N2751

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 111 OF 2004, CR. NO. 112 OF 2004, CR. NO. 113 OF 2004,
CR. NO. 114 OF 2004, CR. NO. 115 OF 2004.

THE STATE

- V -

PATI KAMALE, FABIAN KATRAE, LIHEMI KAMALE,
MUTENO MEMEIA, BIRO MANI

GOROKA: BATARI, J
2004: September, 13, 14, 15
:	 October, 4, 5
:	 November, 9

CRIMINAL LAW - Particular Offence - Wilful murder - Evidence - General proof of-Assessment - Expert evidence - Medical evidence - Duty of doctor on findings of facts.

CRIMINAL LAW - Particular Offence - Wilful murder - "Intent to cause death" - Whether constituted on evidence.

CRIMINAL LAW – Wilful murder -Defence - Self Defence - Conditions to be satisfied – unlawful assault and unprovoked assault - Proof of - Criminal Code (Ch No 262) s. 269 

Cases Cited:
R v Muratoric (1967) QdR 15
R v Kaiwor Ba [1975] PNGLR 90
The State v Takip Palme [1976] PNGLR 90
R v Kerr [1976] 1 NZLR 335
Chan Kau alias Chan Kai v R [1955] 1 All ER 266

This was a trial on a charge of wilful murder. Pleas of general denials and self-defence were made to the charge.

Counsel:
M Ruari for the State
F Pitpit for the Accused

JUDGMENT ON VERDICT

9 November 2004

BATARI J: This was a joint trial of five accused persons charged with the wilful murder of one, Kelly Bilolo, a Local Level Government Ward Councillor from Bena District, Eastern Highlands Province. Three of them pleaded general denials and were discharged following a no case to answer in a separate judgment. Their co-accused, Lihemi Kamale and Biro Mani admitted the killing, raising the defence of self-defence. 

Versions of Facts Alleged

The State’s case is that, the deceased was killed when the two accused with five others ambushed and attacked him with bush knives at Apo Apa Club. They first cut him while he was on his feet and continued their attack with bush knives after he fell. The defence version is that, within a short time of their arrival at the club, the deceased suddenly appeared from the dancing crowd and without warning, attacked the accused with a bush-knife. They retaliated in self-defence and inflicted those injuries from which he died. Only one of these two versions of the initial attack is true. The deceased was either killed in a sudden attack or he was killed in self-defence. 

Uncontested Facts

The undisputed facts are that, in the early hours of or about 17 August, 2003 Kelly Bilolo was brutally murdered on a crowded dance floor of Apo Apa Club at Kama, Goroka. The killing arose out of a tribal conflict between the two warring groups of the deceased and the accused. On the evening of 16 August, 2003 the deceased had gone to the club located in the general area his enemies were residing and had remained there until the early hours of the next day when he was attacked. He was first cut on the neck and after he fell, the others joined in attacking him with their bush knives. The post mortem findings showed the deceased sustained the following injuries:

"1.	Diagonal laceration just above the right eye brow extending to the left side of the frontal bone. The laceration fractured the skull diagonally and the wound extended in the brain. Both maxillary bones were fractured.
2.	A horizontal laceration from the right maxillary area fracturing the nasal bone and extending to the left maxillary area. Both maxillary bones were fractured.
3.	A horizontal laceration measuring about 10cm at the left temporal area fracturing the temporal bone and extending into the brain tissue.
4.	A horizontal laceration about 10cm at the right side of the neck (from the posterior angle to the anterior) extending into the deeper tissues at the region of the internal jugular vein and the carotid artery." 

The medical report was compiled by Dr. Kilagi Vanuga from his autopsy conducted on 11th December 2003 after the body was exhumed for that purpose. He concluded that, death resulted from brain injury and massive blood loss due to multiple lacerations. The doctor added in his oral evidence that any one or a combination of those injuries would have resulted in death. 

State’s Contention

The State’s basic contention was that, when the accused cut the deceased, they intended to cause his death and as the deceased died from the attack, the accused are guilty of wilful murder under s. 299 of the Criminal Code. 

Defence’s Contention

Lihemi Kamale and Biro Mani conceded attacking the deceased with bush knives, but each pleaded that he acted in self-defence. Their contention is that, the deceased had first attacked them with a bush knife in such a way that caused them reasonable apprehension of death or grievous bodily harm and that, each believed, that he could not preserve himself from death or grievous bodily harm otherwise than by using the force which was in fact used. Counsel, Mr Pitpit submitted that the defence comes fairly within the terms of s. 269 (2) of the Code.

