N7498
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 219 OF 2017

THE STATE

V

PIUS KULU

Kimbe: Miviri AJ
2018: 20th, 21st, 24th, 26th & 27th September

CRIMINAL LAW – PRACTICE AND PROCEDURE – Wilful Murder S 299 CCA – Trial – death proved – intent to kill proved –identification – defence of Alibi – no notice filed– application for leave to lead evidence –granted alibi raised record of interview– state opportunity to rebut

CRIMINAL LAW – PRACTICE AND PROCEDURE – Section 37 Protection of law – Constitution sections 10 &11 supremacy – overrides criminal practise rules – notice of alibi– alibi not made out – false alibi – corroboration of identification – accused identified as gunman – guilty of wilful murder.

Facts
Prisoner shot the deceased through the heart with a gun intending to kill him and killed him.

Held
Deceased died unnatural death
Was shot with a gun 
Through the heart.
Intention to kill
Accused shot him
Guilty of wilful Murder

Cases Cited: 
The State v Pawa [1981] PGSC 16; [1981] PNGLR 498 
The State v John Beng [1977] PNGLR 115
The State v Tubol, [1994] PNGLR 378 
The State v Davinga [1995] PNGLR 263 
The State v John Jaminan [1983] PNGLR 318 
The State v Balbal [2007] PGSC 16; SC860 
The State v Bonu and Bonu [1997] PGSC 11; SC528 
The State v Ono [2002] PGSC 10; SC698 
The State v. Angosiwen [2004] PNGLR 432
The State v Kandakason [1998] PGSC 20; SC558 
Waranaka v Dusava [2009] PGSC 11; SC980 

Counsel:

A, Bray, for the State
F, Kua for the Defendant
VERDICT
3rd October, 2018
1.	MIVIRI AJ: 	This is the verdict of Pius Kulu charged with wilful Murder that he on the 6th day of August 2016 at Gatuwore village, Talasea wilfully murdered Joseph Tangole Lagar. He shot him with a gun to the chest and ribs penetrating into the heart and killing him.

Charge

2.	The charge is contrary to Section 299 (1) of the Criminal Code Act, Accused intended to kill Joseph Tangole Lagar and did kill him. Wilful Murder pursuant to Section 299 (1) is as follows: 

(1)	Subject to the succeeding provisions of this Code, a person who unlawfully kills another person intending to cause his death or that of some other person is guilty of wilful murder.

(2)		A person who commits wilful murder shall be liable to be sentenced to death.
Evidence

3.	The State’s Evidence comprised the tendered evidence of Post Mortem Report dated the 17th August, 2016 Exhibit S1A, Exhibit S1B Medical certificate of death dated the 18th August, 2016, Exhibit S2, Warrant to Bury, Exhibit S3A Record of Interview Pidgin Original of Pius Kulu dated the 4th November, 2016, and Exhibit S3B English Translation of the Record of Interview of Pius Kulu dated the 4th November, 2016.

4.	These establish beyond all reasonable doubt Joseph Tangole Lagar died an unnatural death. He suffered gunshot wounds to his left 4th Intercostal space next to sternum fracture of the 6th Right Rib mid axillar line pellet found on the fracture side. Pericardial Sac and Pericardium; Entry wound of 0.5cm diameter, left side of pericardial sac, exit wound 0.5cm diameter on the right side. Heart entry wound 0.5cm in diameter on left atrium and exit wound on 0.5cm in diameter on right atrium.

5.	Cause of death of Joseph Tangole Lagar seen 11 days later after death by Doctor Ketalu is Gunshot wound to the chest and heart failure as a result, Cardio Respiratory Arrest.

6.	There was an intention to kill because Joseph Tangole Lagar was shot through his Heart the central organ of the body. His death occurred on the 6th August 2016. A gun is a lethal weapon and has killed instantly. A gun was fired on the 6th August 2016 at Gatuwore at Joseph Tangole Lagar who sustained injuries confirmed by an independent medical report.

7.	The subject gun has not been retrieved by police and is not before the court nor is there any spent led or ballistic material before the court. But it is undisputed that Joseph Tangole Lagar died because of a gunshot wound that penetrated his left chest and ribs into the heart from the left atrium and exiting from the right atrium. He was shot through the heart by a gunshot and died as a result. Whoever shot him intended that he should die and did die as a result. There is no reasonable hypothesis other than these: Pawa v The State [1981] PGSC 16; [1981] PNGLR 498 (27 November 1981). 

