State v Sange [2005] PGNC 145; N2805 (16 February 2005)

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CRIMINAL LAW – indictable offences - Criminal Code, Division V.3, Homicide etc – Section 299, wilful murder – death of police officer on duty – Section 7, principal offenders – Section 8, offences committed in prosecution of common purpose – practice and procedure – joint trial of four co-accused – each alleged to have aided or procured commission of wilful murder – each pleaded not guilty – prosecution’s case consisted of 29 exhibits, tendered by consent – submission of no case to answer – application that case should be withdrawn from the tribunal of fact – rule in Rape’s case – two limbs or tests – question 1: whether there is some evidence of each element of the offence which, if accepted, would either prove the element directly or enable its existence to be inferred – question 2: whether there is sufficient evidence on the basis of which the court ought to convict the accused – elements of the offence of aiding, counselling etc another person to commit wilful murder – application of tests in Rape’s case to each of the co-accused – ruling in relation to each co-accused – acquittals – remarks on co-accused unnecessarily being brought before the court – paucity of evidence – need for prime suspect to be apprehended and brought to court to be dealt with according to law.

Cases cited:
Joshua Yaip Avini and Plaridel Nony Acosta v The State [1997] PNGLR 212
The State v Atau Gore (No 1) (2004) N2639
The State v Eddie Sam (2004) N2521
The State v Henry Osare Kales (2001) N2115
The State v Kwale Dire (2001) N2178
The State v Michael Herman and Albert Paul (2003) N2475
The State v Nerius Patrick (2004) N2611
The State v Paul Kundi Rape [1976] PNGLR 96
The State v Robert Tamtu (2001) N2166
The State v Roka Pep (No 2) [1983] PNGLR 287
The State v Tauvaru Avaka (2000) N2024
The State v Tolly Amindi (2004) N2683
The State v Tom Kakawi and Others (2002) N2229

This is a ruling on a no case submission by four co-accused men. They face an indictment which charges that on 4 July 2001 they wilfully murdered an officer of the Police Force, Chief Sergeant Henry Wartovo.

On Wednesday 4 July 2001 Chief Sergeant Henry Wartovo, an officer of the Police Force based at Kimbe, was killed while on duty at Gigo 2 settlement, Kimbe, West New Britain. It was late in the night, about 11.00 pm. He was shot at close range and died almost instantly. A police investigation was commenced and later in 2001 six people, including the four co-accused, were charged with his wilful murder.

In November-December 2001 all six were committed for trial by the District Court. The two not being tried in the present case have absconded. One has escaped after being remanded in custody. The other has broken his bail. Their whereabouts are unknown.

The joint trial of the four co-accused began on 14 February 2005. They were arraigned and each pleaded not guilty. Both the prosecution and the defence made opening submissions. Then the prosecution presented its evidence. This consisted of 25 witness statements and the record of interview of each co-accused, all tendered by consent. The court visited the scene of the incident. This is the place, commonly referred to as ‘the Gigo 2 roundabout’, where Chief Sergeant Wartovo was killed. We heard from a witness who said he saw what happened. The court then adjourned.

On 15 February 2005 the trial resumed. Mr Popeu, for the Public Prosecutor, summarised what we observed at the scene and what the witness stated. Mr Oiveka verified the summary.

Mr Oiveka then made a no case submission based on the principles set out in The State v Paul Kundi Rape [1976] PNGLR 96. Mr Popeu responded.

I will start by setting out the principles in Rape’s case, which consist of two limbs or tests. They each require the court to consider the state of the evidence so far presented and to compare it with the elements of the offence with which the accused is charged. I will explain the opening submissions made by the prosecution. I will summarise the evidence the prosecution has presented. I will set out the elements of the offence of wilful murder that must be proven. Then I will summarise the actual no-case submission and apply the principles in Rape to this case.

In his famous judgment in Rape’s case O’Leary AJ pointed out that when the prosecution has closed its case two distinct and separate questions can arise.

Question 1 – also called the first limb or test – is there some evidence of each element of the offence which, if accepted, would either prove the element directly or enable its existence to be inferred?

