N3423

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 1361, 1363 & 1362 OF 2006

THE STATE

V

JOHN DENDE, ALEX IPA & CASPER BAKI

Kimbe: Cannings J
2008: 14, 15, 16, 22, 24, 25 July

VERDICT

CRIMINAL LAW – trial – wilful murder – Criminal Code, Section 299 – identification evidence – alibi – whether any of the accused intended to kill the deceased – assessment of an accused’s state of mind. 

Three men were indicted for the wilful murder of a 19-year-old man. It was undisputed that the deceased was injured in a fight between two groups in a village setting. The State produced several witnesses who said they saw the fight take place. Each of the accused gave sworn evidence and relied on an alibi.

Held:

(1)	Three State witnesses gave credible evidence of seeing each of the three co-accused in a group of men chasing the deceased in the course of the fight.

(2)	One of those State witnesses gave direct and credible evidence of seeing each of the co-accused amongst the group standing over the deceased after he fell.

(3)	The alibi evidence was not strong.

(4)	The State proved beyond reasonable doubt that each of the accused killed the deceased unlawfully, however failed to prove that they intended to kill him.

(5)	Accordingly each accused was convicted of murder. 

Cases cited

The following cases are cited in the judgment:
John Jaminan v The State (No 2) [1983] PNGLR 318
The State v David Yakuye Daniel (2005) N2869
The State v Lucas Soroken and Others (2006) N3029
The State v Paul Gambu Laore & 11 Others CR Nos 914-925/2005, 11.12.07

Abbreviations

The following abbreviations appear in the judgment:
aka – also known as
CID – Criminal Investigation Division
cm – centimetres 
Const – Constable
CR – criminal case
Det – Detective
Dr – Doctor 
J – Justice
K – Kina
kg – kilograms 
km – kilometre
N – National Court judgment
No – number
PNGLR – Papua New Guinea Law Reports
Sgt – Sergeant 
v – versus
WNB – West New Britain
WNBP – West New Britain Province

Glossary 

People
Abe Luma – referred to in Anton Gala’s evidence 
Alex Ipa – accused #2; son of Edmund Baili/Pinda and Clarita Nuli
Alfred Reu – referred to in Anton Gala’s evidence
Alois Nuli – referred to in Eliza Kuvi’s evidence
Anton Gala – State witness No 3
Ben Baki – referred to in Alex Ipa’s evidence
Bernard Reu – Huritali clan member allegedly involved in fight
Brian Walter – friend of Eliza Kuvi
Casper Baki – accused No 3
Charles Tele – in group that allegedly raised Clarita Nuli’s house
Chris Pinda – referred to in John Dende’s evidence
Cladie Meta – child whose baptism was allegedly at Matanagavae
Clarita Nuli – defence witness No 5; Alex Ipa’s mother
Dr Peter Yama – conducted post-mortem
Dukutavulu clan – allegedly involved in fight at Matanagavae
Edmund Baili/Pinda – Clarita Nuli’s husband; Alex Ipa’s father; owns house at Rovu, close to fighting area
Edmund Gore – referred to in Eliza Kuvi’s evidence
Eliza Kuvi – State witness No 1; the deceased’s brother
Emmanuel Giru – referred to in Thomas Meta’s evidence
Emmanuel Meta – defence witness No 6, aka Abdul Muki
Emmanuel Simo – Huritali clan member allegedly involved in fight
Fred Reu – referred to in John Dende’s evidence
Galepe – sister of the deceased 
Gregory Mataile – referred to in Eliza Kuvi’s evidence
Hildagud Reu – sister of the deceased
Huritali clan – accuseds’ clan
Ignatius/Ignas Pinda – defence witness No 7
Jack Luvi – friend of Eliza Kuvi
Jacob Kundi – referred to in Alex Ipa’s evidence 
James Baki – John Dende’s uncle
James Kundi – grandfather of child being baptised allegedly at Matanagavae, owner of house where birthday party held
John Baki – John Dende’s father
John Dende – accused No 1
John Gabung – Huritali clan member allegedly involved in fight
Lambert Giru – referred to in Eliza Kuvi’s evidence
Lawrence Meta – person whose birthday party was allegedly at Matanagavae; father of child whose baptism was allegedly at Matanagavae
Ludwig Dende – referred to in Alex Ipa’s evidence 
Ludwig Lavu – referred to in Anton Gala’s evidence
Magdalene Baki – defence witness No 4; John Dende’s mother
Marebu – referred to in John Dende’s evidence
Mone Mundia – friend of Eliza Kuvi
Norbert Gorea – Huritali clan member allegedly involved in fight
Patrick Baili Gala – the deceased
Peter Becho – schoolteacher who provided witness statement
Rick Pinda – referred to in John Dende’s evidence
Rihate clan – referred to in Emmanuel Meta’s evidence
Robert Mone – the deceased’s father
Robert Reu – deceased’s brother-in-law
Ronald Luvi – referred to in Anton Gala’s evidence
Sali Mamusi – Huritali clan member allegedly involved in fight
Sapol – a woman referred to in Alex Ipa’s evidence
Takale clan – deceased’s clan
Thaddeus – referred to in John Dende’s evidence
Thomas Gala – State witness No 2
Timothy Kuvi – Huritali clan member allegedly involved in fight
Tony Gala – a brother of the deceased
Paul Kumono, Constable – investigating police officer

Places
Dami – village in Talasea district 
Darava – village in Talasea district
Ganeboku – village in Talasea district
Kimbe – provincial capital, West New Britain
Matanagavae – village in Talasea district; the place where two of the accused claim to have been at the time of the fight
Namova – village in Talasea district
Rovu – village in Talasea district where fight occurred
Talasea – district in WNBP
Pasiloke – village in Talasea district 

TRIAL

This was the trial of three accused charged with wilful murder.