8.	It is established beyond all reasonable doubt that on the 6th August 2016 Joseph Tangole Lagar was shot through the heart by a gunshot. The Shot penetrated his left chest and ribs into the heart from the left atrium and exiting from the right atrium. He died as an immediate result and the person who shot him intended to kill him and did kill him.

Issue

9.	Who intended to kill Joseph Tangole Lagar and did kill him?

Law on Identification

10.	At the outset the law on identification is set out in John Beng v The State [1977] PNGLR 115 (2 May 1977):

“Whenever the case against an accused person depends wholly or substantially on the correctness of one or more identifications of the accused which the defence allege to be mistaken, the trial judge should warn the jury of the special need for caution before convicting in reliance on the correctness of the identification. He should make some reference to the possibility that a mistaken witness could be a convincing one and that a number of such witnesses could all be mistaken. Provided such a warning is given, no particular form of words need be used.
Further, the trial judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made....
Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made. All these matters go to the quality of the identification evidence. When the quality is good, the jury can be safely left to assess the value of the identifying evidence even though there is no other evidence to support: Provided always, however, that an adequate warning has been given about the special need for caution.
When the quality of the identifying evidence is poor — i.e. a fleeting glance or a longer observation made in difficult conditions — the judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification.
The trial judge should identify to the jury the evidence which he adjudges is capable of supporting the evidence of identification. If there is any evidence or circumstances which the jury might think was supporting when it did not have this quality, the judge should say so.”
Evidence

11.	The sworn evidence relied upon by the State comprises three witnesses Ignatius Tuka, Kaula Uma Waluka, and Rocus Kaumu. 

12.	Ignatius Tuka is from Dire married with no children resident at Dire village on the 6th August, 2016. He is the biological brother of the deceased Joseph Tangole Lagar, shot and killed on that day 6th August, 2016 at Gatuwore. We were in the village they had shot and killed Edwin Tangole we came and took his body back to Dire. And we returned to ask why they shot him. As we did they shot Joseph and he died. Gatuwore to Dire is the same distance as the witness box to Nivani which is about over 1000 meters. Fight was on between Madaro and Siboka. Dire is not part of these clans. When we went they were hiding there was two gunshots fired. And the second right before my eyes they shot Joseph Tangole Lagar. We were walking along the main road then separated along the way some followed the palm. I was walking along the palm road 20 meters from where Joseph Tangole Lagar was walking. The shot came from people who were hiding behind the palm. 

13.	Pius Kulu was the one who fired the shot. He was 20 meters from me when he stood up and I saw him fire the gun. He was on the same side the left side of the road when he fired the gun. And he shot the left side ribs. Then he jumped onto the road and said “I am king send another”. He followed the road back to where his boys were and I went and took the body of Joseph Tangole Lager. I know Pius Kulu well we play rugby together we used to go to and fro for custom. I am not related to Pius Kulu. He is the same person in the dock who shot my brother.

14.	In cross examination this witness maintained consistency of his evidence in chief and admitted that he went with the others armed with bush knives to fight them for the death of Edwin Tangole. It was clear view from where I was walking and I saw the accused shot my brother. From where the accused where they were hiding in bush. It was clear towards the road and I can see some were masked some weren’t. But Accused wasn’t. Defence counsel suggested that Daniel Wava was the one that was seen by the witness and not Pius Kulu. Witness agreed that he wanted Pius Kulu to go to jail. Pius Kulu has three brothers Ben, Peter and Moses.

15.	Witness number two for the State was Polikap Uma Waluka also known before the court as Kaula Uma Waluka from Dire married with 6 children. I know Joseph Tangole Lagar my blood brother he is now deceased. He was shot at Gatuwore on the 6th August, 2016 it was on a Saturday by Pius Kulu. I saw Pius Kulu with my eyes I know his father and mother and brothers. We are from ward 5. We wanted to pay back but we received another dead body and came back. We never fought and paid back because Pius Kulu shot my brother and we took him and came back. 

16.	It was in the morning I heard that a man Edwin Tangole was killed. We went there to Gatuwore and to ask those who had killed Edwin Tangole the people at Gatuwore. As we arrived one shot was fired from the left side. I fell onto the ground where the grader graded to take cover. My head came up and I saw Pius Kulu stand up and fired the gun.  This was in my view and he shot Joseph Tangole Lagar who was 20 meters from me. After that Pius Kulu lifted his gun up into the air and called out I am king send one more. Isaac Wakore threw a tear gas on the body of Joseph Tangole Lagar. To get there we followed the main road I was on the main road. Joseph Tangole Lagar was 20 meters from me as we walked. I do not know who fired the first shot. 

17.	The second shot my eyes saw Pius Kulu who shot the deceased. The same distance as I am to the pawpaw tree outside 15 to 16 meters Pius Kulu was at the side of the road. He was on the left side of the road. I saw him stand up and fire the gun he held.  Where he stood is clear and bean was growing there. There was coconut and cocoa but where he stood was clear as I could see him clearly. We are from ward 5 we used to intermingle in custom. I know he has three brothers, Ben, Peter, and Moses. Ben is tall and slim he is light skinned. Compared with Pius Kulu. Peter is short and is dark skinned. Moses is short than Pius Kulu and is dark skinned. And we were armed with knives when we went. Fight did not eventuate. Pius Kulu is in court he is the accused in court and pointed him out.

18.	This witness was a forthright witness. He was confident in his evidence and was not hesitant. He gave intelligent answers consistent with logic. There was nothing raised in cross examination either apparent or identifiable that made his evidence unbelievable and incredible. In cross examination he agreed that Siboka and Mandaro fight erupted over accusation against the accused who was alleged to have committed sorcery upon a deceased Felix Loke  from Kopa village Siboka clan ward 5 councillor from Dire village. He admitted that they were armed with slingshots bush knives to attack Gatuwore. And those who were in-front had iron roofing used as shields. I stood and saw him as I was hiding. He fell on the road when he was shot. He was in the frontline and I am at the back. We did not fight we came back.

19.	Final witness on oath for the state was Rokus Kaumu married with four children resides at his VOP originally he is from Dire. In August 2016 there was fight between Siboka and Mandaro. They suspected that someone had caused sorcery upon Felix Loke to die. The person they accused was of Mandaro Clan. Edwin Tangole is son of my small brother from Dire who was shot and killed that morning. I came up to the community at Dire. All men had come to get his body and there was no one in the village so I followed suit. Ambulance had already taken the body to Kimbe General Hospital morgue. All men went to Gatuwore so I followed them and met them at the road there. When I arrived there I heard gunshot not long another shot. Same time in second shot I saw Joseph Tangole Lagar fall on the road. The distance is about the same us from the box to the front of the police Station about 60 meters. Not long I saw Pius Kulu jump out onto the middle of the road he was holding a gun, lifted it up and called out and said I am king send one more to come. He was on the left side and jumped onto the middle of the road. I did not see who fired. I saw this and then saw a tear gas was thrown out close to the body of Joseph Tangole Lagar. No one went to get the body. They were scared because of teargas smoke. When it subdued Policap Bailey his brother went and got the body. And we all took it back to Dire. At that time when I went to find out there was no fight we did not go into a fight. Pius Kulu is family his father is my cousin brother and I know him well. Pius Kulu is in court in the box now. On that day I saw Pius Kulu I had my glasses at the time that I saw him. I do not have any grudges with Pius Kulu.

20.	This witness was a very firm and confident witness, calm and collected in his evidence. Cross examination did not deny the veracity of his evidence because he gave evidence following common sense and logic. That Pius Kulu surrendered himself for the death of Joseph Tangole. He firmed that what he saw is shot that killed but saw accused jump out onto the road with a gun. Polikap Bailey was one who picked up body not anyone else. Benjamin Linge was not at the scene nor did he carry the body. One side of the road is oil palm they were fighting on way to Gatuwore. 

21.	Accused came out from where he was onto the road and uttered, “Mi King wanpela mo kam ken, I am King one more come”.

Defence Case

22.	No Notice of Alibi was filed in accordance with the Criminal Practise Rules Order 4 Division 2 and Defence Counsel made application to seek leave to adduce despite there being no notice in accordance with the Rules. I determined that it was discretionary based upon Tubol, The State v [1994] PNGLR 378 (12 April 1994) including considerations as in that case under section 37 Right to a fair hearing in particular given the facts section 37(3) and 37(4) (f) of the Constitution and that there were particulars of the alibi highlighted in the record of interview that on the 6th August 2016 accused was at Gula his village. That he was at New Camp at his sister Elizabeth Dau’s residence when Joseph Tangole Lagar was killed. Davinga v The State [1995] PNGLR 263 (1 November 1995) details clearly that real opportunity must be accorded, leave was granted on the basis of these facts for accused to adduce alibi evidence despite no notice. The Constitution was supreme law sections 10, and 11. Therefore the criminal practise rules did not override and so in the exercise of my discretion, the Court allowed. 

23.	Further at the closure of all the evidence both prosecution and defence when the matter was adjourned for submission on verdict, defence counsel made application for a view of the scene of the allegation. The submission was not founded in law nor had basis thereof to sway the court to grant. It was made without any proper material and did not advance by that fact. A view did not comprise the evidence and would not substitute the evidence in view of the fact that time had run since the matter first came to the law. It was not really necessary in the light of the evidence that unfolded particularly with the fact that the fighting allegedly did not start the shooting of the deceased ended it before it started. And the matter was not as contentious as it were.

24.	In defence Pius Kulu recapped his record of interview detailed and gave sworn evidence that on the 6th August 2016 he was at Gula village together with wife, Esther Kulu, kids, his father and elderly people. At 6.00 am to 7.00am the Siboka and Madaro were fighting at Gatuwore. I was very innocent of sorcery suspected against me that I gave poison lime to Councillor Felix Loke who died because of mouth cancer. I was very scared and stayed back but my father and small brothers went to fight on my behalf. I left Gula village and went to New Camp the distance is about 1 to 2000 meters. There we stayed with Sister Elizabeth Dau until 9th August 2016.  I surrendered to Police. I was very afraid and I was very innocent and the Sibokas mobilized and left the village to search for me to kill me. I wanted to save my life. That at 10’o clock my father Peter Gorea received a message on his mobile telephone that Joseph Tangole Lagar was killed at the fight. He was at New Camp with his father, his wife and Sister Elizabeth Dau at this time so did not commit the offence. 

25.	This was supported by his alibi witnesses, his wife Esther Kulu his father Peter Gorea and his sister Elizabeth Dau. All three witnesses say that at 10.00’clock Peter Gorea received a telephone message on his mobile phone that Joseph Tangole Lagar was killed. That they were together at that time. Pius Kulu could not have shot and killed Joseph Tangole Lagar as seen by the witnesses for the State. That all witnesses for the state are lying. He was not guilty of the wilful murder as alleged.

Analysis of evidence

26.	Accused had no reason to surrender himself to Police over sorcery because it is not sorcery that killed Joseph Tangole Lagar. He also explained that it was mouth cancer that killed and therefore he was not responsible. Further He was nowhere at the scene of the fight because he was at New camp with Elizabeth Dau, his wife, his father and elderly persons. The persons who should have surrendered to police over that matter would have been his father Peter Gorea and small brothers who were the ones who were fighting defending their village according to his record of interview question and answer 38, “Police received reports that two men were shot dead while two others were only wounded when your relatives shot them with guns when the Siboka clan’s men came and fought with your clan’s men. What will you say?
“Ans. My brothers and my father defended our village and shot them while I was at our residence. 
Q39. Who are those brothers and father of yours who shot those Siboka Clan’s men?
Ans. I don’t know who actually shot them.
Q40. Police received reports that when the fight took place, Kevin Wawa Marogo, Jeffery Nuli and Steven Wakore were among your group during the fight. What will you say?
Ans. I stayed at Home. I don’t know who was present in the fighting ground.
Q41. Police received reports that between 6.00am and 7.00am on the 6th August 2016 the fight started and the witnesses saw you, Kevin Marogo, Jeffery Nuli and Steven Wakore took lead of your men and ran into the oil palm block where the Darawa men gathered at and chased them. What will you say?
Ans. False.”

False Alibi corroboration Identification

27.	What these excerpts do is that they create a major and fundamental flaw to the alibi because the father and he is the only father of the accused here by the evidence led, Peter Gorea is now placed at two different locations, from the above he is with the other sons defending the village and it is they who shot those Siboka Clan’s men. But it is not them or their father Peter Gorea who are answering the charges but the accused a man who is away from all that at New Camp. And he is not charged for sorcery but wilful murder of Joseph Tangole Lagar. Not one of the other brothers also known to the witnesses for the State by name is charged for that wilful murder except him.

28.	His record of interview is conducted on the 4th November 2016 which is 2 months and almost three weeks from 6th August 2016, but it does not disclose what is common and paramount pillar of the defence case, and witnesses that a telephone call was received by Peter Gorea the father at 10.0’clock that Joseph Tangole Lagar was shot and died. Importantly also the name of the person who had made the call to the mobile phone of Peter Gorea is also not disclosed. If time is remembered not even the telephone number of the person who called is recounted in court. Giving evidence two years down the accused, Peter Gorea, Esther Kulu and Elizabeth Dau have not disclosed the name of the person who called Peter Gorea to inform that Joseph Tangole Lagar had been shot dead. They remember the time but not the person who made that call informing. For Peter Gorea how could he be at the fight at the same time with his other sons and also receiving the mobile telephone call where his son is tucked away at New Camp out of all with his wife Esther Kulu and cousin sister Elizabeth Dau. No one can be at two different places one and at the same time. It means that the Accused has lied on oath to spell out an alibi that is not there. And in supporting him in this regard Peter Gorea the father of the accused has deliberately lied. And further Esther Kulu the wife of the Accused in supporting that false and deliberate lie has also lied on oath. Elizabeth Dau has lied to support a lie making the lie even greater and weakening the defence case to its foundations leaving it shattered. It has been falsely and consciously built up by the accused supported by his father, wife and cousin sister knowing very well that he is guilty of a very serious case of homicide- a wilful murder. It falls squarely with John Jaminan v The State [1983] PNGLR 318 (29 September 1983) that a false alibi has been created which effect is to corroborate the identification of the State witnesses.

29.	It has been argued by both sides and evident that both State witnesses called on oath are all related to each other and to the deceased. Similarly the accused and all his witnesses called are related to each other. Each side is leaning and contending that the court will accept his version as the truth. Both contend that what they  assert is the truth and has the ring of truth and therefore in the case of the State a guilty verdict of wilful murder. In the defence case a not guilty verdict of wilful murder.

30.	The case is therefore dependent on corroborating evidence independent and material evidence that holds out the case for one side or the other, Balbal v State [2007] PGSC 16; SC860 (22 February 2007) although a sexual penetration of a minor the principles illuminated are relevant here:

 “The way to receiving, assessing and determining whether or not to accept a witness and his testimony is a well trodden one. Rules of evidence have much to say and do with the reception or rejection of evidence. Logic and common sense do play an important part in that, as has been noted and applied in many decisions of both this and the National Courts, Bonu and Bonu v The State [1997] PGSC 11; SC528 (24 July 1997).  This is in addition to any serious inconsistencies that might exist in the testimonies of the witnesses called by a party which makes any acceptance of the evidence difficult, Ono v The State [2002] PGSC 10; SC698 (4 October 2002)  Another important factor is the demeanour of the witnesses in the witness box as they give their testimonies. Witnesses’ performance in the witness box can indicate whether they are truthful witnesses telling it all or are untruthful witnesses, withhold the truths, State v. Angosiwen [2004] PNGLR 432 (18 June 2004). It is well accepted law that, a trial Judge is in a better position to observe the demeanour of witnesses and pass judgments as to the truthfulness or otherwise of witnesses and their testimonies. Given that position, this Court is often reluctant to readily interfere with the findings of primary facts by a trial judge.” 

31.      Just as the court is cautioned against readily accepting the evidence of a child of tender age in sexual cases, the same is so in cases as the present where the parties have produced witnesses immediate of the blood or are closely related. The caution to tell the truth and to reproduce the truth is there fundamental or underlying. Just as an accomplice needs to have independent material evidence corroborating the assertion made similarly so is the case of a relative as here, Kandakason v The State [1998] PGSC 20; SC558 (7 July 1998); Waranaka v Dusava [2009] PGSC 11; SC980 (8 July 2009) assessment of logic and common sense and consistency in evidence are important tests for credibility of witnesses and their testimony. Any serious unexplained inconsistency in evidence and evidence not in keeping with logic and common sense are basis for rejection of such evidence. 

32.     In my view the discussion set out above homed out by the sinister and calculated lies of the accused his father his wife and cousin sister corroborate Jaminan’s case (supra) the account of the State witnesses Ignatius Tuka, Kaula Uma Waluka, and Rocus Kaumu. That the person they saw on the 6th August 2016 at Gatuwore who shot Joseph Tangole Lagar with a gun is Pius Kulu. Because this was not a case of a fleeting glance in a difficult lightening or conditions or of a masked hood in a crowded street. There was no fighting and the conditions set out by the evidence are clear in broad daylight at 10,00am at a distance of 15 to 20 meters accused was seen propping up from the left side to fire his gun at the deceased killing him instantly. All three witnesses Ignatius Tuka, Kaula Uma Waluka, and Rocus Kaumu say accused came up from the left side and fired his gun hitting Joseph Tangole Lagar in the left side. Then he jumped out onto the road raising his gun and uttering, “Mi King Wanpela mo kam ken, I am King one more come”. There was more than enough opportunity and not only mere opportunity but substantive opportunity to make positive identification that the man with the gun who shot the deceased is Pius Kulu. The witnesses are not peeping through holes in a wall to make the identification or at a masked hood from his hood in difficult lighting. Each is individually located at the place where he is making that identification of the accused a fellow citizen in ward 5 frequented in customary meetings and rugby a relative. There is consistency and logic in the identification. Had it been solely confined to the lies of the accused and his witnesses there would have been room for some reservation. But that is not the case here because the independent medical evidence by doctor Ketalu corroborates the version of what the State witnesses individually testify. All the witnesses and the Doctor are not relatives or friends or have discussed the evidence. The witnesses are located at Dire in Talasea and the Doctor here in Kimbe at the general hospital. Further the Doctors examination is 11 days after death in his official duty as Surgical Medical Officer holding qualifications MBBS.

31.	The body of Joseph Tangole Lagar is the subject of medical evidence a Post Mortem Report dated the 17th August 2016 Exhibit S1A, Exhibit S1B Medical certificate of death dated the 18th August 2016, depict the following which is undisputed and stands firm, gunshot wounds to his left 4th Intercostal space next to sternum fracture of the 6th Right Rib mid axillar line pellet found on the fracture side. Pericardial Sac and Pericardium; Entry wound of 0.5cm diameter, left side of pericardial sac, exit wound 0.5cm diameter on the right side. Heart entry wound 0.5cm in diameter on left atrium and exit wound on 0.5cm in diameter on right atrium.

32.	It is safe to find and to hold that Joseph Tangole Lagar was shot with a gun as set out above from the left side. The medical officer is a professional in his line of duty speaking the same as the witnesses for the State, Ignatius Tuka, Polikap Uma Waluka and Rokus Kaumu. And further it is safe to find and to hold that there is independent corroboration of the account of the State witnesses. In law therefore the State has discharged its onus of proof beyond all reasonable doubt that Pius Kulu of Gula, Talasea, West New Britain had the intention to kill Joseph Tangole Lagar and did carry out that intention by shooting him with a gun to his left side penetrating into his heart and exiting killing him instantly. In the light of all these materials heed has been taken that a convincing witness could be a lying one but the compound effect of all the evidence is a verdict sound and safe in law of the guilt and the firm finding that Pius Kulu has been positively identified responsible for discharging the gun with intent at Joseph Tangole Lagar on the 6th August 2016 from which he died.

33.	Accordingly he is guilty of the Wilful Murder of Joseph Tangole Lagar committed on the 6th day of August, 2016 at Gatuwore pursuant to Section 299 (1) of the Criminal Code as indicted.

34.	The verdict is Guilty of Wilful Murder contrary to Section 299 (1) of the Criminal Code.

Orders Accordingly.
__________________________________________________________________Public Prosecutor:  Lawyer for the State	
Felix Kua Lawyers: Lawyer for the Defendant