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National Court of Papua New Guinea |
PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE
CR Nos. 909, 910, 911, 912, 913, 914 & 915 OF 2009
STATE
V
DAVID BOLA, DANNY KASE, RONALD DAU, PETER BAE, ALPHONSE GELA, PAUL LEVI & CLEMENT MANGAEA
Waigani: Kirriwom J
2011: May 16th, 17th, 18th, 19th, 20th 23rd, 24th, 25th 26th 27th
June 1st & July 12th
CRIMINAL LAW – Wilful Murder – Multiple Accused – Drunken fight – Use of kitchen knife - Intention to kill – Provocation not raised as defence – Principal offender – Common purpose was to fight with fists only – Absence of intent to kill – Whether killing a probable consequence to fight – Whether accessories are guilty of the same offence as the principal – Proof beyond reasonable doubt – Principal found guilty of murder – Accessories found guilty of manslaughter – Criminal Code, ss. 299, 300, 539, 7 and 8.
PRACTICE AND PROCEDURE – Conduct of Trial - Legal representation of multiple accused persons by same lawyer or law firm – Need to avoid conflict of interests between all clients – Duty to client and duty to assist the court.
PRACTICE AND PROCEDURE – Witnesses – Demeanour – How to identify liars.
PRACTICE AND PROCEDURE – No case to answer – When not to make no case to answer submission – Not a matter of course procedure to adopt in every trial.
EVIDENCE – Adducing evidence in trial – Use of modern technology – Photographs and CCTV footages – Video clips taken from security cameras – Uncontested evidence on big screen using multi-media projector and laptop – Efficient trial management.
PARTIES TO OFFENCES – Principal and accessories – Common unlawful purpose to fight – Killing a probable consequence of executing common unlawful purpose – Criminal culpability of principal and accessories – Necessary intention to commit crime charged or do harm – Absence of intention to kill or cause grievous bodily harm justifies lesser extent of criminal culpability.
VERDICTS – Principal offender liable to heavier criminal responsibility hence higher degree of homicide and accessories liable to lesser degree of homicide – Principal found guilty of murder – Accessories found guilty of manslaughter.
Facts
Seven accused from the same ethnic background and all related to one and other were charged with wilful murder for killing another person. The deceased with one other person were drinking in the same bar that all the accused were also drinking celebrating the New Year of 2009.
A minor mishap inside the bar between the accused and the deceased resulted in their ejection from the bar. Once outside the bar there were exchanges of fist fights between the accused and the deceased and his relative.
The accused proceeded home to one of the accused's house not far from the hotel. As they stood outside the gate of the house, the deceased's relative yelled out to the accused and called them names and challenged them to fight again one at a time.
All the accused rushed back toward the bar area to confront the challenger. One of them, unbeknown to the others, armed himself with a long kitchen knife and ran overtaking the rest and headed for the challenger and upon reaching him stabbed him with the knife on the face. He then turned the knife on the deceased nearby and stabbed him under his left arm below the shoulder.
Deceased lost a lot of blood at the scene and despite being given medical attention and treatment when taken to the hospital; he died due to hypovolaemic shock due to acute blood loss.
Despite overwhelming evidence from several eye witnesses at the scene and the pictures recorded of live images of the accused leaving the bar following their eviction by the security cameras placed both inside and outside the door of the bar, all the accused denied being involved in the fights with the deceased and his friend except one of them, the principal offender, who admitted to stabbing the deceased but denied having any intention to kill him.
The court considered the following issues in the trial and held accordingly:
Issue one
Q. Did David Bola intend to kill the deceased?
A. The court accepted the evidence from the accused and found that he did not mean to kill the deceased for the reasons given in the judgment and highlighted in the discussion on other issues.
Issue Two
Q. Could David Bola have had or possessed the necessary intention to kill the deceased in the circumstances of this case?
A. Given his condition of the mind which was already heavily contaminated by excessive alcohol intake and the fact that he was responding to a challenge by Jonah Jambandi, if not in law then as a matter of fact, he could not have had a clear mind to form the necessary intention to kill the deceased or any one of them for that matter.
Issue Three
Q. Is provocation under section 267 of the Code available as defence to the accused notwithstanding that the accused did not raise it or rely on it as defence?
A. Court was of the view that as long as there was evidence showing existence of provocation that precipitated the reaction of the accused culminating in fatality, the court cannot ignore it and deny the accused the benefit of that defence. Even if it did not amount to a defence for purpose of section 267, nevertheless there was provocation for the accused's reaction that could be important in considering the mental condition of the accused at the material time of the stabbing.
Issue Four
Q. Was the killing a probable consequence of prosecuting a common unlawful purpose to fight with the deceased and his friend?
A. Yes
Issue Five
Q. Are all the accused criminally liable for the death of the deceased?
A. Yes
Issue Six
Q. Are all the accused liable to the same degree of criminal culpability for the death of the deceased? In other words, if the principal offender who held the knife and stabbed the deceased is guilty of murder, are the accessories also criminally liable for murder?
A. No. If the principal offender is found guilty of murder, the accessories are liable to lesser degree offence of homicide in accordance with their degree of participation and relevantly their particular state of mind at the material time of offence.
Full reasons in the judgment.
Cases Cited
Papua New Guinea Cases
Biwa Geta v The State [1988-89] PNGLR 153
Garitau Bonu & Rosanna Bonu v The State, (SC528 Unreported)
John Beng v The State [1977] PNGLR 115
John Jaminan v The State (No.2) [1983] PNGLR 318
Paul Kundi Rape [1976] PNGLR 96
Paulus Pawa v The State [1981] PNGLR 498
Roka Pep (No.2) [1983] PNGLR 287
The State v Edward Toude & Others [2001] N2298
The State v Jimmy Bellem [1979]N192 (18 April, 1979)
The State v Mole Manipe [1979] N196 (1 June, 1979)
The State v Morris [1981] PNGLR 493
The State v. Tamang Sem [1989] PNGLR 430
Overseas Cases
Barca v The Queen [1975] 50 ALJR
Gilbert v. R [2000]201 CLR 414
R v Barlow [1997] 188 CLR 1
R v Hanjau – Aikolo (SC 528 Unreported)
R v Jervis (1993) 1 Qd R. 643
Texts materials cited
6th edition of Carter's Criminal Law of Queensland (1982)
Counsel
Mr. Rutledge with Ms. Christensan and Ms Roalakona, for the State
Mr. Emilio, for David Bola, Ronald Dau, Peter Bae, Paul Levi and Clement Mangaea
Ms. Hombunaka, for Danny Kase
Mr. Mamu, for Alphonse Gela
DECISION ON VERDICT
12th July, 2011
1. KIRRIWOM, J: The State indicted David Bola, Danny Kase, Ronald Dau, Peter Bae, Alphonse Gela, Paul Levi and Clement Mangaea, all from Kombe in the West New Britain Province with one count of wilful murder. They are alleged to have wilfully murdered the deceased Timothy Houji at Port Moresby on 1st January 2009 outside the Crown Plaza Hotel in front of the hotel's popular Pondo Tavern.
2. The State case was that the seven accused were all inside the Pondo Tavern or Pondo Bar as is referred to and alcohol was consumed as a New Year Party was in progress. An argument developed between two of the accused on one end and the deceased on the other when one of the accused accidentally bumped the next table occupied by the deceased and his cousin. One of the two accused was David Bola. This led to the security guards evicting them all out of Pondo Tavern.
3. Once outside the hotel the seven accused took the fight to the duo with fists and feet and the series of fights were stopped by members of the public outside the hotel.
4. After the fight or fights had ended the accused went home to Peter Bae's house next to Port Moresby Inn and they stood outside the gate when Jonah Jambandi, the deceased's cousin, challenged them to go back and fight him, if they were man enough to fight one on one. Jonah called out as he moved down the hill towards Port Moresby Inn and traffic island. The group then headed back towards Pondo Tavern in response to the challenge.
5. As the accused did, David Bola who had picked up a knife from somewhere ran past all of them and reached Jonah Jambandi first where he stabbed him on the left cheek and Jonah fled. He then turned to the deceased nearby and stabbed him on the left arm below the shoulder severing the main artery carrying blood to the arm.
6. The deceased lost so much blood at the scene while waiting for transport and died some hours later at the Port Moresby General Hospital. Cause of death was hypovolaemic shock due to acute blood loss from the wound.
7. State invoked sections 7 and 8 of the Criminal Code alleging that all the accused acted in concert, aiding and abetting each other, alternatively, they had a common purpose to fight the deceased and in the prosecution of that common unlawful purpose, David Bola stabbed the deceased and he died.
8. The seven accused were represented by three teams of defence counsel, both Public Solicitor and Paul Paraka Lawyers representing one accused each while the remainder were represented by Gregory Emilio from Emilio Lawyers.
9. A preliminary issue arose as to the representation of the principal accused David Bola by Mr Emilio who was also acting for the other four namely Peter Bae, Ronald Dau, Paul Levi and Clement Mangaea. Danny Kase was represented by Public Solicitor and Alphonse Gela was represented by Paul Paraka Lawyers.