Counsel

F Popeu, for the State
E Geita, for the accused

25 July, 2008

1. CANNINGS J: On the afternoon of Sunday 23 April 2006 there was a fight at Rovu village in the Talasea district of West New Britain Province. A 19-year-old man, Patrick Baili Gala, was attacked and two days later his body was found nearby. The three accused – John Dende, Alex Ipa and Casper Baki – have been charged with wilfully murdering him. 

2. The State’s case is that the three accused, all aged in their early 20s, were members of a group that attacked the deceased and cut him with bushknives and caused his death. 

3. Each of the accused denies involvement in the death. They each presented alibis.

THE OFFENCE

4. Section 299 (wilful murder) of the Criminal Code states:

(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.

5. The prosecution has the onus of proving beyond reasonable doubt that:

•	the accused killed the deceased;
•	the killing was unlawful; and
•	the accused intended to cause the death of the deceased.

6. They are the three elements of the offence. If the court is not satisfied as to the third element – intention – an alternative verdict of murder or manslaughter (the maximum penalty for which is life imprisonment) can be entered.

EVIDENCE FOR THE STATE

7. The State’s case was based on the following evidence:

•	13 documentary exhibits; and 
•	the oral testimony of three witnesses.

THE STATE’S 13 EXHIBITS

8. Exhibit A is John Dende’s record of interview conducted on 18 June 2006 by Const Paul Kumono. He exercised his right to remain silent.

9. Exhibit B is Alex Ipa’s record of interview conducted by Const Paul Kumono at Talasea Police Station on 18 June 2006. The accused stated that he is single and resides at Rovu village. On 23 April 2006 between 2 and 5 pm he was at Matanagavae village preparing food for his uncle’s first born child who was being baptised. He remained at the party until a woman called Sapol came and told them that houses were being burnt at Rovu. He did not know who was burning the houses. He went to Rovu between 3 and 4 pm but by the time he got there the fight was over. When asked if he was aware that there was a death at Rovu that afternoon and that he was implicated, he exercised his right to remain silent. 

10. Exhibit C is Casper Baki’s record of interview conducted on 19 June 2006 by Const Paul Kumono at Kimbe Police Station. He exercised his right to remain silent. 

11. Exhibit D is an official police report of the death of Patrick Gala, aged 19 years, a grade 9 student at Kimbe Secondary School, to the Coroner. It gives the time and date of death as 3 to 4 pm on Sunday 23 April 2006 and the place of the death as Rovu village. The deceased is reported to have been last seen alive by relatives on Sunday 23 April 2006. Suspicious circumstances listed were "gunshot wound and bush knives during fight". 

12. Exhibit E is an order by the Coroner to Kimbe General Hospital to conduct a post-mortem.

13. Exhibit F is a warrant to bury issued by the Coroner on 26 April 2006. 

14. Exhibit G is a post-mortem report prepared by Dr Peter Yama of Kimbe General Hospital. The post-mortem was conducted on 27 April 2006. Significant abnormal findings included "corpse of a young man partially decayed from head down to chest. Unable to recognise the face with heavy infestation of maggots and is very smelly".

15. Other observations included:

Slashed throat, trachea, oesophagus and carotid arteries. Fractured right frontal nasal bridge. Bush knife wound. Deep laceration: right shoulder, right elbow. Deep laceration: right heel of foot. Skull frontal fracture including nasal bone. … Fractured maxilla and mandible. Deep wound on left anterior tibial surface. 

16. Another significant finding was that the cervical spine was fractured at C3-C4. The internal organs were intact. 

17. Exhibit H is an affidavit by Dr Yama saying that he conducted the post-mortem and prepared the report on 27 April 2006.

18.	Exhibit I is a medical certificate of death. The direct cause of death was "respiratory arrest (haemorrhagic shock)". Antecedent causes were:

•	cut throat (including trachea, oesophagus and carotid artery);
•	cervical spine fracture;
•	skull facture (frontal bone);
•	multiple deep laceration on right hand and both feet. 

19. Exhibit J is a witness statement by Peter Becho, a schoolteacher who lives at Rovu. He was at the village on the afternoon of 23 April 2006 when there was a fight between the Takale clan and the Huritali clan. Between 4 and 5 pm he was at home when Alfred Reu and Charles Tele of Rovu asked him if he had seen Patrick Baili. He had not seen him. On Monday morning he went to Kimbe to ask the Provincial Education Coordinator to suspend classes due to the fighting at Rovu. He went back to the village in the afternoon and heard that Patrick Baili had been murdered. He joined the search party on Tuesday morning. He heard from a source that the body could be found at a place 1 km from the village. They went to a spot near a dry creek and discovered the body. He returned to the village, informed the villagers and police, then some village men accompanied the police to the spot and brought the body back to the village. 

20. Exhibit K is a witness statement by the deceased’s father, Robert Mone, aged 52 years, of Rovu. On the morning of Sunday 23 April 2006 he was at home with his son. At about 1 pm he and his wife went down to the creek to do the laundry and bathe. After a while they heard noises of people fighting at the village so they went to see what was happening. By the time he arrived the fight was over. He asked for his son as he was not around. The next day he sent his wife to Dami village to ask her brothers if they had seen Patrick. The uncles returned with her and said that they had not seen him. They asked various Huritali clan members if they knew where Patrick was but they did not respond properly.

21. On Tuesday morning the police came into the village to assess the situation and then some villagers reported that Patrick’s body had been found. 

22. Exhibit L is a witness statement by Bernard Reu, a male adult of Rovu. He was home at Rovu on the afternoon of 23 April 2006. He heard people fighting but he remained in his house as he did not want to be implicated. Early on Monday morning he received information that Patrick Baili had died during the fight so he shifted his family to Ganeboku and then on Tuesday he and his family moved to Pasiloke.

