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State v Emmanuel [2012] PGNC 295; N5124 (17 February 2012)

N5124

PAPUA NEW GUNEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NOS.1198 & 1201 OF 2009

BETWEEN:

THE STATE

AND:

TONY EMMANUEL

&

EDWARD YAU

[NO.1]

Wewak: Kirriwom, J
2012: 19, 20, 23 January & 17 February

CRIMINAL LAW – Particular Offence – Wilful Murder – Typical village style mediation turned violent – Whether intention to kill present – Ringleaders giving orders and encouragement during confrontation – Real attacker not charged and brought to court – Liars – Common unlawful purpose to fight – Principal offenders – Criminal Code, ss.299, 7 and 8

Deceased became annoyed when persons unknown damaged things prepared in the bush for preparing sago. Due to long standing land issue with his cousins he delivered the damaged items to Edward Yau and left them at his place during his absence as an invitation for him to see him to discuss. Interpreting this message as a challenge for fight, the two accused and other close family members converged on the deceased's hamlet and attacked him with fighting weapons including long bush knives.

Two main arteries were completely severed, one on left upper arm with fractured humerous and one on left posterior ankle with fractured fibula, both inflicted at different times.
Accused made no attempts to assist the deceased and attempts by other relatives to transport deceased by vehicle to hospital was strongly resisted by the accused.

Deceased died of hypovolaemic shock due to blood loss.

The only issues before the court was who the court believed and whether there was intention to kill.
Accepting the prosecution version of facts as reliable the court found that there was adequate evidence of intention to kill the deceased from the repeated attacks on the deceased at two different occasions and places and failure to seek medical attention and resistance to mercy mission by a Good Samaritan.
Both accused were found guilty and convicted of wilful murder. Detailed facts in the judgment.

Cases cited:
David Kandakason v The State [1998] SC558
The State v Mole Manipe, Sam Molo, Jina Molo, Yakim Saponga and Wame Lukas [1979] N196 (1 June 1979)
Imiyo Wamela v The State [1982] PNGLR 269
The State v Sei Nakiking Kubol and 8 Others [1994] PNGLR 378
The State v Edward Wally [2012] Unreported National Court Judgment (27 January, 2012)

Counsel:
A. Kupmain, for the State
F. Lunge, for the two Accused

DECISION
17th February, 2012

1. KIRRIWOM, J.: Tony Emmanuel alias Tony Emmanuel Kazira and Edward Yau alias Edward Yau Yaulimbo from Kawanumbo village, Boiken, Dagua LLG East Sepik Province have been charged with wilful murder of a fellow villager and a relative at Kawanumbo village on 11th April 2009. The charge is brought under section 299 of the Criminal Code. The deceased, George Wosimbu alias George Maningu Wosimbu, was their cousin. During an altercation between two groups over land dispute, the deceased received severe knife wounds from which he bled to death.
   

State case

2. State led evidence from six witnesses to show that on that day about 3pm the deceased sent word for his cousin Edward Yau at Aleka camp to go to Lau camp and see him to talk over some issues of concern to him. On the evidence it became clear that there were already underlying issues over land but on that day this confrontation was triggered by certain hostile acts towards the deceased when some unknown persons damaged some sticks that were prepared for making sago in the area where the deceased and his family were making sago. This destruction was noticed upon their arrival at the sago patch that morning.
   
3. On their way home after making sago, the deceased is said to have taken the damaged sticks with him bundled up in limbum basket and he took this bundle to Edward Yau's hamlet before going home to Lau. Lau hamlet is not far from Aleka on its left as one stands at Lau facing the main road and Kumalumbo hamlet to its right. It is said to be some two kilometres from the main Kawanumbo village. The deceased according to the testimony of Debrah Maningu Wosimbu, deceased's daughter, dropped this bundle at Edward Yau's place before coming home.
   
4. That same afternoon following this message being delivered, there was the beat of garamut drum, according to several witness from both sides, signalling trouble or fight. And the State case is that not long after the beat of garamut, a group of angry men and women entered Lau hamlet led by Tony Emmanuel and Edward Yau demanding to know who sent for them to come. The deceased stood up to meet his cousins and pleaded with them to talk peacefully but Tony Emmanuel called out 'kilim em' (kill him) which led to Hamis Yau striking the deceased on his head with a traditional fighting stick and Jonathan Yau cut him first on his right arm according to Debra Wosimbu and then cut him again on the left harm completely severing the bone while it hung loosely by its skin.
   
5. While this was going on Tony Emmanuel was struggling with Joseph Sambagia over his iron rod that he brought with him. Tony Emmanuel in his evidence referred to it as his walking stick as opposed to being an iron rod for fighting. Be that as it may, Joseph Sambagia who called Tony Emmanuel his brother said he told Tony to put aside that piece of iron and refrain from using it as a weapon. State case is that when the deceased was already on the ground with his left hand chopped off and was bleeding heavily, Tony Emmanuel went over to him and spitting on him said to him: "See you are bleeding heavily, you know that you are going to die?"
   
6. The attacking party then went on rampage as they destroyed things and chased women and children from the houses into the bushes.
   
7. Seeking refuge from his attackers the deceased escaped to Kumalumbo hamlet at the home of Dona Jamai and her husband. While he was at Kumalumbo bleeding to death, Jonathan Yau again cut him the second time with his bush knife on his leg. There Tony Emmauel further spit on him and teased him for being a hero or claiming to be a hero.
   
8. The deceased's sons tried hard to find transport to help their father. Lennis Jakarik enlisted the help of another villager to transport his father in his Toyota landcruiser who wanted to help but Tony Emmanuel and Edward Yau threatened to damage his vehicle if he helped saying in tok pisin 'larim ol idai go'. This is a pidgin slang meaning something like 'why care or worry or bother, let them die'.
   
9. The deceased did die in the village at Kumalumbo, Dona Jamai's place. According to Debra Wosimbu, it was only after his death and the place being deserted by the attacking party that Dona called them out of their hiding place informing them of the death of their father.
   
10. Dona Jamai is a woman from Sepik River but married to one of the cousins of the accused and the deceased. She assisted Joe Sambagio when he reached their camp and together with Joe Sambagio they helped George Wosimbu when he also went there. She became a witness of controversy when at the outset of her evidence she made it plain that her evidence in the court was not the same as what she told the police because what she told the police was what she was coached to tell the police by the State witnesses. She wanted the court to accept her sworn testimony as the true story and reject what she told the police.
    
11. Her out of court statement to the police contained evidence of eye witness account of what she saw happened at her hamlet at Kumalumbo, the arrival of the deceased and Joe Sambagia and later followed by the accused when she saw Jonathan cut the deceased with the bush knife. In her sworn testimony she said she never saw anything apart from what she had already told the court. When pressed to explain the sudden change in her story it was revealed that as the consequence of this killing and her statement to the police in support of the State witnesses, she has been threatened and chased from the village and she now lives away from her family, in Kaindi with the State witnesses. Either on instructions or on her own accord, she saw her only licence to return to Kawanumbo and her Kumalumbo hamlet and reunite with the rest of her family and all her belongings was to isolate herself from the prosecution witnesses and give evidence favourable to the defence as she muttered softly to herself in agitated tone: I am an innocent person but have become a victim. As to what or how much weight and credence I place on her evidence will be addressed later in the judgment.
    
12. Lennis Jakarik Wosimbu, a son of one of the deceased's brothers, after seeing his uncle badly cut up went to the main village of Kawanumbo in search of transport to take the deceased to the hospital. He managed to find a villager Ranu Topai who had a land cruiser and as he made preparations to refuel the car to run that mercy mission, the two accused and their angry relatives arrived and threatened to damage or destroy his car if Ranu helped them. According to Lennis Zakarik he heard Edward Yau said words to the effect "Kaikai kan ol, larim ol idai" (leave them to die).
    
13. Dr Brian Galugun's evidence was very brief through whom the medical report was tendered and marked as exhibit 4.
    
14. This is in a nutshell the State case. The defence version is different. They agree to an extent that it was the deceased's call that they went there, not to fight, but to find out what he wanted. However when they got there and instead of telling them the reason for summonsing them there, the deceased punched Jonathan two or three times to the ground according to Tony Emmanuel. None of them assaulted him. The deceased was the aggressor who was fighting with Jonathan Yau when Graham Wosombi alias Graham Maningu Wosombi went to his father's aid with his bush knife and swung it to cut Jonathan Yau but Jonathan Yau ducked the swing and he cut his own father instead.
    

Defence case

15. Defence witnesses want the court to believe that they went unarmed, unlike the deceased's line who were armed to the teeth when they got there seeing Graham Wosimbu sitting down with a bush knife, a homemade and a pop gun. Tony Emmanuel is said to have held a walking stick and not a fighting iron rod. Defence also wants the court to believe that the accused Edward Yau was not with the group that went to Lau. He was all the time from morning to late afternoon at main Kawanumbo village with Thomas and Steven Walegre helping Mundo Mundo people from Angoram write their tumbuna story concerning their land.
    
16. Edward Yau raised alibi defence although no notice of alibi was given. I will discuss this later in the judgment. He says he only became aware of a possible problem when Graham Wosimbu stood on the road at the entrance of Kering hamlet belonging to Tom Walegre and swore at Thomas saying that he will kill him and then walked away. Together with some Mundo Mundo people and Steven Walegre they walked to Lau to find out what happened only to discover a deserted hamlet and no sign of life or anyone in the camp. Edward Yau wants the court to believe that he learnt of what happened only when he returned home and his wife told him all about the fight.
    
17. The accused Edward Yau's alibi is supported by Tony Emmanuel, Imelda Yau, Edward's wife, Martha Walegre and Steven Walegre.
    
18. Imelda Yau's version of the story is that after her husband Edward Yau and Steven Walegre left their hamlet and proceeded to Kawanumbo to meet with Thomas Walegere and his inlaws from Mundo Mundo, she too followed sometime later to the main village to buy tinned fish. After buying tinned fish she returned home and on the way met the deceased George Wosimbu. Deceased told her to inform her husband and his brothers to come to Lau for an urgent meeting. Instead of relaying this information to her husband, she told Tony Emmanuel and the others when she met them on the road and proceeded with them to Lau. She saw no women or children except five men and named them as George Maningu Wosimbu, Joe Sambagia whom she referred to as Joe Samba, John Kombu, Lennis Zekeri and Graham Maningu. She saw Graham Maningu Wosimbu sitting with a home-made gun, a pop gun and a bush knife. She recognised a knife shown to her by defence counsel as that belonging to Graham Maningu Wosimbu to be the same knife she saw.
    
19. She saw George Wosimbu become angry as they approached and challenged them saying, you from Kombiko clan want to talk about land, but Jonathan Yau responded they were only there to talk and resolve an issue, not to argue. But the deceased removed his glass and put it away and swung at Jonathan flooring him to the ground. Jonathan got up and he swung second time and he fell to the ground. Same time she saw Joe Sambagia run up and fought Tony Emmanuel as they both struggled with his walking stick. That was the time she looked towards Graham Wosimbu's house and saw him with his weapons. Third time she saw George Wosimbu hit Jonathan Yau and he fell to the ground and this time she saw Graham Maningu Wosimbu holding his knife run down from the house. That is all she saw as she ran away and did not see what happened.
    
20. Imelda Yau maintained that her husband was not at Lau with them during the fight. Martha Walegre also maintained that Edward Yau, Steven Walegre and Tom Walegre did not go anywhere whole day that day except stayed with the Mundo Mundo people from Angoram at their place until late afternoon when Graham Wosimbu came and shouted towards their camp.
    
21. Martha Walegre was all the time with the men at her small hamlet of Kering, part of the main Kawanumbo village. She knew exactly what time meeting started and what time it finished. From 9:30 am to 4:30pm or thereabouts her husband Thomas Walegre with Steven Walegre, Edward Yau and the Mundo Mundos numbering up to about 15 of them were at Kering camp when late afternoon Graham Maningu bare chested accompanied by John Kombo stood on the road and shouted across to their camp calling her husband's name and swearing at him and threatening to kill him and ran on the road. Alerted by this incident, the men ended their meeting and decided to go find out what this was all about. She saw Edward Yau and Steven Walegre leave for Lau and Aleka after hearing this.
    

Witnesses demeanour

22. The issue at the end of the day boils down to which version of the story is the true story and which is not. It is possible that all witnesses told some truths and some untruths. It is also possible that some stories were fabricated after the event in favour of one side or the other. But one thing is common in all the witnesses. All prosecution witnesses are all members of the deceased's family and those who gave evidence for the defence are also members of the family of the two accused. And they have a common interest. Each wants to win. Prosecution witnesses want the two accused to be punished and defence witnesses want their relatives to be freed. One way to ascertain where the truth lies will require examination of the demeanour of witnesses.
    
23. Debra Wosimbu may not have told the entire truth because she is the only one who says she saw the accused Tony Emmanuel holding a bush knife as well as an iron rod where as all other State witnesses only saw him holding an iron rod. Either she is mistaken or she is confused as to what she saw. It is also her evidence that she saw Jonathan Yau cut the deceased first on his right arm and later on the left which severed the arm altogether. Her story of the cut on the right arm lacks corroboration because medical examination during post mortem only found two wounds, one on the left arm and the other on the leg. Either the doctor's examination was not thorough or his reporting of what he found as external findings on his examination of the body is incomplete. With the kind of report compiled by the doctor, it is hard to tell if full post mortem was done or not. Usually a post mortem report contains descriptions of thorough examination and findings of the doctor from the top of the head right down to the tip of the toe, reporting on any small abnormality found on any part of the body, section after section, and followed by summary at the end.
    
24. This medical report only has the summary without detailed report of the examination done of the entire body and as such the report is inconclusive as to the real extent of injuries on the body of the deceased. The summary of findings by the doctor in the post mortem report is headed 'Summary of Significant, Abnormal Finding at Examination' and reads: "external examination showed deep wound to left upper arm with fractured humerous with severed radial artery. There was also deep wound to the left posterior ankle with fractured fibula. Therefore the cause of death was hypovolaemic shock due to blood loss."
    
25. This report does not rule out any other non-life threatening cuts and bruises on the body as the report is centred on the two major wounds that contributed to the deceased's death by blood loss. I make this observation for purpose of reconciling the prosecution evidence of the deceased being cut on the right arm according to Debra Wosimbu and being struck on the head with a fighting stick by Hamish Yau from which the deceased bled according to one of them. There may be some explanation for the eye witnesses account not being corroborated by medical report compiled three weeks after death.
    
26. So I cannot rule out Debra Wosimbu as complete liar in her evidence. I accept that she was an eye witness and saw much of what happened with her own eyes although may have missed finer details of most of them. There is no question that what happened was the talk of the family of what each saw happened that day and when it came to recollection and reconstruction of some of the events some room for memory lapses and errors in recollection must be allowed. At the end of this assessing exercise a witness's credibility is not determined by any specific scientific formula or out of hundred points. It is based very much on the judge's evaluation applying common sense and logic in the light of the evidence given in both the prosecution and defence case.
    
27. The overall evidence of Debra Wosimbu of what she saw at Lau during the attack is consistent with the general trend of the evidence presented in the State case. Where her evidence differed from others it is possible that she is mistaken.
    
28. Joe Sambagio was an unshakable witness. He saw and heard the men coming up and demanding to know who sent for them to come. He clearly identified the men he saw which included Tony Kazera Emmanuel and Edward Yau. When it was put to him that Edward Yau was not with the group, he insisted that he was there. Not only did Joe Sambagio see Edward Yau at Lau, later on he saw him again at Kumalumbo with the rest of them.
    
29. Joe Sambagio is related to the deceased as first cousin. He was the son of the younger brother and the deceased was the son of the elder brother. Joe Sambagio was also related to Tony Emmanuel as first cousin. Both their mothers were sisters. Joe Sambagio and Edward Yau married to two sisters from the same family. As a witness, he was related to all of them, one way or another. No reason was given for Joe Sambagio to be favouring one relative against the other.
    
30. Comparing Joe Sambagio's evidence to that of Debra Wosimbu, I prefer his version as between them. He saw Hamish Yau striking the deceased first with his fighting stick on the left side of his head before striking him twice on his shoulders. During this time Joe Sambagio was struggling with Tony Emmanuel over his iron rod trying to disarm him of it. But Hamish Yau noticing the struggle between the two went over and struck Joe Sambagio twice with his fighting stick on his left elbow from which he received cuts.
    
31. At this juncture others came and helped Hamish Yau and fought Joe Sambagio to the ground. And while he was on the ground he saw George Wosimbu go towards the back of Graham Wosimbu's house. Next he saw Jonathan Yau follow George Wosimbu to the back of Graham's house and as he watched he saw Jonathan Yau cut George Wosimbu on his left hand. At least Joe Sambagio's evidence is corroborated by other witnesses like Graham Wosimbu.
    
32. Next he saw Tony Emmanuel and Edward Yau issuing instructions to Joel Poki, Elvis Waiko, Terence Kazera, Reuben Kazera, Job Kamodi, Wilson Kaien to destroy or damage the homes and properties and the rest of them went on rampage, vandalising and looting causing extensive ruins from one end of Lau hamlet to the other. Terrified by their actions Joe Sambagio fled to Kumalumbo where Dona provided him sanctuary or hiding place from the two accused and their children and other relatives he named.
    
33. While he was in his hiding place he heard George Wosimbo calling out and saw him, his right hand holding his dismembered left hand that was still attached by a thin layer of skin. He went out to help him and George told him that he was short of blood. He reassured him that he would be okay as he and Dona tried their best to assist him by arresting more blood loss. That proved to no avail.
    
34. While the deceased sat on a chair the two accused with Jonathan Yaulimbo, Hamish Yaulimbo, Raymond Yaulimbo, Elvis Waiko and Damien Paian also arrived at Kumalumbo. He saw them surround George Wosimbo and again Hamish Yaulimbo landed his traditional fighting stick on the deceased's head and Jonathan Yaulimbo cut him again on his left leg with his bush knife. The deceased fell to the ground and he saw the accused Tony Emmanuel spat on the deceased again and mocked him again for being a hero. Medical evidence confirmed the cut on the left leg which fractured the fibula which is the small bone.
    
35. The next day Joe Kambagio sought medical attention at Dagua Health Centre and thereafter he left Kawanumbo and his hamlet of Lau and has been living in Kaindi, in Wewak.
    
36. Joe Sambagio's evidence of what he saw happened at Lau hamlet is not exactly the same as what Debra Wosimbu saw and also it is different to what Graham Wosimbu saw and told the court. Apart from Dona, in the prosecution case, we have three people who saw the same incident with their own versions of what each saw in the sequence of events that unfolded where the deceased George Wosimbu was critically wounded in the attack not only in Lau camp, but again repeated at Kumalumbo where the deceased had escaped to from his attackers.
    
37. As to what happened as the two accused and their family members arrived at Lau according to Grahame Wosimbu was that they came in shouting angrily and anxious for fight. They were swearing and behaving in threatening manner as they approached them. He was with his father and he said to them if you want fight put away the weapons they carried. He named the people as the Edward Yau and his family members Jonathan Yaulimbo, Hamish Yaulimbo, Raymond Yaulimbo, Edwin Yaulimbo, Tony Emmanuel Kazera, his two sons Terence Kazera Emmanuel and Reuben Kazera Emmanuel, Joel Poki, Elvis Waiko and Thomas Kanau. These men threatened him and his father with their knives and weapons as they swore.
    
38. His plea for fair fight with hands fell on deaf ears as Hamish Yaulimbo hit him with his fighting stick while Jonathan cut his father with a bush knife and Tony Emmanuel hit his father with a iron bar on his head. He wanted to defend his father but Jonah Yaulimbo threatened him with a pistol. Graham Wosimbu ran away from the hamlet to seek assistance from town and after hours of seeking transport, he arrived in Wewak about 10pm. After arriving in Wewak he heard his father died. Accompanied by his uncles and police, they returned to Kawanumbo and retrieved the body of his father and took it into Wewak Town.
    
39. State called Dona Jamai to give evidence of what happened at Kumalumbo hamlet. Her story was meant to support Joe Kambagio of what he witnessed. But as I mentioned earlier, she departed from the story she gave to the police in her out of court statement and gave a version that did not favour anyone claiming that to be the true story. Her prior inconsistent statement was tendered in evidence and marked exhibit number 5.
    

Prior inconsistent statement

40. The law on contradictory evidence of witnesses whose sworn testimony in court differed with their earlier out of court statements was discussed in a number of cases including David Kandakason v The State [1998] SC558. The following passages in the judgment provide relevant discussions on the law from which assistance can be drawn in this case:
    

"Appellant's submission on this ground stems from the principle evolved in Regina -v- Golder, Jones and Porritt which says that when a witness is shown to have made a previous statement inconsistent with the evidence given by the witness at the trial, not only must his evidence at the trial be regarded as unreliable, so must his previous statement, whether sworn or unsworn. They do not form part of the evidence in the trial upon which the court must or can act. At pp.1172-1173 of the judgment of the Court of Criminal Appeal Lord Parker CJ stated:

"In the judgment of this court when the witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the jury should not merely be directed that the evidence given at the trial be regarded as unreliable, they should also be directed that the previous statement, whether sworn or unsworn, do not constitute evidence upon which they can act".

However, the above view was expressed in obiter and subsequent cases decided in some Australian State Courts, Canada and even England have not consistently followed that view. For example see Reg -v-Jackson & Anor7, Driscoll -v- The Queen8, R -v- Prestano & Ors9 and Deacon -v- The King10. These cases tend to encourage flexibility. The High Court of Australia in Driscoll -v- The Queen 11whilst adopting the first part of the proposition in Golder, Jones and Porritt12 said:

"it cannot be accepted that in a case where a witness has made a previous inconsistent statement, there is an inflexible rule of law or practice that the jury should be directed that the evidence should be regarded as unreliable."

In other words the existence of a prior inconsistent statement ipso facto does not make a witness's evidence unreliable. On the other hand the prosecution is entitled to call other evidence to verify the correctness or truth of a hostile witness's previous written statement to prove that his subsequent sworn testimony is untrue. In R-v- Prestano & Ors13 it was held: 'that the witness having given evidence which directly opposed statements made to the police it was permissible for the Crown to test his recollection further upon that vital matter by putting to him a deposition made in an altogether different case so as to give him yet another opportunity of saying whether or not having been reminded of that, he did or did not regard what he had said previously to be right and what he had said in the witness box to be wrong'. The Court held further that the evidence was for the jury to consider subject to a proper warning from the judge as to the weight, if any, which could be attached to it."

41. Under this long established principle I now scrutinise Dona Jamai's inconsistent stories and find myself somewhat sympathetic to the witness for the reasons given herein. I do not believe and I am satisfied that Mrs Jamai did not deliberately set out to mislead the court or to lie to the court. She was under immense and intense emotional and psychological pressure since this crime was committed and she found herself on the wrong side of the fence by being an eye-witness who gave statement to the police of what she witnessed which turned against her in the community of her husband. Since then she has been excommunicated from her husband and family and she has for the last two years been living in Kaindi with family members of the deceased who are also another line of her husband but living away from their communal village due to threats and intimidation since this trouble. There is no evidence that she could have been promised safe return to the village if she changed her story in favour of the two accused.
    
42. On the other hand she was at liberty to do what she considered necessary to reunite with her family. Like she said, she is an innocent person who was made a victim of this crime for trying to play a hero which backfired on her particularly when a large contingent of men close to ten of the same clan in Kawanumbo village were charged and detained in connection with this killing, leaving almost one hamlet bare except for women and small children. However at this trial only two are now facing the charges while others of them are believed to have escaped from Boram Remand Centre and are still at large.
    
43. For this reason, having weighed her evidence carefully, I am satisfied that albeit an out of court statement, that earlier version of her story has some credence because it does tie up with the rest of the evidence in both the prosecution and defence case. If the defence accepts the evidence and concedes that the only cut inflicted on the deceased by Jonathan was at Kumalumbo where the cut on the leg was inflicted, it corroborates Dona Samai's version of the story she told the Police. She is a mature married woman and there was no need for her to bring herself into a conflict that did not concern her if she was not a eye-witness in the first place if she never saw anything and trying to be smart or acting like a hero, knowing full well that she was taking calculated risks in siding with one group that could jeopardise her neutrality, considering that she was an import from another place in the Sepik River region because of her marriage to one of them. It is the concession by defence that leads me to accept the witness's earlier story because of reliance on it by the defence during counsel's submission on the injury inflicted on the deceased's leg at Kumalumbo.
    
44. Therefore I reject that part of the story she gave on oath in court that departed or deviated from her earlier story as being of recent invention due to the pressures alluded to earlier.
    
45. Looking at the totality of the evidence by the State witnesses, generally they are consistent throughout except for minor discrepancies here and there which is to be accepted when several people are asked to repeat what he or she saw long time after the event. There must be some discrepancies because he or she is recollecting and telling the story from his or her point of observation which does not necessarily have to be the same as another whose vintage point of observation is not the same as the other. And these witnesses were telling their stories from their own respective vintage points when each made his or her observation.
    
46. It is not unusual that in cases like this one, witnesses are not independent. The law does not preclude or disqualify a family member of giving evidence if he or she is an eye-witness to a crime involving his or her family member. Being a family member does not mean that a witness is predisposed to telling lies. That is a very wrong assumption and unsupported by authority. It is not the person giving evidence that matters, it is the quality of his or her evidence that matters most as to how it fits in the overall ambit of the prosecution case.
    
47. Wilson J in The State v Mole Manipe, Sam Molo, Jina Molo, Yakim Saponga and Wame Lukas [1979] N196 (1 June 1979) suggested an approach to determining credibility of witnesses in this manner: (a) whether the story told by the witness is inherently probable or not; (b) how it fits in with the prosecution case;(c) how it fits in with the defence case; and (d) how it fits in with the evidence as a whole.
    
48. His Honour discussed this under the general heading of liars or lying witnesses. But liars or lying witnesses are synonymous with the issue of credibility of witnesses and the principle is applicable across the board when the issue of demeanour of witnesses and who the court is to believe and who not to believe arises. I have found much assistance in applying His Honour's suggested guidelines in this issue of demeanour of witnesses as I believe it is a common sense approach.
    
49. While the evidence of witnesses in the State case showed inconsistencies especially between that of Debra Wosimbu and the others, I am inclined to accept generally what happened and who was at the scene of crime. I have no reason to disbelieve them entirely in their stories.
    
50. As far as the defence witnesses are concerned, I accept the evidence of Tony Emmanuel being present at the crime scene. This is not in issue. Whether he had a piece of iron or a walking stick with him at the time is immaterial. A harmless object when used against another in anger can suddenly become a weapon of severe magnitude when it inflicts serious injuries. Even if I accept that he was holding a walking stick which was metallic in its description, when used in a hostile and angry manner it has the power to cause serious harm.
    
51. But the allegation against Tony Emmanuel is not that he used that walking stick or piece of iron to inflict serious harm on the deceased. State case is that he carried that stick as his weapon and used it to strike the deceased as his mark of anger. However the State case generally against Tony Emmanuel and Edward Yau is founded on the basis that both were the ring-leaders who led their siblings and relatives to attack the deceased.
    
52. And not only did they lead their sons and family members to Lau hamlet to bring this fight on the deceased and family, they gave orders for the attack when on site and encouraged their family members to destroy them by belittling the deceased with words like 'you think you're hero' and by their unfriendly acts of spitting on the deceased when he was badly wounded and bleeding on the ground. But that was not the end of it all, they even pursued the deceased when he escaped from his hamlet and found him in Kamalumbo where they further attacked him inflicting another serious wound when Jonathan cut him again with his bush knife on his leg as if the severed left hand was not enough wound already inflicted on the deceased. Again Tony Emmanuel and Edward Yau are said to be there and repeated the same things that encouraged the young men to display more violence on the deceased who was already harmless and begging for mercy.
    
53. This second attack showed their true intention and determination to not simply hurt or wound the deceased to give him pain, but showed their determination to want him dead. And they ensured that he died before any help could be given him when they even prevented another villager to transport the deceased to hospital to seek medical attention when the owner of a vehicle was preparing to do just that on the request of another relative of the deceased who escaped from the scene of fight at Lau to the main village to seek help.
    
54. On the evidence before me, I accept that Tony Emmanuel was a ringleader as an elder and clan leader and he encouraged the attack on the deceased George Wosimbu. I also accept the evidence of the State witnesses that Edward Yau was present with Tony Emmanuel and together they led their family members to bring this fight on George Wosimbu. I reject Edward Yau's alibi defence, it is not strong and foolproof. This is not to say that he was not involved in the meeting at Kawanumbo village with Thomas Walegre. There was enough time for him to have returned to his hamlet when told of the message from George Wosimbu. Kawanumbo village and its smaller hamlets were not too far from each other and there was plenty of time for Edward Yau to have been delivered the message from the deceased and for him to return to his own hamlet to mobilise his children and brothers to stage this attack. I therefore find as a fact that Edward Yau was involved in the fight and together with Tony Emmanuel, both led and encouraged their family members to attack the deceased at Lau hamlet.
    
55. Edward Yau was not only seen at Lau camp, he was also there at Kumalumbo hamlet with Tony Emmanuel and the others where the deceased was cut the second time on the leg by Jonathan Yau. There was no suggestion that the State witnesses were lying about seeing Edward Yau. In fact it was strenuously denied when put to them in cross-examination but no reason was suggested as to why the State witnesses would lie about seeing Edward Yau in both those places where two serious wounds were inflicted on the deceased. Debra Wosimbu referred to him as 'papa' and said he was there.
    
56. I have weighed all the evidence given by the witnesses in the defence case from Tony Emmanuel to the last witness Steven Walegre. Tony Emmanuel wants me to believe that he and his clansmen went to Lau because George Wosimbu sent for them and they went down to find out what it was all about only to find that George Wosimbu was armed to the teeth and started to fight them as they got there. This is in complete contrast to what the court heard from the State witnesses. The deceased was harmless and welcomed them when they arrived to peaceful talk but they assaulted him even before there could be any sensible exchange of dialogue.
    

Alibi

57. I have heard Edward Yau's story of his whereabouts during this critical time of assault. He wants the court to believe that he was not at Aleke hamlet at the material time and was not with the family members when they went to Lau hamlet in response to Wosimbu's call although the request was in fact directed to him. To support his defence of alibi he called his wife Imelda Yau, Martha Walegre and Steven Walegre. These witnesses gave alibi evidence although no notice of alibi was filed and served as required by the Criminal Practice Rules. Failure to give alibi notice is not critical to defence raising alibi defence or calling alibi witnesses. Some judges have refused to entertain defence of alibi where no notice is given. See The State v Sei Nakiking Kubol and 8 Others [1994] PNGLR 378. I don't think this is correct. Accused is entitled to say whatever he wants in his defence during his trial and if his defence hinged on alibi but he failed to give alibi notice under the Rules, what else is he to tell the court if he can't tell the court that he was not where the prosecution alleged he was and committed the crime? In my view if the accused gave no alibi notice he is entitled to raise that defence and call evidence of alibi and the judge must consider the evidence in the light of all the evidence in the trial to determine whether the alibi is strong and sustainable. However, it is trite law that a surprise alibi defence must be treated with caution and the court must give such weight as it sees fit.
    
58. Criminal Practice Rules are subject to the Constitution which guarantees right to fair trial under section 37(3) and (4) of the Constitution and that right is paramount. To deny an accused right to call alibi evidence where no notice of alibi is given is tantamount to denial of right to a fair trial.
    
59. I heard the evidence of Imelda Yau, Martha Walegre and also evidence of Steven Walegre. I accept their evidence of what each did and saw that day. In my view, their evidence combined was not even fool proof that stood firm to convince me that it was impossible for Edward Yau to be with the group that went to Lau and brought this fight on the deceased George Wosimbu and family. This is a big trouble and for him to be busy solving Mondo Mondo's problems while his children and their uncles fight an opposing faction over a communal land that they have on-going quarrels over it simply makes no sense and is parting company with reality in any customary context in any society. If Imelda Yau can go to the main Kawanumbo village during the day when her husband and the others were still in the meeting and bought a tin fish and returned to Aleke during which she met George Wosimbu who gave her the message to relay to her husband, what stopped her from simply walking back to Kawanumbo and relay the message as a matter of urgency? I am sure that is what she did and her husband returned home and was part of the group that converged on Lau and started the fight.
    
60. As far as Martha Walegre and Steven Walegre's evidence is concerned, I accept their stories to the extent that Edward Yau was at Kering with Tom Walegre and his inlaws from Mundo Mundo discussing their family tree. But I do not accept both their evidence of seeing Edward Yau remaining there until late about six pm. I would like to believe that he left much earlier and returned home when he became concerned about the message from George Wosimbu and mobilised his family members. As I said, it is such a big thing that the father cannot simply leave his young brothers and children answer that urgent call for meeting while he continued to solve other people's problems. It simply makes no sense.
    
61. Therefore as far as the demeanour of witnesses is concerned, I accept the evidence given by the State or prosecution witnesses. I bear in mind that they are all related as do the witnesses in the defence case. There has been no convincing reasons given for me to disbelieve them and each gave his or her evidence in strong and forthright manner. I am impressed by them all.
    
62. As for the defence, I disbelieve the evidence of alibi for Edward Yau and I disbelieve both accused as truthful witnesses and all their witnesses. They did not impress me at all. Their evidence was mechanical as if they had rehearsed their lines before coming to court to testify to be consistent with each other. Comparing their evidence with that of the State witnesses, each State witness told the court what each saw and that explains the differences in their stories whereas the defence witnesses wanted to be consistent right down to the minute detail as if everyone had a watch at the time and saw everything and mentally recorded it against the time reading on his or her watch or clock.
    

Elements of the offence

63. Wilful murder requires strict proof of the following elements. Firstly it was the accused who, secondly, murdered the deceased; thirdly, he did so wilfully while having the necessary intention to kill that person and fourthly killed the named deceased.
    
64. Only last month here in Wewak in The State v Edward Wally [2012] Unreported National Court Judgment, I acquitted someone also on a charge of wilful murder where the accused allegedly killed his own father with a hunting spear. The only evidence against him was his own admissions in the record of interview which he denied having made the admission and denied even giving a full interview to the police and denied any knowledge of the crime. There was no evidence of complaint, of death of the named deceased from an independent source and there was no evidence of independent police investigation of the crime alleged apart from the record of interview and there was no evidence of how the accused was apprehended for the offence.
    
65. The court emphasized the importance of proving the identity of the deceased as being just as important as proving the identity of the accused. The court cannot be satisfied beyond reasonable doubt as to the guilt of the accused if one of the core elements of the offence still hung over murky waters shrouded by uncertainty.
    
66. Fortunately in this case, I have no difficulty in satisfying myself in respect of the identity of the deceased because the evidence is overwhelming from all the witnesses and death is not an issue here. The only issues are as to the identity of the murderers and whether there was any intention to cause death.
    
67. According to the evidence presented, I am satisfied beyond reasonable doubt that Jonathan Yau cut the deceased with his bush knife first at Lau camp on his left hand completely severing that hand and cut him again the second time at Kumalumbo when he cut him on his leg fracturing the fibula. Jonathan Yau is not charged in respect of this offence and I am left to wonder why a dangerous person like him and a murderer is allowed to roam free at large. He could kill another person with the slightest degree of provocation, given the tenacity with which he carried out these attacks on the deceased when there is another recurrence of similar disputes in the village. And from the evidence I have heard so far in this case, this land issue is going to perpetually infect this clan and they will have no peace amongst themselves if they don't find any peaceful means of settling disagreements or learn to live together.
    

Principal parties to the crime

68. While State did not categorically rely on section 7 and or section 8 of the Criminal Code, the statement of facts presented for purpose of arraignment clearly showed that this was a common purpose and section 7 situation and as the evidence in the State case unfolded, later supported by the evidence in the defence case, especially that of Tony Emmanuel, the case raised a section 8 (common purpose) situation.
    
69. The two accused and all their relatives had got together, discussed their plan of action and headed for the deceased's hamlet. This can be inferred from other evidence already before the court such as the beat of garamut drum which is a traditional summons or medium of communication for all kinds of occasions, sending message of death, of meeting, of fight, of arrival of visitors, etc. In this case one witness said that the garamut beat conveyed message of fight or war.
    
70. Section 8 provides:
    

"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."

71. According to section 8 while neither Tony Emmanuel or Edward Yau swung the knife that inflicted those serious injuries leading to the deceased bleeding to death, by being part of the group that included Jonathan Yau who inflicted those injuries and they did nothing to prevent Jonathan Yau from those acts, they were within that common plan to execute what Jonathan did for all of them.
    
72. But the State case against the two is that they were the ringleaders which places them in the category of section 7 of the Code as the principal offenders who gave the orders and their executioners were Jonathan Yau and the younger members of the clan. This brings them under the category of counsellors and procurers. They did not have to dirty or bloody their hands, they hand enough people to do that work for them. All they had to do was give the orders and that is what they did in this case.
    
73. The Supreme Court has already made it quite plain and precedent has been long set in this jurisdiction in Imiyo Wamela v The State [1982] PNGLR 269 that in an appropriate case, a counsellor can be liable to much more serious crime than the principal. The appellant had an affair with his step-daughter making her pregnant. In fear of shame and repercussions from the relatives in the community, he instructed her to kill the child at birth. She did that. They were both charged with wilful murder. The step-daughter pleaded guilty to infanticide earlier and was given less than a year sentence to that of the appellant who was convicted of wilful murder and sentenced to 10 years after a trial. The Supreme Court dismissed the appeal against conviction but upheld the appeal on disparity in sentence. But this case does not fall entirely on counsellor and procurer situation.
    
74. Section 7 provides:
    

"7. Principal offenders.

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

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

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

(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.

(2) In Subsection (1)(d), the person may be charged with—

(a) committing the offence; or

(b) counselling or procuring its commission.

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

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

(a) guilty of an offence of the same kind; and

(b) liable to the same punishment,

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

75. The relevant subsections are (3) and (4) which read as follows:
    

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

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

(a) guilty of an offence of the same kind; and

(b) liable to the same punishment,

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

76. But this is not to say that the rest of the section 7 does not apply to Tony Emmanuel and Edward Yau. The facts presented in the evidence do not permit the section to be applied restrictively in respect of the two accused. Subsection (3) and (4) envisages a scenario where the accused only gives orders and while his executioner does the dirty work for him, he is somewhere else enjoying himself doing something else. Here both accused were present and physically and actively by words and their actions encouraging Jonathan and the others to attack the deceased and his family. This evidence places them in the nick of the action as principal offenders. So whichever way one looks at their complicity in this crime, they are well and truly covered under section 7 of the Code in all its intents and purposes.
    
77. In reaching this conclusion, I am also mindful of the defence assertion that the deceased was cut on his left hand by his son Graham Wosimbu when he swung his knife in defence of his father at Jonathan Yau but missed Jonathan when he ducked and cut his father's arm instead. I am not impressed by this story and I reject it outright. The entire scenario of the fight with George Wosimbu according to the evidence I heard did not present a chance that such an accidental wounding was probable. I reject that story by the defence in the light of what I have already found.
    
78. This story is too good to be true because not only did Tony Emmanuel gave this evidence, other defence witnesses gave the same evidence and even those who were not at Lau but trying to solve Mundo Mundo's problem in Kering camp also heard of Graham Wosimbu cutting his own father from his own mouth when he screamed or shouted obscenities at them while running away without having to leave Kering. This is according to the evidence of Martha Walegre. However, Steven Walegre who also was at Kering at the material time heard Graham Wosimbu shouted towards them using obscene words but what he heard made no mention of having just cut his father except calling out to Tom Walegre and threatening to kill him.
    
79. The monotony of evidence from defence witnesses gave me the feeling that the evidence had been doctored to shift the blame for what happened to the deceased. Both Tony Emmanuel and Imelda Yau have different versions of becoming aware of the deceased sending word for Edward Yau. Imelda Yau says she was told by the deceased on the road at Lau as she was heading back to her Aleka camp after buying tinned fish at Kawanumbo village some two kilometres away. As she continued home she met Tony Emmanuel and her husband's younger brothers heading for Lau so she too joined them and they all went to Lau. What Tony Emmanuel gathered from Joel Poki was that the deceased had gone to Aleka camp but seeing no one there he left some bundle of sticks he brought with him and went to his camp at Lau. Joel Poki was asleep in his house when the deceased arrived with his wife and two others. At least this part of the story confirms the prosecution story.
    

Intention to kill

80. As to the element of intention, defence submitted that there is no evidence of intention to kill the deceased except by inference to be drawn from words used during the incident such as 'kill them', 'you think you're hero' and 'you know you're going to die?' Regrettably, I disagree with the defence counsel because intention to kill cannot only be drawn from those facts which of course the defence denies that they were ever made.
    
81. The degree and intensity with which the attack was carried out, the gravity and the number of wounds inflicted, the words uttered, actions of the assailants before, during and after the assault or attack on the deceased are all relevant factors that count towards determining whether there was any intention to kill. What is in the mind is not simply drawn from what is uttered by the accused but from all other surrounding circumstances.
    
82. In this case intention to kill can be drawn from these proven facts:
    
    1. Orders given to kill them.
       
    2. The cut to the left arm that completely severed the limb
       
    100. Deceased being rebuked and being made fun of by being spat on and called hero and told that he was going to die because he was losing lots of blood.
         
    4. Deceased being cut again the second time and this time on his left ankle fracturing the fibula after he had escaped from the first scene of attack and was at Kumalumbo, thinking that was a safe haven for him.
       
    5. Threatening to damage another villager's vehicle if he assisted to transport the deceased to seek medical attention.
       
    6. Showing no mercy and not even seeking early medical attention on his behalf after already causing him much pain and suffering with those multiple wounds.
       
83. I cannot help but find by their very actions and conduct that there is overwhelming evidence that the two accused and all their clansmen were hell-bent on seeing the deceased dead and they ensured that he died by even preventing or blocking a good Samaritan who was going to make a mercy run on his motor vehicle, the deceased's only hope for survival while it was quite obvious to them that he was rapidly losing blood with two major blood vessels in the left arm and the right leg had been chopped off. This is a most brutal and very barbaric way to end another human being's life, by forcing upon him a slow and painful death. And this is what happened in this case. Both accused were instrumental in the making of it and seeing the outcome of their deed.
    
84. It was submitted that the actions of the persons who accompanied Tony Emmanuel were only reactionary when the deceased was the one who started the fight because they only went to talk and he started to fight with Jonathan Yau. And it was Tony Emmanuel's evidence that as Jonathan Yau and the deceased were engaged in fist fight that Graham Wosimbu went swinging his one meter long bush knife that missed Jonathan and cut his own father. Graham Wosimbu strenuously denied this.
    
85. Even if I have to accept, which I don't, that the deceased started the fight either by throwing the first punch, or by summoning his cousins to his camp to resolve a problem, the force they used in immobilising him permanently was far in excess of human comprehension. It was really a calculated and cold blooded murder of their relative.
    
86. Both accused although did not hold the murder weapon and delivered the fatal blows, they were in the middle of it and everything unfolded according to their call and direction or orders.
    

Summary

87. In a nutshell, from all this evidence, I reconstruct the facts of this case to be as follows. There has been an on-going dispute over land and clan leadership of their clan for sometime between the accused on one side and the deceased in the other. Amidst this on-going tension the deceased and his family felled a matured sago palm for food. When the deceased and family went to the bush to beat and wash the sago, they discovered that someone had been there and destroyed the sticks they had cut and readied for preparing the sago. After working on the sago that day the deceased picked up the bundle of sticks that were damaged and took them to Edward Yau's place and left them there as an invitation to meet so that they talk.
    
88. As it turned out, his cousin Edward Yau and supported by other relatives including Tony Emmanuel Kazera and his two sons turned up as the deceased wanted but instead of explaining what and why things happened as seen by him or who was responsible, they gave orders to fight and kill the deceased. And they did nothing to prevent death from eventuating as they encouraged it all the way from Lau to Kumalumbo and to Kamalumbo main village where they prevented a neutral person who wanted to transport the deceased to the hospital.
    

Conclusion

89. In all the circumstances, I find both accused guilty of wilful murder as charged.
    
90. I will be making recommendations to the police to charge Jonathan Yau and Hamis Yau as soon as it is practicable and bring to justice those who have escaped and are presently at large which include Elvis Waiko, Timothy Walegre, Edwin Yau and Thomas Panao whose names have now joined the long list of names in the bench warrant list.
    

Verdict: Both accused convicted of wilful murder.
Public Prosecutor: Lawyers for the State
Lunge Lawyers: Lawyers for the Defence