10. Mr Emilio was taken by surprise when contrary to his understanding David Bola pleaded not guilty on arraignment. He thought David Bola was going to plead guilty to wilful murder while the rest would deny the charge. This position suited him so he could concentrate his efforts on the four while David Bola awaited sentencing only.
11. A number of options were discussed with counsel in court and adjournment was given to Mr Emilio to seek instructions from David Bola with a view to referring him to the Public Solicitor for separate legal representation. On resumption Mr Emilio confirmed that the accused wanted to plead not guilty because he did not intend to kill the deceased. He clearly had a terrible issue and the ultimate outcome of this case speaks loudly of lawyers' duty to client and being articulate in their work.
12. Total of 13 witnesses including the seven accused gave evidence and 52 exhibits were tendered comprising witnesses' statements that were not contested, records of interviews, photocopies of still photographs and a DVD containing photographs taken from a digital camera and CCTV footages of pictures taken by three security cameras, one permanently fixed inside the door way of Pondo Tavern, another permanently affixed outside and facing the door of Pondo Tavern and one other camera also permanently positioned in front of the main entrance facing down at the main gate of Crown Plaza Hotel. Also exhibited was a long kitchen knife measuring almost one foot in length with wooden handle. The handle measured about 4 or 5 inches.
13. The method of adducing evidence by referring to photographs and CCTV footages taken by security cameras projected on wide screen by a multi-media projector in court assisted enormously in the court and counsel appreciating the evidence quite clearly. The prosecution team led by Mr Rutledge did a magnificent job in the overall prosecution case which kept everyone tuned to the task in hand until the end. The team of course deserved praise. This was a difficult case but it was made to look so easy.
14. Of the six witnesses who gave evidence in the prosecution case, only four witnesses' testimonies are reproduced below from the summaries provided in the State counsel's written submission which I have thoroughly examined and reconciled with my own notes and understanding of the evidence from these witnesses.
The evidence from the key State witnesses can be summarised as follows:
JOY SONI KARE (Betel Nut seller)
15. The witness and her husband were asleep in their car parked opposite the Crowne Plaza Hotel (other side of road from drop off area).[1]
16. The witness's mother woke her, saying that police are beating a man.
17. The witness looked and saw a group of eight (8) men (near to each other) beating Timothy (HOUJI).[2] She recognised a man who she knows as "Eye Glass" (and identifies in court: Peter BAE[3]) in the group attacking Timothy.[4] Eye glass is from Kimbe and the other men all looked like they were from Kimbe.
18. The group of men then came down to where her car was parked and stood close to her car.[5] Timothy sat up near the Crowne Plaza in the area where he had been beaten by the group.[6]
19. There is an exchange of words where she hears the following words called out to the group: "You folks are not fit to fight like men, one by one."
20. Then the group (the same group that attacked Timothy earlier and included Peter BAE) ran up "all together" to Timothy's friend. She saw David BOLA with a knife. He ran first, holding a knife[7] at his side, and stabbed Timothy's friend in the face. The other men in the group were close (about 2 metres away) to the man with the knife.
21. After Timothy's friend is stabbed, the friend ran up (in the direction of the Crowne Plaza main entrance). The group of men (the same group as involved in the first attack on Timothy and the attack on Timothy's friend) went over, together, to Timothy and surrounded him.[8] She could see the knife still being held by the man who stabbed Timothy's friend. They went over and kicked and punched Timothy and then the man with the knife stabbed Timothy and Timothy fell down. The knife was held up and thrust in a downwards striking motion directed at Timothy's heart, but Timothy raised his hand and blocked the knife. After Timothy was stabbed the group went to the house of "eye glass", the man with the knife dropped the knife in a drain.
22. The witness and her mother took Timothy up to the Crowne Plaza and stopped a Taxi.
NICK GABRIEL (Security Supervisor)
23. The witness was standing near the gate that exits from the Pondo bar onto the street at about 2 am when he saw a group of men
being led out the Pondo Tavern gate.
24. The group of about seven (7) to eight (8) men(who all appeared to come from West New Britain and which included his tambu, who he identifies as the accused Peter BAE) started hitting and kicking Timothy HOUJI and a teenager (Jonah Jambandi) on the street outside the Pondo bar.[9] All the group were involved in inflicting the violence. Timothy HOUJI fell to the ground and the witness went over to him and told him to go home. The group walked off in the Moresby Inn direction.
25. The next thing that happened is that he heard a commotion and walked down in the direction of the Moresby Inn and saw Timothy on the ground, the rest of the group of men (same group as had been involved in the first fight) walk away towards the Moresby Inn, with Peter BAE still kicking Timothy HOUJI and saying "Want to die, You will die." [10] The witness went up and said "leave him, walk away". He told Timothy HOUJI to go home. Peter BAE walked towards the Moresby Inn and the group of men. He picked up Timothy HOUJI and took him towards the traffic Island.
26. The next thing he saw was the group of men (same group as in the first and second fights) come back across the road. Peter BAE was leading, but the man with the knife overtook him. The man with the knife stabs Jonah JAMBANDI (who had run down with his hands swinging and who had tried to swing a punch), in the left cheek. Jonah then took off up the hill. The rest of the group was very close when Jonah was stabbed. The same group then came towards Timothy. The man with the knife held the knife high and struck with a downwards motion towards Timothy's chest. Timothy raised his arm and got stabbed in the arm. The group was around Timothy when he was stabbed.[11] The group then left in the direction of Peace Foundation- Moresby Inn.
27. The witness went up to Timothy. People started to come around. An old lady gave him a T shirt[12] which he wrapped around Timothy's arm and he led him up to the main gate of the Crowne Plaza where a taxi eventually arrived and Timothy was taken to hospital.
JACKSON SUSUKE (Betel Nut Seller)
28. The witness was selling betel nuts and cigarettes in the area of the Crowne Plaza hotel when, about 10.45pm, he saw eye glass (Peter BAE) and about 6 other men come out of Peter BAE's gate. They were drunk and walked straight into the Pondo tavern.
29. He continues selling Betel nut and then around 2am he saw Timothy Houji being pushed out of the Pondo Tavern with the group of men. One of the men was Peter BAE. They walked about 7 meters from the gate and a defence man (soldier who he describes as a light skin man from the New Guinea Island area) came and hit Timothy in the face and tripped him so that Timothy fell to the ground. The group of men, including Peter BAE, surrounded Timothy and they all kicked him. The men all looked as if they came from the New Guinea Islands. Some people came and stopped the fight. The group of men walked to Peter BAE's house. Timothy HOUJI got up and went towards the Pondo Tavern.
30. The witness left the area and went to the drop off area outside the Pondo tavern.
31. The group of men stood outside Peter BAE's house. He heard a man calling at Peter BAE's group, "you want to fight". The witness looked towards the bend. Peter BAE's group (the same group of men as he had seen previously including Peter BAE and the soldier) ran towards Timothy. While the group was fighting one of the group ran back to Peter BAE's house and then came out with a knife. The man with the knife went to Timothy HOUJI's friend, returned with the knife, raised his arm and stabbed the friend in the face. The friend raised his hand and the friend was struck on the left side of the face with the knife. The rest of the group was close to the man with the knife. Some outsiders tried to remove the knife from the man with the knife. The witness got scared and then went away. He then heard (when he was near the ANG building) someone say that a man had been stabbed with a knife and saw Timothy HOUJI being taken towards the main gate of the Crowne Plaza.[13]
JONAH JAMBANDI (Friend accompanying Timothy Houji)
32. He arrived at the Crowne Plaza with Timothy Houji at about 10pm. Timothy argued with a man who was in a group of 6 to 7 men on a table beside them. The man was middle aged, thin, medium height who looked like a New Guinea Islander. The other men looked like they came from the same area. Around 2 am security men escorted them from the hotel.
33. They went out of the gate to the parking area and the men started fighting with them. The men came up and started throwing punches at the witness and Timothy Houji. They were the same men that they had argued with in the Bar. After he fell down the men went off in the direction of the Moresby Inn.
34. He was calling insults back and forward with the group of men. The group of men (same as before) than came rushing back. When they came back one of them threw a punch and the witness realised that he had been stabbed with a knife. He then turned and ran back up to the main gate. When he realised that Timothy was not with him he turned and went back down and saw a man trying to lift Timothy HOUJI up. Timothy was taken up to the main entrance to the hotel where a taxi later arrived to take Timothy to the hospital.
35. He identified in Court:
- BOLA as the man who stabbed him.
- DAU as a man who punched him in the first fight.
- BAE fought with him in the first fight.
- GELA was in the group.
- LEVI fought with him in the 2nd fight and was the man who started the argument in the club.
36. At the close of the State case, defence made a no case to answer submission which I dismissed. My reasons for rejecting the no case submission are set out in this judgment under separate heading for purpose of completeness of this case.
37. Consequently defence went into evidence and all the accused gave sworn testimonies which I reproduce below from the summaries produced by counsel for the State in his written submission which I have thoroughly examined and which reconciled with my own notes and understanding of the evidence given by each of the accused.
DAVID BOLA
38. This accused gave evidence that the on the 31 December 2008 he was at Peter Bae's house drinking with Peter Bae, Danny Kase, Ronald Dau, Alphonse Gela, Paul Levi and Clement Mangaea. Then Peter Bae, Danny Kase and Ronald Dau drove out in Peter Bae's car. He did not know where they had gone to. He was left at Peter Bae's house with Alphonse Gela, Paul Levi and Clement Mangaea. He went on to say that he received a call from Ronald Dau and around 11pm he with Alphonse Gela headed to the Crowne Plaza. He says that they had walked behind the Crowne Plaza through the drop-off area where they saw Peter Bae's car parked. They went through the main entrance and through the smaller door and met Peter Bae, Danny Kase and Ronald Dau.
39. He says that they were playing pokies and then he and Alphonse Gela left and came out. They bought a jug and were drinking whilst standing. Then Alphonse Gela left David Bola at the Bar and went to the balcony. The other brothers joined him (David Bola) that is Ronald Dau, Peter Bae and Danny Kase. Then an hour later Clement Mangaea and Paul Levi joined them.
40. He says that while drinking someone accidently hit the table that was next to them. The two persons at the table came and argued with us and Uncle Peter Bae told them it's New Year so we'll try to be happy and said sorry.
41. They went back to their table and we went back to where we were standing. David Bola said that Jonah Jambandi was insisting to fight with them inside the Pondo Bar but they did not mind him. Before the Bar was going to close the deceased, Timothy Houji held David Bola on the collar and asked why they wanted to hit his brother and then Timothy Houji fell on David Bola and Danny Kase. The security said it was time for them to move out.
42. David Bola says that when he moved out from the Pondo Bar he never saw any of his co-accused. He says that he was never involved in a fight but he did see a fight. He just walked past the fight and followed the footpath down and walked to Peter Bae's house. The other person was calling out and saying "girlie girlie and you are not fit to fight". David Bola went to Peter Bae's house and saw the knife lying in the flower bed and picked it up and went back. David Bola says that he went with the knife to scare Jonah but did not realize that he had stabbed Jonah.
[The witness demonstrated in court the way he had wanted to scare Jonah in the form of a thrust motion – holding arm at about shoulder height and held knife in the right hand.]
43. He said that after stabbing Jonah, David Bola went and faced the deceased, Timothy Houji and they were standing side-by-side. He said that Timothy Houji had already taken off his t'shirt. David Bola said that Timothy Houji was on the side and Jonah Jambandi was closer to him. The witness said that he threw the knife and stabbed Timothy Houji. He then turned and went to the house. At that time he did not see any of the other accused.
[Accused demonstrated that he threw his arm in a arc from the right to the left at about chest height.]
44. He said that he was surprised that he had stabbed a person and threw the knife in the drain and went to the house and told the family that he had done something wrong.
CROSS –EXAMINATION
45. In cross-examination the Accused was asked his relations with all the other accused persons.
- Danny Kase – is my uncle and I have known him all my life.
- Ronald Dau – is my cousin and I have known him all my life.
- Peter Bae – is my uncle and I have known him all my life;
- Alphonse Gela – is my cousin and I have known him all my life;
- Paul Levi – is my uncle and I have known him all my life;
- Clement Mangaea – is my uncle and I have known him all my life.
46. The witness was asked if he would support any of the accused which he answered yes he would support them. It was put to the accused that he is lying in order to support the accused which he said "no". It was put to the witness that he intended to stab Jonah Jambandi and it was not an accident which he said "no".
47. David Bola says that he left for the Pondo Tavern at about 10 or 11pm. He maintained his story in his evidence that Peter Bae, Danny Kase and Ronald Dau had left. He said that he did see Danny Kase before he went to the Pondo Tavern. He said that all seven of them were drinking at Peter Bae's house.
48. David Bola was asked what he was wearing on the night of the 31 December 2008 and he said that he did not remember. The Prosecution
put it to him that there was a record of interview conducted on the 14th January 2009 and that you (David Bola) had told the truth
which he said "yes'. Witness said that he did tell the Police that he wore a white trousers and a round neck shirt. He agrees that
he, Danny Kase and Timothy Houji fell down. He said that the Securities did not remove them but told them to move out. When he was
moving out from the Pondo Bar there were plenty of people walking and he saw Alphonse Gela in front of him and some of his co-accused
were standing on the side. David Bola said that he came out from the main gate. He says he came out and did not see his co-accused.
He says that there was a fight and it was a short distance from where the accused was standing on the footpath outside the Pondo
Tavern.
[The witness marked out in court the distance between where David Bola stood and where the fight started to be from the witness box
to where the court attendant is seated – 4 -5 meters.]
49. He was asked by the Prosecutor where he was when he saw the fight which he indicated in the court room to be about 6 -7 meters. David Bola said that he had taken only a glance so did not know how many people were involved in the fight. He was asked if he could see his friends outside the Pondo Tavern to which he said that some were standing and looking at the fight. The Prosecutor told the accused that you heard the fight and looked and at that point you did not know where your co-accused were to which he answered that I don't know. The witness said that he saw some of them throw punches but he did not check they were his friends because he just passed by. He said he did not check because his hip was hurting so he walked away. It was put to the witness that in his answer to Q18 of his record of interview he answered that he said that there were six of them involved in the fight.
50. The witness said that he got the knife and walked up towards Pondo Bar. [He demonstrated in court how he held the knife – witness demonstrated that the knife was held in his right arm facing the blade backwards so it was hidden.]
51. Witness was asked why he picked up the knife and his answer was that he was angry because his hip was hurting. He was angry with
the man who had fallen on him. The witness had gone to give him a mark to scare him of and had no intention to kill him. He maintains
that at the time of the stabbing he did not see any of his co-accused. He says after he stab Jonah and then moved to Timothy and
swung the knife at Timothy Houji.
[Witness demonstrated that he was holding the knife horizontal to the ground at about chest height]
52. The witness removed the knife and blood came out. He got shock and threw the knife. The witness said that Timothy Houji was standing but not standing straight. He said that after he stabbed Timothy Houji he went to the Steamships house, went to the gate and to the common veranda. At the common veranda he told the other accused about what he had done.
53. CCTV Footage was shown to the accused, David Bola:
- He identified a person with his head shaven and wearing white trousers and a round neck shirt at 2.12.11secs from the footage inside the Host area Pondo Tavern.
- He could not recall wearing the t'shirt but he said that it must be him.
DANNY KASE
54. Danny Kase's story is that about 5 pm he was at the Aussie Rules Field drinking beer. He says he was with Peter Bae, Paul Kelu and other two he cannot recall their names they were Clement Mangaea's in-laws.
55. He says that he did go to the Pondo Bar where he went and was playing pokies. Before going to the Pondo Bar he called into Peter Bae's house and was there for a while then he, Peter Bae and Ronald Dau left and went to Pondo Bar. They went to Pondo Bar and ordered beer while playing pokies. He says he saw the argument with Timothy Houji and said that Timothy Houji went straight to David Bola and was talking to David Bola. When he, Danny Kase went over, Timothy pushed him and he fell and Timothy fell on him. There was no fight but the security saw them and told them to go out because the bar had closed. When he walked out Danny Kase said that he was minding his own business and could not tell who he was walking out with. He says that at the car park a fight occurred and he saw a boy who was with Timothy Houji come from behind and attack Ronald Dau and he saw them fall down. That was the only thing he saw. He did not throw a hand at anyone. After seeing this he left and went with his friends to Peter Bae's house. He says that the others he had gone with to the house was Peter and the others. He did not count how many of them – Peter Bae, Ronald Dau, Clement Mangaea, Paul Levi, Alphonse Gela and Clement Mangaea's in-laws. He says that they were at Peter Bae's house when David Bola came and said that he had stabbed someone. He could not recall what time that was. He says that he went to the Pondo Bar at about 9 or 10pm and the time he left the Pondo Bar was about 2am on the 1st January 2009. He said that he was wearing blue jeans and a grey collar shirt.
CROSS –EXAMINATION
56. This witness said in cross-examination that he was involved in an argument with Timothy Houji and he says that he was not at the same table with the others. He says that he was with Alphonse Gela at the veranda. He says he remembers being with some of the boys which he named as Alphonse Gela, Peter Bae and David Bola. He says that he and all the six other accused persons are all related. They all went out together to celebrate New Year. The Prosecutor asked if there was any one else celebrating New Year with them to which he said that there were others who came to the bar. He says that he was with Alphonse Gela on the veranda and David came awhile and then went back in. Then he and Alphonse Gela went inside the Bar to the table and stood there. The Prosecutor asked if the whole group was there to which he said yes. He said an argument started between David Bola and Timothy Houji. He went to stop the argument and then Timothy pushed him and he fell to the floor. He was not sure whether David Bola fell. They stood up and then the security told them to leave. He said that he left straight away and left with the group. He said that all of them left but I could not see who was next to me. The Prosecutor asked him, "All this men?" and he said "yes".
57. The witness was shown the CCTV Footage and the witness identified the man behind the person identified as David Bola at 2.12.12secs
on the inside camera.
58. On the outside camera at 2.12.38 secs the witness is identified as the third man in the paused frame.
59. He says that he walked onto the tar with his co-accused and David Bola and Timothy Houji. He did not see how the fight started
but after some seconds he saw a man come from behind and attack Ronald Dau. He says he did not know the man who had attacked Ronald
Dau but he saw them fall down. He then says that all of them were scattered and he did not see where David Bola was. He says the
boy who was involved in the fight was the boy who was with the deceased, Timothy Houji. He says he saw the fight but did not bother
because he wanted to go down. He says that the fight ended while he was going to the house. He did see the fight finish. He says
that he left with his friends but he did not see who was with him but they went together. He was asked again that he "left the area
of the fight and you left with your co-accused" to which he said "yes". The Prosecutor asked "with you and your friends?" and he
said "yes" "this includes Alphonse Gela, Paul Levi, Clement Mangaea, Peter Bae, Ronald Dau and David Bola?" which he said "yes".
60. He says when they went to the house, the group separated. Some went to the veranda and others went under the house. He says he
went under the house and he did not know where David Bola went. He had been drinking since 5pm in the afternoon. He also said that
before they went to the Pondo Bar we went to look for a place to go to for party and Peter Bae said we will go to the Pondo Bar.
RONALD DAU
61. This witness gave sworn evidence.
62. His story is that on the afternoon of the 31st December 2008 he was at Peter Bae's house and he was alone. While at the house the other family came and drank at the house. While drinking Ronald Dau, Danny Kase and Peter Bae drove out. They went to Pondo and parked the vehicle at the back of Crowne Plaza around the drop-off area. They left the vehicle and walked around the back into the main gate into the hotel. He went to the bar and were drinking. There were plenty of people and he met a person at the bar and started telling stories with him. He was with Peter Bae and Danny Kase at the Pokies area but when they came out from there they all separated. Ronald Dau says that he was telling stories with someone when the argument started. He did not see who was involved in the argument. The bar closed so they all moved out. At the car park outside Pondo Bar he says that Jonah attacked me and we fell down. He says he knew it was Jonah because he heard them calling his name. They both fell down and Ronald Dau says he got up and rushed to the house. He says that when he came out from the Pondo Bar he did not see any of his friends. He says when he went to Peter Bae's house he saw Alphonse Gela, Paul Levi, Clement Mangaea, Danny Kase and Peter Bae.
CROSS EXAMINATION
63. This witness statement was injured in cross-examination. The witness is a villager who had come to Port Moresby to attend a bride price ceremony. When he came out of the club he turned left on the footpath heading towards Peter Bae's house. He did not see his friends. He says that he was attacked but he knew nothing about the argument inside. He says that none of his friends came and helped him, he was left alone. He says after being attacked he walked home. He said that:
- he was concerned about being attacked and that he looked for his friends;
- he did not see David Bola when walking to the house;
- he did not look around in case of being attacked again;
- he did not hear anyone calling "girlie, girlie".
64. The Prosecutor put it to Ronald Dau that he was making up the story which he answered "yes".
65. He said that when he went home he went to the veranda and Clement Mangaea, Peter Bae, David, Danny and Alphonse where there. The Prosecutor asked "was David there when you arrived at home?" he said "no". "David came up after your arrived?" and his answer was "yes".
66. The Prosecutor referred the witness to his Record of Interview to Q23 where police asked
"You people left, the third time the same group of people went back again, Peter Bae was leading you people, and firstly David Bola stabbed Timothy Houji's brother. Later he stabbed him on the right arm. What do you say?"
Answer: I remain silent
67. The Prosecutor then referred him to Q24 where he was asked
Q24: "Did you see the fight?"
Answer: "Yes"
68. Ronald Dau explained that his answer to Q24 was in reference to when he was attacked by Jonah.
RE-EXAMINATION
69. In re-examination Mr Emilio asked "Did you ever talk about the incident that happened outside?" to which Ronald Dau answered "They did not ask me so I did not tell them."
PETER BAE
70. Was drinking at the Aussie Rules Field with Danny Kase, Paul Kelu with Clement Mangaea in-laws around 5pm;
71. Then he said that its getting dark and its New Year so they should find a safer place to drink. So they went to Peter Bae's house where Peter Bae said I'm leaving with others so you must behave yourself.
71. He says that they did not stay long at his house because Danny Kase requested to go check his children at 3 mile.
72. Peter Bae left the house with Danny Kase and Ronald Dau and went to 3 mile then they came back to Crowne Plaza and parked the car at the back of the Crowne Plaza and the three of them went to the Pondo Bar to play pokies.
73. David Bola and Alphonse Gela came and five off us went into Pondo Bar. They had to pay a cover fee of K15 to go in. Then Clement Mangaea and Paul Levi came. Peter Bae said there was not enough money to pay for all of them so he told them to wait for him and Danny has Danny Kase was holding the money.
74. Inside the Pokies Danny Kase was playing and Ronald Dau and Clement Mangaea were in the pokies area.
75. When they left the pokies area and went outside he did not see his other co-accused as they were all scattered in the bar and were constantly moving.
76. While there drinking he saw his co-accused, Paul Levi moving his hands and he thought there was trouble. The deceased saw Peter Bae moving to Paul Levi and he stopped him (Peter Bae).
77. He says that he saw the deceased fall on Danny Kase and David Bola. It was closing time so he removed his glasses and went outside. The gate opened and he walked home. He noticed fighting going on and he was not wearing his glasses and he walked home. He says that he was the first one to get home.
He heard people.
78. Went to Pondo Bar with Danny Kase and Ronald Dau and met David Bola and Alphonse Gela at Crowne Plaza;
79. He saw the argument and they were told to leave the Pondo Bar;
80. When leaving the Pondo Bar he says he removed his glasses and told the court that his first instinct was to go home- so he went straight home.
81. He says that he was the first person to arrive at home. He was on the veranda when David Bola came in and said that he had stabbed two people.
CROSS –EXAMINATION
82. It was put to the witness that the quickest way to Pondo Tavern would be to go through the entrance but on this night he went in another way. The witness said that the reason for this was to check Danny Kase's children and that they found a car park. He does not remember Ronald calling the others. He says that he met Clement Mangaea and Paul Levi and Danny said that there were plenty of them and not enough money to pay the cover charge so Danny Kase suggested that all would wait outside while Danny Kase and him (Peter Bae) would play pokies. The Prosecutor put to the witness that "at one stage you and all your co-accused were in the Pondo Bar?" to which he said "that was much later."
83. He says that there was some kind of misunderstanding by Peter Bae's co-accused and another. He said that the argument was not over beer. It was a normal accident when people are drunk and they bump. He said that there were two arguments. He says that Paul Levi bumped into the table next to them. When Peter Bae saw this he went to assist since Paul Levi was a person from the village. He says that there was no argument. He says while walking towards Paul Levi the deceased, Timothy Houji blocked him. The deceased was drunk and blocked him.
84. The second incident happened after an hour. Peter Bae says that David Bola and Danny Kase were with the deceased, Timothy Houji where he saw all three of them fall to the floor. The security separated them and then the security said its closing time. He says that he did not see the others and did not look for Paul Levi nor Alphonse Gela. He says that he removed his glasses because he thought that there was going to be a fight. When asked what clothes he had worn that night Peter Bae said that he wore a maroon shirt and green trousers. The accused was shown the CCTV footage taken from the Host Area of the Pondo Bar and the accused agreed that the person in the maroon shirt looked like him and he says that he took of his glass while going out. Then the accused was shown the CCTV footage at 2.12.36 am which shows the man with the maroon shirt as the third person coming out from the Pondo Bar. When showed this outside footage the accused said that he removed his glasses while walking outside.
85. He says he did not see a fight because he walked straight home. He did not see any of his accused. It was put to him that there was a fight going was he not concerned about the others to which he said that he was only concerned about himself.
86. He was taken through his ROI and was referred to Q10 and read to him. He said that he did not say the last four lines of the answer "It is different. Later I went home and did not see what happened. What is written is not what I said."
87. He was referred to Q25 of the second ROI conducted on the 24th March 2009 and he agrees to the answer he gives to that question.
88. He says that Danny Kase, Ronald Dau, Alphonse Gela, Paul Levi, Clement Mangaea and one of his tambus where at the veranda when David Bola came and said that he had stabbed someone. David Bola said that it was not serious.
89. After that he says that all seven of them went to his car and they all got on. His car at that time was a Honda CRV.
ALPHONSE GELA
90. This witness's story is that on the 31 December 2008 he and David Bola went to Tokarara and then went to Town and joined Ronald Dau who was drinking at uncle Peter's house. He says there was him, Danny Kase, Ronald Dau, Paul Levi, Clement Mangaea and two of his in-laws.
91. While drinking, Peter Bae, Ronald Dau and Danny Kase got on the car and drove out. Ronald Dau called David Bola and he and David Bola headed to Crowne Plaza. They left behind at Peter Bae's house, Clement Mangaea and Paul Levi.
92. At the Pondo Tavern they went to the Pokies area and Peter Bae and Danny Kase were playing pokies. They were telling jokes and making noises so the security told them to go out and they went to the bar and bought beer.
93. He says he got a bottle and went to the balcony and at some point in time he would go inside to the boys and get beer from them. The boys, David Bola, Paul Levi, Ronald Dau and Danny Kase were at a table near the bar. At 2.00am they left the bar.
94. He said that when he left the Pondo Tavern he left the gate and went onto the tar and turned to look back to check his wantok and he saw a person hitting Ronald Dau. He turned and felt a person throw a punch at him and he punched that person back and because he felt pain he walked. He said that there were plenty of men. The light was not clear so he couldn't tell who the person was.
95. He says after throwing the punch he went straight home because he had to catch a flight to Australia the next day. He says he walked to Peter Bae's house and met Clement Mangaea and his in-laws and they went to the veranda.
96. He says that he saw his friends after the fight he went to the house and Ronald Dau, Paul Levi and Peter Bae were at the house. He says he did not see David Bola.
CROSS –EXAMINATION
97. The witness said that he had gone to the Pondo Bar at about 9 -10pm on the night of 31 December 2008.Only stayed certain times with David Bola. He maintained that he was not with the others. When he needed beer he would go to his friends, have a word or two with them and leave. This accused maintains that there was a fight but none of his friends were around only Ronald Dau.
98. He says that after being at Peter Bae's house, Peter Bae went to drop him off. He was asked if there was anyone else who got on the car, he said that Danny Kase, Clement Mangaea and his two in-laws got on the car.
PAUL LEVI
99. This accused is a villager who had been in Port Moresby for about three weeks after coming for a bride price ceremony. He has been a villager all his life.
100. The accused recalled the events of the 31st December 2008 starting off with that he was at Paul Keu's house at 5 mile and he wanted to go to town so he went to 4 mile and caught a late bus to Town. At Peter Bae's house he met David Bola, Ronald Dau, Danny Kase, Peter Bae, Alphonse Gela, Clement Mangaea and his in-laws. They were drinking and then Peter Bae, Danny Kase and Ronald Dau went out. Clement Mangaea, Alphonse Gela and this accused were drinking. Then Alphonse Gela and David Bola left. They were waiting for them but they did not return so Clement Mangaea and this accused went to sleep. Then Clement Mangaea's in-law told them that he saw Peter Bae's car parked at the Crowne Plaza.
101. This accused and Clement Mangaea then headed to the Crowne Plaza. Clement was not allowed entry because he was wearing shorts so this accused went in ahead. He says that inside the bar he saw David Bola and one of his friends standing at the bar drinking. Somehow he accidently contacted two people and he said that he was sorry and it was his mistake. We shook hands and Peter Bae walked over. He then left them and went to watch people playing pokies.
102. He says that he did see a fight and he stood and watched and then he went to the main gate of Peter Bae's house. He then went to the veranda. He says he did not see any of his friends. He says that when he got to the house he saw them at the veranda – Danny Kase, Ronald Dau, Alphonse Gela, Clement Mangaea and one of his in-laws and Peter Bae.
103. He says that David Bola was not at the house at that time and none of his friends said anything to him about a fight. He denies being involved in a fight.
CROSS –EXAMINATION
104. In cross-examination this accused said that he and Clement Mangaea after giving some money to the security, they were both allowed in. He maintains that he did bump some others table. He says that Peter Bae and Danny Kase were buying beer for him. When he left the bar he walked onto the footpath on to the tar and walked down. When walking down he did not see any of his friends nor the man whom he had the argument with.
105. He says that at Peter Bae's house they stayed until close to the breaking of dawn and Peter Bae went to do drop-off. He said that David Bola and himself remained at the house. He said that he was normal when he heard about what David Bola said about stabbing two people.
CLEMENT MANGAEA
106. He was drinking with Danny Kase, Peter Bae and his two other in-laws on the afternoon of 31 December 2008.
107. Then they went to Peter Bae's house and saw Ronald Dau, Alphonse Gela, Paul Levi and David Bola.
108. The Peter Bae, Danny Kase and Ronald Dau left without telling them were they were going. Then David Bola and Alphonse Gela left.
109. He and Paul Levi went to the Pondo Tavern and he was not allowed entry into the bar because he was wearing shorts. He gave K10 to the securities who then let him in. He saw Peter Bae playing pokies so he went to the pokies area. He does not know where Paul Levi had gone to.
110. He says there was a fight but it was stopped. He says that he had gone through the main gate and left the Pondo Tavern from the gate leading out to the street.
111. He says he met Alphonse Gela at the gate of Peter Bae's house and did not see anyone else.
112. When he went to Peter Bae's house he saw Danny Kase, Ronald Dau, Peter Bae, Alphonse Gela and Paul Levi and his in-law.
113. He says Alphonse Gela told him about his aches and pains and that the pains were as a result of him being tackled.
114. He says that Peter Bae dropped him off at his house after the night out.
CROSS-EXAMINATION
115. This accused was referred to Q16 of his ROI where he said that he remembers answering questions. He said that he knows everything that David Bola told him and that David Bola told him that he (David Bola) stabbed the deceased. He was asked by the Prosecutor "Did David Bola tell you what to say?" which he responded "yes".
116. The Prosecutor asked "Do you agree with the answer to Q16 in the ROI?" which he said "yes". He said that he walked and met Alphonse Gela and the others inside the house that is why he said "we" in as answer.
117. He says that Peter Bae dropped him and his in-law, Danny Kase and Alphonse Gela in the morning.
118. The Prosecutor asked that he went to the Pondo Bar with Paul Levi and was asked if he looked out for Paul Levi. He said that Paul Levi was with the others so he was concerned about himself.
119. He says when he went out of the Pondo Tavern he heard shouting, "Fight". He said that he is a soldier. He recalls that he wore short trousers that night. The CCTV footage was shown to him.
120. At 2.12.37 secs the footage was stopped and the witness was shown a man wearing shorts and an orange/yellow shirt. The witness was asked if he could see the man with the shorts and he said that he "cannot see it clearly as there were plenty of us coming out, I did not see."
121. The issue before me as tribunal of law at this stage of the trial is whether there is sufficient evidence against all the accused to answer the charge of wilful murder?
122. It is important to appreciate this part of the criminal trial in the way the principle was formulated in The State v Paul Kundi Rape [1976] PNGLR 96 by O'Leary, AJ at:
"Where the question is whether there is a case to answer the principle to be applied is quite clear. In May v. O'Sullivan1, the Full Court of the High Court of Australia expressed it in these terms:
"When, at the close of the case for the prosecution, a submission is made that there is 'no case to answer', the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted. This is really a question of law. Unless there is some special statutory provision on the subject, a ruling that there is a 'case to answer' has no effect whatever on the onus of proof, which rests on the prosecution from beginning to end. After the prosecution has adduced evidence sufficient to support proof of the issue, the defendant may or may not call evidence. Whether he does or not, the question to be decided in the end by the tribunal is whether, on the whole of the evidence before it, it is satisfied beyond reasonable doubt that the defendant is guilty. That is a question of fact."
In the case of Zanetti v. Hill2, Kitto J. expressed the principle in these terms:
"The question whether there is a case to answer, arising as it does at the end of the prosecution's evidence in chief, is simply the question of law whether the defendant could lawfully be convicted on the evidence as it stands, — whether, that is to say, there is with respect to every clement of the offence some evidence which, if accepted, would either prove the element directly or enable its existence to be inferred. That is a question to be carefully distinguished from the question of fact for ultimate decision, namely whether every element of the offence is established to the satisfaction of the tribunal of fact beyond a reasonable doubt ... The ultimate question of fact must be decided on the whole of the evidence; ..."
123. For the better understanding of this principle, and particularly for the avoidance of confusion in considering the second question to which I will shortly refer, I think it is important to keep in mind that for the purpose of determining either of them, one does not look to see whether at the close of the prosecution's case, the prosecution has proved its case beyond reasonable doubt. As Kitto J. said in Zanetti v. Hill3, the fact that a person is not to be convicted of any offence unless the tribunal of fact before which he is charged is satisfied beyond reasonable doubt that every element of the offence exists "does not mean that the case for the prosecution must be proved beyond a reasonable doubt before there is a case for the defence to answer".
124. The time at which one looks to see whether the prosecution has proved its case beyond reasonable doubt does not arise until the whole of the evidence, including such evidence as the accused may wish to adduce, is before the court, and not before. It is therefore a question that does not arise at the close of the prosecution's case, unless that also marks the conclusion of the evidence in the case, that is, if the accused does not adduce any evidence himself.
125. In the present case, applying the above principles, I think there is a case for the accused to answer, in that I think there is evidence on which a jury could lawfully convict him. That much is, I think, conceded by Mr. McWalters. If on none other, I think a jury would be entitled to convict the accused on the evidence of the complainant alone, although whether on the whole of the evidence it ought, or would, convict him on that or other evidence is, of course, another question.
126. All this, however, is quite a separate question from the other question that sometimes arises at the close of prosecution's case (and indeed may arise at any stage of the trial), namely, whether the state of the evidence is such that the judge ought to withdraw the case from the jury, or at least tell the jury that it is open to them to say at any time that they do not wish to hear any further evidence. In these cases the test is a quite different one. As I understand it, the question there is not whether there is any or some evidence on which a jury could lawfully convict, but whether there is sufficient evidence on which a reasonable jury ought to convict. As was said by Willes J. in Ryder v. Wombwell4:
"It was formerly considered necessary in all cases to leave the question to the jury if there was any evidence, even a scintilla, in support of the case; but it is now settled that the question for the judge (subject of course to review) is, ... not whether there is literally no evidence, but whether there is none that ought reasonably to satisfy the jury that the fact sought to be proved is established."
127. On the evidence before me and for the reasons given below, I found that the State had established a prima facie case against each of the accused pursuant to the requirements of Sections 7(1)(a),(b),(c) and 8 of the Criminal Code. The law on no case submission had not changed since the mid seventies when Paul Kundi Rape (supra) was decided and later re-affirmed in Roka Pep (No.2) [1983] PNGLR 287.
128. State case according to the evidence from all its witnesses was that the same group of men who were seen leaving Peter Bae's house and headed for Pondo Tavern, got involved in the argument with Timothy Houji inside the tavern, fought with Timothy Houji and Jonah Jambandi outside the hotel in front of Pondo Tavern area which was heavily illuminated by security flood lights and during those fights David Bola stabbed both Jonah Jambandi and Timothy Houji.
129. Relying on ss.7 and 8 of the Criminal Code, State tendered evidence showing that:-
130. All the evidence in the State case was that the same group of men with Peter Bae (Ai Glass) drinking in the bar at Pondo Tavern later fought and killed the deceased.
131. On the evidence before me, all of them are clearly implicated by the witnesses.
132. At this juncture, I was not at liberty to exercise any discretion on the question of reliability of evidence by each of the State witness in determining which witness was credible and which was not and which story was probable of belief and which was not.
133. I was also not at liberty to evaluate the evidence in the light of the inconsistencies referred to by Counsel for the accused in the evidence given by State witnesses to determine whether I could be satisfied beyond reasonable doubt on the evidence before me. I could only do that after all the evidence in the trial was before the Court.
134. Before I deal with the number of legal issues in this case, let me at the outset state my view on the question of credibility of witnesses. I am most impressed by the evidence given by the State witnesses notwithstanding minor inconsistencies here and there which are not deliberate or calculated to cheat or mislead the court or to persecute any of these accused in court. I take those discrepancies in their evidence as genuine mistakes or errors. As far as all the accused are concerned, I am not impressed at all by all of them. They are all good liars because their individual testimonies do not stand up to the general trend of the evidence and are incompatible with common sense and logic. This is not to say that everything that each of them told the court is untrue. There are some parts of evidence by some of them is consistent with prosecution version which I accept to be true. However, where there is conflict of evidence between the State version and the accused, I prefer that of the State witnesses.
135. I am mindful of the need to exercise care and caution in accepting one version of evidence in preference over another because case authorities clearly advise that there is always room for error no matter how fool-proof a system maybe. The remarks of Justice Wilson in The State v Jimmy Bellem and The State v Mole Manipe ring loudly in my ears singing that a witness could be so convincing and yet lying and even the opposite could be true where someone who displays himself as terrible witness who should not be believed and yet he could be telling the truth.
136. The following extract is taken from His Honours' judgment in Mole Manipe's case:
"All I desire to do at this stage in this trial is to draw attention to the discussions in those two cases on the subject of liars and to add that, in addition to the methods described in these cases for assessing whether a witness may be lying or not, one may usefully examine (as Mr. Roddenby urged me to do in this case regarding the witness, Jim Sam):
(a) &#whether the story told byld by the witness is inherently probable or not;
(b) &##160;it w ts iits in with with the prosecution case;
(c) how it fits in with thencd and
(d) &ـ how it w it fits iits in with theh the evid evidence ence as a whole.
This ach mapartily us(as hwheredemeanour of t of the wihe witnesstness, Jim, Jim Sam, was apparently satisfactory. I y. I saw nsaw no reason, whilst Jim Sam was giving evidence, to suppose that he was not an honest witness. He was cross-examined strongly and not shaken. For the reasons stated by Mr. Roddenby in his address, which I noted in the sixth of the six note-books which I have used for transcript purposes in this thirteen day trial, I agree that there are aspects of Jim Sam's evidence which are inherently quite improbable; Jim Sam's story does not fit in well with Councillor Ola's for the State and the police evidence regarding when it was that Jim Sam first informed the police, albeit belatedly, of what he claimed to have seen. Jim Sam's evidence cannot stand on one point. He said that after the killing Mole Manipe and Wame Lukas both ran together along the track in the direction of Lambutina while the other three ran into the mangroves. On the other hand Simangoi had stated (and I accept him) that he saw Mole Manipe paddling towards Baskalo after the killing must have taken place and then turn back; when the canoe got to the shore, Mole Manipe then ran off by himself. Mole Manipe in his evidence supports Simangoi on this point."
137. Applying this yardstick, it is plain as daylight itself that none of these accused can be believed because their individual stories given in court are inconsistent with the general impression given of the case in the testimonies of the State witnesses and similarly inconsistent with their stories given to the police while the events were still fresh in the mind.
138. I remind myself of the caution or warning sounded in John Beng v The State [1977] PNGLR 115 and Biwa Geta v The State [1988-89] PNGLR 153 of the dangers of convicting someone on evidence of identification alone when such identification is made under difficult circumstances because even recognition of someone a person knows very well can be mistaken at times. The head note to John Beng provides this summary:
"In proceedings where evidence of identification is relevant, the Court should be mindful of all the inherent dangers, the need for caution before convicting in reliance on the correctness of identification, the possibility that a mistaken witness could be a convincing one and that any number of such witnesses could all be mistaken; the Court should examine closely all the circumstances in which the identification by each witness came to be made bearing in mind that recognition may be more reliable than identification of a stranger, but that even where the witness is purporting to recognize someone he knows mistakes can be made.
When the quality of the identification evidence is good the matter should proceed to a verdict, when the quality of identification evidence is poor, unless there is other evidence which goes to support the correctness of the identification, an acquittal should be entered."
139. It was contended that there is no direct evidence showing that all the accused besides David Bola were involved in the attack on the deceased. This is true as far as the evidence of the only eye witnesses is concerned. The only persons whose identities were established according to the evidence of Joy Soni Kare, Nick Gabriel and Jackson Susuke are that of David Bola and Peter Bae.
140. However Jonah Jambandi identified further three persons who were in the group that attacked them. And this was during cross-examination. The witness did not identify any of the other five persons until he was asked to do so in cross-examination. Sometimes it is better to ask no or fewer questions in cross-examination than too many questions. Fishing questions can bring forth weird and unexpected answers which, once received in evidence, become part of the rest of the evidence in the trial, and you are stuck with that evidence, for better or for worse.
141. And the total number of persons that Jonah Jambandi identified as being in the group that night included David Bola, Peter Bae, Ronald Dau, Alphonse Gela and Danny Kase.
142. On the issue of identification, I find that all the accused were at the scene of the fights at all material times. I disbelieve their versions of the stories given in this trial.
143. The circumstances of this case are such that there is no other and better way of establishing the identities of the deceased's assailants than through circumstantial evidence where the court doing the best it can needs to draw inferences from proved facts to determine who was involved in the crime. And the law on circumstantial evidence is already well established in Paulus Pawa v The State [1981] PNGLR 498. While re-visiting this law as discussed in numerous case law authorities since Paulus Pawa, the National Court in The State v Edward Toude & Others [2001] N2298 (per Kandakasi J) summarised as follows:
"That law was stated by Miles J., in State v. Morris [1981] PNGLR 493, at p. 495. He was affirmed by the Supreme Court in the case of Pawa v. The State [1981] PNGLR 498 per Andrew J., at page 501 who states that law in these terms:
"I am in agreement with Miles J., in the State v. Morris when he said:
I take the law as to circumstantial evidence in Papua New Guinea to coincide with what was said in the High Court of Australia in Barca v. The Queen [1975] HCA 42; [1975] 50 ALJR 108 at p 117:
'When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused: Peacock v. The King [1911], 13 CLR at p 634 to enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be the only rational inference that the circumstances would enable them to draw':
Plomp v. The Queen [1963] HCA 44; [1963] 110 CLR 234, at p 252; See also Thomas v. The Queen [1960] HCA 2; [1960], 102 CLR 584, at pp 605-606. However, 'an inference to be reasonable must rest upon something more than a mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence...'"(Emphasis added)
144. A more recent statement of that law by the Supreme Court is in Garitau Bonu & Rosanna Bonu v. The State (unreported judgement 24/07/97) SC528, where the Supreme Court cited with approval the above principles and said:
"The law relating to circumstantial evidence and the inferences to be drawn are clearly established in Paulus Pawa v. The State [1981] PNGLR 498 where the Supreme Court was unanimous in its decision by dismissing the appeal of the prisoner and confirming the trial judge's conviction of the Appellant wholly on circumstantial evidence. In that case the Court House in Mount Hagen was broken into and the safe was stolen. The safe was subsequently discovered the next day near the Appellants' village. It was still locked and when cut open cheques and documents were found inside but there was no cash. Evidence from the Clerk of Court was that at the close of business on 25 November, 1980, there should have been K4,327.00 in cash in the safe.
The Appellant was a Clerk of the District Court in Mount Hagen and as part of his duties held the only key to the Court's safe. His explanation of the supposed loss of the key to the safe given by Prosecution witness, was not accepted and when he did not give or call evidence in his trial for theft of the money, the trial Court found him guilty of the theft. It is the same situation in this case although the facts and the charges are different."
145. In that case, the Supreme Court dismissed an appeal against a guilty verdict based solely upon circumstantial evidence on a murder charge. The only evidence against the appellants was that, the deceased's fatally stabbed body was found in the appellant's house and some attempt was made by them to treat the deceased. The Supreme Court made it clear that, the process of drawing inferences and arriving at a conclusion in such a case is a logical and common sense approach in these terms:
"In the absence of any explanation from the Appellants as to why and how the deceased happened to have ended up in their house and found by them in that condition, it is a common sense reaction for anyone to conclude that the Appellants ought to know much more than they are prepared to admit or say. It is a rational inference consistent with logic and common sense. This in our view was a conclusion open to the trial Court on the facts available, and we see no justification in reversing the findings of the trial judge."
146. In the way the evidence unfolded in this trial, I am going to deal with the issues highlighted above in this order. Firstly, I have to satisfy myself beyond reasonable doubt as to whether David Bola can be guilty of wilful murder given that much alcohol was consumed by all of them including the deceased and Jonah Jambandi and they were all quite drunk. Can a person in this condition freely form a necessary intention to kill anyone notwithstanding that intoxication is not a defence known in law? Secondly, and if I accept that there is strong evidence of provocation, can provocation apply as defence to the accused notwithstanding that no one relied on this defence in the trial? Thirdly, supposing the court finds David Bola guilty of murder pursuant to s.8 in that the killing of the deceased was a probable consequence of the common unlawful purpose to fight or assault the deceased and another, what is the most appropriate verdict for the rest of the accused? Murder? Manslaughter? Or acquittal?
147. On the evidence before me I cannot conclude beyond doubt that David Bola actually intended to kill the deceased notwithstanding that he used a knife in the attack. While I have no reason to disbelieve the State witnesses in their description of the manner in which David Bola attacked the deceased with the knife, there is also overwhelming evidence of prolonged period of drinking the previous day that continued through the night before this incident that could clearly have played havoc on the mind thus the mind was not altogether free to make that independent decision to form the necessary intention to kill the deceased, Jonah Jambandi or anyone for that matter.
148. Rightly or wrongly, but that is the view I hold and it does not give me a clear conscience to decide otherwise as invited by the State. A further inhibition to my reaching a clear and undisturbed decision on the state of the mind of the accused is the fact of provocation. I discuss provocation under separate heading but for purpose of understanding the state of mind of the accused, particularly David Bola, labouring under such a condition, can he consciously and freely exercise his will to commit a crime he would otherwise not do under normal circumstances?
149. As I have stated elsewhere in the judgment, while I disbelieved David Bola and his co-accused in the story of their involvement in the fights against the deceased and his relative, I believe him when he said he did not mean to kill the deceased. And the reason why I believed him because there were other factors at work on him and on his mind that he could not control all his faculties for the reasons discussed above.
150. For the above reasons I cannot return a guilty verdict on the charge of wilful murder because I cannot be satisfied beyond reasonable doubt that at the time David Bola stabbed the deceased with the kitchen knife in his hand, he had a free and uninterrupted state of mind to choose what he wanted to do when he attacked the deceased with the knife.
151. All the evidence points to the fact that the accused and the deceased and his relative had a disagreement that started inside the Tavern and they were all evicted from the club because of that. Once outside the club they fought with their fists which after sometime was stopped and the accused retreated to Peter Bae's house.
152. But Jonah Jambandi's challenge drew them all back to fight again when they were all well within reach of their house and they rushed back to fight except David Bola who grabbed a knife from Peter Bae's house and ran with it. He overtook all of them and upon reaching the victims he went into attack on both of them.
153. The common unlawful purpose all along until David Bola stabbed Jonah and the deceased with a knife was to fight them with their hands when they were challenged.
154. On the question of criminal responsibility of the accused pursuant to s.8 of the Code, State submitted that killing of the deceased by David Bola was a probable consequence of the intention to kill that David Bola possessed at the material time he used an offensive weapon to bring about that eventuality. However, this submission does not lie comfortably with the passage that Mr Rutledge quoted from the Supreme Court decision in Willy Kelly Goya v The State [1987] PNGLR 51 where the Court held at par (4):
"It is not known however which injuries were actually caused by the appellant himself. It is uncontested that he was part of a common purpose to attack the deceased and that death resulted. Whether or not he should have been convicted of wilful murder will depend on whether the intention to kill was the common purpose which he shared with the others or whether it was a probable consequence of their common purpose. If the purpose which they all shared was to attack with the intention merely to cause grievous bodily harm then the appellant should have been convicted of murder even though one of the other assailants formed the intention to go further and to actually kill the deceased. We find no sufficient evidence which would have justified the trial judge in being satisfied beyond reasonable doubt that this appellant himself formed the intention to kill and that his blows caused death. Nor is there sufficient evidence to show that the group formed a common purpose within the meaning of the Criminal Code (Ch No 262) s 8 (which the appellant shared) to actually kill the deceased. Nor was the offence of wilful murder a probable consequence of their unlawful common purpose."
155. On the evidence before me or on lack of it, I have already found that if there was any intention to kill, that can be attributed to or against David Bola only and no one else. However, because of provocation, his degree of criminal culpability is reduced to the extent of that provocation, and I can only find him guilty of a lesser offence of murder. At least I am satisfied to the required degree and standard of proof that he had the intention to cause grievous bodily harm upon the deceased.
156. The passage cited by the prosecution correctly states the law which is that for the other accused to be found guilty of wilful murder or murder under s.8 of the Code, there must be evidence of the rest of the group together with David Bola forming a common intention to kill the deceased or to cause his grievous bodily harm. There is no evidence that there was such an agreement or meeting of the minds for the co-accused to be liable for either wilful murder or murder. As I have already found that the use of the knife and timing of its introduction to this incident left so many grey areas in terms of implicating the co-accused to the same degree of criminal complicity as the principal offender in this case David Bola.
157. And this is where I must exercise my discretion by invoking the alternative verdict provision in the Code and I am of the view that at the most that all the co-accused can be criminally liable is that of manslaughter.
158. I am of the view that all the accused other than David Bola are criminally liable for their actions in the series of events of the night culminating in the death of the deceased. They all were involved in the fights outside the Pondo Tavern but with no more serious motive than simply to cause pain and hurt each other as a drunken brawl until David Bola brought in the knife and that was his own individual choice. But the fact that their presence alone as part of the group involved in the fight was all that was necessary to support the principal David Bola to cause grievous bodily harm to the deceased is enough to make them criminally liable as aid and abettors to this crime but on lesser gravity than the principal.
159. The law in this area has not received much attention since Willie Goya v The State although it has been of continuous examination in Queensland from which our Criminal Code has been borrowed. The High Court decisions in R v Barlow [1997] 188 CLR 1 and Gilbert v R [2000] 201 CLR 414 make it plainly clear that where a principal offender is found guilty of murder on the evidence before the court and murder is not a probable consequence of their common unlawful purpose which is to merely assault the deceased, an accessory who did not form the necessary intention as the principal can only be liable for manslaughter. These two decisions settled the law on this area by overruling R v Jervis (1993) 1 Qd R. 643 a decision of the Court of Criminal Appeal (Qld).
160. I have been supported in reaching the conclusion I reached in this case by the following passage from the majority decision in Gilbert v The Queen (supra) at p.421:
"The Supreme Court of Canada, in R v Jackson [15], a case with factual similarities to the present, declined to apply the proviso where a jury, having been inadequately directed on manslaughter, but correctly instructed on the elements of murder, convicted the accused of murder. McLachlin J, speaking for the majority, said [16]:
"It is true that the trial judge charged the jury clearly and correctly on the mental state required to find Davy guilty of murder. It is also true that the jury found Davy guilty of murder. Nevertheless, I agree with the Court of Appeal that one cannot be satisfied the verdict is just, given the failure of the trial judge to set out the basis for convicting Davy of manslaughter under ss 21(1) and 21(2)[17] and the absence of any instruction that a party may be guilty of manslaughter even though the perpetrator is guilty of murder. As Lord Tucker stated in Bullard v The Queen[18]:
'Every man on trial for murder has the right to have the issue of manslaughter left to the jury if there is any evidence upon which such a verdict can be given. To deprive him of this right must of necessity constitute a grave miscarriage of justice and it is idle to speculate what verdict the jury would have reached.'
161. I cannot but conclude that Lord Tucker's admonition has not been followed in this case and the issue of manslaughter was not properly left to the jury."
162. And the majority decision of Gleeson, CJ and Gummow, J concluded at 422-423:
163. Mr Mamu submitted that his client Alphonse Gela was not one of those involved in the latter fight that led to the stabbing of the deceased and his cousin. He submits that Alphonse Gela left the scene after the first fight because he had a plane to catch to go to Brisbane the next day. While there is no clear evidence that he left the scene at all, the implausibility of that story is that for him to walk away from a fight where his relatives are involved having just been engaged in the fight earlier with the same people in defence of Ronald Dau, according to his own story, is not one that is easily believable. He is someone who has employment history with Lamana Hotel as a bouncer. And a bouncer is a tough guy in rowdy joints like public bars and taverns who deals with rough necks who cause trouble when intoxicated. It is hard to imagine seeing man like Alphonse Gela walking away from a fight in which his relatives are involved.
164. This is evidence that I have no difficulty in rejecting as untrue as I prefer the evidence of the State witnesses. He was amongst his relatives when they assaulted the deceased and his cousin during which David Bola stabbed the deceased.
165. This being the case the principle of withdrawal from a joint criminal enterprise under section 7 and common purpose under section 8 does not apply to him. State v Tamang Sem [1989] PNGLR 430 sets out the law quite succinctly where Brunton AJ (as he then was) citing passages from Carters Criminal Law and referring to pre-Independence cases made this observation:
"The 6th edition of Carter's Criminal Law of Queensland (1982) at 52 says:
"An accused person who relies on disassociation from the mutual aiding must be able to point to evidence which 'shows distinctly' the disassociation — evidence which shows that he made the other party an unequivocal 'timely communication' of his intention to abandon the common purpose."
166. In the pre-Independence case R v Hanjau-Aikolo (Supreme Court, Mann CJ, 1967, unreported), Mann CJ examined the common law authorities which discussed disassociation from, or the withdrawal from, a common purpose. In Hanjau-Aikolo, the accused, members of a raiding party intent on a pay-back killing, stood aside while other members of the party killed a woman who was a blood relative of the accused. At p 2, Mann CJ said:
"The conditions under which a withdrawal from a common purpose may be relied upon successfully are discussed in the case of R v Saylor [1963] QWN 14; (1963) 57 QJPR 79. This was a decision of the Court of Criminal Appeal and it was held that the appellant was guilty of the offence charged unless there was evidence fit to be considered by the jury that before the final kicking (in that case) by the other accused on the second occasion, the appellant had not only withdrawn from the prosecution of their common purpose, but had also communicated that fact to the other accused in such circumstances that any subsequent criminal act by the other accused was his separate act, and there was no such evidence in that particular case. It also appears from R v Croft [1944] 1 KB 295, an authority cited in the judgment of Philip SPJ at p 83 of the report of Saylor's case, that in the case of a pact to commit a criminal offence coming within s 7 of the Criminal Code (Qld) the accused must show that he expressly countermanded r revoked any advising, counselling, procuring or abetting which he had previously given. This is not to alter the onus of proof but to demonstrate that any influence exercised on the mind of the persons who actually performed the acts in question had been removed and that he severed his connection or departed from the agreed contract."
This pre-Independence law, in my view, is applicable and appropriate to the circumstances of Papua New Guinea, and in the application to this particular matter does not conflict with custom: Constitution, Sch 2.2 (1)."
167. Applying this law to the case before me, I am satisfied that no evidence was clearly led exonerating Alphonse Gela or any other co-accused for that matter, under this doctrine of disassociation or withdrawal from common unlawful purpose.
168. When the entire case is looked at in its totality, there is clearly a break in between the first and second incidents which took place one after the other and the last or third fight. The first and the second fights were continuous assaults on the victims when the accused fought them as they made on their way down to their house (Peter Bae's house).
169. The last and the third fight is a separate incident which was sparked off by Jonah Jambandi's challenge and insults thrown at the accused who had by then retreated to their place and were in front of the gate. It was this challenge that provoked this final confrontation that had the accused rushing back to meet the challenge.
170. What exactly was in the minds of the accused as they all ran back to meet or confront the challenge is unclear in respect of all of them. Their state of mind would have been clearer if the defence case have been run differently from what was presented in Court.
171. However, the evidence presented clearly showed that the rest of them headed back to fight with their hands. It was David Bola who acted alone in introducing a weapon. And this is clearly pointed out in Nick Gabriel's evidence that he ran after the group and while the rest were still behind surfed ahead and stabbed Jonah Jambandi and when he ran up the hill towards Crown Plaza main gate, Bola then turned on the deceased and stabbed him as well.
172. The evidence is however not too clear on what exactly happened here. Were they all assaulting him when he got stabbed? Was he fighting back? Was he standing or sitting up or lying down when attacked with the knife? The evidence at this crucial moment when David Bola stabbed Timothy Houji is not quite clear on the position of the deceased and the part played by each of the six other accused.
173. Defence did not rely on provocation but that does not deny the accused the benefit of this defence if there is evidence to support it.
174. Section 267 of the Code provides as follows:
"267. Defence of provocation.
(1) A person is not criminally responsible for an assault committed on a person who gives him provocation for the assault, if he—
(a) is deprived by the provocation of the power of self-control; and
(b) acts on it on the sudden and before there is time for his passion to cool,
if the force used is not disproportionate to the provocation, and is not intended to cause, and is not likely to cause, death or grievous bodily harm.
(2) Any question, whether or not—
(a) any particular act or insult is likely to deprive an ordinary person of the power of self-control and to induce him to assault the person by whom the act or insult is done or offered; or
(b) in any particular case, the person provoked was actually deprived by the provocation of the power of self-control; or
(c) any force used is disproportionate to the provocation,
is a question of fact."
175. I am satisfied on the evidence before me that the only reason by David Bola armed himself with a knife to meet the challenge was the provocation which took control of his emotion and his power of self control was greatly minimised. I therefore cannot be satisfied beyond reasonable doubt he wilfully murdered the deceased with a deliberate intention o kill him.
176. As far as the other six co-accused are concerned, it is a question of whether they had any idea of what Bola was going to do. It is unclear on the evidence that they would not have known that Bola or any of them for that matter would use a knife in the assault. Blinded or consumed by provocation, they all rushed towards Jonah Jambandi and to their misfortune, a knife was used in the assault. In the given circumstances, would any of them have had any chance to think rationally and say to David Bola to refrain or desist from using the knife? I do not think so.
177. In the absence of any clear evidence at this very critical moment when David Bola used a knife to attack both Jonah Jambandi and Timothy Houji it cannot be said that the other six accused had any intention to kill the deceased, let alone to cause him any grievous bodily harm other than to simply fight or assault him with their hands.
178. They had a common unlawful purpose to assault or fight the victim with their hands and not with the use of weapon. There is no evidence that the case of knife by David Bola was ever discussed between or amongst them before it was used.
179. On the evidence before me they cannot be liable to the same degree as David Bola. But their presence was enough to encourage David Bola to attack the deceased in the way he did. They were not innocent by-standers or on-lookers. They were part of the group that went to assault the deceased and his cousin.
180. I am satisfied beyond reasonable doubt that all the accused were present throughout the night of the series of assaults on the deceased and his relative and jointly perpetrated these assaults upon them. Unfortunately, unbeknown to the rest of them David Bola introduced a weapon into the fight that caused the deceased's death which I cannot hold the consequences of his decision and action against the other accused except against him alone. My reasons have been amply explained based on the authorities cited above and commensurate with common sense and logic.
181. In conclusion I find that:
182. In all the circumstances of the case, the following verdicts are returned against all the accused:
_________________________________________
Public Prosecutor: Lawyer for the State
Paraka Lawyers, Emilio Lawyers & Public Solicitor: Lawyers for the Accuseds
[1] Marks position in Exhibit 6 [Copy of Photo2 in Exhibit 1] and Exhibit 7 [Copy of Photo 5 in Exhibit 1]
[2] Marks position of where the men are beating Timothy HOUJI on Exhibit 7 [Copy of Photo 5 in Exhibit 1] and marks it with the letter
“T”.
[3] She has known “Eye Glass’ (Peter BAE) since 2008. Her market stall is close to his house. She has never seen him without
his glasses. He works for Steamships as an accountant.
[4] The witness says that “eye glass had a house near to the market. She circles the house that eye glass (Timothy) lived in [Exhibit
7- copy of Photo 5 in Exhibit 1]
[5] The witness was observing this from the market area. She marks Exhibit 7 [Copy of Photo 5 in Exhibit 1], putting a blue circle where
the Kombe men were.
[6] Marked as “T” on Exhibit 7 [Copy of Photo 5 in Exhibit 1]
[7] Exhibit 8
[8] The witness indicates the area close to where the man is pointing on Exhibit 7 [Copy of Photo 5 in Exhibit 1]
[9] Exhibit 10- Enlargement of Photo 2 (Part of exhibit 1- the area where these events occur is marked as F1) which he describes as 2
to 3 m3tres away from where he was standing. NOTE: The witness says that the area shown in photo 5 of Exhibit 1 (which shows the
intersection of Douglas and Hunter Streets in Port Moresby) does not show here this first fight occurred.
[10] Exhibit 10- Enlargement of Photo 2 (Part of Exhibit 1 – the area where these events occur is marked as F2) NOTE: IN cross
examination by Mr Mamu it is put to the witness that there were only 4 people involved in the fight, the witness says that there
were 7 to 8 involved and that they had come in a group.
[11] Exhibit 10- Enlargement of Photo 2 (Part of Exhibit 1 – the area where these events occur is marked as F3). The witness estimated
that he was 8 to 10 meters away when he witnessed this.
[12] This evidence is consistent with Joy Soni Kare’s recollection that her and her mother assisted Timothy Houji.
[13] Exhibit 46, enlarged copy of photo 14- exhibit 11.
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