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State v Binde (No.1) [2015] PGNC 144; N6045 (13 August 2015)

N6045

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 138 OF 2012

THE STATE

-V-

JACK BINDE
(NO.1)
Respondent

Wewak: Geita J
2015: 21th, 22th, 24th April; 13th August

CRIMINAL LAW – Trial - Wilful Murder – Accused aided and enabled a crime to be committed - A 60 year old woman and her two grandchildren, aged 3-4 years hacked to death with a bush knife and spear - All elements present including intention - Section 299 (1) Criminal Code.
CRIMINAL LAW – Trial – Wilful Murder - whether accused can be found guilty of the same crime as the principal accused – common intention must be present –whether the accused can be found guilty by operation of s. 7 Criminal Code – common intention found present.

The accused was arraigned on indictment charging him with the murder of the three persons. The charge is laid pursuant to Section 299 Criminal Code, Chapter Number 262. And whether he can be found guilty of the same crime committed by the principal accused by operation of Sections 7 of the Criminal Code.

Cases sited:
Avia Aihi v The State [1979] N187
R v Potosi (1970) N 730

Counsel:
Paul Tusais, for the State
Johnson Malambaul, for the accused

JUDGMENT ON VERDICT
13 August, 2015

1. GEITA J: Upon arraignment the accused plead not guilty to three counts of wilful murder of an elderly woman and her two grand children at Tamo village, East Sepik Province on 17 September 2011.

Evidence

2. Four witnesses were called by the State. The following material were tended into court by consent viz. EXHIBIT "A" (a) & (b) – Record of Interview (Pidgin & English).

• EXHIBIT "B" - Sketch plan of crime scene.
• EXHIBIT "C" - Six sets of b/w photos of the decomposed bodies of the

three deceased.

• EXHIBIT "D" - Homemade gun
  

State Witness 1- S/C Gabriel Minonie

3. He was the Investigation Officer in this crime with 30 years of policing of which 27 years was spent with Criminal Investigation Division. He testified of travelling up by dinghy to hinterland Angoram bordering East Sepik Province and Wabag accompanied by some Task Force police officers some weeks after the crime was committed on 17 September 2011. The accused and Silas Taiwo were arrested at Tamo village and taken to Angoram for questioning. They were led to the crime scene and took photographs of the skeletal remains of the victims placed on a tree trunk. The hunting spear and the bush knife were not recovered save for the home made gun which was retrieved from a house at Tamo village. The witness said due to isolation of interviewing witnesses the record of interview was concluded much later.

4. In cross examination the witness maintained that the accused was arrested at Tamo village and that he did not surrender voluntarily.

State witness No. 2 - Mr. John Yambi

5. This witness is from Tamo No 1 village and knows the accused to be from Korogo village and married to a woman from Tamo. He has lived with them for more than seven years. He testified of panning for gold at Bumagagan village and upon returning home, he saw the accused Jack Binde armed with a pop gun and Silas Taiwo armed with a bush knife and spear in hand. He accompanied them and they spent the night at a bush camp at four corner mountain when it got dark. After eating their meal of cooked banana he saw Jack and Silas heavily engaged in smoking drugs to a stage he said they were very drunk: 'spak nogut tru'.

The accused further testified of them climbing down the mountain and followed the river bank with him walking ahead. Along the way he came across the old woman and her two grandchildren cooking their banana, greeted them and walked on. Not very long afterwards he heard the old woman scream and as he looked back he saw Jack Binde with 'pop' in his hand forcing Silas to kill the three of them or be shot himself. The witness said he got scared and returned home to Nawapet village on the other side of the river and told his parents about the killing. He said a short while later Silas arrived naked and was given a spare trousers.

6. In examination in chief the witness said the three persons he saw along the way were Penduo, the old woman, Natalene and Satarie, the two grand children. He said Silas speared the old woman on the chest with the spear. The two children were killed on their necks. The witness said he was standing at a distance of about 20 to 30 meters when he witnessed the killings on the sand bank where they were sitting. The witness said the three victims were not aggressive but were attacked because of an earlier incident of damage done to Jack's property by the 'people from the mountain' or 'arse tanget'. He said the three victims were from the mountains.

Cross Examinations

7. When suggested to him that he accompanied Jack to four corners mountains to hunt for wild pigs the witness denied the suggestion, saying he went along with them to visit his parents at Nawapet village. He said the smell of marijuana is distinguishable from ordinary tobacco or 'brus'. He said he was about 10 meters away when he heard the old woman shout and turned around to see what had happened but did not see who struck her with the spear. He denied defence suggestions that Silas Tawo was insane and occasionally goes out of his mind. The witness agreed that after leaving the mountain they stopped at another camp called Kibungun. From there they came to the mouth of Kokum river, however denied any suggestions of leaving Jack to go and look for betel nuts. Cross examination continue:

Q. 29: At that time other boys from the village we in the river, correct?

Ans. Correct.

Q. 30: That's when Silas went to the old woman and two children and enquired about where the boys were diving?

Ans. That's not correct.

Q. 31: You and Jack were 30 to 40 meters away when Silas left?

Ans. That's not correct. (Dispela em nogat)

Q. 32: You and Jack heard old woman and ran back to enquire, correct?

Ans. Jack is lying I was alone.

Q. 34: Upon arrival at the village, Jack also informed your father correct?

Ans. Nogat.

Q. 35 Apart from mountain people who are your neighbours?

Ans. "Arse tangets" on the mountains and we down the river.

Q.40: I suggest to you that because of the deaths and in fear of reprisals you now blame Jack?

Ans. That I don't know.

8. In re examination the witness maintained that Jack forced Silas to do the killings or else he would be shot. When suggested to him that Jack and Silas were not smoking marijuana but 'brus' the witness said they were smoking drugs. He further maintained that marijuana and 'brus' have distinct smells.

State Witness 3 - Mrs. Arakum Taiwo

9. This elderly mother testified of sitting in her house on the morning of Monday 12 (year not mentioned) with her children and making plans to send their aunty to the mountains to work when Jack Binde arrived. She said Jack told them that he will get Basoa to go up now and do something saying he will not listen to anyone. The witness advised Jack not to do such a thing. She said Jack went away and on 17th (year not mentioned) the incident happened: 3 killings, one old woman and two young children belonging to Sumoko. She said after the incident Silas came to her house on 18th day in the afternoon and she rebuked him for what he had done. The witness told Silas that her life now was in danger from retaliation. She said Silas then told her that he would not have done what he did if he had not been forced by Jack. When her community heard about the incident they scattered from her. (Court took judicial note of the year to be 2011) from the flow of her evidence.)

In examination in chief the witness said Jack was talking to her about going and breaking the skulls of his brother in law Wumukun and Basoa because his properties left at the camp was destroyed by the mountain people.

Cross Examination.

10. In cross examination the witness admitted that Silas was her son but does not know where he was now. She denied suggestions that she was trying to protect her son from the trouble saying he was not in the village now and she was not worried now. The witness said on 12th of September 2011,all her family members were present.

In re examination the witness said her son Silas admitted to her that him and Jack caused the trouble and that she was not hiding her son.

State Witness No. 4 - Somoko Sitita

11. This witness is the father of the two young children murdered with his aged mother. The witness testified of returning from diving upstream at 4 pm in the afternoon on Saturday and stumbling on the victims. His mother was found with a spear buried right through her chest while her daughter, Masrinda cut from neck down. Isibia had knife wounds to her neck and front of her head. He said he saw plenty of blood.

He testified of returning home that day with other men but kept the news of the death to themselves. The children's mother Hanna was not aware of the deaths until they returned to Joka camp, overnighted and went to the place the bodies were kept. He said after crying over the dead bodies they wrapped them in a piece of laplap and placed them on top of a fallen tree as their place of burial and returned back to Jukulan village. After mourning for one week they returned to Ambunti at Keram and stayed there for a further week and a half and returned to Angoram and reported the deaths to the Police.

In examination in chief the witness said the three dead bodies were left on top of a tree as it was their custom to do so. He added that the multiple murders were new to them and his mind was not settled.

Defence case – Jack Binde

12. The accused is from Korogu village in the Wosera Gawi District. He is married to his wife Pauline from Tamo village and have two children. He testified of catching up with Alphonso Tawu at Ligan village on 9 September 2011 who told him about his property being destroyed at the camp. The next day he went up to the mining camp at Bumagagan and met John Wumukun, Jonah Basi and some other boys but did not know their names. He got cross with Jonah Basi for the destruction caused to his property by his people to which Jonah apologised and said the Simbai's destroyed his property, after demanding for compensation from Tawo people for the death of one of their in laws in the village. The witness said he understood, as the Wumukun's had no grudges against him.

13. He said on Monday 12 September 2011 they made plans to go pig hunting at four corners mountain with other boys. That week there was a gold rush and they were busy working. Around 3pm and 4pm on Friday (16/9/2011) some boys went ahead followed by him and John around 5pm. They arrived at Bumagagan in the evening, cooked their meal comprised of rice, meat and noodles whilst he went over to borrow Samuel's torch. He said Silas was at Jilimo and when he saw him and John he followed them up to four corner's camp. He said he was carrying a pop gun and a small axe including an empty 10 kg bag and a big bilum. The witness said as they crossed over to the other side they met John Yambo and his wife at Kuruvan camp who cooked for them for the night. After eating they went up to the mountain and kept watch for wild pigs in the garden. He said John and Silas slept while he kept watch until daylight. Around 2pm they returned to his camp at Kemabun where he got his beddings and some clothes and a big bundle of aibika and put them in his billum. Along the way Silas and John went to get some betel nut whilst he went to his other camp at the mouth of Umugum River.

14. The witness said at his camp he saw his bananas cut and house destroyed save for his gold machine and engine not damaged but placed neatly stacked at one corner of the house. He said although it costed him big money he was not angry. He said the three of them crossed the river to his new garden but the produce were not ready to harvest so he only harvested two taros. As they were walking along they came across the three victims. He said Silas went over to them to enquire about the boys who were diving in the river while they continue walking to the other side of the river to sit down. The witness said their backs were turned when they heard the old women shout: "Awoo". He said as they turned around they saw the old women holding a spear in her chest. He said they did not see Silas spear the old woman but only saw him slashing the two little girls with a knife.

The witness said they panicked, collected their goods and crossed the river at the shallow end with John running ahead. He said he saw Silas near the bank of the river with bush knife in hand but was scared to remove it from his hand. The witness said they arrived at Kiopan camp, threw their belongings into the pitpit bushes, crossed the river and arrived at Nawapet camp. He said he told John's father about the murders and discussed about it over some food. He said Silas ran naked at the village and John gave him his brother's trousers whilst John's father removed the bush knife from Silas.

15. In examination in chief the witness said John Wamukun is from "arse tanget" mountain and that he had no grudges against him. He said he went and told police about Silas but was assaulted instead, saying he was innocent.

Cross Examination.

16. In cross examination the accused admitted that he was arrested in late September 2011 but refused to be interviewed until January 2012 when he was interviewed. When questioned why he didn't tell the same story to police upon arrest he said he refused to do so but wanted John to give his side of the story first. Again when asked why he failed to give his side of the story to police when the opportunity presented itself, the accused said he spoke to police but they refused to hear his side of the story. Cross examination continue:

Q. 6: But during the interview, you had a good chance to prove your innocence?

Ans. I had that interview but I wanted to give my story to my lawyer.

Q. 7: Its now three years?

Ans. Yes.

Q.8: I suggest to you that you were thinking about your false made up story?

Ans. That is not true.

Q.10: Do you know what marijuana is?

Ans. Yes I don't smoke it nor handle it, I only see in other people.

Q. 11: In October 1994 you were charged for marijuana, correct?

Ans. That was someone else and I went to goal for nothing. I was charged for handling and not possessing or smoking.

Q.12: You two smoked and John left?

Ans. He lied.

Q. 13: So his story is a lie?

Ans. Yes I am telling the truth.

Q. 19: You angry with mountain people, correct?

Ans. I wasn't angry, only with Simbai people.

Q. 20: You told Silas's mother you would do something bad to mountain people correct?

Ans. Simbais destroyed my property.

Q.21: Where is Simbai?

Ans. Tamo is at border of Wabag and Madang.

The accused denied suggestions of forcing Silas to kill the victims. Further he denied standing there with gun in hand when Silas speared and killed the two little girls.

Q.28: So only you have cross with mountain people who destroyed your property?

Ans. No I talked to John Wumugum and have no grudges against him.

Submissions by defence

17. Defence Counsel Mr. Johnson Malambaul submitted that the accused version of events to be believed ahead of State's version. He advanced that his client was not the principal offender nor did he put pressure on Silas to carry out the killings. Mr Malambaul cautioned against the court giving weight to John Yambi and witness Somoko Sitata's evidence saying they contradicted each other. He submitted that the accused evidence was believable in that it sat in well with common sense and logic. Mr. Malambaul urged that his client be acquitted due to insufficient evidence and Section 7 rendered inapplicable under the circumstances. Although the following three cases were referred to the court Mr. Malambaul failed to expound on them and their relevance to his client's case. I am therefore unable to ascertain their application and utility in this case. For the moment I have accepted them the way they were presented in his submissions. (State v. Vutnamur (No.1 (2005) N2848; State v Kevin Lomboi, Waks (2008) N3542; State v Steven Mul, Mangi (No.1) (2005) N2992).

Submissions by State

18. Mr. Paul Tusais for the State submitted that the State's witnesses to be believed over the accused's version. The State evidence in general he said remained unchallenged and undisturbed. He said the State had proven its case beyond a reasonable doubt that the killings were orchestrated by the accused in company with another. Mr Tusais submitted that the accused evidence not be believed saying it was fabricated and tailored to fit John Yambi's evidence. He urged the court to give credence to the state witness demeanour as they were all villagers and they all have nothing to gain from this case save to tell court what they knew about this case.

19. He submitted that the elements of intention and the requirements under Section 7 of the Code were adequately made out and submitted for a finding of guilt against the accused. In support of his arguments he referred the court to the case of Avia Aihi v The State [1979] N187: He drew resemblance to the Aihi case where the accused called out to her relatives to kill the victim. In this case a State witness gave evidence of hearing the accused give instructions to Silas to kill the three victims or be shot.

He said the accused was trying to distance himself from this triple murder in order to escape the net cast out by Section 7 of the Criminal Code, advancing that the accused was not a witness of truth and was lying to court. Mr Tusais submitted that should the element of intention not be proven beyond a reasonable doubt the court must find the accused guilty of a lesser charge under Section 539 (1) of the Criminal Code.

Issues

20. The issue is general denial however I have grouped them into two broad areas arising from the evidence: The first is whether there was intention on the part of the accused in these three killings and secondly, whether he can be found guilty of the same crime as the principal offender by operation of Section 7 of The Criminal Code.

Intention

21. First I deal with the issue of intention. The thrust of defence evidence is based on the existence of ulterior motives by State witnesses to shift blame onto him as he was an outsider and not one of their kind in fear of reprisals from the 'asre tangets' or mountain people who had destroyed his property. In his lengthy explanation in defence spanning over three days he attached himself to John Yambi and deliberately steered clear of issues more pressing in his defence. In his feeble defence on this element he said he owed no grudges to anyone including his in laws and the mountain people who destroyed his property saying he was not angered.

22. The State evidence on the other hand was suggestive of the facts that when he learnt of the destruction of his property by the mountain people from Alphonso Tamu on 9 September 2011, he was incensed. Three days later on 12 September he openly vowed to take revenge on breaking the skulls of his brother in law Basoa and Wumukun within the hearing of Mrs Arakum Taiwo and his children despite being discouraged from doing such a thing. Interestingly enough the accused deliberately steered clear of meeting Mrs Akarum on 12 September. We have here an eye witness account of her encounter with the accused and reporting on certain information which she heard from the accused. Only the accused was privy to those information. It follows therefore that there indeed was a meeting and indeed exchange of certain information on 12 September as told by Mrs Arakum. Her version of events is believed. Hence the emergence of the accused intentions to take revenge. More damming in my view was the eye witness account of John Yambi who testified of seeing the accused calling out to Silas to kill the three victims or else he would be shot with the 'pop' gun he was carrying in his hand. The accused vehemently denied that no such thing happened and that John Yambi was lying for fear of reprisals. John Yambi's evidence of seeing the accused and Silas armed with a 'popgun', bush knife and axe was also corroborated by the accused in his evidence. When placed against State evidence obvious flaws begin to surface: When the accused learnt of the destruction of his property on 9 September he was obviously incensed, although he said he was not cross, he expressed his intention to take revenge on named persons in front of Mrs Arakum Taiwo and her children on 12 September. Five days later after inspecting his damaged property he stumbles upon three innocent persons frolicking in an isolated river bank and gave the orders for them to be murdered in cold blood. The three persons happen to be Mrs Pendo, John Wumukun's mother and the two little girls who happen to be Basoa's niece. Coincidence maybe however the victims were all related to named persons the accused vowed to kill 5 days earlier. It follows in my findings that John Yambi and Mrs Arakum Taiwo's evidence more credible and believable as opposed to the accused evidence.

23. Inferentially therefore from the evidence before me I am satisfied that the accused had intended to carry out his vengeance and sadly when the situation presented itself he forced Silas, who was already intoxicated by marijuana to murder the three victims in cold blood with a bush knife and a spear. As was rightly pointed out by State counsel to which I agree that the injuries sustained were highly suggestive of one's intention to kill and not to maim. The element of his intention made out successfully.

24. Section 299 Criminal Code Act creates the offence of wilful murder and it is in the following terms..., a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder. The elements of the offence of wilful murder are-That the accused killed the deceased, that the killing was unlawful and that the accused had the intention to kill.

Principal offender?

25. I next look at the question of principal offender based on my earlier findings on the credibility and believability of State witness evidence of placing the accused at the crime scene barking out the orders to kill the innocent victims. Section 7 Criminal Code provides that it is possible for those who are not the main perpetrators to be also guilty however there must be some evidence of the wrong committed by that person (s) within the meaning of the provision. Only a single act or omission or a series of them is sufficient in Section 7. I find here that there is evidence that the accused was present at the scene of the crime in company with Silas and aided him to commit the crime. (The State v Avia Aihi [1979] N187). Furthermore his physical presence at the crime scene bespeaks of encouragement of, and support of Silas may amount to him being regarded as a principal.(R v Potosi (1970) N 730.) There is credible eye witness account of him being at the crime scene.

Findings – Record of Interview

26. The accused's three days recital detailing his movements in his defence of enabling or aiding unfortunately failed to find corroboration in his record of interview. Furthermore his defence of non involvement fell into the same fate. Evidence before court showed that the accused was arrested one month after the crime was committed but refused to be interviewed. (ROI). He submitted to one, four months down the line in January 2012 but elected to remain mum, only to tell his lawyer his side of the story: " I refuse to give my story to Police and I wanted John to give his side first" (Q&A 4 in cross examination). That may sound perfectly well however it defies common sense and logic. Anybody confronted with a serious allegation of wilful murder or a crime for that matter will in most situations seize the first available opportunity to frantically plead his innocence. That did not happen here. His evidence on this point is not to be believed and is fraught with lies. In my view the flaws in this episode of events can only lead to one conclusion: His past encounter with court proceedings has sufficiently schooled him in court craft ie. Remain silent. Allow State witnesses to present their evidence and piggy-back on like state evidence to weave your defence. I am therefore satisfied and find that his evidence was of recent invention, fabricated to co-exist with John Yambi's evidence. His evidence of being in close company with John Yambi throughout the commission of the crime failed to find corroboration in his record of interview.

Witness demeanour

27. Witness demeanour in court proceedings also plays a part in the overall process, although not always significant in my view at times. All witness demeanours were observed in this case. The accused in my view was 'court save' in the way he was answering questions in cross examinations and tried his best to keep his composure. Through aggressive State cross-examinations he dropped his guard and became agitated on two occasions and raised his voice in frustration with suggestions that he was lying and that he was not 'cross' when he found his property destroyed by the mountain people. Furthermore his evidence of not owing any grudges to John Wurukum and to anyone. The demeanour of State witnesses were also observed and they gave their evidence in a 'simple village men' language. Although simple villagers none of them succumbed to defence cross examinations and maintained their cool. Unfortunately the same cannot be said for the accused. I find the State witnesses evidence credible and believable.

Marijuana smoking?

28. Turning to the evidence of marijuana smoking by the accused and Silas, such evidence has not be completely negatived or destroyed. The accused's outright denial of handling or smoking such drug was completely blown away by State evidence of his past involvement in his marijuana related conviction and sentence for 4 months. Now applying the test of common sense and logic in Sila's involvement in this triple murder I find it hard to fathom how anybody in his right mind would carry out the Accused's instruction to kill in cold blood, not to mention the innocent and helpless old woman and two little defenceless girls. Notwithstanding the pressure of being shot at, one would have to be completely out of his mind to kill in cold blood. It follows that Silas was under the influence of marijuana drug and his sense of judgments greatly impaired. His actions of him walking into the village naked also supports this assertion. Defence attempts to have him tagged as "mental' must also fail as no evidence was produced to substantiate this call.

29. To this end I make finding based on all evidence before me that all of the elements of the offence of murder are present and so the accused Jack Binde must as a matter of law be lawfully convicted of wilful murder pursuant to Section 299 (1) of the Criminal Code. Similarly Section 7 of the Criminal Code that would make him criminally liable for the murder committed. Having found him also guilty of wilful murder, it is not necessary for me to consider a finding of guilt of a lesser charge under Section 539 (1) of the Criminal Code.

Verdict

30. Accordingly, I return a verdict of guilty on all three counts against the accused and have him convicted accordingly.

_________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused