N3842

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 341, 342 & 343 OF 2008

THE STATE

V

JOHN BAIMO KAOLE, PETER PAPUI & LUCAS PAPUI

Kimbe: Cannings J
2009: 5, 6, 7, 8, 11, 25, 26, 27 May,
10 December

VERDICTS

CRIMINAL LAW – trial – wilful murder – Criminal Code, Section 299(1) – elements of the offence – multiple accused – whether any of the accused killed the deceased – evidentiary value of confessional statement and admissions that are admitted into evidence without objection but rebutted in sworn evidence – rules about convicting on uncorroborated evidence of a co-accused – evidentiary value of sworn alibi evidence not preceded by alibi notice – circumstantial evidence – alternative verdicts, Criminal Code, Section 539(1).

Three men were charged with the wilful murder of a fellow villager. It was alleged that they stabbed him and hit him on the head with a piece of timber, killing him instantly, then dragged his body on to the nearby highway where it was hit by a vehicle. There was no eyewitness evidence. The State relied on a confessional statement and admissions by one of the accused, which also implicated the other two, and on circumstantial evidence that put the accused who made the confession in the company of the deceased, behaving aggressively, shortly before the estimated time of death. That accused gave sworn evidence, rebutting his confession and admissions and saying that they were forced upon him by the police who assaulted him. He also denied being with the deceased and said that he was home asleep. Neither a notice of objection to the confessional statement and record of interview nor a notice of alibi were filed before the trial. The other two accused exercised their right to remain silent.

Held:

(1)	Under Section 299(1) of the Criminal Code the offence of wilful murder has three elements:

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

(2)	The only strong evidence implicating the first two accused was in the confessional statement and admissions of the third accused. However, the court must exercise considerable caution before convicting a person on the evidence of a co-accused and here there was no corroboration of the co-accused’s evidence. Therefore the finding was reached that neither of the first two accused killed the deceased.

(3)	As to the third accused, his sworn rebuttal of his confessional statement and admissions was unconvincing, his demeanour in the witness box was poor and there was no formal notice of objection. His confessional statement and admissions therefore carried considerable weight.

(4)	Further, his alibi was false. No notice of alibi was given, it was vague and uncorroborated and there was strong evidence that he was with the deceased, behaving aggressively, shortly before the estimated time of death.

(5)	As the State’s case was substantially dependent on circumstantial evidence, the court applied the principles about entering a conviction based on circumstantial evidence arising from Paulus Pawa v The State [1981] PNGLR 498: the accused must be acquitted unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than guilt; and to enable the court to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt be a rational inference but that it be the only rational inference that the circumstances would enable it to draw.

(6)	Here the proven facts reasonably led to only one conclusion: that the third accused killed the deceased.

(7)	As no specific defence was relied on, the killing was unlawful by virtue of Section 289 of the Criminal Code.

(8)	Given the circumstances in which the deceased was killed the State failed to prove that the third accused intended to kill the accused but proved that he intended to do him grievous bodily harm.

(9)	The third accused was accordingly convicted of murder under Sections 539(1) and 300(1)(a) of the Criminal Code. The first two accused were acquitted. 

Cases cited

The following cases are cited in the judgment:

Abraham Saka v The State (2003) SC719
Browne v Dunn (1893) 6 R 67 (HL)
Devlyn David v The State (2006) SC881
Paulus Pawa v The State [1981] PNGLR 498
The State v Ali Kei Paiya CR No 478 of 2004, 09.08.05
The State v David Yakuye Daniel (2005) N2869
The State v Ephraim Ria Boa (2008) N3436
The State v Linus Rebo Dakoa (2009) N3586
The State v Linus Rebo Dakoa (2009) N3587
The State v Martin Maso Naipo CR No 92 of 2004, 21.06.05
The State v Moses Nasres (2008) N3302
The State v Paul Gambu Laore & 11 Others CR Nos 914-925/2005, 11.12.07
The State v Raphael Kuanande [1994] PNGLR 512
The State v Steven Malken CR No 464 of 2008, 07.08.09

Abbreviations

The following abbreviations appear in the judgment:

Const – Constable
CR – Criminal Register
HL – House of Lords
J – Justice
N – National Court judgment
NBPOL – New Britain Palm Oil Limited
No – number
PNGLR – Papua New Guinea Law Reports
SC – Supreme Court judgment
v – versus

TRIAL

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

Counsel

A Kupmain for the State
T Gene for the accused

10 December, 2009

1. CANNINGS J: Early on the morning of Christmas Day, Tuesday 25 December 2007, the body of a 27-year-old man, Otto Komeme, was found on the road beside his village, Ubai, on the Kimbe-Bialla Highway in West New Britain Province. Police at the nearby Kapiura Police Station were alerted and attended the scene. It was originally thought the deceased had been hit by a moving vehicle. The village people erected a road block and demanded compensation from NBPOL, which runs fruit trucks along the highway. However, soon afterwards the matter was dealt with as a suspicious death, a CID officer at Buluma Police Station, Const Michael Wande, was called to the scene and he started a murder investigation. This led to the three accused now before the court – John Baimo Kaole, Peter Papui and Lucas Papui – being charged and indicted for the wilful murder of Otto Komeme. They all pleaded not guilty so a trial has been held.

2. The State’s case is that the three accused jointly planned to kill the deceased and that in accordance with the plan one of them – Lucas – enticed the deceased to follow him to a predetermined location in the village – a trade store belonging to Bruno Matolo – in the middle of the night, where the other two – John and Peter – were stationed. The State alleges that it was there that they all started fighting with the deceased. They stabbed him and hit him on the head with a piece of timber, killing him instantly, then dragged his body on to the nearby highway, where it was hit by a truck.

3. There was no eyewitness evidence. The State relied on a confessional statement and admissions by Lucas, which also implicated the other two, and on circumstantial evidence that Lucas was with the deceased, behaving aggressively, shortly before the estimated time of death, which was 6.00 am on Christmas Day.

4. Lucas gave sworn evidence, rebutting his confession and admissions and saying that they were forced upon him by the police, who assaulted him. 5. He denied being with the deceased shortly before the estimated time of death and said that he was home asleep. John and Peter exercised their right to remain silent.

ELEMENTS

6. The offence of wilful murder is created by Section 299(1) of the Criminal Code and has three elements. 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.

ISSUES

7. None of the accused relies on any specific defence such as accident, compulsion, insanity, provocation or self-defence. Each of them says that he did not kill the deceased. So the first issue is whether any one or more of the three accused killed the deceased. If they did the next issue is whether the killing was unlawful. If it was, was there an intention to cause death? If yes, a conviction for wilful murder will be entered. If no, an alternative conviction for murder or manslaughter must be considered.

8. The primary issues therefore are:

1	Did any of the accused kill the deceased?

2	Was the killing unlawful?

3	Was there an intention to kill?

4	If there was no intention to kill, should an alternative conviction be entered?

1 	DID ANY OF THE ACCUSED KILL THE DECEASED?

9. Determination of this issue requires:

•	a summary of the evidence for the State;
•	a summary of the evidence for the defence;
•	a preliminary assessment of the State’s case;
•	a summary of the defence counsel’s submissions;
•	an assessment of the defence counsel’s submissions; and then
•	a final determination of whether any of the accused killed the deceased.

EVIDENCE FOR THE STATE

10. It consisted of:

•	medical evidence: a certificate of death and a post-mortem report and oral evidence by the doctor who prepared these documents;

•	police investigator’s evidence: oral evidence by the police investigator and exhibits obtained during the course of the investigation, including a confessional statement by Lucas and record of interview of Lucas;

•	oral evidence by six Ubai villagers.

The medical evidence

11. A post-mortem examination was conducted by Dr Peter Yama at Kimbe General Hospital nine days after the date of death. Dr Yama prepared a medical certificate of death and a post-mortem report (exhibits E and F) and photos of the deceased’s body were taken (exhibit H). The cause of death was "severe head injury".

12. Significant, abnormal findings were:

1.	Smashed skull, comminuted fracture. Brain matter outside skull cavity. Face and head severely deformed.
2.	Left elbow fracture/dislocation.
3.	Scratch and bruises on elbow/knee.
4.	Wound on right small toe.

13. Other observations included:

Crushed skull … brain matter outside … face/nasal cavity massively deformed and unrecognisable … multiple stab wounds on the right parietal, right temporal and right mastoid region … left elbow fracture with a penetrating wound; right toes (5th, 4th) penetrating wound.

14. Dr Yama gave oral evidence. He said the nature and extent of the injuries to the skull showed that a great amount of force was involved. Part of the head was virtually crushed. The injuries were consistent with the deceased being hit by a vehicle if he happened to be lying on the road. As to the multiple stab wounds to the right side of the face, these could have been caused internally (by sharp fragments of disintegrating bone) or externally (by a sharp object such as a knife).

Police investigator’s evidence

15. Const Michael Wande of Buluma Police Station said that on Christmas Day 2007 he received a report of a suspicious death at Ubai so he drove to the scene, arriving between 10.00 and 11.00 am. Kapiura police were already there. The body had already been taken to Kimbe General Hospital. The village people initially thought it was a hit-and-run accident so they had put up a road block and demanded compensation from NBPOL as they claimed that a fruit truck had run over the deceased. Const Wande immediately, however, sensed that it was a suspicious death. He was told that the body was lying on the road face-up with one leg straight and the other bent. He found no blood at the spot where the body had been lying. He looked around for evidence. Not far off the road he found blood clots under dead leaves. This confirmed that the death was not an accident. He advised the relatives of his suspicions and they no longer pursued their demand against the company.

16. He was given a pair of thongs (exhibit G) that was found near the deceased’s body. John Kaole’s wife later identified them as belonging to John. He started asking questions. He was told that the last person seen with the deceased was the accused Lucas Papui. He tried to question Lucas but he had gone into hiding. It was getting late by then so he asked the Kapiura police to detain Lucas if they found him. They eventually found him and Const Wande drove over to Kapiura to pick him up.

17. Lucas was detained at the Buluma police lock-up and questioned. His father came to visit him and brought him a change of clothes, including a pair of cut jeans with what appeared to be blood stains on them. The jeans looked to have been heavily bleached but the stains were still evident. Const Wande seized the cut jeans and they have been admitted into evidence as exhibit F.

18. He took a confessional statement (exhibit A) from Lucas on 3 January 2008 in which he admitted to fighting over beer with the deceased, Otto, and hitting him over the back of the head with a piece of sawn timber. That was in retaliation to Otto hitting him first with the same piece of timber. John and Peter also fought against Otto. While Otto was on the ground John got the piece of timber and repeatedly hit Otto over the head with it. John had explained two days before that he was not happy with Otto who was residing on John’s land; also Otto had made John’s sister pregnant and John had been required to look after Otto’s child. After the fight the three of them realised that Otto was dead so they carried his body into the bushes. Upon hearing a fruit truck approaching they carried it to the road and left it lying there. The truck came along, the driver saw the body and tried to avoid it but the back tyre ran over Otto’s head.

19. Const Wande also interviewed Lucas and prepared a record of interview (exhibit B) in which Lucas is recorded as saying that John had told him on Monday 24 December of his plan to kill Otto as he had problems with him. He then gave an explanation of his fight with Otto and how John became involved and hit Otto over the head with the timber. According to the record of interview Lucas identified the cut jeans as his own, with Otto’s blood stains on them. He agreed that he and John and Peter had killed Otto and laid his body on the road and that it had been run over by a NBPOL fruit truck.

20. Const Wande also prepared records of interview of John (exhibit C) and Peter (exhibit D) but neither made any admissions.

21. In cross-examination Const Wande said that he took no photos of the blood clots that he found off the road or at the spot on the road where the deceased’s body was found. But he was adamant that there were blood clots off the road and that this was in contrast to the spot where the body was found as there was little blood there.

Ubai villagers’ evidence 

22. Steven Tagai is Otto’s brother-in-law. On December 24 he was drinking at Peter Gah’s house with a number of village men including Lucas, who was drunk. Lucas was holding a 60 cm-long, double-edged bayonet, using it to cut posts at the house and saying "I am Chief … you will see a coffin tomorrow".

23. In cross-examination Steven admitted being drunk like the others. They started drinking at 10.00 am. He remembers the incident some time back when Otto had made John Kaole’s sister pregnant. John demanded K1,000.00 compensation but Steven does not know whether it was paid. Defence counsel Mr Gene put it to him that it was because of the problems stemming from Otto making John’s sister pregnant and the compensation demand made by John that Otto’s lain was now accusing John and Peter and Lucas of Otto’s murder. Steven replied no: it was Lucas who caused the death. Lucas took Otto out of the group that was drinking. That is why the trouble happened.

24. Theo Volame was in a group drinking with Otto at various places in the village from about midday on December 24. Peter and Lucas joined the group at 7.00 pm. At about 1.00 am on the 25th Lucas said that he and Otto would go and buy some Spear sticks (cigarettes). Theo and the others told Lucas to leave Otto behind but Lucas insisted that they go together; and they did. Otto left his basket behind and said that he would return later. But he never returned. Theo and his group stayed drinking until daybreak when they heard that Otto was dead, so they broke up the party and went home.

25. The next State witness was Michael Mulepu. He was also in a drinking group at Ubai on 24 and 25 December. At 3.30 am on the 25th he and his group were at Cosmos Boboi’s store when Otto and Lucas came along wanting to buy Spear sticks. Michael told them that they could not help as the storekeeper was asleep. Otto said that he and Lucas would go to John Gati’s place and try to get some black market Spear. Otto and Lucas stayed for about five minutes before heading towards John’s store, which is about three minutes walk away, close to the highway. Michael said that he stayed at Cosmos’s store until about 6.00 am when he heard that a body had been found on the highway by another villager, Oscar. He went to the highway and another villager, Bernard Rora, told him that it was Otto Komeme. He observed that Otto’s legs were lying towards the side of the road and that his head was lying towards the middle of the road. One leg was straight and the other was bent at the knee and slightly raised. There was not much blood on the road.

26. Mathias Vulaga was awake in the early hours of Christmas morning with a group of friends from the Arowe area drinking coffee at his haus boi. At 4.00 am Otto came along. He was drunk and said that he was going for a spin on the road. Mathias told him not to go on to the road but he left and went in the direction of the highway. Five minutes later Lucas came along and entered the haus boi to light his cigarette. He said he was going with Otto to look for beer at Bruno’s store, which is about 100 metres away, near the highway. Then he left, following Otto.

27. The next State witness was Zacharias Rora. He was with Michael Mulepu and Raka at Cosmos Boboi’s store early on the morning of the 25th. There were three of them looking after a man whose leg had been cut and they were helping him get through the night as he was in pain. At 3.30 am Otto and Lucas came along and Zacharias asked them if they wanted to buy beer but they said that they would go to John Gati’s store. They did not stay long and they left.

28. John Kaole’s wife, Christina Baimo, was the final State witness but her evidence was of no value to the State. She denied any knowledge of the thongs allegedly belonging to her husband and denied giving a statement to the police.

EVIDENCE FOR THE DEFENCE

29. Lucas Papui was the sole defence witness. John Kaole and Peter Papui exercised their right to remain silent.

Lucas’s sworn evidence

30. On December 24 he was drinking with his uncle, Bruno Mutolo, from midday to the early evening. He left Bruno and walked through the middle of the village to his parents’ house. On the way he met Otto who was drunk. Otto asked him where he was going and he replied that he was heading home as he needed something to eat and had been drinking all day. He went straight home and went to bed. He did not know anything about the death until after he woke up the next morning. The CID officer came to the village and took him to Buluma. He told the police he knew nothing about the death but he was assaulted and the officer told others to assault him and he admitted it as he was afraid of more assaults.

31. In cross-examination he denied telling the police that John Kaole was involved in the killing. It was the police who called John’s name, not him. He tried to tell the police that he knew nothing but they told him he was lying and threatened him with a gun. He said that he told his lawyer before the trial about being assaulted and about being forced to sit in wet trousers after being ordered to take off the cut jeans that his father had brought him when he was detained at Buluma. The stains on the jeans were from sago, not blood. It was true that Otto had made John Kaole’s sister, Gertrude, pregnant and that John’s wife Christina was Otto’s sister and that there was some tension between John’s family and Otto’s family, but that had already been sorted out. He denied knowing anything about a plan to kill Otto. He was not drinking with John or Peter on the 24th or 25th. 

32. He was not with Otto in the early hours of the 25th. He did not fight with Otto and did not assault him. The only thing he knows is that he was drinking with Bruno on the 24th and when they finished drinking in the early evening he went home to sleep and so did Bruno. When he went to his parents’ house there were plenty of people there including his parents and his brothers. He ate some eggs and went to sleep. He told his lawyer about this story. He did not make it up.

PRELIMINARY ASSESSMENT OF THE STATE’S CASE

33. There are three observations. First, the medical evidence does not by itself make it clear that the deceased was killed deliberately. Dr Yama indicated that death by accident – particularly by the deceased being hit by a moving vehicle – could not be ruled out as a possibility. This is particularly the case as it is clear that Otto was drunk. According to some State witnesses the last they saw of him was when he wandered off in the direction of the highway.

34. Secondly, the only direct evidence that any of the three accused killed the deceased is in Lucas’s confessional statement and record of interview. He gave sworn evidence rebutting the truth of the statements recorded in those documents. The probative value of those statements therefore needs careful examination.

35. Thirdly, as the State’s case is substantially dependent on circumstantial evidence special care must be exercised if the court considers entering a guilty verdict.

DEFENCE COUNSEL’S SUBMISSIONS

36. Mr Gene submitted that the State had fallen short of proving that any of the accused killed the deceased. In particular he submitted that:

1	Lucas’s confessional statement and record of interview had no probative value in light of his sworn evidence rebutting the statements made to the police.

2	Lucas’s statements could not be used against his co-accused, John and Peter.

3	There was no worthwhile evidence of any plan to kill the deceased.

4	The police investigator’s evidence was evasive, protective and defensive.

5	Application of the principles regarding circumstantial evidence requires an acquittal.

ASSESSMENT OF DEFENCE COUNSEL’S SUBMISSIONS

1	Probative value of confessional statement and record of interview

37. Mr Gene submitted that little weight should be attached to the incriminating statements in Lucas’s confessional statement and record of interview as Lucas denied the truth of those statements in his sworn evidence. He referred to two unreported National Court cases to support the proposition that the sworn evidence of an accused carries more weight than unsworn statements made in a confessional statement or record of interview.

38. In a manslaughter trial in Lae, The State v Martin Maso Naipo CR No 92 of 2004, 21.06.05, Kirriwom J stated:

… the only reliable evidence given under oath and tested in cross-examination is what the accused told the court. That is what must be believed. The court need not place much weight on the accused’s record of interview which is an out-of-court statement although tendered by consent of the defence.

39. In a rape trial in Lae, The State v Ali Kei Paiya CR No 478 of 2004, 09.08.05, Sawong J stated:

It is also trite that whilst a record of interview which is not contested is evidence, it is not of equal weight to the sworn evidence. Sworn evidence which has been tested or untested in cross-examination has far more weight than an unsworn statement.

40. In both those cases the accused was found not guilty as a result of the court accepting the accused’s sworn evidence and attaching little weight to incriminating statements in a record of interview. Mr Gene submits that the same path of reasoning should be followed in the present case.

41. I appreciate the proposition advanced by Mr Gene but considerable care needs to be taken not to elevate it to a rule of law that says that if an accused gives sworn evidence rebutting what he said to the police the court must by necessity give more weight to the sworn evidence. That is not what was held in either of the two cases referred to.

42. The weight to be attached to an accused’s sworn testimony will depend on the normal factors that decide whether any witness’s evidence is believed such as the witness’s demeanour and the credibility of the evidence in light of other evidence before the court.

43. The weight to be attached to a confessional statement or record of interview will need to be assessed having regard to the circumstances in which any incriminating statements were made to the police and whether any objection was made to their admission into evidence.

44. Here, I consider that Lucas’s sworn evidence should be given little weight for three reasons.

45. First, his demeanour in the witness box was poor. He was not a convincing witness. He did not give straight answers to simple questions. He was evasive and gave the appearance of hiding the truth.

46. Secondly, he gave evidence of an alibi – that he went home to sleep at about 7.00 pm on December 24 – that was not believable. No alibi notice was given to the State before the start of the trial. Five State witnesses said that they saw Lucas with Otto during the early hours of the 25th. It was not put to any of them that that could not be true as Lucas was home asleep. This was unfair to the State. It breached the rule in Browne v Dunn (1893) 6 R 67 (HL), which requires that an accused’s defences be put to the State witnesses to give them the chance to rebut the defence case. Lucas said that there were plenty of people at his house when he went home but not one of them came forward to give evidence. Mr Gene suggested that there was no need to file an alibi notice as Lucas was not really relying on an alibi. He was not denying that he was in the village, the place where the deceased met his death, so he could not say that he was somewhere else. I reject that argument. If Lucas really was at his house asleep he was somewhere else when the deceased met his death. It would have been a perfect alibi. I find that Lucas provided a false alibi. He lied under oath and this taints all of his evidence.

47. Thirdly, his allegations about being assaulted and threatened by the police were vague and unsubstantiated and no notice of objection to the admissibility of the confessional statement or record of interview was filed. The allegations were not put to Const Wande when he gave evidence so this was another breach of the rule in Browne v Dunn. I find that Lucas was not assaulted or threatened by the police. He lied about this also. As to the circumstances in which he made his incriminating statements to the police on 5 January 2008 at Buluma police station, no submissions have been made that these statements were obtained unfairly, eg as a result of human rights breaches (by contrast see the voir dire ruling in The State v Linus Rebo Dakoa (2009) N3586). Mr Gene submitted that the police investigation was defective and attacked Const Wande’s evidence (this submission is addressed below) but has provided no other reason to reject the confessional statement or record of interview.

48. I conclude that:

•	Lucas’s sworn rebuttal of the incriminating statements in the confessional statement and record of interview carries no weight; and

•	those incriminating statements carry considerable weight.

2	Use of incriminating statements against co-accused

49. Mr Gene submitted that irrespective of the weight given to Lucas’s confessional statement and record of interview, that evidence could not be used as a basis for convicting John or Peter as it was uncorroborated. It is dangerous to convict a co-accused on the evidence of another co-accused or alleged accomplice unless it is corroborated by other evidence. A trial judge must issue a warning of this danger if a conviction is being considered in these circumstances (Abraham Saka v The State (2003) SC719).

50. I uphold this submission. There is no tangible evidence that John or Peter assaulted Otto other than in Lucas’s confessional statement and record of interview. It is dangerous to enter a conviction against either of them, particularly in view of the lack of credibility of Lucas’s sworn testimony. There is a real likelihood that when he gave his statements to the police he was attempting to shift the blame to the other two.

51. I conclude that neither John nor Peter assaulted Otto.

3	Lack of evidence of plan to kill the deceased

52. Mr Gene submitted that the State’s case was that the three accused made a plan to kill Otto and that they each implemented the plan by assaulting him but there was no evidence of such a plan and no evidence apart from Lucas’s confessional statement and record of interview that any of them assaulted Otto. Therefore the State’s version of events should not be accepted. Furthermore he submitted that the State could not rely on Sections 7 or 8 of the Criminal Code to make any of them criminally responsible as neither provision was put to the accused when they were arraigned. Section 7 (principal offenders) says that any person who enables or aids another person to commit an offence or counsels or procures another person to commit it is deemed to have taken part and be guilty of the offence. Section 8 (offences committed in prosecution of common purpose) says that where two or more persons form a common intention to prosecute an unlawful purpose and in doing so an offence is committed which was a probable consequence of the prosecution of that purpose each of those persons is deemed to have committed the offence.

53. I uphold these submissions in so far as they relate to John and Peter. There is indeed a paucity of evidence about any plan to kill Otto. There is insufficient evidence that John or Peter assaulted Otto or that either of them aided any other person such as Lucas in assaulting him or that either of them formed a common intention to prosecute an unlawful purpose. The State has failed to prove its case against them and failed to prove that they are in any way criminally responsible for the death.

54. As for Lucas, Mr Gene validly pointed out that the State failed to prove that Otto was killed as a result of the sequence of events alleged at the beginning of the case. However, this does not mean that the court must find that Lucas did not kill him.

 4	Police investigator’s evidence

55. Mr Gene attacked the credibility of Const Wande’s evidence. He submitted that his demeanour in the witness box was defensive and that the police investigation of the death was inadequate.

56. I do not agree that Const Wande was defensive or evasive. He was not shown to have any motive for giving false evidence. His demeanour was satisfactory. 

57. I agree, however, that there were a number of aspects of his investigation of the case that were unsatisfactory. Routine crime scene procedures were not followed. No photographs were taken of the deceased’s body or the spot it was found on the road or the place off the road where Const Wande said that he found blood clots. No maps of the crime scene or the village were tendered. No scientific analysis of Lucas’s cut jeans (allegedly containing blood stains) was attempted. 

58. The police investigation could certainly have been more thorough. Const Wande was asked about this and his response was that having obtained admissions from Lucas it was unnecessary to go much further. I do not think that that was a good explanation. Too many homicide investigations depend on confessional statements and admissions in records of interview which are for various reasons ruled inadmissible. If the police have not done a proper forensic investigation a case can easily collapse (eg the decision on verdict in The State v Linus Rebo Dakoa (2009) N3587).

59. However, it is not the purpose of this trial to decide whether the police did a thorough or complete investigation. The purpose, at this stage, is to determine whether the State has proven beyond reasonable doubt that any of the accused – particularly Lucas – killed the deceased. The State can do that even on the back of an incomplete police investigation.

60. I reject the submission that Const Wande’s evidence lacks credibility or that defects in his investigation of the case prevent a finding that Lucas killed the deceased.

5	Availability of other plausible explanations of death

61. Mr Gene submitted that the State’s case rested entirely on circumstantial evidence and the court must apply the principles set out by the Supreme Court in Paulus Pawa v The State [1981] PNGLR 498:

•	the accused must be acquitted unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than guilt; and

•	to enable the court to be satisfied beyond reasonable doubt of the guilt of the accused, it is necessary not only that his or her guilt should be a rational inference but that it should be the only rational inference that the circumstances would enable it to draw.

62. There are other reasonable hypotheses available, Mr Gene submitted, the most obvious one being that Otto was run over by a moving vehicle. This is a real possibility, Mr Gene suggested, as there is no eyewitness account of any fight and there is no evidence of anybody in the village hearing a fight or commotion. Therefore the court cannot conclude that Otto was killed by any of the accused.

63. I agree that the Paulus Pawa principles must be applied in this case as the State’s case is substantially dependent on circumstantial evidence. In Devlyn David v The State (2006) SC881 the Supreme Court restated the Pawa principles by saying that the question to be asked is:

•	do the proven facts lead reasonably to only one conclusion – that the accused did all the things constituting the elements of the offence? If yes, the accused is guilty. If no, the accused is entitled to an acquittal.

What are the proven facts in this case?

•	Lucas was drunk and behaving aggressively on the night of December 24 at Peter Gah’s house. He had a knife on him and was using it to cut posts to the house and said "I am Chief … you will see a coffin tomorrow".

•	Lucas and Otto were together drinking and walking around the village, looking for beer and cigarettes in the early hours of Tuesday 25 December. They were both drunk. They were seen by at least four people (State witnesses Theo Volame, Michael Mulepu, Mathias Vulaga and Zacharias Rora).

•	They left Mathias Vulaga’s place at about 4.00 am and went in the direction of the highway.

•	Otto’s body was found on the highway at 6.00 am.

•	Const Wande found evidence of the body being dragged on to the highway (blood clots were found under dry leaves off the road close to the spot where Otto’s body was found and there was little blood there).

•	Lucas went into hiding on the morning of December 25.

•	Lucas’s cut jeans (brought to the police station by his father) had stains on them resembling blood.

•	Lucas made admissions to the police that he fought over beer with Otto and used a piece of sawn timber to hit him at the back of the head and dragged his body to the highway where it was run over by a truck.

•	A post-mortem examination has revealed that Otto died as a result of a severe head injury as part of the head was virtually crushed and a great amount of force was used.

•	Lucas lied under oath as to what happened.

What inference(s) can be drawn?

64. A reasonable inference to draw from those facts is that Lucas assaulted Otto and caused his death.

65. An alternative hypothesis is that Otto’s death was accidental: that he was drunk and wandered on to the highway, lay down there to sleep and was struck by a vehicle. I agree that that is a possible scenario but only slightly possible. I conclude that it is not a reasonable hypothesis.

66. Lucas’s behaviour before the time of death – between 4.00 and 6.00 am on December 25 – is consistent with that of a person who would get into a drunken fight with a fellow villager. His behaviour afterwards – going into hiding and making admissions to the police – is consistent with someone who has committed a crime. His behaviour in the trial – giving false evidence – is consistent with someone who is guilty. The forensic evidence – blood being found off the road but little on the road where the body lay and evidence of the body being dragged on to the highway and stains resembling blood on Lucas’s cut jeans – though not of high quality, is consistent with the conclusion that Lucas assaulted the deceased.

67. All this evidence points to the conclusion that Otto was not killed by accident. The facts proved in evidence are inconsistent with any reasonable hypothesis other than that Lucas assaulted Otto and caused his death. That is the only rational inference that can be drawn from the proven facts.

68. I find it proven beyond reasonable doubt that Lucas assaulted Otto. He hit him over the head with a piece of sawn timber. Having disabled him, he dragged him to the highway where he was run over by a moving vehicle. The wounds may or may not have been sufficient to cause death immediately. There may have been other people involved in the assault. Others may have assisted in dragging Otto to the highway. The evidence is insufficient to make findings on whether anyone else was involved and if so, who they were. It has not been proven that it was John or Peter.

69. However, the proven facts lead reasonably to only one conclusion: Lucas caused the death of Otto, at least indirectly. According to the definition of killing in Section 291 of the Criminal Code he is deemed to have killed him.

FINAL DETERMINATION OF WHO KILLED THE DECEASED

70. The first element of the offence of wilful murder has been proven against Lucas. It has not been proven against John or Peter. They will be acquitted.

71. I will now address the other elements of the offence in relation to Lucas.

2 	WAS THE KILLING UNLAWFUL?

72. Section 289 (homicide) of the Criminal Code states:

It is unlawful to kill a person unless the killing is authorised or justified or excused by law.

73. Because Lucas did not rely on any specific defence he has not argued that his killing of the deceased was authorised, justified or excused. No defences are available from the evidence that has been presented. Therefore the killing was not authorised, justified or excused.

74. It was an unlawful killing and the second element of the offence of wilful murder has been proven.

3 	DID THE ACCUSED INTEND TO KILL THE DECEASED?

75. It is at this point of a wilful murder trial that the Court is required to consider the 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 (eg The State v Moses Nasres (2008) N3302).

•	If he did not intend to kill him, 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; The State v Ephraim Ria Boa (2008) N3436; The State v Steven Malken CR No 464 of 2008, 07.08.09). 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, 11.12.07).

76. As Injia AJ, (as he then was), highlighted in The State v Raphael Kuanande [1994] PNGLR 512 the relevant time at which to assess the accused’s state of mind is when he committed the act that constitutes or is an element of the offence:

Intention is a matter which goes to the state of mind of the accused at the time he acted. It may be proven by direct evidence of the accused’s expression of intention followed by the act itself or by circumstantial evidence. In either situation, it is necessary to examine the course of conduct of the accused prior to, at the time and subsequent to the act constituting the offence. [Emphasis added]

77. Having examined Lucas’s course of conduct before, when and after he assaulted Otto, I am not satisfied that when he assaulted Otto he intended to kill him. Mr Kupmain has submitted that Lucas’s threatening words – "I am Chief … you will see a coffin tomorrow" – demonstrate an intention to kill. That is not an unreasonable proposition however it has not been proven beyond reasonable doubt. There was insufficient evidence of a plan to kill Otto. The best explanation of what happened is that Lucas and Otto had a drunken fight that got out of hand. It was not a premeditated attack. I find that Lucas did not intend to kill Otto. The third element of wilful murder is not proven.

4 	SHOULD THE ACCUSED BE CONVICTED OF SOME OTHER OFFENCE?

78. Two provisions of the Criminal Code are relevant here. Section 539(1) (charge of murder or manslaughter) 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.

79. Section 300(1)(a) (murder) states:

Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder: …

if the offender intended to do grievous bodily harm to the person killed or to some other person.

80. The nature and extent of the wounds suffered by Otto show beyond reasonable doubt that Lucas intended to do him grievous bodily harm. The appropriate alternative verdict available under Section 539(1) is therefore that Lucas is guilty of murder under Section 300(1)(a) of the Criminal Code.

VERDICTS

(1)	John Baimo Kaole, having been indicted on a charge of wilful murder under Section 299(1) of the Criminal Code, is found not guilty of wilful murder and not guilty of any other offence and is discharged from the indictment.

(2)	Peter Papui, having been indicted on a charge of wilful murder under Section 299(1) of the Criminal Code, is found not guilty of wilful murder and not guilty of any other offence and is discharged from the indictment.

(3)	Lucas Papui, having been indicted on a charge of wilful murder under Section 299(1) of the Criminal Code, is found not guilty of wilful murder but guilty of the murder of Otto Komeme under Section 300(1)(a) of the Criminal Code.

Verdicts accordingly.
____________________________

Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the accused