23. Exhibit M is a witness statement by John Lavu, a 17-year-old student at Gigo Primary school. He was at Rovu on the afternoon of the fight. Between 4 and 6 pm he was at his copra shed drying copra with his young brother when they heard noises coming from the main village about 1 km away. They went to the village and saw that Edmund Baili was leading his youths and they were fighting with Anton Gala, Alfred Reu and others. They saw Patrick Baili outside the road and Patrick told them to wait for him there as he would return with a firearm. They waited for some time and he didn’t come back so they went to assist their boys but they were a bit late. The other group was armed with axes, spears and bush knives. He and his brother were about to run away when he was shot on his right leg [apparently a superficial wound]. There was another shot about 10 minutes later. He does not know how Patrick Baili ended up at the back of Edmund’s house resulting in his death.

STATE WITNESS NO 1: ELIZAH KUVI

24. He is a villager from Rovu. He is a brother of the deceased. In 2006 he was doing grade 6 and living in the village. On the morning of the incident three of his brothers were walking to another village when people from the Huritali clan shot stones at them. His brothers continued on but on the way back they again had stones thrown at them by various people including the three co-accused. Then the fight started.

25. At that time he was with two of his friends, Mone Mundia and Brian Walter. They were sitting around and they heard loud noises, shouting and swearing, and they went to see what was happening. They saw the three co-accused fighting with three of their boys. So he and his friends joined the fight. 

26. They were being chased and he turned around and saw the three co-accused and others running into a patch of bushes where Patrick had run to. Then the two groups stood swearing at each other.

27. Later in the day he and his group realised that Patrick was missing. They could not find him, so they sat around until daybreak. 

28. The next morning, Monday, his mother went to Dami village and came back with an uncle. They went to the place the fight had taken place but they could not find Patrick. Later, they heard that he had been killed. They looked everywhere but still couldn’t find him. It was until the next day, Tuesday, that they found his body in the bush. Then the police came and took his body to the hospital.

30. He was not present when the fight started. He became aware of the fight between 3 and 4 pm. 

31. Others fighting alongside the co-accused were: 

•	Abe Luma,
•	Gregory Mataile, 
•	Lambert Giru, 
•	Pinda (he doesn’t know his other name),
•	Timothy Kuvi.

32. He was not armed himself but others in his group had slingshots. 

33. The others who chased Patrick into the bush with the three co-accused were:

•	Alois Nuli,
•	Edmund Gore,
•	Norbert Goria.

34. He knows the three co-accused very well. They are like brothers to him.

35. In cross-examination Eliza Kuvi said that they were not lots of people fighting. It was not correct to say that people were running all over the place. They were two distinct groups fighting. 

36. There were plenty of trees in bush into which Patrick ran. 

37. When it was put to him that Alex and Casper were at Matanagavae village he said that was a lie. As for John Dende, they were fighting in front of his house.

38. It was not true that he and his group damaged John Dende’s house during the course of the fight. However they did damage Clarita Nuli’s house.

39. The two groups were fighting about 10 or 11 metres away from each other at close range. The fight took place in the middle of the village. It was not in the bushes. 

40. Clarita’s house was not burnt during the fight. It was only after the body was found that they burnt down her house.

41. In re-examination Eliza Kuvi clarified that he did not actually see who killed Patrick. The last time he saw him alive was when he ran into the bush. 

STATE WITNESS NO 2: THOMAS GALA

42. He is from Rovu and lives in the village. On the afternoon of Sunday 23 April 2006 he went to the river to have his wash. He finished and was walking back and met Anton Gala (State witness No 3) on the road. The two of them walked back to the village and as they approached they heard that there was a fight going on. They heard a gunshot. 

43. They saw some men chasing Patrick Baili: 

•	Alex Ipa,
•	Alois Nuli, 
•	Bernard Reu, 
•	Casper Baki,
•	Edmund Baili, 
•	Emmanuel Giru, 
•	Emmanuel Simo, 
•	John Dende,
•	John Gabung, 
•	Norbert Gorea. 

44. Alois Nuli was the first one to strike Patrick. He threw a chisel at his left shoulder. The other men then started shouting "Cut him! Cut him!". They called out to Nobert Gorea and Norbert cut Patrick on the forehead with a bush knife and Patrick fell. Edmund Baili ran up with his spear to where Patrick had fallen and threw the spear down. Alex Ipa ran up with his bush knife and swung it to where Patrick had fallen. John Dende and Casper Baki were also there at the place where Patrick had fallen.

45. He (Thomas) swore in the local language, shouted and asked what they were doing. The group heard him, turned around and chased him. He ran back to his house in the village and stayed there. By that time it was getting dark. That evening he told his wife about what had happened.

46. Anton Gala was with him when he saw the group chasing Patrick. Anton left him when he swore at the group and was chased ie he and Anton ran in different directions. He and Anton were about 30 metres away when they saw the group chasing Patrick. He had a clear view of Patrick being chased and struck. Patrick was running perpendicular to Norbert Gorea when they met and that’s when Norbert cut Patrick. The grass was short at that time. There were coconut trees but the trunks did not obscure his view. 

47. Most of the people who were chasing Patrick were from the Huritali clan. Only three were from Rihate clan. He does not know when and how the fight started but he definitely saw the three co-accused chasing Patrick.

48. The next morning they tried to find Patrick’s body at the place he saw him fall but they could not find it. The following day, Tuesday, they went into the bush and some men found the body there. The police brought the body back to the village. 

49. In cross-examination Thomas Gala confirmed that he did not know how the fight started. Nor did he know when it started as he was down at the river. He confirmed that the three co-accused were present at the spot where Patrick had fallen. They were swinging their knives downward but he did not see where exactly they cut Patrick. When he approached the village from the river he came out somewhere in the middle of the two groups. 

50. When Alois shot him with the chisel Patrick still continued. When Norbert cut him, he fell. After that, when the others cut him, he does not know where they cut him on his body.

51. He was afraid so he ran away. He did not see anybody carrying Patrick’s body. But the next day when he went to the spot where Patrick had fallen, there was a lot of blood. That’s why he believed they may have moved his body into the bush.

52. The area where the fight took place was between John Baki’s house and Edmund Baili’s house.

53. When it was put to him that John Dende had an alibi as he was with Clarita Nuli and Magdalene Baki, Thomas Gala said that he did not believe John Dende would just sit there and watch his boys fight. The two groups fought with slingshots and stones until it was dark. He saw Emmanuel Meta and Ignatius Pinda when the fight happened at Rovu.

54. It is true that the Takale clan is bigger than the Huritali clan. But many Takale clan members are at Namova and others are at Rovu. Namova is a long way from Matanagavae. He does not know anything about the other fight at Matanagavae. But he heard that there was fight there.

STATE WITNESS NO 3: ANTON GALA

55. He is from Rovu village but he has a job in Kimbe and he goes to the village on the weekends. He was at the village on Sunday 23 April 2006. He was with Alfred Reu and Ronald Luvi and they were going to Darava village and they were surprised when Alex Ipa swore at them. 

56. Later that day, about 4 pm, when they were returning, they met four boys on the road: Norbert Gorea, Timothy Kuvi, Matele and Ludwig Lavu. They greeted them and followed the road and then were again surprised when after a while that group threw stones at them. He does not know why. Then a bigger group ran after them, including:

•	Abe Luma,
•	Alex Ipa,
•	Casper Baki,
•	Edmund Baili,
•	John Dende.

57. Abe Luma said that they were going to kill one of them. The other group continued to chase his group and then they turned around and shot stones at each other. The other group moved his group back. Then John Dende, Alex Ipa and Casper Baki went into the area where Patrick Baili had died. Alois Nuli was with them too. 

58. After a while the stone throwing stopped and the two groups just swore at each other. By then it was getting dark and they went home. Patrick Baili was not with his group. 

59. He last saw Patrick Baili going into the place "where they killed him". Also in the other group were: 

•	Alois Nuli,
•	Bernard Reu, 
•	Norbert Gorea, 
•	Sali Mamusi, 
•	Timothy Kuvi. 

60. There were plenty of them. He knows the three co-accused very well. He went to school up to grade 8 with John Dende and Alex Ipa. He knows Casper Baki well. They hang round together and tell stories. 

61. In cross-examination Anton Gala said that the three co-accused were definitely present at the fight. They were only 20 or 30 metres apart and he could see each of them. The actual fight took place from about 4 to 6 pm, in front of John Dende’s house. 

62. He admitted that they did damage Clarita Nuli’s house after they had chased the other group away. John Dende’s house is about 50 metres away from Clarita’s house. He left his house and came to Clarita’s house to fight. Clarita Nuli and Magdalene Baki were present.

63. It was not a scattered fight as the other group was on one side and his group was on the other side and they were shooting and swearing at each other. Even though his group was moving back away from the other group they continued to face them. He could see the three co-accused running into the area where Patrick died. His group did not give their backs to the other group.

64. In re-examination Anton Gala said that the two women, Clarita and Magdalene, were crying and trying to stop the fight. During the course of the fight they damaged Clarita Nuli’s house by cutting the walls. He saw Alois Nuli and Norbert Gorea also going into the area with the three co-accused, where Patrick died.

65. Answering questions from the bench, Anton Gala said that he did not see how Patrick Baili died. The place where he saw Patrick going into was at the back of Alex Ipa’s house. 

66. The end of Anton Gala’s evidence marked the close of the State’s case. 

THE DEFENCE CASE

67. Each of the accused gave sworn evidence and there were four alibi witnesses. No exhibits were tendered.

DEFENCE WITNESS NO 1: THE ACCUSED, JOHN DENDE

68. He is the son of John Baki and Magdalene Baki (defence witness No 4). On the afternoon of the fight he was sleeping in his house, about 60 metres away from Edmund Baili’s house. Edmund Baili is Alex Ipa’s father. Alex’s mother is Clarita Nuli. Patrick’s sister is married to his (John’s) older brother.

69. He heard people from the Takale clan going into Edmund Baili’s house. They were breaking the house and damaging the roofing iron and walls and then set fire to the house. 

70. He went out to see what was going on and saw the Takale people shooting stones at his boys. He got his slingshot and shot back at them. They were fighting each other until it was dark, at about 6 pm. 

71. Edmund’s wife, Clarita, came to his house and stayed there until the next day. 

72. On Monday morning about 9 o’clock some people from Dami came, including Thaddeus Paul, Chris Pinda, Marebu and Fred Reu. They asked if he had seen Patrick and he said no. A short time later they came back and asked the same thing and he told them again that he had still not seen him.

73. Then Patrick’s father came over and the village elders had become involved by that stage. Soon afterwards he went to Ganeboku and he has been living there ever since. 

74. In cross-examination, John Dende confirmed that he is from Huritali clan. The fight was between his clan and the Takale clan. The fight took place between his house and Edmund’s house. The clan members assisted each other in the fight. 

75. The same day there was a fight at Matanagavae in which Huritali clan members were also involved. They were fighting the Takale clan there too. There was another clan, Dukutavulu, which was assisting the Takale clan. 

76. In his opinion the fights at Rovu and Matanagavae were interconnected. Some of the Takale clan attacked at Rovu and some attacked at Matanagavae.

77. He stayed at his house all the time that the fight was taking place at Rovu. 

78. He confirmed that he is related to his co-accused, Casper Baki and Alex Ipa. Casper is his cousin as he is the son of his father’s sister. He agreed that Casper would assist him if he were involved in a fight. He (John Dende) is Alex’s father’s brother. 

DEFENCE WITNESS NO 2: THE ACCUSED, ALEX IPA

79. He was at Matanagavae on the day of the fight. He was at a birthday party for his cousin Lawrence Meta, who was 24 years old. Others at the party included:

•	Ben Baki,
•	Emmanuel Meta (his uncle),
•	Ignatius Pinda (his uncle),
•	Jacob Kundi,
•	Ludwig Dende. 

80. The party started in the morning. When they were getting ready to eat some people from the Takale clan came inside and chased them. The people at the party ran into the oil palm block. He also ran into the bush with the others.

81. Someone came and told them that there was also a fight at Rovu. He was shocked when he heard that news so he left his father, Ignatius and the others and followed the road to Rovu. 

