National Court of Papua New Guinea

(1) ـ Where tce victim waim was alleged to have been shot shot by the accused in presence of only one state witness, and where the defence evidence shows that it was more probable that the deceased died as the result of only state witness careless handling of the home-made gun, it becomes the question of credibility of witnesses as which party should the Court believe.

(2) &##160;oul cbe u be unsafe safe and unsatisfactory to accept evidence of a State witness who could also be indicted as an accomplice.

Cases Cited:

The following cases are cited in the judgement:

The State v Paul Kundi Rape [1976] PNGLR 96

The State v Roka Pep (No. 2) [1983] PNGLR 287

The State v Amoko Amoko [1981] PNGLR 373

Abi Do and Another v The State [1992] PNGLR 388

Counsel:

J Kesan for the State

B Aipe for the Accused

23 May 1997

LENALIA AJ: In this matter Karapus Joseph of Lamami village in Kagua has been charged that on 13th of August, 1996 at Lamami village he wilfully murdered one Karika Aipu a male person contravening S. 299 of the Criminal Code. Tcused pleaded not guilty ilty and the trial was conducted for three days.

Sworn evidence of the first State’s witness Yapa Waku is that at about 9 am on the 13th of August 1996, he and the deceased left their village (Pawayamo) to attend a marriage ceremony at Uma village also in Kagua. This witness is thy eye wiye witness and the defence in their case even implicated this witness to be an accomplice. To go to Uma village, they had to travel through the maad to Purupari village the home of the accused. On thOn their way Yad the the deceased did not meet anybody.

As they tuinto the bush track they saw three persons standing on the the hill overlooking the tea plantation. By the time they walked pae accused village it must hust have been about 10.30 am. He alleges that unknown to him and the deceased, the accused and several othad set up an ambush to wait for this witness.and the victim. Thlked past a sharpsharp carp corner turning right, the victim heard somebody spoke on the side of the road. As he turned the accshot thot the victim at close range. The victim died ntly. Thet witnewitness then flen fled for his life back the way they had come.

The description of distances given by thtnessthat eceasedeased was about -3 metres away from him. That on the sidthe trae trae track weck were over-grown tea trees but the accused was on the clear place who could be clearly seen. The victimabout 1-1/2 metr metres away from the accused and that the m was shot at close range.&nge. The al report confirms thes the view that the deceased was shot at close range.

There wao evidence by the second Stnd State witness Sii Lambaini a Village Court Magistrate that he walked past the accused village at about 9 am and saw four (4) young man manufacturing two home-made guns. Another home-made gun looked pretty old and this witness rebuked them strongly against having in possession or even manufacturing home-made guns. By the tims witness walkedalked past ccused village he did not see the accused. He left asft as soon as h had spoken to those young men. He also wanted to atthe marriage ceremony at Uma Village then to his Village Coge Court area for a joint sitting.

At the conclusion of the State&#s casAipe for the accu accused applied to make a submission of &#822case to answererer”. He cited to the Court the cases of The State v Delga Puri and Another [1982] PNGLR 393 and The State v Roka Pep (No. 2) [1983] PNGLR 287 to supportpropon that the evidenvidence adduced by the State did not support essential element of the char charge and thus I should make a ruling in favour of the “no case submission”. After hearing san in replyreply, I ruled there was a case for the accused to answer: The State v Paul Kundi R19e [1976] PNGLR 96 and The State v Roka Pep (No. 2) [1983] PNGLR 287.

The defence p the accused is contained ined in his own evidence, that of Pena Tekaka and the accused’s step-father Pamba Tendepo. The defenrsion is that in t in the morning on the date in issue, the accused was alone in his village near the Church. Both the Stad def#8217;s e7;s evidence show that the accused is a Pastor of PNG Bible Church in his ares area. Afrom him the only minoth noth him was his son and a small girl. The accused evidence reveals that there was no p no planned ambush as alleged by the Stateobody knew about the deceased and the first state witness cess coming that way. Secondly, that the twhere here the deceased was; shot is not a vehicular rlar road nor is it used publicly as it only leads to the accused’s step-father’s house and hisery. That this track only ends at the accused’s217;s step-father’s house.

While the accused was around his village with the two minors the first State witness (hereinafter referred to by his name Yapa Waku) Yapa Waku and the deceased came. The deceased and Yapa Waka started arguing about the pig that was taken the day before the shooting and given to the accused’s step-father to replace his pig that was stolen two weeks earlier by Yapa Waku and the deceased. the accused’s dptionption of the deceased and Yapa Waku is that their faces were both painted with mud and the two had two home-made guns and tes slit into their belts on their sides. They also had leaves cng ting their heads.

During the course of this argument, Yapa Waku is supposed to have informed the accused that the pig given to the accused’s step-father belonged to him (Yaku) and they were coming ting to take it back. The accused saipleaded witd with them not to take the pig away because it would escalate the existing problem between them and the accused’s line. Yapa Waku and the dec took took no notice of thesed’s pleadings and tand the two proceeded towards the accused’s step-father’s piggery may be with the hope of repoing of Yapa Waku’s pig.

The accused although fugh frightened followed the deceased and Yapa still pleading with them encouraging them that it was not proper to do what the two were planning to do. The accused kt a distance ance at the back of Yapa and the deceased while Yapa Waku was ahead of the deceased. As they came to a sharp corner where there is a drain, Ynd the deceased crossed it got to the other side while the the accused was still behind the drain, Yapa Waku warned the accused thate crossed the drain, he would be shot. When this warn warning win being given Yapa Waku stood still and pulled the spring of this home-made gun. In the meanwhhe deceased tsed tripped on a tea stump and fell. It is allegedhe accused thed that, s there that the victim wasm was shot accidentally by Yapa Waku who was trying to shoot at the accused. Toon after the shooting flng fled for his life.

