to lAvi, last beer. #160; When When weved at hoat home I had none.

Q. &##10;& An0;you ent tent to sleep straigy?Q. &ـ D6 you you sleep leep in Ek’s house sometimes?

A.

A.&#160 & No, I#8217eep>t

Q.&p>Q. &##160;; W60re dere do you you normally lily live whve whilst ilst at the village?

A. ;ټsestaenilbeninary.

He waHe was thes then askn asked about his movements during the nige night ofht of 6th 6th November 1994 and next day 7th Novemb94 an story that Muksy told him about killing a white hite man aman and getting the car was all false to which witness denied but that he heard it from Muksy. That ept in the house with with John and Muksy.

That period of time when witness was staying with John Pugum Mara, accused Peter Patrick Muksy was there too. However, he does not know and was not told that Muksy had a sister there and Muksy was staying with her and his brother-in-law.

I have watched carefully this witness when he gave evide#160; He was very detailed in his evidence, his demeanour wour was good and he answered questions honestly. His story coincides Francirancis Kup’s evidence. That is from the time Francis picked Muksy, Mara and Poining from the village into the leaving this witness in the village.

Francis in his evidence said that that time onme on a Sunday afternoon he left home and s way to town together with with some other people. On his way e junction of t of the main Highway he was called by Poning to stop. Poning asked him if Francis was going to town. Francis and and said that that he was going by Kuk way. Song and two othe his fris fris friends jumped on the back. The junction referrethat ohat of Kelua and highway junction. He knewng Ul John Pugua Mara Mara but not the other third person (presumably Muksy). ss than than said he drovedrove to Kuk and dropped hisly.&#Then Poning and Jand John (Pugum Mara) came into the front, they came to town and he dropperopped them off and went home. He dr the people off at t at that the field where the Police barracks is, in between the road going into the market. That is the room thket goit going towards Tarangau School. When the witness stopper Tear Taragau Coau Community School, all three of them (Po John & Muksy) got off the vehicle. It was about 5 pm to 6.00 pm. He remembemembered the time he gave to police in hitement was between 6 pm to m to 6.30 pm. itness said he knows MarcuMarcus Korayo by his first name (Marcus) and said he was notsseng vehicle that evet evening. He firstMarcus when when then the three people stopped witness to jump on and later after dropping the three, he returned and saw Marcus in the village around 7.30 pm.

I believe this witness. nfirms the story given by n by Marcus Korayo in that Marcus was not with the three people in the car that evening of 6th November 1994 to be dropped off in town0; He also confirms Marcus Korayo’s story that Poningoning, Muksy and Mara were the ones who came to town. The only mattethe exact tict time of dropping the two accuseds and Poning. Buis quite clear that it w it was between 6 pm to 6.30 pm.

The next witness is Senior Sgt. John Magaidimo who attend the scene of killing about 7.30 to 7.45 pm. He then wenthe hospital anal and returned and did a door to door knock making inquiries. Next day he attend the More Morgue and witnessed the Post Mortem. He was given a e pellet foet found fre body of the deceased by D by Doctor Lombange who conducted the Post Mortem. It was a pellet from a .38 revolver. The pellet rawn from the rthe right side of the body. Entry was was made through the right of the shoulder.

On 22/11/94, Marcus Koproviome information which led to the recovery of an e an envelope belonging to PTC which was laas later found to be the deceased’s.; Marcus Korayo gave him thim the envelope which was registered to PTC, Mt. Hagen, PO Box 123, bearing Serial no. 38657B. It hatain tools - small spll spanners, one plucker and another instrument and was identified by a PTC staff. Marcus then told ws abohn John Pugum Mara and John Pugum Mara was arrested on 24/11/94. John was in posn possession of a life shot gun cartridge,fe bullets and a small quantity of marijuana. John was arrested by zpoli police and wand when interviewed, had told the police a pistol he had alleged to be used was in a village called lled Palinda at Ogelbeng in the house of one Sak Rapipi, (Rapiti). Tstol btained when poli poli police went to the village without a search warrant in case it is removed or concealed.

The witnesn took the pistol and the pellet found in body of deceased down to Anti-ballistic laboratorratory in Port Moresby and gave it to Chief Inspector Gesa who is the OIC police Forensic Science. Tstol had a green rope tide tide onto the butt.

The witness was also told by Marcus Korayo that there was a red tool box in John Kaipel’s trade store. So a Search Warrant wasined and police went there here and obtained it at a village near Oglebeng. Marcus Korayo told witnee the name of Peter Patricsy who was arrested on 1/12/94.