82. When he arrived at Rovu he saw that his house was being burnt and trees and crops were being cut down. That was about 4 pm. He then went to John Dende’s place. The main fight had stopped but the Takale people were swearing and shooting stones at them.

83. In cross-examination he said that he was angry when he saw what had happened to his house. When he got there the groups were still throwing stones and shouting at each other. Asked whether he took part in the fight, Alex Ipa said ‘yes’.

DEFENCE WITNESS NO 3: THE ACCUSED, CASPER BAKI

84. He is from Matanagavae. On the day of the fight he was at Matanagavae at a birthday party for Lawrence Meta. Those present included:

•	Ben Baki, 
•	Emmanuel, 
•	Ignatius,
•	James Kundi,
•	Ludwig Dende.

85. The birthday party was held at James Kundi’s house. 

86. During the party a boy from Gloucester ran up and told them that there was a fight at Rovu. Then they heard the corn shell and then some Takale people and Dukutavulu people attacked the village. They had guns, knives and spears. They chased them away. The other clans attacked his village because of various issues that he did not know about.

87. In cross-examination Casper Baki said that there was only one party at Matanagavae that day and that is the one that he attended. He was sure it was a birthday party and he was at the party. The fight at Matanagavae may have been about a stolen pig which belonged to a Dukutavalu clan member. 

DEFENCE WITNESS NO 4: MAGDALENE BAKI

88. She is John Dende’s mother. On the day of the fight she was returning from the garden and on the way one of her children met her and told her that there was a fight at the village. 

89. When she arrived at the village she stood with her son John and they watched the house belonging to Edmund Baili and Clarita Nuli burn. With them was the sister of the deceased. They stayed there together until it got dark and then they went to sleep. The fight took place 60 or 70 metres away from her house.

90. The next morning some people from Dami came and told them that there had been a death. A second group came later and told them the same thing. After the second group left James Baki took them to Ganeboku and they have been staying there ever since. 

91. She was with her son John all the time. During the course of the fight John was at their house. He was sick. 

92. In cross-examination Magdalene Baki said that she came up from the garden between 3 and 4 pm. She confirmed that her son John was sick and sleeping in the house. He would have been too sick to take part in a fight. 

93. Alex Ipa came from Matanagavae where he had been at a birthday party. He came and stood with them and watched the house burn. He did not take part in the fight.

DEFENCE WITNESS NO 5: CLARITA NULI

94. On the day of the fight she had returned from church and was preparing a meal when she saw people from the Takale clan coming into the village holding knives, spears and other weapons. They asked for her husband Edmund and her son Alex. They cut the flowers and betel nut trees and then somebody burnt down her son Alex’s house. They cut up personal belongings and destroyed property and used knives to threaten them.

95. Anton Gala took down his trousers and showed her his private parts and told her to get her husband and her son to come and he would fuck their arses. They kept asking about Alex and her husband and she told them that they had gone to Matanagavae for a birthday party. Then they fired the gun and one of her children who is disabled ran away to John Dende’s place. When they fired a second gun shot she left the house and also went to John Dende’s house and looked back at her house which was being destroyed. She stood there with John Dende and Reu Baki and the sister of the deceased. She slept at John Dende’s house that night. 

96. During the fight John Dende remained at his house. 

97. The next day they walked to Matanagavae then the big men from Ganeboku came and got them and she went to Ganeboku and has been there ever since. 

98. In cross-examination Clarita Nuli said that her house had not only been damaged during the course of the fight, it was burnt down as well. The person responsible was Eliza Kuvi.

99. The fight started near her house.

100. When she went over to John Dende’s place John was sick and asleep in the house. Asked whether John Dende took part in the fight she replied that he was sleeping.

101. In re-examination Clarita Nuli when asked the same question – was John Dende involved in the fight? – she replied that he was sleeping at his house.
 
DEFENCE WITNESS NO 6: EMMANUEL META 

102. He was at his village, Matanagavae, on the day of the fight at a baptism party for the son of his cousin, Lawrence Meta. There were a lot of Huritali clan members at the party including Alex Ipa and Casper Baki.

103. Between 4.30 and 5 pm a young boy from Gloucester ran into the village and informed them that houses at Rovu were being burned. Rovu is about a mile from Matanagavae, about a 10 minute walk. He also heard the sound of the conch shell being blown, which signified that a fight was going on. 

104. Alex Ipa, who is from Rovu, was worried about his house so he left for Rovu. He (Emmanuel) immediately followed Alex, to find out what the problem was. On the way he heard gunshots being fired so he hurried along behind Alex. He was about two minutes behind. 

105. When he got to Rovu lots of people were swearing at each other and he saw long term enemies of the deceased and his clan present: 

•	Alex Ipa,
•	Casper Baki,
•	Edmund Baili,
•	Emmanuel Simo,
•	Ignatius Pinda,
•	Joel Meta,
•	John Gambung,
•	Norbert Gorea.

106. There was a commotion at Edmund’s house with people from the Takale clan. When he was at Rovu he saw no actual confrontation between the clans as the fight was already over.

107. He was only at Rovu for four or five minutes and he heard a commotion coming from Matanagavae so he decided to run back there. When he got back the Takale clan members were attacking the village and burning down their houses. 

108. He teamed up with his boys including Casper Baki and tried to put up a resistance but to no avail. 

109. He got to Rovu about 5 pm and then got back to Matanagavae about 5.30 pm. 

110. The problems between the clans all go back to a land dispute. But there had since then been an attempted murder and houses have been burnt down and the problems were ongoing.

111. In cross-examination Emmanuel Meta confirmed that there were a lot of people at the baptism party at Matanagavae. There was only one party there that day. Asked why the three co-accused would have said that they were at a birthday party for Lawrence Meta, the witness replied that maybe they mistook the purpose of the party. It was not a birthday party. A child, Luther, the son of Lawrence Meta, was being baptised. 

112. He saw John Dende and Alex Ipa standing near John Dende’s house. He reiterated that when he was at Rovu there was no actual fighting going on. Casper Baki was not with him when he went to Rovu.