Witness Pena Tekaka was a passenassenger in a Tipper Dump truck owned by the Kagua Local Government Councich came by the accused village first at the time when the athe accused was talking to Yapa Waku and the deceased. This witness nce - confirmnfirms portions of the accused’s evidence. Hroborates the accusedRd’s evidence that when the cl truck came, it stopped at the accused village for a short time.

Within that brief rief stop, he over-heard the accused, Yapa and the deceased having anng an argument over a pig. He also cms that when they they stopped, there was no body around the village. His evidence corroborates that of the accused that the deceased and Yapa Waku were in possession of an home-made gun and that they also had axed axes. Their faces were covered wred with mud with leaves around their heads.

The driver took off again because he was frightened of Yapa and the deceased having guns in their possession. The le did not go far, in , in fact the witness said it went to off-load gravel at a distance as from here to the banks. That wouldpproximately thry three hunmetres away from where they were stopped to where they off- off-loaded the sand gravel. His evidencehat after they they had drothe sand gravel, while still at the place where the gravel avel was off-loaded he heard one gun blast. This is consistent the evidence given by the accused but at the same time ince inconsistent with the State’s version that there were about three re shired.

As soon as they heard the gun blast, they took off and on their way, way, they they met one of the two men they had seen earlier running so fast as he could. Then they proceeded e accu accused’s village where they stopped again because the accused stopped them and told them that the driver should immediately report the shooting of the deceased to the police.&#16e accused then said that Yaat Yapa Waku accidentally shot the deceased while trying to shoot the accused.

Witness Pamba Tendepo also the last witness is the accused’s step-father. The only relevance of his evidence is that, he confirmed that he was called to the scene about between 11 am and 12 noon. On al at the scene, he obse observed the body of the deceased.; It may also be inferred from his evidence that there was was no premeditated ambush as alleged by the State.

The medical retendered by consent shows tows that the wound was located on the base of the neck on the right side. It extended downwards into the right chest cavity smashing the first rib and extended “medially to the cervical vertebral column”. The r alsoirms evidence boce both by the State and the defence that the victim was shot at closeclose range.

In closing the defence, Mr Aipe invited the Court to carefully analyse the State evidence and that of the defencefence. He submitted that as the evidence stands it would be dangerous, unsafe and unsatisfactory to convict the accused. He cited tse of The State tate v Amokko [1981] PNGLR 373 to support the view that Yapa Waku is an accomplice and the Court must must warn itself of the dangers of convicthe accused upon uncorroborated evidence of Yapa Waku alone.lone. That case defines who is an accomplice and says that an accomplice is a person who could be charged on the same indictment with the principle offender.

Mr Kesan briefly replied that hpted his submission in reply to the “no case submissimission” and apply it to his final submission. His view is thare is clearclear evidence by the State that the accused was responsible for the death of the deceased and that I should thereford the accused guilty.

Apparently there were three persons on the scene, Yapa Waku, tku, the deceased and the accused. Thmply means that the shoo shooting of the deceased is between either the accused or Yapa Waku. I agree with Mr Kesan the the issue is the credibility of the two eye witnesses. Apart from thetion of whom whom whom to believe, a number of other issuese.

First the medical report, shows that the wound pend penetrated from the neck downwards into the chest cavity. This isestivthe possibilitbility oity of behort from an elevation.&ion. Ifre to accept the defencefence version and the explanativen by the accused that the victim tripped then fell, it would seem most consistent with tith the medical report. It would mean thasome s ofes of the process cess of falling, the deceased was hit by a gun shot. Either that or even s alre already lying on thend when he was shot.

The second view is that if I were to accept the State’s e7;s evidence that the accused aimed at theased at a level positioning it would be inconsistent with tith the medical report unless the accused stood on higher ground. Thdence clearly shows that that, the accused shot the victim at level grounds. This might as it wseem rulm rule out the possty of the accused being responsible.

By looking at other pieces of evidence such as h as the number of shots fired on the scene State evidence is that three or more shots could have beee been fired, one at the deceased and the others at Yapa Waku which unfortunately missed him. Evidenven by witness Pena Pena Tekaka reveals that there was only one shot fired. Obviously he was tht closeclosest witness on the scene apart from the accused and the first witness. This witness he most impreimpressive witof all the witness. I do not think h any reasoreasons to lie to the Court. His His village is some0 5-20 kilometres away that of the accused and I do not think he would have lied lied to gain anything.

The State’s evidence is that a number of shere fired. One by the accused a deceadeceased and anod another one or two at the first State witness. Witness Pena Tekaka for efe defence gave evidence that he heard one gun blast. This con the accused evideevidence that at the time of shooting, heno gun and the only shot fired was from Yapa Waku’s home-made gun. Tekaka’#8217;s evidence also corroborates that ofaccused that, Yapa Waku andu and the deceased were carrying two home-made guns and they had painted their faces in mud. This pif evi matches well well the accused evidence.

The mehe medical report is more consistent with the accused’s version of tceased falling then was accidentally shot by the first state witness. I cannot therefherefore a cept the State’s version that the victim was shot at a level aiming position as it would mean the wound would have penetrated on the base of the neck on ight side with the possibility of going out through almost most on the left side of the neck. tcused and Yapa Waku were were the only two persons who saw which one of them shot the deceased. In a case where it is also most probable as in this case tapa Waku could have been responsible it is difficult to deto determine the guilt of an accused.

I hold therefore that it wouldangerous, unsafe and unsatisfactory to find the accused guid guilty. I acquit the accused and discharge him accordingly.

Lawyer for the State: The Public Prosecutor

Lawyer for the Accused: The Public Solicitor