A third accused was arrested, namely Poning Ug PombrPombra and witness conducted part of the Ron him.

I also believe this witness story as far as r as his investigations were concerned. He is a very experienced police officer with 20 years experience behind him. His evidence blly connectsnects the pellet found in deceased’s bodythe .38 revolver, alleged to be used, to the expert ballistic witness, Gia Morea.

Th

The next witness is Girua Tagu, the poln who also conducted investnvestigation and questioned John Pugum Mara during R.O.I. He followe story of John Pohn Pugum Mara to Sak Rapiti’s (Rapipi) house where the .38 revolver (pistol) was discovered.

This pistol was handed to John Magaidho later took it down to Port Moresby police Forensic LaborLaboratory for testing. He recognise pistol as beis being Serial No. C759962 - R.P. & NGC 14.

The defence contested aggressively the illegal search but I ruled that the gun be accepted idence on the basis that the search was done properly due tdue to the fact that to obtain a Search Warrant would have delayed matters and police would not have obtained the pistol which would have been concealed and not discovered. It is an “hot-pur#82t” situation pursuant to Section 5(5), Search Act, Ch. 341. I made a ruling that the pistol obtained without the h Warrant was accepted as evidence and was admissible (written judgment).

I believedieved this witness and the evidence he gavmilar to witness John Magaidimo.

The other crucial wial witness is the ballistic expert. His evidence is that he is a policemen based at Port Moresby Forensic Centre. He was on attachtraining aing at Melbourne for 2½ years on Firearms baics. He has been with the police force for over 15 years.

On 1/5/95, he receiveceived from the Liaison Officer one Sgt. , a firearm which was allegalleged to have been used in a shooting in Mount Hagen with four fired cases and 4 life rounds. On 2/5/95received one plas plastic containing lead piece which was removed from Mr Pearce (deceased). He received another plasonlasontainer of lead piece of bullet fragments.

He described the weapon (pistol) as a Sm a Smith & Wesson, point 38 revolver, l No. C759962. The witness did scopic tesc tests to f to four fired cartridges to see the impression on the cases. He compared with the test test fired case that he discharged from the same weapon. He was then asked by Stoun Counsel the following qons and his answers were:

Q. & W60; What conclusions dins did you draw?

A. &#ـ The cohe conclusiclusion I did draw on the fired case cases and the firearm was fired from this questioned firearm.

The witnes latked qons which are crucial cial to the method of proving whether the the previpreviously fired bullet is from this particular weapon or revolver (pistol), a .38 revolver. These ap>

“Q.&#16. ـ Tu balliballistics tics - items in the container. What is that?A. < &#16is is the projectile.&#le. It is a .38 bullet riflingfling on them.

A.

A. ټ&110;&#Ye0; Yes, I d, I did.

Q. &#160lain you my “Rifling”?.

A. ҈& &60; &#82 &#82 “Ri20;Riflingfling” is a twist within the barrel - once a cartris firroughyou wind trkingthe bullet whit which inch in this this case case is a “five even right-hand twid twistst” - which are called “Lands And Grooves”. Of this parar projectile aile and the test fired bullet from this particular “same fired” had measurements averaging 2.42 mm (or o.95”) and 2.82mm (or.1.11”).

Q. ټ&##160; D60; Did youd you conduct microscopic tests of the two cartridges, one received from Post Mortem examination and the test fired?

A. ـ҈& Yes, I did. did.

Q. &#1660   What ou sye in that examinxamination?

A. & When I conducted examinatnon and found that they have a similar tyar type of rifling which is five even twist.&#1 fount the20;Striation” - i.e cutsed by the Riflings in the firearm - are the same.

Q.&#>Q. &160; #160;ـ &#A 0; A Striation in your your experience, occur in a particular bullet, are unique to a particular weapon?

A. ـ&#116at c6at cadeterdeter.

Q.  W60; Whatyou find?

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A. ;ټ Stria aria are file filed ontop of each other where in a normal circucircumstanmstance I can’t find striations filed ontop of each other.

Q. &ـ; Aftl tftl thehat&ehatRt’s 17;s the pthe projectile indications to you?

A. &##160; I60; It indictted t me tfat tflinghis firearm in this bullet which was removed from from Mr. Mr. Pearce had individual markings to say it was fired from this particulrearm

Q0; &##160; Now thaw that yoat iou finu find andd and come to that conclusion. Is there any possibithat that that leom Post Mortem could be fired from another weapon?

A. ;&160; Itdcoul21’t have beee been.

Q.҈ I the tests - firing pin pin pin impressions and projectile - what conclusion did you come to?

60;&##160;; The conclusion I in my examination are that these four fired cases had been feen fired ired from from this this particular firearm. And this palar b (frot Mort Mortem) had been fired from this particular firearm.

Q. &160; #160; ¦҈ Could it be be from another weapon?

A. ҈& I60;nclconcluded tded that it cout could not have been fired from a similar of w.

A. ҈& Y60;

A.

A.&#160 &##160; Y60; Yes.

Ia -ex w he, ed, aliase questiuestions wons with aith answers:

Q. < &160; #160; Whe tate asked you - whac whaclusi you - you said those are fired from same gun?

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A.&#1A. I could tell from firing pin impres.&#16is palar one is so unique ique its cats called lled “two tooth indent”.

Q. &##160; When a similar pist pistol ie, do comewith “two tooth&ooth”#8221; fro; from firing pin?

A. No, thir imponssi inisviduividual to the cteri of tirearm.

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I am saam satisfied from this witness that the bullet found in the deceaseds body was fired from the pistol (.38 ver) l num759962 which was foundfound in t in the hohe house of Sak Rapiti (Rapipi) in Palinda village. I also regard thtness as a as an expert witness who had sufficient experience with ballistic testing and knowledge of guns or firearms.

SUMMARY

All State wses gave circumstantial evidence. However, all their heir evidence, especially the five key witness which I summarised above, is very strong circumstantial evidence. All those evidence when d oked at in totality, come to connect these two accuseds t murder. That is, the, the evidence of Marcus supported by Francis Kup in time and place. Then the nce of Magaidimo dimo agu in relation to the gun gun and the patrol box (with the tools and Muksy’s Certificate of employment with Electoral Commission),he evidence of Post Mortem and bullet, to the testing of thof the .38 revolver and the test fired bullets, all tend to join the whole episode and the two accuseds.

ACCUSEDS’ EVIDENCE

As to the accuseds alibi evidence, first I find their evidence very hard to believe. Especially when Mara saycahe came late to town to get Kerosene. Then his alibi witness ret pretends to be a person who does not know what happens around him and in his community. He not even know wheMara tara to town to get keet kerosene and returned. I also do not believe Muk2y’s 160; alibi evidence hat ofat of his witnes60; His witness seem to say that it took four days to make make two blinds for the house. This evidence iarly contraontradictedranci and Marcus KorayKorayo. I thereforeot believe beve beve both accuseds and their alibi witnesses’ evidence. Muksy ad that polook his ehis employment Certificate off him when when they arrested him at Minj Police Station. However, there is no provehis happening.

I am therefore satisfied beyond reasonable doubt that State has proveproved its case beyond reasonable doubt.I therefore find the two accuseds guilty of the murder of Michael Pearce and convict them them accordingly.

JUDGEMENT ON SENTENCE

The two prisoners have been found guilty after two weeks trial on the 24th March 1997. I have adjournedst April 1ril 1997 for submissions on sentence. After hearing ssions I adjI adjourned to 4th April for sentence. How I realise next day thay that I have not administered allocutus. This I dw and aand adjournjourned to 1.30 pm for sentence whicow do

In allocutus,utus, prisoner Mara basically said his father was an ex-CIS Warder and retd retired in 1980 and died in 1991 leavingmother, sisters and himselfmself behind. He has no other brothe160;#160; He asked that court take into account the fact that if his mother dies, no one to bury her. He also said whether the sitnesses from both sides, State and defence, were telling ruth or not, only God knowsknows who killed the deceased. He finally that he will lell let the court decide on sentence. d no prior60; Prisonersonersoner Muksy said he had no priors, comes from Minj from a Christian family. He he is not happy nothe&#the’s trouble.uble.

Both Counsels than assisted the court on two matters. F60; First is ththough theh the prisoners hcaped whilst in custody that should not be taken against thst them as neither prior convictions nor as part of this offence as they wound guilty after trial after those offences of escape were were committed. Secondly, the Defenbmitteditted that that fact above should not be an aggravating factor against them.

As to the general submission on sentence, their Counsel basically subd that the Court must take particular note of what role eace each of them played. That is, theynot actually ally pulled the trigger but were part of a group that went there to steal a vehicle and in the process the deceased was killed. So by virtue ctionamp; 8 o; 8 of the Code, they were found guilty. #160; He submithat they be y be given a sentence between 7-12 years.