113. Asked about the fight at Matanagavae Emmanuel Meta said that he was surprised that the members of the Takale clan were burning houses. They had firearms and they were attacking Huritali clan members who had to take cover in the nearby oil palm trees. Some of his people including Casper Baki were firing from sling shots to deter the people from burning the houses. The Huritali people from Rovu did not come to assist the people at Matanagavae as the Huritali were being attacked simultaneously.

DEFENCE WITNESS NO 7: IGNATIUS PINDA

114. He is from Matanagavae. He is now a villager, having previously being a police officer and at one stage a councillor. On the day of the fight he was with his Huritali clan members including Alex Ipa and Casper Baki, celebrating the baptism of a small child. They were waiting for the food to be prepared around 2.30 to 4 pm when they received a message of a fight at Rovu. Some of the group went to Rovu to see what was happening.

115. Then some Takale clan members joined forces with another clan and attacked Matanagavae. 

116. Alex Ipa and Casper Baki were not at the fight at Rovu. They were at Matanagavae. 

117. When the other clans attacked Matanagavae, the Huritali clan people went into the bush to hide. Later he left Matanagavae and went to Rovu to see what had happened. When he arrived the fight had stopped. He stayed only a short time before going back to Matanagavae. 

118. Those at the baptism party included:

•	Alex Ipa,
•	Benedict Baki,
•	Casper Baki,
•	Edmund Baili,
•	Emmanuel Meta,
•	James Kundi,
•	Lawrence Meta.

119. Alex went ahead of him to Rovu as it was his house that was under attack. Casper Baki was not at Rovu. 

120. When he came back to Matanagavae the village had been largely destroyed except for his house. Many people came to stay at his house.

121. In cross-examination Ignatius Pinda said that at Rovu he saw both Alex Ipa and Emmanuel Meta. As a leader he was not interested in fighting but he felt he had to go to Rovu to see what was happening there.

122. The end of Ignatius Pinda’s evidence marked the close of the defence case. 

THE ISSUES IN DETAIL

123. The nature of the evidence and submissions of counsel give rise to these issues:

1	Was the evidence of the State witnesses credible?

2	Does other evidence support the State’s case? 

3	Are there gaps in the evidence that give rise to doubt about acceptance of the State’s evidence?

4	Were the three co-accused credible witnesses?

5	Was the alibi evidence sound?

In light of the answers to those questions, I will address the three elements of the offence of wilful murder set out at the beginning of this judgment:

6	Did any of the accused kill the deceased?

7	Are there any defences available? 

8	If no defences are available, is this a case of wilful murder or should an alternative verdict be entered?

1	WAS THE EVIDENCE OF THE STATE WITNESSES CREDIBLE?

124. The key State witness was Thomas Gala. Of all those who gave oral evidence in this case, both for the State and the defence, I thought he was the most impressive and level-headed witness. His demeanour was sound. He appeared not interested in exaggerating his story. He was a credible witness. He gave direct evidence of arriving at the scene of the fight in the front of the houses of John Dende and Alex Ipa and seeing a group of at least ten men, including the three co-accused, chasing Patrick Baili. The sequence of events, according to his evidence, was:

•	Alois Nuli was the first to strike Patrick, with a chisel, but Patrick continued running;
•	The others started shouting "Cut him! Cut him!";
•	Norbert Gorea cut Patrick on the forehead with a bush knife and Patrick fell;
•	Edmund Baili (Alex Ipa’s father) ran up with a spear and threw it down, where Patrick had fallen;
•	John Dende, Alex Ipa and Casper Baki swung their bush knives, where Patrick had fallen, but he did not see where they cut Patrick. 

125. Mr Geita submitted that Thomas Gala’s evidence was of limited value and should be treated with great caution as it was short on detail and uncorroborated. In fact it was corroborated by the evidence of the other two State witnesses, Eliza Kuvi and Anton Gala, both of whom admitted their own involvement in the fight and the damage done by their group to Edmund Baili and Clarita Nuli’s house, but also, significantly, testified that:

•	They knew the three co-accused very well;
•	The three co-accused were present;
•	The three co-accused, with others, chased Patrick into a patch of bushes.

126. I thought that both these witnesses gave credible evidence. They both said they did not see anyone strike Patrick Baili but that they saw him being chased into a place that they each described in a way similar to the way that Thomas Gala described it. Their demeanour was satisfactory. Their evidence was generally consistent with that of Thomas Gala. Their view of what happened was not as direct as Thomas Gala’s. But their evidence corroborated Thomas Gala’s. Mr Geita submitted that their evidence was clearly exaggerated but I cannot agree. Their evidence seemed to be confined to what they saw. 

127. I also consider that Thomas Gala’s evidence was quite detailed, in that he named ten men who were chasing Patrick Baili and he was consistent in the story that he told about the sequence of events. 

128. Considered individually and collectively the evidence of the State witnesses was credible, and put the three co-accused at the place the deceased was chased and attacked. 

2	DOES THE OTHER EVIDENCE SUPPORT THE STATE’S CASE?

129. Two bodies of evidence are relevant.

130. First, the medical evidence. The post-mortem report shows that the cause of death was a deep wound to the neck resulting in blood loss. This suggests that the deceased suffered a savage attack as the wound was deep enough to cut the trachea (wind pipe) and oesophagus (gullet) and the carotid arteries (which supply blood to the brain). Other wounds, though maybe not fatal in isolation – cervical spine fracture, skull fracture and multiple deep lacerations on right hand and both feet – suggest a very savage attack; and are consistent with a group attack as described by Thomas Gala.

131. Secondly, the witness statements by Peter Becho, Robert Mone (the deceased’s father), Bernard Reu and John Lavu are consistent with the proposition that an attack took place on the deceased at the back of Edmund Baili’s house, that his body was moved and taken to a spot about 1 km away where it was found two days later on Tuesday morning. 

