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State v Hariki (No 1) [2002] PGNC 27; N2331 (23 December 2002)

N2331

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 151 OF 2002

THE STATE

-V-

ARUA MARAGA HARIKI

WAIGANI: SALIKA, J

23 December, 2002

CRIMINAL LAW – charge of wilful murder – evidence – one eye witness – which witness to believe – circumstantial evidence – principles of – medical evidence – bodies of victims found in one location – second victim last seen alive in accused’s vehicle – inferences drawn.

Counsel:

Miss Boni for the State
Mr A Amet Jr for the Defendant
23 December, 2002

The accused is charged with two separate counts of wilful murder on two separate indictments. The trial was heard together because the alleged offences took place on the same night and that the killing followed from one to another. The State alleged the acts were committed in one chain that is a single chain of events.

The State alleged that on 31/3/01 a Saturday the accused, the two deceased and John Naime drank at the accused premises at about 12.00 midnight to about 2.00 am. During that drinking they were joined by Siaka Sava. After some time the accused and Siaka Sava were alleged to have said something in the Koitabu language which John Naime said he could not understand. Then the accused is alleged to have said to Siaka Sava "These are the people" in motu. The accused is alleged to have attacked Heni Veidiho. Heni was pushed to the ground and the Accused is alleged to have sat on him and held him around his neck to block Heni’s breathing. Heni after a while then laid lifeless. The accused is then alleged to have told Siaka Sava to get a rope. While Siaka Sava had gone to get the rope, John Naime is alleged to have fled believing that he would be the next one to be attacked.

The State alleged that all this time Mathew Togiri after drinking some alcohol had gone to sleep in the motor vehicle that they had been using. The bodies of Heni Veidiho and Mathew Togiri were later found together on Monday morning along the Lealea – Papa road.

The accused denied the two counts of wilful murder.

The state evidence was both oral and documentary.

Oral evidence was given by Anthony Bonio, John Naime, Luio Billy, Momoru Ako, Segela Kubili, and Dr Philip Golpak.

The main state witness was John Naime. His evidence is that on 31/03/01 he left his Tatana village at 9.30 a.m. and went to work at Konedobu. They finished at about 12.00 noon and he went to drop off staff at Gordons. He was asked by Fred Vaika Jr to bring some pig food which he did and he went to Baruni. He went to drop the pig food at Freddy’s house and he saw Fred Vaika (Jr), Tony Bomio and Homoka Koae drinking at Freddy Vaika (Jr)’s house. There he joined them to drink. Sometime after that the accused Arua Maraga arrived in his blue mazda sedan 626. He said Arua Maraga then asked Freddy Vaika Jr and Tonny Bomio to go to his 2nd wife at Tatana village. He said Freddy Vaika and Tony Bomio got in their car while he and John Naime drove Mr Tom Leula’s car to his place at Tatana. He left Mr Leula’s car and got into Bomio’s vehicle. Then they went to the accused’s second wife’s place in the village, checked but she was not there so they went to Freddy Vaika’s place.

After that the said Arua Maraga gave K100.00 to him and Bomio to go and buy some more beer. Bomio and Homoka Koae went to Gerehu and bought some beer. They went to buy the beer and returned about 4.00 pm.

After Bomio and Koae returned they drunk again. This time Freddy Vaika senior came and joined them.

He said when the beer finished he asked Bomio to drop him off at Tatana village but the accused insisted instead to drop him off. So he said he got into the accused’s vehicle in the back seat while Homoka Koae sat in the front seat. He said they went and dropped off Homoka Koae and made a U turn and went to Tatana. He said they went to the accused’s second wife’s place. He got out of the vehicle and knocked on her door but there was no answer so he came back to the accused and told him and he got into the vehicle and drove back and on the way they picked up the two boys, Heni Veidiho and Mathew Togiri who were sitting beside the road. He said the accused came and stopped near them and told them that he had no beer in his car. So he asked them to go and look for beer. He gave them his driver’s licence as identification that he would buy beer on credit. The boys went with the licence to Togiri’s mother and other places but they did not have any beer.

Then Momoru Ako came along and told the 3 boys to get into the vehicle. He said they drove to another place to look for beer. Momoru Ako went to Naime Arua’s house but there was no beer. He said at this time Arua Maraga told him, Togiri and Heni that he had some beer in his house. So he invited the two boys to get into the vehicle. After the boys got in, they drove to Baruni to the accused’s house. At the accused house, they drank whiskey. He said Togiri felt sleepy and slept in the vehicle. He said, the Accused, Heni and him drank the whiskey until it finished. After it finished he said he heard the Accuse and Siaka Sava talk in the Koitabu language and hear them say in motu "These are the people". He said after this the accused held Heni Veidiho and pushed him to the ground and while on the ground held him by his neck on the ground and he said Siaka Sava also helped Arua Maraga. He said he watched until Heni was motionless on the ground. Then he said the accused told Siaka Sava to get a rope. He said when Siaka Sava left, he decided to escape from there thinking that he might be the next one to be attacked. He said he then fled and on the main road someone called him but he did not stop, he just ran to his Tatana village and he went to sleep. He said he was still scared on the Sunday. On Monday 2nd April 2001 he went to work and accused was already there at work and he followed him to the office and told him – "If they come, you must tell them I gave you K5-00 and dropped you 3 off". He said he told Arua they have not come yet. He said he left work and went to his village.

He said for one week he kept the story to himself because he was scared.

Anthony Bomio gave evidence of drinking together at Freddy Maraga’s house until about 12.00 midnight. He said he left with Freddy. He dropped Freddy at Gordons while he himself went to Koki where he lives.

Momoru Ako gave evidence of seeing the accused with John Naime, Togiri and Heni Veidiho in a blue sedan. He went to look for Heni after Heni had gone to look for beer in Max Gabutu’s house. When he came back he said the blue vehicle was gone. He said he did not see John Naime, Togiri and Heni Veidiho after that.

The accused Arua Maraga agreed that he drank at Fred Mabata (Jr) house with Bomio, Fred Mabata (Jr) and Homoka Koae. He said John Naime came and dropped Fred Mabata’s wheatmill flour for the pigs. He said after that John went to drop the vehicle at Tatana and he never saw him after that at Fred Mabata (Jr)’s house.

He said Tony Bomio and Fred Mabata got an Electoral Commission vehicle and left while he took Homoka Koae. He dropped Homoka Koae at his house at Baruni and went to Tatana to his 2nd wife.

He said he tooted his horn at his 2nd wife’s place but there was no response so he made a U turn and drove back. On the way he said the two boys stopped him. The two boys were Heni Veidiho and Mathew Togiri. He told the boys he had no beer. The boys told him Togiri’s mother was selling beer so he gave them his driving licence to try to buy the beer on credit. The boys took the licence to Togiri’s mother and came back without beer. The boys then told him to drop them off at the place where they sell home brew. He drove with the boys to where home brew was sold. He gave the boys his driving licence again to try to buy beer on credit from his uncle Max Gabutu. They did not buy any beer there either. He said he told the boys that he was going home. He said he gave K5.00 to the boys and left to his home at Baruni village. He said he went on his own to Baruni and that no one went with him.

From all this evidence it is clear to me that Freddy Mabata (Jr), Anthony Bomio, Homoka Koae, Arua Maraga and John Naime were at Freddy Mabata(Jr)’s house drinking beer and whiskey. John Naime left to take Mr Tom Lanka’s vehicle at Tatana.

According to Bomio and John Naime, John Naime came back to Freddy’s house and drank with them. According to the accused, He never saw John Naime again from that time.

According to Bomio, he left with Freddy Mabata at about 12.00 midnight to go to his place of residence. He said he dropped Freddy off at Gordons. He said he left John Naime, Homoka Koae and the accused at his house.

John Naime said he did drop off his uncle Mr Lanka’s vehicle but then he got into Bomio’s vehicle and went back to Freddy’s house to continue drinking.

Who is telling the truth in relation to that aspect of the story. The only other person who knew this part of the story would be Freddy Mabata and Homoka Koae - None of them were called to give evidence on that.

Bomio is a neutral witness. He is from Rigo. He lives at Koki. His evidence is that John Naime was present when he and Freddy left to go home for the night. He said he left the accused, Homoka Koae and John Naime. Accused said only him and Homoka Koae were there and he went and dropped Homoka Koae at his house and he went alone to Tatana village.

I will have to accept Bomio’s evidence that John Naime was present at about 12.00 midnight when he left with Freddy Mabata (Jr).

I find that John Naime was present there when Bomio and Freddy left.

The next question is did the accused leave on his own will Homoka Koae.

As I said earlier Homoka’s evidence was vital in so far as these sequence of events are concerned. John Naime said he got in with the accused and Homoka. The accused said he got in the vehicle with Homoka only. Its his story against that of the accused. I accept that John Naime was present through to about 12.00 midnight. The accused has for some reason isolated John Naime. I find that the accused has deliberately marginalised John Naime.

I am satisfied that John Naime was on the vehicle with the accused and Homoka Koae when they dropped Homoka at his house at Baruni.

I also am satisfied that the accused went to Tatana with John Naime.

I came to his finding because first of all the accuse has deliberately tried to isolate John Naime. Secondly the accused has a girlfriend or second wife living at Tatana. If he wanted to go and see her he would indeed John Naime who is from Tatana to go with him. I reason this way also because earlier John Naime and Bomio had gone to Tatana and checked on the accused’s girlfriend’s house and she was not there. I am therefore satisfied that John Naime was with the accused that night at Tatana village.

The next matter that I wish to touch on is the type of vehicle the accused is alleged to have used. According to John Naime it was a blue mazda that the accused drove. According to Bomio accused came in a blue mazda 626 sedan. The Accused send himself said he drove in his Nissan Double cab.

Momoru Ako said he saw the accused and John Naime in a blue vehicle, a mazda sedan at Tatana.

It appears to me that according to Bomio John Naime and Momoru the vehicle used was a blue vehicle. Only the accused says he drove in his Nissan cab. Again, why would Bomio say it was a blue Mazda that the accused came in and be lying or mistaken. Why would Bomio lie about that vehicle. Why would Momoru Ako be lying, when he said the vehicle he saw this accused in was a blue Mazda.

From the evidence I am satisfied that the accused was using a blue Mazda either a 626 or 323 on the 31/03/01.

What happened to the blue Mazda? The blue Mazda it seems to me disappeared on the night of 31/03/01. No one appears to have checked for the blue Mazda. The blue Mazda appears to have mysteriously disappeared from the scene. Even the police did not check for this vehicle. Lino Billy who is from Baruni said the Blue Mazda was a 323 sedan, registration number BAT238, dark blue in colour. The policeman did ask the accused about that vehicle but he denied using that vehicle. He also denied owning that vehicle and denied any knowledge of it.

It appears the policeman did not check the traffic registry to determine ownership of the vehicle and did not pursue their investigation of that vehicle. Important evidence might have been obtained from that vehicle. That vehicle appears to me to have mysteriously disappeared that night. That appeared to be the vehicle that was in use that night and not the Nissan Double Cab. It appears that police did not get to inspect this vehicle at all. Why did this vehicle suddenly disappear from the scene and disowned by this accused?

I find that the blue Mazda was used that night by the accused and not the grey Nissan Navara Bomio said it was a Mazda blue in colour. John Naime said it was a Mazda sedan and Momoru Ako said the vehicle was a Mazda 323 sedan. I do not find any reason why Bomio would lie about the blue Mazda.

The next question then is whether John Naime and the boys Heni Veidiho and Mathew Togiri went with the accused to his house at Baruni from Tatana. According to the accused John Naime was not with him. He met the boys but he said he left them at the place where homebrew is sold at Tatana.

I have already fond that John Naime was with him that night in the blue Mazda. Having found that I am left to also find that John Naime, Heni Veidiho and Mathew Togiri did go tot he accused’s premises on the night of 31/3/01.

I have come to that conclusion because first of all the accused denied John Naime was with the group that night when the evidence of Bomio is that he was present. Secondly the accused said he used the Nissan Navara Double Cab while Bomio, Naime and Momoru Ako say the accused drove in a blue mazda. It appears to me then that the accused has deliberately lied on those matters.

The next question is did this accused kill Heni Veidiho as alleged by John Naime. I have found that John Naime, Heni Veidiho and Mathew Togiri did go with the accused to his house at Baruni. I had raised the question of why John Naime could not raise the alarm there and then if what he said is to be believed. I have also pondered as to why it took 1 week for John Naime to come up with this story. Was Heni Veidiho killed the way described by John Naime.

I have accepted John Naime’s story that he was present at Freddy’s house with the rest of the men because his evidence there was supported by Bomio’s.

I have also accepted that the vehicle used was a blue Mazda sedan. Bomio also said it was a blue Mazda and Momoru Ako said the vehicle was a blue Mazda.

At the house it is John Naime’s evidence against the accused’s evidence. I have had difficulty trying to understand why it took John Naime one week to tell the story. Did John Naime manufacture this story during that one week period? Why could he not just tell the police straight away. His explanation was that he was so scared that he believed the accused might kill him too. He said on Monday he went to the office and saw the accused who was already there before him. He said the accused told him if they come and ask you, tell them that he had taken them to where the homebrew is sold and that he gave them K5.00 and left them there.

John Naime said he left the office and went home because he was scared for his own life.

The accused on the other hand has said he went back to his house and slept after he dropped the boys at the place where home brew is sold. With these trail of lies the accused has left, I am left to accept John Naime’s evidence. In my view the accused has left a trail of deliberate lies on some basic but crucial matters.

I now come to Lino Billy’s evidence. His evidence in some aspects was exaggerated or that he lied to make the various distances closer than they really were. From the main road near Siaka Sava’s house which is a distance of 30 to 50 meters he may have heard some noise but I doubt he would have heard anything else. This is because by that time Heni Veidiho was dead according to John Naime. John Naime was running away by that time.

The only crucial part of Lino Billy’s evidence is seeing John Naime fleeing from Baruni village. If I accept Lino Billy’s evidence on that aspect then it will support the finding that John Naime, Heni Veidiho and Mathew Togiri did come to the accused’s house at Baruni.

Lino Billy I must say did try to make the distances of where he was to the accused’s house very near, the visit to the scene put a proper picture in perspective. I do not think he saw very much at the accused’s premises. However he was not shaken in so far as seeing John Naime fleeing from the scene was concerned. Billy is said to have gone with his two sons. The police officer appears not to have obtained statements from them.

I accept the evidence of John Naime that he fled from the scene and that he heard someone on the road call but he said he never looked back. He just ran.

Putting John Naime and Lino Billy’s evidence together and the evidence of Bomio and Momoru Ako and the accused’s own evidence I am satisfied beyond reasonable doubt of the guilt of the accused in so far as the death of Heni Veidiho is concerned.

In so far as the death of Mathew Togiri is concerned, evidence of John Naime is that he left Togiri sleeping in the vehicle.

The only other evidence is that Togiri was found dead with Heni Veidiho together along the Papa Lealea road. Both bodies were located in the same area about ten (10) meters apart.

In so far as Togiri’s death is concerned the court has been asked to draw inferences from the whole surrounding circumstances and the sequence of events.

The state has submitted that whoever murdered Heni Veidiho must have murdered Togiri. They submitted that there are sufficient connecting factors to conclude that the same person who killed Veidiho also killed Togiri.

Counsel for the accused has reminded the court to be cautious in considering the circumstantial evidence against the accused in so far as the death of Mathew Togiri is concerned.

I acknowledge the warning and thank Counsel for reminding the Court. I accordingly remind myself of such dangers in this case in relying on circumstantial evidence. The law on circumstantial evidence has been correctly stated by both counsel as stated in the case of PAULUS PAWA v THE STATE (1981) PNGLR 498 where the Supreme court adopted the High Court of Australia in BARCA v THE QUEEN [1975] HCA 42; (1975) 50 ALJR 108 where the court said:

"When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilt unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: Peacock v The King [1911] HCA 66; (1911) 13 CLR 619, 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be "the only rational inference that the circumstances would enable them to draw ‘: Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234, 252. See also Thomas v The Queen [1960] HCA 2; (1960) 102 CLR 584, 605-606. However, ‘an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence’: Peacock v The King, 661. These principles are well settled in Australia."

In this case evidence is that Togiri was last seen sleeping in the vehicle, that is the blue Mazda when Heni Veidiho was murdered. From that time on the court does not know what happened to Togiri. The time then may have been between 1.00 am to 2.00 am Sunday, 1 April 2001.

On Monday the 2nd April Togiri’s body was found together with Heni Veidiho’s body. The State is asking the court to draw an inference to conclude that whoever killed Veidiho would have also killed Togiri.

In that regard Dr Golpak’s evidence is relevant. His evidence is that both men would have been killed about the same time because by the time both bodies were found they both were already in the state of decomposition.

In that regard considering all the circumstances of the case, I am satisfied beyond reasonable doubt that the accused also murdered Togiri. I draw the inference of his guilt from the evidence before the court. I believe that the inference is a reasonable one open to the court. Because there were two men who were left after John Naime left I am prepared to invoke s.7 of the Criminal Code in so far as the death of Togiri is concerned.

The manner in which the two young men Heni Veidiho and Mathew Togiri met their death I have to find that who ever caused their deaths must have intended that they should die.

The injuries to Veidiho were such that who ever inflicted them intended to cause death.

The wounds to Togiri’s body were that he had an incised wound in the right side of his forehead – 60 mm long and had a rope mark along his right shoulder from tip to left ear. His body was already in a state of moderate decomposition. Evidence is that the accused asked Siaka Sava to get a rope. Is the rope mark on Togiri’s body a mere coincidence?

Again who ever inflicted those wounds must have intended to cause his death.

In the circumstances having found that the accused was involved in the killing of Veidiho, I also find him guilty of killing Togiri. I accordingly find him guilty on both counts of wilful murder.
________________________________________________________________________
Lawyer for State: Public Prosecutor
Lawyer for Defendant: Maladina Lawyers