Issues for Trial

Therefore, the issue for determination is whether the deceased assaulted the accused in an unprovoked assault and the accused retaliated in self-defence. If the defence failed in its defence of self-defence, a further issue which arises for determination is whether the killing of the deceased was intended. 

Defence of Self – Defence: Law and Principles Applied 

Section 269 reads:

"269.	Self-defence against unprovoked assault.

(1)	When a person is unlawfully assaulted and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make an effectual defence against the assault, if the force used is not intended to cause, and is not likely to cause, death or grievous bodily harm.

(2)	If-

(a)	the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm; and
(b)	the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous bodily harm,

it is lawful for him to use such force to the assailant as is necessary for defence, even if it causes death or grievous bodily harm."

The conditions to be satisfied under s. 269 as set out in R v Kaiwor Ba [1975] PNGLR 90 are that:

(a)	the accused was unlawfully assaulted;
(b)	the accused had not provoked the assault;
(c)	the nature of the assault was such as to cause reasonable apprehension of death or grievous bodily harm, and
(d)	the accused believed on reasonable grounds that he could not preserve himself from death or grievous bodily harm otherwise than by using the force which he in fact used.

The Court, acting reasonably, must first be satisfied that there is evidence before it worthy of believe that would entitle the court to find the killing of the deceased by the accused was done in self-defence or to entertain a doubt whether it was done in self defence: R v Muratovic (1967) Qd. R 15. 

The accused need not establish such a defence affirmatively but he or she must point to aspects of the evidence which could induce reasonable doubt: R v Kerr [1976] 1 NZLR 335. The accused need only show an unprovoked assault on him and that he had reacted to that assault. The evidence once shown to have raised a possible defence of self-defence on the balance of probability, the onus shifts to the prosecution to negative that defence beyond reasonable doubt: Chan Kau v R [1955] 1 All ER 266. 

Evidence – State’s Case

The State’s evidence is that, the deceased was at Apo Apa club from the early night of 16th August, 2003 accompanied by State witnesses, Lino Efemo and Batani Kauga who had escorted him from Bena Bridge where he was drinking that afternoon. They accompanied him to the NSI in Goroka and from there to the Club. After some time, his companions left him near the door to buy him drinks and while he waited, he was attacked. The two witnesses looked in the direction of the commotion and saw seven men attacking him with bush knives. They identified the five men on trial and named two others who have not been charged.

Efemo’s evidence is more reliable and detail. He saw the accused Pati Kamale grabbed the deceased and slashed his neck with a bush knife. He said a Sanega who has not been charged, was the next person to cut the deceased on his face. After the deceased fell, he saw the accused Biro, Fabian, Lihemi, Muteno and a Ikohe who was not in Court, hacked him with bush knives. The main lights had been switched on by then and while club patrons jostled their way out of the club, the two witnesses mingled with them and also left while observing the attack under bright lights. They estimated the time of the attack at 3.00am or 4.00am of 17 August 2004. 

State’s third witness said he saw two men attacking the deceased with bush knives but he could not tell who they were because they wore caps which partially covered their faces. His evidence differed from the other two witnesses but tended to support the defence case on the number of attackers. 

Evidence – Defence Case

The defence evidence is that, prior to the incident, the accused were at Kakaruk market, within Goroka Town Market, drinking from about 2.00pm and into the night. They then left for Apo Apa club and within 2 minutes of their arrival, the deceased appeared suddenly from the dance floor, charging at them with a brown handled bush knife. The accused Biro Mani said the deceased first swung at him and he evaded the blow. He deflected the second blow with his own bush knife and then cut deceased on the back of his neck when he turned to attack his co-accused, Kamale. He again struck the deceased the second time on his head after he fell. Kamale gave a similar version of the attack but differed slightly when he said the deceased first swung the bush knife at both of them and they evaded the blow. After the deceased fell, he too cut him twice on the head with his own bush knife. He said they then left without anyone knowing what had just occurred.

In clarifying their possession of the bush knives, both accused spoke of their group living in constant fear of the enemy after settling in Goroka. Thus, they always moved around armed with concealed weapons to defend themselves in the event of an attack. For his part, each accused spoke of possessing a bush knife tucked inside his trousers that night of the incident. They denied being deliberately armed to attack the deceased but had carried those weapons out of necessity for their own protection.

Assessment of Evidence – Medical Findings

The medical report described four serious and penetrating wounds to the head and neck of the deceased. That is consistent with the number of blows admitted by the accused. The autopsy report is however unsatisfactory because the investigation was confined only to the top part of the body. 

As an expert witness, it is incumbent on the doctor in his professional duty, indeed the court expects nothing less than, findings of facts and conclusions founded upon thorough examination of a corpse in an alleged murder, to ascertain or discount possibilities of events precipitating death and the probable cause of death. Whatever explanation for the death the doctor may have received initially is for his background information only and at best, unreliable. He has to form his own view and conclusions from his independent examination and that is important because the outcome of a case may turn wholly on forensic evidence and it is fundamental that such evidence is reliable. The autopsy conducted in this case was incomplete. The possibilities therefore, remained that, the deceased also sustained cuts to other parts of his body as stated by Efemo and Kauga in their evidence.

Assessment of Evidence –General and Peripheral Issues 

The background and the motive for this bizarre killing is deeply rooted in a traditional enmity between the clans of the accused and the deceased which once co-existed in the same village of Ofaga in Bena District. Constant fighting and resultant deaths from both sides forced the accused and their clansmen to leave and settle at Asariufa within Goroka. Shortly before the killing in this case, a woman from their side was allegedly murdered at Bena Bridge by their rival tribe. The defence evidence on this which I accept confirmed the ongoing conflict from which it can also be inference that, the two deaths were connected. 

State witnesses, Efemo and Kauga are tribal enemies of the accused. They escorted the deceased on that fateful night and were generally responsible for his safety. The deceased met his tragic death whilst in their company. They have the more compelling reason to ensure that their enemies are convicted and in so doing, absolve themselves from fault. Therefore, their evidence against the accused may be biased and tainted. There were indeed traits of exaggeration in their testimonies parts of which also appeared rehearsed. On the whole, they were consistent and convincing. Crucial parts of their evidence have support in the testimonies of the accused and other aspects are consistent with logic and common sense.

I do not hold the same view of the State’s third witness who was unimpressive in his demeanour. I think he deliberately lied on oath. Throughout his testimony, he kept looking down, avoiding eye contact and at times spoke inaudibly as if he did not want anyone else to hear him. I think he knows more than what he was prepared to tell the court as he appeared cautious in his evidence. I also bear in mind that he was not immediately available and had to be summoned to give evidence.

Further, given the incident which caused undue procrastination in commencing this trial on scheduled and consequential change of both resident counsels, it is possible that, witnesses from both sides have been subjected to threats or influences to testify in a particular way and that possibly happened for this witness. On the other hand, the crucial part of his evidence which is consistent with what Efemo and Kauga had stated is that, the deceased was the first and only one attacked with bush knives.

Both accused gave oral evidence and I had the opportunity to observe their demeanour in the witness box. They are young, intelligent and calculating. Their story on the sequence of the attack on the deceased closely followed that of the State witnesses except where they said the deceased attacked them first and where they denied involvement by others. Parts of their evidence in my view also defied logic and common sense.

The weight to be given to their evidence is clearly wanting on a number of assertions and I mention some of them. First, their story of being justifiably armed for their own protection with police endorsement is simply unconvincing. One can understand smaller items like kitchen knives hidden in personal baskets, bilums or bags. But moving around with bulky bush-knives tucked inside the trousers stretches the imagination and is fanciful. Nor do I believe that police knew or permitted the accused and their tribesmen to freely roam around in the community armed in that manner. That story is in my view a recent invention calculated to play down the seriousness of their being armed with bush knives in a public place. It was part of their strategy on a defence of self-defence raised on the eleventh hour. I will return to this aspect a little later.
 
I accept there was animosity between the two groups but it is also expected that, relevant authorities including police, community leaders and government officials would have been equally anxious to bring an end to it. There is in fact, a strong and effective Provincial Law and Order Committee backed by a Law and Order Advisory Committee within the Provincial Government responsible for such conflicts, which I take judicial note of due to its relevance to the courts. Both Efemo and Kauga spoke of a settlement being planned and a peace agreement about to be signed. I accept their story as probable because that is what the majority of peace loving people from both sides would want to see for themselves and for their children. When there is good prospect of peace and harmony being restored, those affected would quite expectedly begin to accept and trust each other so as to move around freely, like the deceased and his companions did in this case. 

I believe Efema and Kauga that they were not armed on the night of the incident due to their escort role. Besides, both accused spoke of only one bush-knife being used by the deceased and that lends support to the evidence of the two witnesses that they were not armed. Granted that the deceased risked a possible reprisal for the recent death on his enemy side, it does not necessarily follow that, he would deliberately arm himself with a bush-knife and daringly get drunk at a location where he would almost certainly encounter his adversary. If he was apprehensive of any such danger, it was evident in him engaging the company of the two witnesses. He also had a choice to drink at some other club but he chose Apo Apa club I think with some confidence in the peace process which he himself had been part of. The accused on the other hand have the more compelling reason to feel animus towards the deceased because of the recent death on their side for which they had blamed the deceased and his group. They had a perfect motive and opportunity to avenge the death of their tribal member.

The accused spoke of attacking the deceased by themselves. I do not believe their story. The third witness as I have concluded also lied about there being only two attackers. When this witness’s story is considered reciprocally with the belated change of defence by the accused, there is a possibility of collaboration with him to hide the truth. It is highly probable that the presence of the deceased in the vicinity was widely known to the enemy tribe hence, he presented an opportune target for a group payback for the recent death of the woman allegedly killed by his line. 

Efemo and Kauga were in my view truthful on the number of attackers but their evidence of identification were lacking in reliability hence, the discharge of three co-accused at the no case stage of the trial. It is in my view sufficient for them to see a number of people possibly seven attacking the deceased. The important part of their testimony that add credence to their over-all evidence is that, they named the two accused who had confessed the killing with two other persons who were not in court and that, the defence version of the attack on the deceased is generally consistent with their story. I conclude that there were more attackers and that the admissions by the two accused give rise to suspicions that they may have volunteered to admit the killing so that others may be freed.
 
The two state witnesses may have overstated the enormity of the attack but it is not inevitable that they were lying because the imposing situation that had suddenly presented itself would have made any rational judgment difficult particularly for anyone trying to capsulate the events through a moving crowd which no doubt had also been gripped with shock and fear. Their own lives were suddenly in grave danger and in their haste to escape from the confines of the club it would have been naturally difficult to register every minute detail of the attack. Further, the medical evidence did not exclude the possibility of the deceased being cut more than four times. 

Law and Evidence – Assessment of Defence of Self-Defence

The burden of proving all the elements of the offence beyond reasonable doubt in a criminal trial is always on the State. In this case, it has been established beyond reasonable doubt, the death of the deceased followed knife injuries inflicted by the accused. Whether the accused acted in self-defence depended on whether that defence is made out on the facts.

There is some evidence before me on each of those issues under s. 269 of the Code but whether the evidence survives the test of credibility will be shown from what I say shortly. I am required to carefully appraise the evidence in relation to each of the matters in Subsection (2) keeping in mind that, before I convict, I must be persuaded beyond reasonable doubt that the elements of self-defence I have outlined, or some of them, did not exist: The State v Takip Palne [1967] PNGLR, 90.

The threshold issue on the defence raised is whether the deceased first unlawfully assaulted the accused as they had testified, or whether they kill the deceased in a surprise attack as the prosecution asserts. 

It is plain from reading of the whole provision of s. 269 that, the defence of self-defence only arises, "When a person is unlawfully assaulted and has not provoked the assault...." Proof of unlawful and unprovoked assault is in my view, essential before the other considerations in s. 269 become relevant. The accused must first demonstrate on the facts most favorable to him or her, evidence of an unlawful assault which was not provoked before he or she can raise the elements of reasonable apprehension of death or bodily injury and a belief on reasonable grounds to preserve his or her life. 

The evidence on this aspect is at variance as between the State and the defence case. It is however, common ground that the accused and the deceased had arrived at the club at different times and in their brief encounter that followed, the accused attacked the deceased, resulting in his death from injuries inflicted with bush knives. 

I am also satisfied that the deceased had been drinking from the afternoon, into the early hours of the next day before he was killed. So, he may have been heavily inebriated at the time of his death. Efemo and Kauga said they were not drinking and there is no evidence to the contrary. I accept their assertions as highly probable due to their escort role. I also accept their story that the incident occurred around 3.00am or 4.00am. 

Both accused spoke of drinking elsewhere before going to Apo Apa Club. Accepting their evidence that they were at the club for only a short time before the attack, they possibly arrived there around 3.00am or 4.00am. They too would have had considerable amount of drinks in their bodies. However, their evidence of tactfully evading successive knife blows in their purported drunken states under difficult lighting condition is simply incredible. Conversely, their version suggested that, they were sober and in full control of all their senses so as to repel the attack by the deceased and retaliate in the manner they both described. They cannot have it both ways. I think they lied about avoiding the knife blows from the accused. 

Their story of being at the club for only 2 minutes before they were attacked is my view, intended to give the impression of a surprise attack. Besides, their evidence suggests the deceased was awaiting them. If that was so, then the deceased must also have super human senses and strength to spot them from some distance away under dim coloured disco lights and then attacked them in the manner they described. But the evidence which I accept is that, the deceased had been drinking for over a long period of time and naturally, he would have been too drunk to form any rational judgment, let alone, attack the accused in a controlled and active manner they described. 

I also find their evidence of there being no other person present near where the attack took place; of the whole incident and their exiting the scene being unobserved, far-fetched. How three drunken men can exchange blows with bush knives in a crowded dance hall without attracting the least attention just defies logic. But that propensity is consistent with their demeanour in the witness box. The club was hosting an open event hence; constant movement of people through the door where the killing occurred was highly probable. Aside from that, the location of a seat near the door and the bar counter, also suggested presence of others using the seat. The fight did not go unnoticed as the accused would have had the court believed. I accept the State’s version that, the main lights were put on at the start of the attack so that the incidence occurred within the presence and was witnessed by many others.

The accused, in addition, spoke of recognizing the knife handle they said the deceased held. I find their assertions most remarkable as they themselves conceded the difficulty in making out colours under disco lights. It is common knowledge that, colorus of objects become distorted or exaggerated under dim coloured lights. So, how did the accused make out the handle colour of the knife in the circumstances? They possibly identified the knife under clear lights but their own evidence is that, the attack occurred under the cover of disco lights. In all probability they also lied on that aspect. 

Further, this was the first time the accused had told anyone vis-à-vis attacking the deceased in self-defence. When questioned by police, Biro Mani denied any involvement saying he was in Lae. Lihemi Kamale merely denied the allegations. It is of course natural for an accused person who believed he had acted lawfully in killing another person in self-defence to raise that defence at the earliest opportunity, in this case, to the police. Such other conduct as voluntary surrender to the police may also add to his or her demeanour. Neither accused took those opportunities. They have had ample time to contemplate their situation and had chosen to abandon their general denials in favour of a statutory defence they hoped will excuse their conduct. 

If anything, Lihemi Kamale did not have any defence at all. He cut the deceased twice on the head after the deceased had been attacked and rendered helpless by Biro Mani. As for Biro Mani, I do not accept his version that the deceased had first assaulted him without provocation.

Conclusion

The court must decide on all of the evidence if there is evidence of self-defence. If there is none, no further consideration is necessary because the defence then fails. It is obvious that I do not in the least consider the accused truthful witnesses. They were clearly lying and evasive under oath. I conclude from the whole of the evidence that the deceased was attacked as he was about to rest on a seat located next to the main door way. He was unarmed and did not assault anyone prior to being attacked. On that conclusion and applying the law and principles I have alluded to, the defence of self-defence has not been made out and it therefore fails.

I infer that the accused had deliberately armed themselves with bush knives and had set out to attack the deceased. The intention to kill is open on that inference. Further, the injuries located on the head were all fatal and according to the doctor, any one of the injuries would have resulted in death. Both accused spoke of cutting the accused on his head. Biro Mani also cut him on the side of his neck. Those wounds were located on vital parts of the body. I conclude that the accused had deliberately aimed their bush knives at the neck and head of the deceased. From the location and the serious nature of the wounds, I infer an intention to kill and because both accused had actively participated in attacking the deceased, I find that the accused shared the common intention to bring about the death of the deceased by deliberately attacking him with bush knives to accomplish that intention. 

I find each accused guilty of wilful murder and convict him as charged under s. 299 of the Criminal Code.
____________________________________________________________

Lawyer for the State: 			Chronox Manek, Public Prosecutor.
Lawyer for the Accused: 		Frazer Pitpit, Public Solicitor.