3	ARE THERE GAPS IN THE EVIDENCE?

132. Mr Geita submitted that there were too many gaps in the State’s case – too many unanswered questions about when and where the deceased died – and that the State’s case is circumstantial.

133. I reject the submission that this is a case dependent on circumstantial evidence. There is direct evidence provided by Thomas Gala about the circumstances of death and who attacked the deceased. There is no reasonable doubt, given the credibility of the State’s witnesses, about when and where the deceased died or at least when and where he was attacked.

134. Given the nature and extent of his wounds (particularly the wound to the neck and especially the severed carotid arteries) the only reasonable inference is that Patrick Baili died almost instantly upon receiving such a wound. The time of death is the late afternoon of Sunday 23 April 2006 and the place of death is Rovu, at the back of Edmund Baili’s house. 

135. There are no significant gaps in the State’s case, subject to critical examination of the alibi evidence. 

4	WERE THE THREE CO-ACCUSED CREDIBLE WITNESSES?

136. Each of the co-accused was neither particularly impressive nor unimpressive in the witness box. The demeanour of each of them was not that of someone obviously lying. However, as their alibi witnesses proceeded to give their evidence, inconsistencies started to develop and this has created doubt as to the credibility of each of the accused’s evidence. 

5	WAS THE ALIBI EVIDENCE SOUND?

137. A notice of alibi was filed in respect of each of the co-accused before the start of the trial and for each of them it remained their main defence: they were somewhere else at the relevant time. There is a fundamental problem with two of the alibis in that two of the accused said that they were at Rovu and were involved in the fight.

138. I will consider each alibi, in turn.

John Dende

139. According to the alibi notice he was at John Baki’s residence until the next day. It transpired in the evidence that John Baki is his father and that he lives at his father’s residence. Therefore the alibi is that he was at his own house when the fight occurred. 

140. In support of the alibi is:

•	The accused’s sworn evidence that he was at home, asleep, when the fight broke out.

•	The evidence of his mother, Magdalene Baki, who says that she came to the house from the garden between 3 and 4 pm and John was sick and sleeping in the house. John did not take part in the fight and was too sick to do so. 

141.	Matters that tend to weaken the alibi are:

•	The accused’s own evidence that, after being asleep in his house, he went out to see what was going on, got his slingshot and shot back at the Takale people. This is evidence that he was actually involved in the fight.

•	The accused said nothing in his evidence about being sick whereas his mother said that he was too sick to fight. This is a material inconsistency and suggests that his mother is exaggerating her story.

•	Magdalene Baki was not an impressive witness. As Mr Geita suggested in his closing address mothers are renowned for being protective of their children; and in this case it appears that this mother was so protective that she felt obliged to give false evidence to support her son. If John Dende was really sick that afternoon it is to be expected that he would have made that known in his sworn evidence.

•	The evidence of the three State witnesses who saw him in the group chasing the deceased.

142. I conclude that the alibi of John Dende is not strong. The evidence actually supports the conclusion that he was at Rovu and did get himself involved in the fight.

Alex Ipa 

143. According to the alibi notice he was at Matanagavae when the fight occurred. 

144. In support of the alibi is:

•	The accused’s sworn evidence that he was at Matanagavae when the fight broke out.

•	The evidence of Magdalene Baki who said that Alex was at Matanagavae when the fight broke out and that when he came to Rovu he did not take part in the fight.

•	The evidence of his mother, Clarita Nuli, who said that Alex was not home when the Takale people raided their house and that she told them that Alex and her husband (Edmund Baili) had gone to Matanagavae.

•	The evidence of Emmanuel Meta who said that Alex was at Matanagavae at a baptism party for Lawrence Meta’s son before he got news of the fight at Rovu and left for Rovu; and that when he (Emmanuel) got to Rovu he saw Alex there, with John Dende, but there was no actual fighting going on. 

•	The evidence of Ignatius Pinda who says that Alex was at Matanagavae at a baptism party for a small child before he got news of the fight at Rovu and left for Rovu; and Alex was not at the fight at Rovu. 

145. Evidence that tends to weaken the alibi is:

•	Alex’s concession that he did, upon hearing news of the fight, go to Rovu.

•	His admission that he took part in the fight.

•	The inconsistent evidence as to the nature of the party he was attending at Matanagavae. Emmanuel Meta and Ignatius Pinda firmly said it was a baptism. In his police interview Alex said it was a baptism. But in oral evidence, Alex, Magdalene Baki and Clarita Nuli and also Casper Baki said it was a birthday party. This was a material inconsistency.

•	Neither of the two, Alex nor Casper, mentioned the other as being at the party.

•	The evidence of the three State witnesses who saw him in the group chasing the deceased.

146. I conclude that the alibi of Alex Ipa is not strong. The evidence actually supports the conclusion that he was at Rovu and did get himself involved in the fight.

Casper Baki

147. According to the alibi notice he was at Matanagavae when the fight occurred. 

148. In support of the alibi is:

•	The accused’s sworn evidence that he lives at Matanagavae and was there when the fight broke out and he stayed there.

•	The evidence of Emmanuel Meta who said that Casper was not with him when he (Emmanuel) followed Alex Ipa to Rovu.

•	The evidence of Ignatius Pinda who says that Casper was at Matanagavae at a baptism party for a small child and that Casper was not at the fight at Rovu. 

149. Evidence that tends to weaken the alibi is:

•	The inconsistent evidence as to the nature of the party he was attending at Matanagavae. Emmanuel Meta and Ignatius Pinda firmly said it was a baptism. Casper (as with Alex, Magdalene Baki and Clarita Nuli) said it was a birthday party.

•	Neither of the two, Alex nor Casper, mentioned the other as being at the party.

•	The evidence of the three State witnesses who saw him in the group chasing the deceased.