Note that the question is not: is every element of the offence established beyond a reasonable doubt? That question can only be answered at the end of the trial – if it proceeds – on the whole of the evidence, ie including any evidence adduced by the accused.

If the answer to question 1 is no: the conclusion will be that on the evidence as it stands the accused could not lawfully be convicted. This is an issue of law. The accused will have no case to answer. The accused will not be required to answer the charge. The accused will be entitled to an acquittal.

If the answer to question 1 is yes: the trial should proceed unless question 2 is answered in the negative.

Question 2 – also called the second limb or test – although there is a case to answer, is there sufficient evidence on the basis of which the court ought to convict the accused?

Again, the question does not ask whether the prosecution has proved its case beyond reasonable doubt. It is directed at the situation where there is only a scintilla of evidence or where the evidence is so weak or unreliable that no reasonable tribunal of fact could base a conviction on it.

If the answer to question 2 is no, ie there is insufficient evidence: the trial judge has a discretion to either not call upon the accused (ie enter an acquittal) or order the trial to proceed.

The Supreme Court confirmed the correctness of the above principles in The State v Roka Pep (No 2) [1983] PNGLR 287, Kidu CJ, Kapi DCJ, Andrew J, Pratt J, Kaputin J; and Joshua Yaip Avini and Plaridel Nony Acosta v The State [1997] PNGLR 212, Kapi DCJ, Los J, Salika J.

Recent National Court cases in which the Rape principles have been applied include The State v Tauvaru Avaka (2000) N2024, Gavara-Nanu J; The State v Henry Osare Kales (2001) N2115, Kirriwom J; The State v Robert Tamtu (2001) N2166, Lenalia J; The State v Kwale Dire (2001) N2178, Gavara-Nanu J; The State v Tom Kakawi and Others (2002) N2229, Lenalia J; The State v Michael Herman and Albert Paul (2003) N2475, Lenalia J; The State v Eddie Sam (2004) N2521, Lenalia J; The State v Nerius Patrick (2004) N2611, Sevua J; The State v Atau Gore (No 1) (2004) N2639, Manuhu AJ; and The State v Tolly Amindi (2004) N2683, Kandakasi J.

Strictly speaking it is only the first limb of Rape’s case that gives rise to a no case submission. However, it has become the norm to refer to and rely on both limbs when a no case submission is made (see Roka Pep (No 2) per Kidu CJ).

Mr Popeu said the evidence would reveal that on the night of 4 July 2001 at Gigo the four co-accused were in the company of a group of prison escapees and street boys. They were drinking alcohol. They had an assortment of weapons. They were threatening people and telling those at Gigo not to report the presence of the escapees to the police. They hatched a plan to attack two reserve constables at Gigo.

One of the reserve constables raised the alarm and phoned the Kimbe Police. Later that evening a number of police vehicles went in convoy to Gigo. One vehicle was driven by Chief Sergeant Wartovo. As his vehicle drove up to the main place where the drinking was happening, near the Gigo 2 roundabout, the four co-accused and all except one of their companions ran away, up a track that led to a mountain. The one who remained behind was Babex Billy. He had a factory made shotgun. As the four co-accused and the others ran away they shouted abuse at the Police. Babex Billy fired a shot into the Police vehicle, killing Chief Sergeant Wartovo.

Mr Popeu submitted that the evidence would show that the four co-accused had a common purpose: to harm any police officers. They were with known escapees who had the intention to kill police officers. Sections 7 and 8 of the Criminal Code would be invoked to make them criminally liable for the killing of the deceased.

Mr Oiveka indicated that his clients would give evidence, if necessary, to show that none of them was involved in the murder of Chief Sergeant Wartovo. They were not present and they did not intend to kill anybody.

The prosecution’s evidence consisted of 29 exhibits, the contents of which are described in the table below, and the oral evidence gathered at the scene of the incident.

Column 1 of the table gives the exhibit number, column 2 describes each witness and column 3 summarises their evidence.

Exhibit	Witness	Description of evidence
A	Resident	He was sitting on the veranda of his house at Gigo 2 roundabout – [the scene of the incident] – saw three escapees together with street boys – all drunk – heard vehicle coming – escapees and street boys swore at Police – they ran away, leaving one person, Babex Billy, who had taken a gun from another person, Joshua Samson – saw Babex Billy fire a shot at the Police vehicle – Babex Billy well known to him.
B	Resident	He is a brother of one of the escapees – observed a fight in the vicinity of Gigo 2 roundabout – some of those fighting had shotguns – one of the co-accused, Steven Kaumu, was present but not holding anything – conversed with those fighting – went away – heard a gunshot from the fighting place – heard people running up the hill.
C	Resident	He observed escapees drinking and carrying weapons – escapees said that anyone who reported them to the police would sleep at the morgue – heard gunfire.
D	Resident	He was held up by a number of people near the bridge [which separates Gigo 1 and Gigo 2] – they were drinking and heavily armed – about 20 of them – some threatened him but did not physically injure him – told him they would go to Gigo 1 and burn down houses of ex-policemen and kill them – a man from Kombe who he knew told him to run – he ran – he was shocked and afraid – told a friend what happened.
E	Police officer	He was Provincial Police Commander at the time – early in the night of 4 July 2001 he was at Kimbe police station being briefed on a fight over land that was taking place at Kavui – he instructed that off-duty police officers be rounded up and brought to the station to prepare for an operation to prevent further fighting at Kavui – then received phone call from Gigo that escapees and their associates were running around carrying guns and drinking beer, scaring the communities around there – dispatched a police officer who reported back that further personnel required – so he led a group of police officers to Gigo – arrived at Gigo but escapees not sighted, so proceeded to Gigo 2 – he was offsider in the second vehicle, driven by Chief Sergeant Wartovo – two other officers were in the vehicle – another police vehicle drove ahead of them into Gigo 2 – when youths saw police vehicles coming they dispersed in all directions – the first vehicle drove straight up – the vehicle driven by Chief Sergeant Wartovo went right towards the roundabout – heard gunshot – vehicle stopped – got out – did not know who fired – deceased straightened vehicle at the roundabout – heard another gunshot – realised that Chief Sergeant Wartovo was shot – ordered that he be rushed to hospital – stayed behind with other officers – a shootout with offenders ensued.
F	Police officer	He was in the back of the vehicle (blue Nissan Navara single cab) driven by Chief Sergeant Wartovo, with another police officer (witness G) – unarmed – was at the roundabout when the deceased was shot – saw a person bending down behind flowers – saw a red flame from the direction of that person and heard gun being fired – witness G returned fire – a man fitting the description of Babex Billy fired the shot that struck the deceased – drove the deceased to hospital.
G	Police officer	He was in the back of the vehicle driven by Chief Sergeant Wartovo – was at the roundabout when the deceased was shot – exchanged gunfire with the person who fired the shot that struck the deceased.
H	Resident / reserve constable	Six days before the incident he and two reserve constables were at Gigo – observed Steven Kaumu and Vincent Kerry in the company of Joshua Samson, who was carrying a gun – those three began swearing at them, eg ‘yupela kaikai kan, laki bilong yupela’ – nothing further happened until night of 4 July 2001 – was informed that a group of youths were sitting down at the bridge, drinking beer and planning to come and fight reserve constables – rang police – he and a colleague met police at main road junction – walked with others back to Gigo 2 – heard gunshots exchanged – by the time he arrived at the scene Chief Sergeant Wartovo was dead.
I	Reserve constable	He was manning the duty counter at Kimbe Police station – took call that there was trouble at Gigo – informed senior officers – wanted to go but not permitted – did not attend the incident.
J	Police officer	He was the driver of the first of the three police vehicles that went to Gigo 2 – the deceased was driving the Provincial Police Commander’s vehicle behind him – confronted a youth, Folda, who was well known to him – youth swore at him and other officers.
K	Reserve constable	He is a Gigo resident – in the days leading up to the incident threats were issued by escapees to various reserve constables resident in Gigo – on one occasion some Gigo boys, including Elias Willy Nelson Folda and Steven Kaumu, broke into Wills PNG and stole cigarettes – he saw them walking along the beach, armed with guns – he fired a warning shot and they dropped a bag – it contained a homemade ‘pop gun’– on the night of the incident he heard that escapees were armed and drunk – told a colleague, who rang the police – heard the gunshots.
L	Police officer	He was the driver of the third police vehicle – heard the shot that killed the deceased – not in a position to return fire.
M	Reserve constable	Was in one of the police vehicles called out to Gigo on the night of the incident – as they drove towards Gigo 2, saw three youths sitting on the road – one of them was Folda – as they reached the top, heard gunshots – heard youths swearing at police.
N	Resident	Around 8 or 9 pm on the evening of the incident, he and his wife observed many youths drinking beer, armed with guns, around Jeffery’s trade store – one of the suspects named Vincent (second name not known) went up the road armed with a bush knife – made threatening gesture about ‘Gigo 1 boys’ – witness and his wife became frightened – informed others – went to his house.
O	Resident	Wife of witness N – observed that behaviour of youths made it risky – went home.
P	Doctor	Prepared medical certificate of death of the deceased and post-mortem report – observed single entry bullet wound through maxilla below right eye penetrating through to base of skull.
Q	Reserve constable	Vincent Kerry, visited him two nights after the incident and gave him an account of what had happened: Police had attacked innocent people – Vincent told him that he had purchased some alcohol for ‘William and them’ – Vincent said that he did not drink – when they finished that alcohol, they went looking for more and the shooting incident happened.
R	Resident	A Sepik man by the name of Vincent (second name unknown) who used to attend the CLC Church stayed with him from 25 July to the afternoon of 6 July 2001 – had to persuade him to leave.
S	Police officer	He is attached to the crime examination section of the National Forensic Science Centre, Gordon – prepared forensics report of incident – compared spent cartridge found at the scene with police cartridges – examined possibility that police personnel could have shot the deceased accidentally – not likely.
T	Police officer	Present at interview of Kito Aso, who denied involvement in murder.
U	Police officer	Present at interview of Thomas Sange, who denied every allegation made against him; also present at interview of a suspect, Elias Willy Nelson Folda, who admitted being with other suspects and escapees drinking beer at Gigo 2 but denied seeing who shot Chief Sergeant Wartovo.
V	Police officer	Present at interview of suspect, Babex Billy, who denied involvement in murder of Chief Sergeant Wartovo.
W	Police officer	He is the investigating officer – interviewed Babex Billy, Thomas Sange and Elias Willie Nelson Folda, all of whom denied allegations.
X	Police officer	This is another statement by the investigating officer – interviewed Kito Aso, who denied allegations; also interviewed Vincent Kerry, who denied allegations.
Y	Police officer	This is the third statement by the investigating officer – interviewed Steven Kaumu, who admitted being involved with escapees and street boys but denied seeing anyone press the trigger.
Z	1st co-accused	Record of interview of Thomas Sange – denied involvement in incident – says he was at Gigo 1 with another person.
AA	2nd co-accused	Record of interview of Steven Kaumu – admitted being at Gigo 2 on the night in question – was with Elias Willie Nelson Folda, Babex Billy, Kito Aso, Thomas Sange, Vincent Kerry and others – drinking beer, cracking jokes with escapees – denied making any plan to shoot police vehicles – saw that others were holding guns – ran away when he heard police vehicle coming – then heard gunfire.
AB	3rd co-accused	Record of interview of Vincent Kerry – says he was at his sister’s house at Gigo 1 on the night of the incident – denied being with escapees and other street boys – went to fellow churchman’s place after the incident.
AC	4th co-accused	Record of interview of Kito Aso – says he was drinking beer with friends at Gigo market on the night of the incident – denied being present at Gigo 2 roundabout.

The court visited the scene on the afternoon of 14 February 2005. We followed the main road from Kimbe town in the direction of Talasea. About 2 kilometres from the town centre we turned left to enter Gigo. After a few hundred metres we crossed a small bridge which crosses a creek. That marks the boundary between Gigo 1 (the area abutting the main road) and Gigo 2 (the area further in). We proceeded another few hundred metres, making a gentle climb. Then we turned right into a road that comes, after about 50 metres, to a cul-de-sac. This is known as the Gigo 2 roundabout. That is the scene of the incident.

We were met at the scene by a person, witness A, who told us certain things. We inspected the scene for 15 minutes then returned to the courtroom. I asked Mr Popeu to prepare a summary of what had happened and what we had been told.

Mr Popeu presented the following summary to the court when it resumed the next morning:

(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death.

The prosecution did not submit that any of the co-accused committed the actual act – firing the shot – that killed Chief Sergeant Wartovo. However it was the prosecution’s case that each of the co-accused aided, counselled or procured another person to do that or formed a common intention to prosecute an unlawful purpose in the course of which the offence of wilful murder was committed. Therefore they are each guilty of the wilful murder that took place. Mr Popeu invokes Sections 7 and 8 (and 9) of the Criminal Code for that purpose.

(1) When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:—

(a) every person who actually does the act or makes the omission that constitutes the offence; and

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and

(d) any person who counsels or procures any other person to commit the offence.

(3) A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

(4) Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, it would have constituted an offence on his part, is—

as if he had done the act or made the omission, and may be charged with himself doing the act or making the omission.

(a) two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another; and

(b) in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of the purpose,

(b) an offence is actually committed under that counsel by the person to whom it is given,

(c) the offence actually committed is the same as that counselled or a different one; or

if the facts constituting the offence actually committed are a probable consequence of carrying out the counsel.

(2) The person who gave the counsel shall be deemed to have counselled the other person to commit the offence actually committed by him.

Mr Popeu invoked Sections 7(1)(c), 7(1)(d) and 8. The elements to be proven for each of the four co-accused, if any one or more of them is to be convicted, therefore are:

Mr Oiveka relied on both limbs of Rape’s case. His principal argument was that the evidence did not in any way connect any of the four co-accused to the shooting. There was some evidence that one of them was near the scene of the incident. There was no evidence that any formed an intention to kill Chief Sergeant Wartovo or any other person. There was no evidence that they acted in concert with the person who shot Chief Sergeant Wartovo.

I asked Mr Oiveka what the situation would be if there were evidence that the co-accused were at the scene when the incident happened and that as they ran away when the police vehicle was turning at the roundabout they had not only sworn at the police but encouraged their companion – the one with the gun – to shoot the police. What if they urged him to fire a shot? He conceded that if that was the evidence, his no case submission would fail, as there would be evidence of aiding or abetting or procuring or counselling about the commission of an offence. Mr Oiveka stressed, however, that that was not the state of the evidence.

As to the records of interview, they provided alibis for three of the co-accused and no evidence had been led which rebutted the alibi evidence.

Mr Popeu submitted that, consistently with the principles in Rape, the court should not be asking itself whether it is satisfied beyond reasonable doubt that all elements of the offence have been satisfied. All that the prosecution needs to establish at this stage is that there is some evidence of the elements and it is more than a scintilla and is not shaky and unreliable. He said that the evidence met those low standards.

It is not necessary for the main perpetrator to have been convicted of wilful murder for those who aided, procured or counselled the commission of the offence to be found guilty of that offence. It is clear that a wilful murder was committed and there is evidence that the co-accused were involved in some way.

Steven Kaumu admitted in his record of interview that he was mixing with the escapees. Therefore, the safest course of action, Mr Popeu submitted, is to refuse the no-case submission and allow the trial to proceed.

I will now apply the principles of Rape’s case to each of the co-accused. In doing so I will first set out the evidence relating to that co-accused. I will assume that the evidence is true. I consider that that is the proper approach to take, at least when the court applies the first limb of Rape. I will not concern myself, in the first instance, with whether the evidence is contradictory or unreliable. That will become relevant if the second limb of Rape is applied. In the first limb I will simply search for some evidence of each of the elements; evidence which, if accepted, would either prove the existence of the element or enable its existence to be inferred.

In applying the test I will assume that Mr Popeu’s submission that it is not necessary for anyone to have been convicted as the main perpetrator, before others can be convicted of aiding or procuring etc, is correct.

According to Steven Kaumu’s record of interview Thomas Sange was at Gigo 2 on the night of 4 July 2001 in the company of Elias Willie Nelson Folda, Babex Billy, Kito Aso, Vincent Kerry and others, including various prison escapees. ([Exhibit AA.)

When he was interviewed Thomas Sange denied involvement in the shooting incident and stated that he was at Gigo 1 with another person. He has an alibi, as yet untested. (Exhibits U, W, Z.)

Is there some evidence of all the elements of the offence of wilful murder that would support his conviction? There is clearly evidence of the first four elements, ie:

(3) unlawfully, as the evidence suggests that the first person was not under threat or attack from the police and that he fired the first shot; and

(4) intentionally, as the evidence suggests that the first person took aim at Chief Sergeant Wartovo.

Is there evidence that Thomas Sange aided the first person to wilfully murder Chief Sergeant Wartovo or any other person? No. I can detect none. Thomas Sange is put at the scene of the incident by Steven Kaumu’s evidence. That is all. There is no evidence, express or inferential that he helped the person in any way to fire the shot.

Is there any evidence that Thomas Sange counselled or procured Babex Billy or any other person to commit the offence? No, none. There is no evidence of any communication between Thomas Sange and the person who fired the shot. Nor is there any evidence that any person overheard a conversation between the two in which Thomas Sange encouraged or urged the other towards shooting anybody.

Is there any evidence that Thomas Sange formed any common intention with Babex Billy or any other person to commit any offence? To conduct a robbery? To abduct any person? To injure anybody? To kill anybody? No. There is a dearth of evidence.

As indicated earlier it is possible for those who are not the main perpetrators to be also guilty. But there must be evidence that a person has done something tangible, in the sense described in Sections 7 or 8 of the Criminal Code. There does not have to be evidence that the person has done all those things in Sections 7 or 8. One is enough. But there must be one. Here there is no evidence that Thomas Sange did any of those things.

So I conclude in relation to Thomas Sange there is no evidence that all of the elements of the offence of wilful murder are present. Going back to question 1 in Rape’s case – is there some evidence of each element? – the answer is no. That means as a matter of law he cannot be convicted. The no case submission is upheld. There is no need to consider question 2 of Rape. Thomas Sange is entitled to an acquittal.

Six days before the incident he and Steven Kaumu were at Gigo with another suspect who was carrying a gun. He and his companions swore at a reserve constable, who is also a Gigo resident. (Exhibit H.)

Around 8 to 9 pm on the evening of the incident he was in the company of other youths who were drinking and carrying firearms around Jeffery’s trade store. He was armed with a bush knife and made threatening gestures about ‘Gigo 1 boys’, which frightened other people in the vicinity. (Exhibits N, O.)

According to Steven Kaumu’s record of interview, Vincent Kerry was at Gigo 2, on the night of 4 July 2001, in the company of Elias Willie Nelson Folda, Babex Billy, Kito Aso, Thomas Sange and others, including various prison escapees. (Exhibit AA.)

He stayed with a Sepik man with whom he used to attend church with until two days after the incident, when he had to be persuaded to leave. On the night of 6 July 2001 he stayed with somebody else, witness Q. He gave him an account of what had happened at Gigo 2 on the night of 4 July 2001. (Exhibits Q, R]

He said in his police interview that he was at his sister’s house at Gigo 1 on the night in question. He denied being with escapees and street boys. He confirms going to a fellow churchman’s residence after the incident. (Exhibits X, AB.)

As with Thomas Sange there is evidence of the first four elements. I turn then to the remaining elements arising from Sections 7 and 8 of the Criminal Code.

Is there evidence that Vincent Kerry aided a person to wilfully murder Chief Sergeant Wartovo or any other person? No. I can detect none. There is evidence from two sources that he and Steven Kaumu and another person were behaving in a threatening manner six days before the incident. There is also evidence that he was at Gigo 2 on the night of the incident. He says that he was at Gigo 1 but for present purposes the evidence is that he was at Gigo 2. There is, however, no evidence that he was at the scene of the incident. It can be inferred from the two witnesses who say a person called Vincent stayed with them within a few nights after the incident, that it was Vincent Kerry and that he was behaving suspiciously. There is, however, no evidence, express or inferential, that he told any of the people he stayed with, that he was involved in the shooting of Chief Sergeant Wartovo or that he helped the person in any way to fire the shot.

Is there any evidence that Vincent Kerry counselled or procured Babex Billy or any other person to commit the offence? No, none. There is no evidence of any communication between Vincent Kerry and the person who fired the shot. Nor is there any evidence that any person overheard a conversation between the two in which Vincent Kerry encouraged or urged the other towards shooting anybody.

Is there any evidence that Vincent Kerry formed any common intention with Babex Billy or any other person to commit any offence? To conduct a robbery? To abduct any person? To injure anybody? To kill anybody? No.

There is no evidence that Vincent Kerry did any of the things set out in Sections 7 or 8 of the Criminal Code that would make him criminally liable.

I conclude in relation to Vincent Kerry that there is no evidence that all of the elements of the offence of wilful murder are present. The answer to question 1 in Rape’s case is no. Therefore as a matter of law he cannot be convicted. The no case submission is upheld. There is no need to consider question 2 of Rape. Vincent Kerry is entitled to an acquittal.

According to Steven Kaumu’s record of interview Kito Aso was at Gigo 2 on the night of 4 July 2001 in the company of Elias Willie Nelson Folda, Babex Billy, Vincent Kerry, Thomas Sange and others, including various prison escapees. (Exhibit AA.)

He said in his police interview that he was drinking beer with friends at Gigo market on the night of the incident. He denied being at Gigo 2 roundabout. (Exhibits T, X, AC.)

There is evidence of the first four elements. I turn then to the remaining elements arising from Sections 7 and 8 of the Criminal Code.

Is there evidence that Kito Aso aided a person to wilfully murder Chief Sergeant Wartovo or any other person? No. I can detect none. There is no evidence of him engaging in any threatening behaviour prior to the incident. By his own admission he was at Gigo on the night of the incident. But no other evidence links him to the time, place or motive of the killing. There is no evidence of his behaving suspiciously in the days after the incident.

Is there any evidence that Kito Aso counselled or procured Babex Billy or any other person to commit the offence? No, none. There is no evidence of any communication between Kito Aso and the person who fired the shot. Nor is there any evidence that any person overheard any conversation between the two.

Is there any evidence that Kito Aso formed any common intention with Babex Billy or any other person to commit any offence? To conduct a robbery? To abduct any person? To injure anybody? To kill anybody? No.

There is no evidence that Kito Aso did any of the things set out in Sections 7 or 8 of the Criminal Code that would make him criminally liable.

I conclude in relation to Kito Aso that there is no evidence that all of the elements of the offence of wilful murder are present. The answer to question 1 in Rape’s case is no. Therefore as a matter of law he cannot be convicted. The no case submission is upheld. There is no need to consider question 2 of Rape. Kito Aso is entitled to an acquittal.

Six days before the incident he and Vincent Kerry were at Gigo with another suspect who was carrying a gun. He and his companions swore at a reserve constable, who is also a Gigo resident. (Exhibit H.)

In the period before the incident he broke into the Wills PNG compound with other Gigo boys and stole cigarettes. He and his companions were later observed walking along the beach, carrying guns. (Exhibit K.)

The evidence of a Gigo resident puts him in the vicinity of the scene on the night of 4 July 2001. He was mixing with prison escapees and others holding guns. Steven Kaumu was not holding a gun. (Exhibit B.)

He admitted in his police interview that he was at Gigo 2 on the night in question in the company of escapees and street boys, drinking beer and cracking jokes, but denied making any plans to shoot police vehicles and said that he ran away when he heard the police vehicles coming. (Exhibits Y, AA.)

There is evidence of the first four elements. I turn then to the remaining elements arising from Sections 7 and 8 of the Criminal Code.

Is there evidence that Steven Kaumu aided a person to wilfully murder Chief Sergeant Wartovo or any other person? No. I can detect none. He was clearly at the scene of the incident. That is all. There is no evidence, express or inferential that he helped the person in any way to fire the shot.

Is there any evidence that Steven Kaumu counselled or procured Babex Billy or any other person to commit the offence? No, none. There is no evidence of any communication between Steven Kaumu and the person who fired the shot. Nor is there any evidence that any person overheard a conversation between the two in which Steven Kaumu encouraged or urged the other towards shooting anybody. The evidence is that he ran away with all but one person (the prime suspect) when he heard the police vehicles coming. The evidence is that those who ran away shouted abuse at the police. There is no evidence that he or any of the others who ran away encouraged the person who fired the shot to do so.

Is there any evidence that Steven Kaumu formed any common intention with Babex Billy or any other person to commit any offence? To conduct a robbery? To abduct any person? To injure anybody? To kill anybody? No, not in the relevant sense. There is evidence of Steven Kaumu’s involvement in a robbery in the days leading up to the incident. But there is no evidence that the robbery was linked to the wilful murder of Chief Sergeant Wartovo.

There is no evidence that Steven Kaumu did any of the things set out in Sections 7 or 8 of the Criminal Code that would make him criminally liable.

I conclude in relation to Steven Kaumu that there is no evidence that all of the elements of the offence of wilful murder are present. The answer to question 1 in Rape’s case is no. Therefore as a matter of law he cannot be convicted. The no case submission is upheld. There is no need to consider question 2 of Rape. Steven Kaumu is entitled to an acquittal.

There is no evidence that any of the four co-accused was involved in the killing of Chief Sergeant Wartovo. The no case submission in relation to each of them is upheld.

Tragic, as it concerns the death of a police officer, Chief Sergeant Henry Wartovo, who the evidence suggests was wilfully murdered in a cowardly attack while he was doing his job.

It is a disturbing case as four young men have been unnecessarily brought before the court to face a very serious charge, which carries the death penalty. There was hardly a shred of evidence against any of them. Each was rightly made a suspect and interviewed. They were accorded their constitutional rights and cooperated with the police and each of them denied involvement in the crime. The police investigation seems to have been thorough. It revealed one person as the prime suspect – a Gigo man called Babex Billy – and there are eyewitness accounts of what happened. It is clearly him who should be facing trial. As for the four co-accused in this case, a lot more investigation and evidence was required.

Despite a paucity of evidence linking any of them to the crime, they were arrested, charged and detained, some of them for considerable periods. This process has continued for more than three years. Two of them – Steven Kaumu and Vincent Kerry – each have only one leg. It is impossible not to be curious about such a thing. It is impossible also not to be informed of certain things when a case is proceeding. I have been informed that they were each shot by the police during the course of investigations and had to have a leg amputated as a result. I do not know whether that is a true story and I have not allowed that information to sway the handling of this case. But if it is true – or anywhere near the truth – clearly it is a matter requiring further inquiry. Those two – indeed the four of the co-accused – should ensure that they obtain proper legal advice regarding the enforcement of their constitutional rights.

In the meantime the police must make every effort practicable to arrest the prime suspect so that he can be brought before the court, afforded his constitutional rights and dealt with according to law. If that does not happen, the police will not be doing their job. They will be doing a disservice to the memory of their late colleague and to his family, relatives and friends who are doubtless still enduring this tragedy in their everyday lives.

The order of the National Court is that Thomas Sange, Vincent Kerry, Kito Aso and Steven Kaumu are each acquitted of the charge of wilfully murdering Chief Sergeant Henry Wartovo.
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Lawyers for the State : Public Prosecutor
Lawyers for the accused : Public Solicitor

National Court of Papua New Guinea

State v Sange [2005] PGNC 145; N2805 (16 February 2005)