Unreported National Court Decisions
N1778
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
CR 121 OF 1997
STATE
V
PENG WILLIE
Mount Hagen
Injia J
21 September 1998-25 October 1998
7 October 1998
CRIMINAL LAW - Murder - Trial - Evidence - False evidence - Motive - Customary Compensation payment made to deceased’s relatives including potential witnesses - Compensation payment made after accused charged with murder and before trial - Undesirability of such payments.
Cases cited
Acting Public Prosecutor -v- Nitak Mangilonde Taganis of Tampitanis [1982] PNGLR 299
State -v- Kakas [1994] PNGLR 20.
Counsel
P. Kumo for State
B. Aipe for Accused
7 October 1998
INJIA J: The accused pleaded not guilty to murdering one James Moka on 11/10/97 at Muglamp village, Mt. Hagen, WHP, contrary to s.300(1)(a) of the Criminal Code (Ch. No. 262).
The State called two eye-witnesses in addition to tendering the record of interview and medical report by consent. The accused gave sworn evidence supported by four (4) other witnesses. It is not disputed that James Moka was killed by someone throwing a blunt object on the right side of his head on the early morning of Saturday 11/10/97 at Muglamp village, which caused severe head injuries as a result of which he died shortly later. It is also not disputed that the deceased was a supporter of local government council candidate Michael Kewa and he was killed by a supporter of the then incumbent councillor, the accused, in the second of confrontations between the two groups that morning. In the first confrontation, the accused’s supporters attached Michael Kewa. The second confrontation occurred as a direct result of the first confrontation. Finally, it is not disputed that the accused and his clan accepted responsibility for the death and paid compensation to the deceased’s clan, sometimes after the accused was charged by police with this offence but before his trial in the National Court, in the presence of policemen. The only determinative issue before me is: Just who from the accused and his group of supporters killed James Moka.
The two state witnesses say they heard Michael Kewa’s wife shouting for help from the singsing ground saying Michael Kewa was being attacked by the accused’s supporters. They responded to the call and arrived at the village singsing ground together with others including the deceased. They saw the accused hide behind a tree and threw the stone which landed on the deceased causing him to fall down. They say there was no “fight”.
The accused says he was fixing all four tyres of a toyota Landcruiser at Raphael’s house with others during the second confrontation and arrived at the scene after the deceased was hit. He says he is being falsely accused because he is the Councillor for whose cause the deceased was killed by someone from his group. All the defence witnesses say there was a big fight in the village that morning after Michael Kewa was attacked by the accused’s supporters and someone else from the accused’s side killed the deceased.
Which of the two versions do I accept as the true version?
After considering the evidence and submissions put to me by both lawyers, I make the following observations on the evidence:
*        There was a “fight” involving two groups of men on the early morning of 11/10/97, of a small scale, involving limited number of men on each side, involving members of the four clans of the same tribe of which the accused was their common Councillor, divided into groups of two clans each. The two groups were divided between the accused’s supporters and Michael Kewa’s supporters. In the first incident, Michael Kewa was assaulted.
This led to another fight in which James Moka was killed. As the second fight involved members within the tribe itself, in their own village, at their common singsing ground and in the same council area, given the clear view of the singsing place where it took place, the fighters would have clearly seen each other. Also the two fights did not develop into a full fledged tribal fight or warfare, even after James Moka’s death, because not only people from surrounding villages such as men from the nearby Rumdi clan stopped the fight but also the fighters would have exercised great restraint because they come from the same tribe and live close to each other. I accept the two State witnesses’ evidence that there was no “fight” to mean there was no “full-fledged tribal fight or warfare”. I do not think they mean there was no fight at all - a confrontation of some kind, on a smaller scale between two or more persons from within the same tribal grouping such as the confrontation in which Michael Kewa was attacked and the one in which the deceased was attacked.
*        The accused was present in the vicinity of this fight. I do not accept his story and those of his witnesses that he was fixing all 4 tyres at Raphael’s house when the fight was taking place at the singsing ground. The two fights revolved around his council candidacy and Michael Kewa’s candidacy in which his supporters were clearly the antagonists. As a responsible leader of some 12 years standing, it is most unusual for him to confine himself to fixing tyres, when men from his council area were fighting some 150 m away from him, in clear view. I find him to be a possessive man of quick action and even if he was initially fixing tyres at Raphael’s house, he would have dashed across to the scene of the fight in 1-2 minutes. I accept the two State witnesses’ evidence that they saw him at the fight.
*        The crucial question is: Did the accused throw the fatal stone which hit James Moka or someone else from his group did? This is a very narrow issue. But I have some difficulty with this issue. On one hand, the first State witness Thomas Numdi said he saw it. But the second State witness, Paul Rot did not quiet see this. Given the number of people at the scene of the fight it could have been somewhat difficult to say who exactly threw the fatal stone. The evidence that he and his clan paid compensation for the death does not in any way make him responsible for throwing the stone which killed the deceased. As a leader of his people in the village, and prime cause for which people fought over him, he was expected to and accepted responsibility and paid compensation. In these circumstances, the accused could become an easy pick of the culprit as suggested by the last defence witness.
*        On the other hand, the only evidence I have is that the accused threw the stone and this evidence comes from the two State witnesses. No names of other possible culprits have been suggested by the accused or his witnesses. I can understand why they would be extremely reluctant to pick on one of their own clansmen even though they may know the culprit, just like the accused has denied and his other witnesses have been reluctant to identify the accused as the culprit in this case. But criminal responsibility attaches to individuals and they should, as a matter of duty, disclose the identities of the culprits known to them. This duty is inumbedent on all citizens, especially leaders like the accused, as a true sign of their leadership qualities. As I said in State -v- Kakas [1994] PNGLR 20 at p.30:
“The four accused say that they have been falsely accused because of their leadership positions....... I accept that they are leaders in their own right...... 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 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 not 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 information 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 or 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 Aron.”
*        The two State witnesses have been consistent in their testimony. They did not seek to dramatise events. e.g. Paul Rot said he only saw the accused moving away from the direction the stone was coming from, which led him to believe that the accused threw the stone. On the other hand, the accused gave evidence closely supported by similar evidence from two other witnesses. The third witness appeared to me to have been obviously influenced by the accused. The fourth witness’s evidence did not assist the defence case in any material way because he was not quiet sure if he saw the accused at the scene of the fight. The accused appeared to be a very cynical, possessive, evasive and quick action-orientated man. I have arrived at these conclusions of his demeanour from my observation of his demeanour in Court and at the scene during my visit there.
From the above observations, I make the following findings of fact on the disputed evidence:
1.       The two State witnesses are not telling the truth when they say there was no fight at the singsing place. There was a fight which was initially sparked off by the attack on Michale Kewa by the accused’s supporters.
2.       The accused and his witnesses are not telling the truth when they say the accused was not at the scene of the fight where the deceased was killed. The accused was present at the scene. As to what role he played at the fight is unclear.
3.       The State witnesses are not telling the truth when they say they saw the accused throw the fatal stone. I do not think they saw who actually threw the stone. They have simply surmised the accused did because he was present at the scene and he and his supporters were the main instigators of the two fights.
So the question is why have witnesses from both sides come prepared to tell lies to this Court. One of the reason appears to relate to compensation payment by the accused and his group whilst the accused was facing this charge. The evidence before me is that the accused and his group paid customary compensation for the death, in the presence of policemen. The payment would have preceded some painstaking negotiations between the two sides. The accused’s group would have made the payments in good faith and the deceased’s group would also have accepted the payment in good faith insofar as resolution of the conflict arising from the death of James Moka at the village level was concerned.
It was alleged by the State, but denied by the defence witnesses, that special payments were made to some potential witnesses including defence witness Kiap Want at the time of the main compensation payment and further payments of some pigs and a muruk was paid to them after the main payment but just before this trial. This is why they have broken ranks and come to give evidence in support of the accused.
By the same token, it could also alleged of State witnesses that the two State witnesses and others were unhappy with the amount of compensation payments and its distribution by the accused’s group to the relatives of the deceased and therefore they are determined to come and give false evidence against the accused in order to sustain a criminal conviction. 
In my view, these evidence and allegations are just the tip of the ice-berg as to what went on in the village between the parties, to compromise the outcome of these proceedings, which were pending before the Courts. Whether these allegations are true or not is another matter but the fact that they have been raised by the State in these proceedings is a matter of grave concern to this Court.
Resolution of conflicts at the village level using customary means, particularly through compensation, is an age-old custom of the Highlands people. Conflicts arising from wrongs are treated at the same level, simply as “wrongs” which are compensable. The division of wrongs into civil wrongs and crimes in our modern legal system is unknown to customary law. Hence, customary resolution of conflicts arising from crimes defined in the Criminal Code and other penal codes such as murder and rape are not new to highlands village societies. But criminal offences under the penal code are the exclusive function of the modern Courts of Law. Once the modern criminal process is invoked and is in motion, village customary resolution of that dispute through compensation payment should be halted or suspended pending the outcome of the criminal case in a court of law. For to allow the customary resolution process to commence or continue after criminal process is set in motion is to cultivate an ideal recipe for interference in the normal course of criminal justice in a court of law. Most of the people at the village level do not know these fine distinctions over “wrongs” between civil wrongs and crimes. It is the function of the relevant government agencies like District Officers, councillors, village court officials and even policemen to educate them. And they themselves should and refrain from assisting or encouraging them to resolve the conflict outside of the law courts. And there are enough laws to enable the court not only to determine criminal culpability of an accused person but also to impose punishment which takes into account past payments of customary compensation or incorporates future customary compensation payments as a form of punishment: See Criminal Law (Compensation) Act 199; Acting Public Prosecutor -v- Nitak Mangilonde Taganis of Tambitanis [1982] PNGLR 299.
After having said all that, I would recommend to the police to investigate all those persons involved in the present case to see if there was any interference in the course of justice and bring them to justice. As for the present charge against the accused, I am not satisfied beyond reasonable doubt that the accused threw the fatal stone which killed the deceased. I believe the real person who threw the fatal stone is still at large out there and he should be identified and prosecuted afresh. I find him not guilty as charged and acquit him. His bail money will be refunded to him.
Lawyer for the State: PUBLIC PROSECUTOR
Lawyer for the Accused: PUBLIC SOLICITOR