150. I conclude that the alibi of Casper Baki is the strongest of the three. 

151. I now move to a consideration of the three elements of the offence. 

6	DID THE ACCUSED KILL THE DECEASED?

152. It is clear that some person(s) killed the deceased. He did not die of natural causes. He was savagely attacked as a result of a fight between two groups at Rovu. Did any one or more of the co-accused participate in that fight or more relevantly the attack on Patrick Baili? To answer that question, the court has to weigh the evidence of the State witnesses – which I have already said is on the face of it credible – against the alibi evidence.

153. In assessing the weight of the alibi evidence – which I have already described as not being strong in the case of John Dende and Alex Ipa – I have considered the principles emerging from the leading case of John Jaminan v The State (No 2) [1983] PNGLR 318, Supreme Court, Pratt J, Bredmeyer J, Amet J, which I summarised in the Kimbe case of The State v Lucas Soroken and Others (2006) N3029. Principles particularly relevant to the present case are:

•	If an alibi is raised, the burden of proof does not shift from the prosecution. The onus is never on the accused to prove an alibi or prove innocence.

•	However, in practical terms, the accused must lead some evidence of an alibi and it must be sufficiently convincing to create a reasonable doubt in the mind of the judge.

•	How strong or convincing the alibi evidence must be, depends on the strength of the prosecution witnesses. If their evidence is very strong, the alibi evidence needs to be reasonably strong to raise a reasonable doubt in the mind of the judge as to the guilt of the accused.

•	Unlike the defences of self-defence and provocation, there is no rule of law that says that once an alibi is raised it is up to the prosecution to disprove it.

•	An alibi is not one of the excusatory defences such as self-defence, provocation or mistake, which concede the presence of the accused and his or her involvement in a series of events that led to the final state of affairs and are like a confession and avoidance. An alibi entails a complete negation and puts every matter in issue.

•	If an alibi is rejected it does not necessarily follow that the court should enter a conviction. The court must still be satisfied that the prosecution has proven its case beyond reasonable doubt.

•	An alibi that is determined to be false may, depending on the circumstances, amount to corroboration of the complainant’s evidence.

•	The court should consider whether the alibi evidence contains convincing detail or whether it is vague and short on detail.

•	The court should also consider the demeanour of the alibi witnesses and whether there are any inconsistencies in their evidence.

154. No onus has been put on any of the accused to prove their alibis. However, none of the alibis has been sufficiently convincing to create a reasonable doubt in my mind that the three co-accused were at Rovu and involved in the fight and involved in chasing and attacking the deceased. 

155. I find the State’s evidence to be much more convincing than the defence evidence. It was not necessary for the State to prove that the alibis were false but at least in the case of John Dende and Alex Ipa I am satisfied that that has been proven. In any event, I reject all three alibis as being false, even Casper Baki’s, as I considered that Casper’s has been tainted by the weak alibis of the other two; and there was, also, no detailed evidence to support his alibi. I conclude that each alibi has been manufactured and the effect of this is to bolster the State’s case: it shows that the accused have been anxious to distance themselves from the fight and their involvement in the attack.

156. My rejection of the alibi evidence does not mean that I should find, therefore, that the three co-accused killed the deceased. And I do not adopt that process of reasoning. However, the alibi evidence does not weaken the State’s case and, as I just indicated, it actually bolsters the State’s case, which was, already, a strong one.

157. Having considered all the evidence, I am satisfied beyond reasonable doubt of the following things:

•	The three co-accused were at Rovu, involved in the fight;
•	They were part of a group of about ten men who chased the deceased;
•	They were part of the group that savagely attacked the deceased and killed him, probably instantly;
•	They swung bushknives in the direction of the deceased while he lay injured on the ground;
•	They aided those who chased, attacked and directly killed the deceased (in the sense referred to in Section 7(b) of the Criminal Code).

158. It follows that I am satisfied beyond reasonable doubt that each of the co-accused killed the deceased. 

7	ARE THERE ANY DEFENCES AVAILABLE?

159. As the defence case is based on an outright denial, supported by an alibi, defences of accident, self-defence and provocation are not available to the accused. There is no conclusion to draw other than that their killing of the deceased was unlawful.

8	WHAT IS THE APPROPRIATE VERDICT?

160. I now have to consider whether an alternative verdict should be entered in light of Section 539(1) (charge of murder or manslaughter) of the Criminal Code, which states:

On an indictment charging a person with the crime of wilful murder, he may be convicted of the crime of murder or of the crime of manslaughter but not, except as is expressly provided in this Code, of any other offence other than that with which he is charged.

161. It is at this point of a wilful murder trial that the Court is required to consider each accused’s state of mind: 

•	Did he intend to kill the deceased? If yes, the third element of wilful murder is proven and the accused will be guilty, as charged.

•	Did he intend to inflict grievous bodily harm? Or did one of the other circumstances prescribed by Section 300(1) of the Criminal Code apply? If yes, the accused would be convicted of murder, not wilful murder (eg, The State v David Yakuye Daniel (2005) N2869). If no, the accused would be guilty of manslaughter, not wilful murder or murder (eg, The State v Paul Gambu Laore & 11 Others CR Nos 914-925/2005, 11.12.05).

162. I consider that the evidence supports a conclusion that the state of mind of each accused was the same, to take part in a chase and an attack on the deceased with the intention of causing him grievous bodily harm. The evidence does not prove that they were the primary assailants and that any of them was responsible for inflicting the deep and fatal wound to the deceased’s neck. I therefore cannot be satisfied beyond reasonable doubt that any of the accused intended to kill the deceased. It is not appropriate to find any of them guilty of wilful murder. The appropriate verdict is that they are each guilty of murder under Section 300(1)(a) of the Criminal Code. 
 
163. I say in passing, in view of a submission by Mr Geita that the three co-accused were being made scapegoats for the crimes of others, that the entry of guilty verdicts in this case does not prevent the prosecution of any other person alleged to be also involved in the killing of the deceased. 

VERDICT

(1)	John Dende – not guilty of wilful murder; guilty of murder.

(2)	Alex Ipa – not guilty of wilful murder; guilty of murder.

(3)	Casper Baki – not guilty of wilful murder; guilty of murder.

Verdict accordingly.

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused