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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO 1450 OF 2009
THE STATE
V
TODD MARI
Madang: Cannings J
2011: 8, 9, 10, 21, 24 March, 6, 19 April
VERDICT
CRIMINAL LAW – trial – wilful murder – Criminal Code, Section 299(1) – enabling or aiding others to commit the offence – whether offence committed in prosecution of a common purpose – Criminal Code, Sections 7, 8.
The accused was charged with one count of wilful murder. It was not alleged that he actually killed the deceased but that he aided others who did and is therefore deemed to have taken part in committing the offence and is guilty under Section 7(1)(b) of the Criminal Code. Furthermore, that he is deemed by Section 8 of the Criminal Code to have committed the offence as he was prosecuting a common purpose in conjunction with others and the offence committed was a probable consequence of the prosecution of that purpose.
Held:
(1) There was sufficient evidence that the offence of murder, but not wilful murder, was committed against the deceased by the accused's brother.
(2) The accused was present at the time that the deceased was attacked and did acts for the purpose of enabling and aiding his brother to commit the offence; and he aided the person who committed the offence. He also counselled (encouraged) his brother to commit the offence. He is deemed by Section 7(1)(b), (c) and (d) of the Criminal Code to have taken part in committing the offence.
(3) The accused formed a common intention to prosecute an unlawful purpose (attacking the deceased with the intention of killing him) in conjunction with a number of other people and in the prosecution of that purpose the offence of murder was committed; and that offence was of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose. The accused is thus deemed by Section 8 of the Criminal Code to have committed murder.
(4) The accused was accordingly convicted of murder under Section 300(1)(a) of the Criminal Code.
Cases cited
Papua New Guinea Cases
John Jaminan v The State (No 2) [1983] PNGLR 318
R v Potosi (1973) No 730
The State v Nataemo Wanu [1977] PNGLR 152
The State v Seth Ujan Talil (2010) N4082
Overseas cases
Browne v Dunn (1893) 6 R 67 HL
TRIAL
This was the trial of an accused charged with one count of wilful murder.
Counsel
S Collins & M Pil, for the State
M Mwawesi & E Thomas, for the accused
19 April, 2011
1. CANNINGS J: The accused, Todd Mari, is charged with the wilful murder of his relative, Peter Anangui Nabur (commonly known as "Peter Anangui"), at Bafor village, Karkar Island, on Wednesday 31 December 2008. The State does not allege that the accused actually killed the deceased but that he aided the person who did and was acting with a common purpose in conjunction with that person and others. The State relies on Sections 7 and 8 of the Criminal Code to argue that the accused should be deemed to have committed the offence of wilful murder.
ISSUES
2. The primary issues are:
1 WAS THE OFFENCE OF WILFUL MURDER COMMITTED IN RELATION TO PETER ANANGUI?
3. It is not disputed that the person who actually killed the deceased was the accused's brother, Kadurai Joe Mari, who has pleaded guilty to and been convicted of the offence of murder. Kadurai's matter was dealt with by Kawi J in June 2010. It is now a part-heard sentencing matter and is expected to be completed soon. Kadurai gave sworn evidence in the present case, admitting that he had an altercation with the deceased and killed him by cutting him with a bushknife. There is sufficient evidence before the court to conclude that the offence of murder under Section 300(1)(a) of the Criminal Code was committed against the deceased as Kadurai killed him with the intention of at least doing him grievous bodily harm. However, I do not consider that the evidence supports a finding that the offence of wilful murder was committed as there was no certificate of conviction for wilful murder before the court and there was no concession by the defence that Kadurai had been convicted of wilful murder. Also the evidence falls short of proving beyond reasonable doubt that Kadurai wilfully murdered the deceased.
4. Thus the offence of wilful murder was not, for the purposes of the present trial, committed, but the offence of murder was committed in relation to Peter Anangui.
2 IS THE ACCUSED GUILTY UNDER SECTION 7 OF THE CRIMINAL CODE?
5. Section 7(1) (principal offenders) of the Criminal Code is the first provision on which the State relies to argue that the accused should be convicted. It states:
When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:—
(a) every person who actually does the act or makes the omission that constitutes the offence; and
(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and
(c) every person who aids another person in committing the offence; and
(d) any person who counsels or procures any other person to commit the offence.
6. The State relies on Sections 7(1)(b), (c) and (d), its case being that the accused did acts for the purpose of enabling his brother to murder the deceased, that he aided his brother in murdering the deceased and that he counselled his brother to murder the deceased. Assessment of the State's case requires:
EVIDENCE FOR THE STATE
7. Seven witnesses gave oral evidence and four exhibits were admitted into evidence. The exhibits were an affidavit by one of the State witnesses (tendered by the defence as a prior inconsistent statement), two crime scene maps and a medical report, including several photos, regarding the death of the deceased. The medical report was prepared by Dr Ralison Clement, CEO of Gaubin Hospital, Karkar Island, who treated the deceased, aged 50 years, when he was brought to the hospital on the morning of 31 December 2008, reportedly having been attacked by a man with a bushknife. The deceased presented with his 'left leg half-amputated and left forearm deep laceration associated with double bone fracture'. Dr Clement surgically amputated the lower left leg and sutured the muscles, tendons and structures of the lower leg and left forearm and performed medical resuscitation by IV fluids and transfusions. However, the deceased died of haemorrhagic shock two hours after surgery.
8. The first witness to give oral evidence about the attack on the deceased was his grandson, Peter Muloi. He comes from Bafor. He, together with other State witnesses except the police witness, is related to the accused, and they all live in the same part of Karkar Island. He said that on the evening of 30 December 2008 he was forced to go over to the accused's house and join a drinking party, led by the accused. Others present were the accused's brothers:
9. Other young men were also present, including:
10. He was forced to stay with them all night. They were drinking yawa. Early in the morning of 31 December the accused sent him to buy beer, so he did what he was told and took the beer back to the accused's place. Then for no good reason the accused's brother, Kadurai Joe, chased him with a bushknife. He ran in fear of his life to his parents' house but the accused was there and shouted:
"Todd Force is heavy force!"
11. So he ran to the house of his aunt, Bel Anangui, who was outside the house and when she saw what was happening, told him to go inside and hide. He did that but Kadurai kept chasing him before being prevented from going into the house by Bel, who he tried to cut with his bushknife. Then, Kadurai and the others went away, so he (Peter) ran into the bush and hid for two hours. When he emerged he was told about the attack on the deceased.
12. In cross-examination he agreed that at least two of the accused's brothers (Baden and Bakuk) had been killed on Karkar several weeks later in apparent payback attacks but denied involvement. He denied that he had been up all night drinking with the accused and his brothers and others. He denied being the cause of all the trouble. He took the words that the accused was shouting to mean that the accused was leading his brothers to fight. He had not heard the term "Todd Force" before.
13. The second State witness was the deceased's daughter Bel Anangui. She is Peter Muloi's aunty. She was sitting on the steps at her house with her 15-month-old baby when the accused and Kadurai chased Peter to her house. She saw Kadurai holding a knife. She heard the accused yell out:
Kai kai kan! Burn the uncle's house!
14. She told Peter to hide in the house. She followed him in and Kadurai followed before she tackled him. Her baby screamed and when her dogs heard the commotion they barked and attacked Kadurai and he took off.
The accused shouted:
Todd Force!
15. She heard the accused's brothers (referring to Peter Muloi) shout:
Problem! Kill him!
16. The accused and his brothers destroyed her garden and then fled the scene. She got her baby and ran into the bush. She returned at 1.00 pm and heard that the accused's brothers had killed her father. She does not know who actually attacked him.
17. In cross-examination she explained that the first person she saw chasing Peter Muloi was Kadurai. The accused was not far behind him, about five metres. She acknowledged that there were some discrepancies between her oral evidence and an affidavit that was filed in the District Court (which was admitted into evidence, after being tendered by the defence as a prior inconsistent statement). However, she was adamant that the accused was present with Kadurai and his other brothers, together with Nickson Kuan and Kelly Yamang.
18. The third witness was an LLG ward councillor, Marim Yais. He comes from Bafor. He said the accused and his brothers had a bad reputation in the local community. They were prone to assaulting other members of the community if they did not get their way on local issues. He was not present when the deceased was attacked but soon after the incident the deceased was brought to his house. He was wounded badly and he (Mr Yais) told the people who had brought him to get him to the hospital urgently. They did so but the deceased died later that morning. Mr Yais said that he then asked the police to come and investigate the death as the people in the community were very angry and there was talk of violence and revenge. Houses of some of the accused's relatives were later set on fire and the accused and his family fled the island. He is aware that two of the accused's brothers were killed a few weeks after Peter Anangui was killed but does not know who was responsible.
19. The fourth State witness was another of the deceased's daughters, Mil Anangui. She is also Peter Muloi's aunty. She was working at her family's trade store, which is 200 metres from her sister Bel's house, when she saw the accused, who was drunk. Then she saw Peter Muloi run past, pursued by Kadurai and his brothers, Nickson Kuan and Kelly Yamang. She heard the accused shout to his brothers:
Kai kai kan! Problem! No mercy! Kill him!
20. She told Peter to run to his uncle's (Bel's husband's) house, which he did. Then the accused and Kadurai and the others chased him. They returned about half an hour later. She heard the accused shout:
Todd Force! Kai kai kan! Break down Peter's father's store!
21. The accused's group then attacked the store, slashing the walls and destroying the store goods inside. They also cut the flowers around the store. She stood there with her father (the deceased, Peter Anangui) watching them do this. The accused shouted:
Kill anyone in this area!
22. She held on to her father's hand and they tried to escape the scene but Kadurai followed them and said "Your life is in my hands. Now you will die." She let go of her father, went ahead for eight metres, turned around and saw Kadurai slashing her father's left leg with a bushknife, almost severing it; Kadurai also cut him on the left arm. Her father fell. He was bleeding heavily. She pleaded with Kadurai not to kill him but Kadurai replied "Today I killed the son of God. Now I will kill his disciples!" Other people who were in the vicinity came in to try to assist her father but the accused and his brothers chased them away, before Gab Muban and Alvin Marum (both State witnesses) intervened and managed to get the deceased to the hospital.
23. In cross-examination she was emphatic that the accused was shouting and encouraging the others in his group to commit violence against people and properties. She agreed that her father had an ongoing land dispute with Kadurai.
24. The fifth State witness was the deceased's grandson, Gab Muban. He was at his house which is not far from his grandfather's area, about 30 metres, when he heard a commotion. He heard the accused shouting:
Trouble! Kill them!
25. He rushed to the scene of the commotion, met his cousin, Alvin, on the way, and when they got there, saw Kadurai attacking the deceased with a bushknife, in the presence of the accused and his other brothers. He and Alvin tried to help their grandfather but the accused and his brothers, who were armed, chased them away. The accused shouted:
Kai kai kan! Trouble! Kill their people!
26. He and Alvin hid in the bush until the accused and his group left, then they attended to their grandfather who was badly wounded. Some other boys came and assisted them put together a makeshift stretcher and they carried their grandfather to Mr Yais's house and then to the hospital.
27. In cross-examination he said that when he first heard the commotion he could not see the accused shouting but he could recognise his voice. The accused and his brothers are his cousins and he knows them all well. He was emphatic that he actually saw Kadurai cutting his grandfather.
28. The sixth State witness was another of the deceased's grandsons, Alvin Marum. He ran from his house, about 80 metres from his grandfather's area, when he heard the commotion. He joined up with his cousin Gab and when they got to his grandfather's area, saw Kadurai cutting his grandfather. He tried to help his grandfather but the accused sang out:
Kai kai kan! Cut anyone who helps him! Burn their houses!
29. He ran into the bush with Gab and when the accused and his group left they went to their grandfather's assistance, took him to the ward member's place and then to the hospital.
30. In cross-examination he said that it was only Kadurai who cut the deceased but the accused and his brothers were present.
31. The final State witness was Snr Sgt Franz Mongati of Madang CID. He is the accused's arresting officer. He said that the accused and his brothers had a reputation of being troublemakers and law-breakers. In cross-examination, however, he was unable to give examples of crimes over which they had been charged, other than the matter that is now before the court. He was grilled over the apparent police inaction concerning the death of two or three of the accused's brothers in early 2009. Snr Sgt Mongati said that no one had been charged over the deaths as no one had come forward to lay a complaint. Nor had there been complaints concerning destruction of the accused's family's houses after the incident on 31 December 2008.
That was the State's case.
EVIDENCE FOR THE DEFENCE
32. The accused gave an unsworn statement from the dock and two other defence witnesses gave sworn oral evidence.
33. The accused, Todd Mari, stated he was not at Bafor when the incident occurred early on the morning of 31 December 2008. He was at another village, Kubukam, where he had gone to sell mustard. He left that village at 10.00 am and when he returned to Bafor he was told by his small brother, Baden Mari, what had happened. He went to his house, saw that his wife and children were scared then collected them all together and went to his wife's village. While there he heard about two of his brothers being murdered and his family's houses being burned down. He stayed at his wife's place until 25 February 2009 when Snr Sgt Mongati arrested him and took him to Beon Jail where he has been in remand ever since.
34. The accused's brother, Kadurai Joe Mari, stated that on the night of 30 December 2008 he was at his house with a couple of friends. His big brother, the accused, was not with him. Nor was State witness Peter Muloi. He went to the main village the next morning with Nickson Yuan and Kelly Yamang after drinking with them for a while. Between 9.00 and 10.00 am Peter Muloi, who was drunk, confronted him and hit him badly. He ran to his house and got his bushknife and chased him. The deceased, Peter Anangui, arrived and argued with him (Kadurai). He and the deceased had quarrelled several times previously over a land matter. The deceased wanted to fight him, so he cut him on his leg and arm. He only cut him once but he knew he had done the wrong thing so he ran off towards the main road and then the police arrested him. Neither the accused nor any of his other brothers were present. Bel and Mil Anangui were not there either.
35. In cross-examination he said that the deceased was armed with a stick when he tried to fight him. He (Kadurai) retaliated by cutting him once with the bushknife, but not with a lot of force. He confirmed that the accused was his biological, elder brother but said that they did not live together. He does not regard him as a leader of any particular group and knows nothing about any Todd Force. He denied that the evidence he was giving was different to the version of events which was given to the court that led to him being convicted of the murder of Peter Anangui. He denied attacking Bel Anangui and denied damaging Mil Anangui's store and acting at any time on the accused's orders. He was telling the truth, he said, and was not tailoring his evidence to try and help the accused.
36. A relative of both the family of the accused and the family of the deceased, Anna Taibakou, was the final defence witness. She is married to a police officer and lives in Madang town. She has heard stories about the incident of 31 December 2008. Kadurai and some of his brothers visited her in town in January 2009 and told her about what had happened. She went to Madang Town police station on several occasions to try to get the police to assist but nothing much was done. She regards the accused and his brothers as good people. She has never taken sides in the various disputes between them and the deceased's family. The only real dispute they had until 31 December 2008 was over land.
That was the close of the defence case.
PRELIMINARY ASSESSMENT OF THE STATE'S CASE
37. The State presented six witnesses who were in the vicinity of the incidents in which Kadurai Joe chased Peter Muloi and of those six, two said that they saw Kadurai attack the deceased. All of them said that the accused was with his brother and inciting him and others to violence. This evidence was not of such a quality that it ought to be rejected outright. Nor was it so compelling that it does not require further examination. The defence counsel's submissions therefore must be carefully assessed.
DEFENCE COUNSEL'S SUBMISSIONS
38. It was submitted by the defence that none of the eyewitness evidence of the State witnesses was credible as none of the six witnesses who gave such evidence was a witness of truth. The court should reject the State's claim that the accused and his brothers were habitual criminals who were prone to committing violent acts against others with whom they were in conflict, and take into account that the deceased's lain have been guilty of payback killings and arson attacks committed against the accused's lain. The court should find that the accused was not present at the time of the incidents that led to the death of the deceased and uphold the defence case that the person solely responsible for the murder of the deceased was Kadurai Joe.
ASSESSMENT OF DEFENCE COUNSEL'S SUBMISSIONS
1 Eyewitness evidence not credible
39. I agree that that there is a serious doubt about the credibility of some aspects of the evidence of the first State witness, Peter Muloi. The story he told about being "forced" to go and drink all night with the accused and his brothers on the night of 30 December sounded flaky. He could not explain clearly what he meant by being forced to drink and forced to stay at the accused's place all night. He seemed anxious to distance himself from being the trigger to the chain of events that led to the death of his grandfather. That aside, however, I am not persuaded by the submission that the eyewitnesses as a group were unreliable or gave rehearsed and manufactured evidence. None of them can be regarded as independent witnesses as they are related to the deceased. There were some inconsistencies within and between their evidence but there was nothing in their demeanour which exposed them as witnesses who were prepared to lie under oath about what happened. Their evidence is therefore generally credible.
2 Accused and his brothers were not habitual criminals
40. I agree that the evidence about the reputation that the accused and his brothers had in the community was rather vague. Snr Sgt Mongati said it was well known that they were involved in many criminal activities but could not point to any instances in which they had been charged with any offences. The ward member, Mr Yais, who seemed a fairly reliable witness, someone you would expect to know who the troublemakers were in his community, indicated that they did not have a good reputation but he was also rather vague as to what they had done to get that reputation. Against that negative portrayal of the accused and his family was the evidence of defence witness Anna Taibakou who said that the accused and his brothers were good people. While she is not (like all others) an independent witness, as she seems more aligned to the accused and his brothers who regarded her as an aunty than to the State witnesses, her evidence was an effective counterbalance to the proposition of the State that the accused and his brothers were violent bigheads and troublemakers.
3 Evidence of payback killings and arson
41. Some of the State witnesses were evasive when asked about what happened in early 2009. Were two or three of the accused's brothers the victims of payback killings? Were the accused's family's houses destroyed by the deceased's lain? It seems fairly clear that at least two of the accused's brothers were murdered at the wharf and about eight houses were set on fire in a series of reprisals for the killing of Peter Anangui. However, these were things that happened after 31 December 2008 and are of little relevance to determining whether the accused had any role in the death of the deceased.
4 Accused not present
42. The accused's unsworn statement from the dock is very difficult to believe. His evidence was far less credible than that of the State witnesses. Though the defence counsel did not use the term 'alibi' to describe the accused's evidence, that was, and in fact what the defence was. The accused was saying he could not have been involved as he was somewhere else (at another village, selling mustard) at the time of the incident. He only came on the scene after the deceased had died. Having regard to the principles set out by the Supreme Court in John Jaminan v The State (No 2) [1983] PNGLR 318, the quality of this evidence was poor and the alibi was, in fact, false, as:
FINDINGS OF FACT
43. There is sufficient reliable evidence before the court on which to base the following findings of fact about the sequence of events that led to the death of Peter Anangui.
44. The accused and his brothers became angry for some reason with Peter Muloi and chased him past the family trade store where Mil Anangui was working. Kadurai was leading the chase, armed with a bushknife, and he and others were encouraged by the accused who shouted words like:
Kai kai kan! Problem! No mercy! Kill him!
45. Peter Muloi then ran to the house of his aunty, Bel Anangui, who told him to go inside and hide. Bel, who was carrying a baby, was confronted by Kadurai who was intent on chasing Peter Muloi inside the house. Kadurai was joined in the chase by the accused and other members of his group. The accused was inciting violence towards Peter Muloi and property damage by shouting things like:
Kai kai kan! Burn the uncle's house!
Todd Force!
Problem! Kill him!
46. Bel, with the help of her dogs, managed to repel Kadurai and the accused and other members of his group, who after destroying Bel's garden, left her area. Peter Muloi and Bel fled into the bush and hid there and did not emerge until after Peter Anangui had been attacked.
47. The accused, who was the leader of the group (evidence by him being the one who the witnesses observed as shouting instructions) then took the group back to Mil Anangui's area. They were still agitated and behaving aggressively. The accused shouted things like:
Kill anyone in this area!
Trouble! Kill them!
Kai kai kan! Trouble! Kill their people!
Cut anyone who helps him! Burn their houses!
48. Evidence that the accused shouted such things came from Mil Anangui, who was present, and from Gab Muban and Alvin Marum who heard him from 30 to 80 metres away. I accept their evidence that though they did not see the accused say those words they recognised his voice as they are related to the accused, they know him well and they were living in the same general area together.
49. Mil was still at the store when the accused and his group returned. By this time her father Peter Anangui had arrived. So the two of them were there together facing an angry mob, led by the accused. Peter Anangui argued with Kadurai Joe Mari. Evidence of such an altercation comes not so much from the State witnesses but from Kadurai's evidence, which in this regard was not contested by the State: the deceased and Peter had an ongoing land dispute, they had quarrelled in the past and it was this background of ill-will between them that caused Peter Anangui to become the target of Kadurai's frustration and anger. Mil and Peter Anangui tried to escape but Kadurai chased them, caught up to Peter Anangui and then slashed his left leg, with his bushknife, almost severing it; Kadurai also cut him on the left arm. Peter Anangui fell and bled heavily.
50. Other people who were in the vicinity came in to try to assist her father but the accused and his brothers chased them away, before Gab Muban and Alvin Marum intervened and managed to get Peter Anangui to the hospital.
FINAL DETERMINATION OF SECTION 7(1) ISSUES
51. The court has found that the accused was the leader of the group that chased Peter Muloi past Mil Anangui's store and to Bel Anangui's house, attempted to injure Peter Muloi and Bel Anangui, destroyed Bel's garden, and then returned to Mil's store where they damaged the store and its contents and where Kadurai Joe Mari, a member of the group led by the accused, murdered Peter Anangui. The accused was directly involved in inciting these acts of violence, including the attack on Peter Anangui. His role in the killing, and murder, of Peter Anangui cannot be excised from that of Kadurai. Though Kadurai had a motive to be violent towards Peter Anangui and though he was the one who directly killed him and actually committed the offence of murder, the accused is also criminally liable.
52. I find that the accused was not merely present when Kadurai attacked Peter Anangui (as presence alone does not give rise to criminal liability: R v Potosi (1973) No 730), but it has been proven beyond reasonable doubt that it was, in effect, a group attack. I find it proven beyond reasonable doubt that the accused was present at the scene and acted for the purpose of enabling and aiding his brother to murder the deceased. He encouraged, and therefore counselled, Kadurai to murder the deceased. In these circumstances, just as in cases such as The State v Nataemo Wanu [1977] PNGLR 152 and The State v Seth Ujan Talil (2010) N4082, it is proper to conclude that the accused is deemed to have taken part in committing the offence of murder and to be guilty of it.
3 IS THE ACCUSED GUILTY UNDER SECTION 8 OF THE CRIMINAL CODE?
53. Section 8 (offences committed in prosecution of common purpose) states:
Where—
(a) two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another; and
(b) in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of the purpose,
each of them shall be deemed to have committed the offence.
54. For an accused to be criminally liable under this provision, the following matters must be proven beyond reasonable doubt:
(i) the accused formed a common intention with at least one other person to prosecute a purpose in conjunction with one another;
(ii) it was an unlawful purpose;
(iii) they prosecuted that purpose;
(iv) when doing so an offence was committed;
(v) the commission of the offence was a probable consequence of the prosecution of the purpose.
55. I consider that the State has proven beyond reasonable doubt that:
(i) the accused formed a common intention with a group of other persons to prosecute the purpose of attacking and killing Peter Muloi or his close relatives, including the deceased, in conjunction with each other;
(ii) that was an unlawful purpose as they took the law into their own hands;
(iii) they prosecuted that purpose in that they acted together with the aim of implementing the course of action that they had agreed on (as evidenced by the group attack);
(iv) in doing so, the offence of murder was committed;
(v) the commission of that offence was the probable (ie likely) consequence of the prosecution of that purpose.
56. There is no evidence that the accused at any stage withdrew from the group attack on the deceased or that he in any way withdrew from the prosecution of the unlawful purpose. All elements of Section 8 have been established by the State. The accused is therefore deemed to have committed the offence of murder.
VERDICT
57. Todd Mari, having been indicted on a charge of wilful murder under Section 299(1) of the Criminal Code, is found guilty of murder under Section 300(1)(a) of the Criminal Code.
Verdict accordingly.
____________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused
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