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State v Wambukoru [2018] PGNC 519; N7626 (10 December 2018)

N7626

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 836 & 837 OF 2015

THE STATE

V

CAMILUS WAMBUKORU & CANASIUS JOAKIM

Maprik: Geita J
2018: 7, 8, 10, December

CRIMINAL LAW – Trial – Not Guilty Plea - Wilful Murder –Victim speared on his abdomen resulting in his death- Section 299 (1) Criminal Code.
CRIMINAL LAW –Trial - Wilful Murder – Use of dangerous weapon – Eye witness accounts of accused’s identity credible –Defence alibi evidence not credible and rejected. Section 299 Criminal Code.

CRIMINAL LAW –Trial – Notwithstanding the presence of intention and alternative count of murder was opted for as accused were not primary offenders –Finding of guilt of Murder under Section 300 Criminal Code – Finding of guilt of Murder by operation of Section 7 Criminal Code – Guilty verdict entered.

Cases cited

None

Counsel:
P Tusais, for the State
J Javapro, for the accused

JUDGMENT ON VERDICT

10^th December, 2018

1. GEITA J: The Two Accused Pleaded Not Guilty to a Charge of Wilful Murder under Section 299 Criminal Code and trial ensued.

Prosecution Evidence

2. The prosecution evidence consisted of accused’s record of interviews (Pidgin & English versions), Exhibit 2 & 3, a medical report, Exhibit 1 and also called two witnesses.

3. Rex Yandu: (Married with 3 children and comes from Mikau village, Ward 20 in the South Wosera area. His village is bordering nearby neighbouring Nindiko village).

He had no difficulty in identifying the two accused in Court. Camilus Wambukoru seated in the dock with Canasius Joachim seated outside the dock. He said he knows the people from Nindiko village as they all are in same Ward 20 area.

He gave testimony of seeing the Canasius Joachim, Camilus Wambukoru, Daniel Allan, Paschalis Camilus and Siki Malcom walk past his area on 15 December 2014 and abducted Rhonda, around 10 am in the morning. Rhonda is Canasius and Vero’s biological daughter. (They came and pulled the daughter away-Pisin).

Rex Yandu pleaded with the group of men to wait for Philimon, to sort the matter out but they took Rhonda and went away. At the time he was with four other boys when the men descended on his area. He immediately sent for Philimon and they went to Nindiko village to get Rhonda.

The witness said they shouted: shoot Philimon, shoot Philimon as they tried to avoid stones and sticks being thrown at them. He said Philimon raised his hand in the air signalling surrender as Camilus Wambukoru came forward, stood in front of him and grabbed both his hands. At that moment his son Pascal came from behind and thrust his bamboo spear on the left side of his abdomen. Malcom Wanjipeti raised his bush knife and cut Philimon on his hands whilst Allan, armed with an iron rod was trying to fight with them. The witness said he then fled the fighting area in fear.

4. In examination in chief Rex Yandu said he knew both accused well before the December 2014 incident. As to Canasius Joachim’s alibi the witness categorically denied such alibi and said Canasius was there.

5. In cross examination the witness said they followed Camilus Wambukoru’s garden route as it was the shorter route to Canasiu’s house to get the child back. He said they were only armed with bush knives for protection but as they got to Nindiko,men were shouting for Philimon to be killed. When put to the witness that Canasius Joachim was not at the fighting scene Rex Yandu said Canasius was present at the fighting scene. When further asked that Canasius was not involved in the fight the witness said he was involved in the fight. When suggested to him that it was Moses Wapeti who accidently speared his brother Philomen the witness said that was not true. Rex Yandu said there were other people in the fight but the ones whose names I called out stood out and other were following behind them. He maintained that he saw Paschalis, Camilus, Canasius and Malcom.

6. Moses Wapati. (Single, and comes from Nindiko village, Ward 20 in the Wosera Gawi area. His is Philimon Wapati’s younger brother).

He testified that as they were working in their cocoa garden on a Monday in 2014 Camilus, Canasius and other boys came and took little girl, Rhonda away. His elder brother Philimon was alerted and they all went looking for Rhonda. They called out shoot Philimon, as they threw sticks and stones at us. Philimon raised his hands in the air, indicating surrender and pleaded with them to talk. The witness said Camilus’s son Pascal came from behind Philimon and thrust his bamboo spear at my brothers’ stomach causing his intestines to come out. Whilst Siki Malcom came with a bush knife and cut Philimon on his hand. Steven came with a big iron rod and they all ran away after attacking Philimon.

7. In examination in chief Moses Wapati identified both men in the dock as Camilus and Canasius and said both men were from Mikau village. He said Canasius is known to him as he was married to Vero, his sister and have a child Rhonda. He said other men who came with Camilus and Canasius were Pascal, Robin, Allen, Damien and Siki, others he could not recall. As to Canasius’s alibi Moses said he saw Canasius at the fighting area and went on to recite Pascal spearing Philimon when Camilus held his brother.

8. In cross examination Moses Wapati said the incident (fighting) happened in the morning and it wasn’t dark. He said when his brother was speared he was standing next to him. When asked to describe how Philimon was speared the witness said as he stood next to Philimon, Pascall’s father came and held Philimon’s hands as Pascall came from behind and pushed spear into his back as he fell on his laps. When that Canasius questioned was not at the fight the witness said Canasius was present and was not at the village. When suggested to the witness that he was the one who speared Philimon by accident he said he was not armed and it was not possible for him to do that, saying they were both from the same mother and how was that possible. He denied spearing his own brother by mistake.

9. At the close of Prosecution case Defence called their witnesses. The two accused and one alibi witness. The second alibi witness was not called to give evidence.

Defence Evidence

10. Canasius Joachim: (Married, aged 39 with 2 children and comes from Mikau village)

He gave testimony of going to Nindiko village on 15 December 2014, took his daughter Rhonda and returned to Mikau village as his wife Vero was given away to another man to marry. There were no arguments or fights at the time. He named the following boys to be his witnesses: Amos Malkus, Norman Wala and Francis Yakabu.

Canasius said Camilus Wambukoru, Pascal Camilus, Malcom Wanjapeti, Damien Allen and Robin Allen did not accompany him to Nindiko village.

He said he saw four brothers: Rex Yandu, Moses Wapeti, Mathias Wapeti and Benedict Wapeti. He took his daughter and returned to Mikau village and was with Benny Awikiak and Aireen Joachim.

The witness said he does not know the reason for the fight and that Camilus was not his brother and not from his clan. He returned to take his daughter back as he had paid bride price.

11. In cross examination when suggested to him that he was angry because of the loss of his wife and that he had paid bride price he said he wasn’t. He said he wasn’t expecting any trouble when he went to Nindiko village. He admitted arriving at Rex Yandus’s cocoa patch as his wife’s house was nearby but denied Rex Yandu telling him to wait for Philimon to come and have matter sorted out.When put to the witness that he was seen accompanied by Camilus Wambukoru, Paschalis and Malkus he said Rex and Moses were telling lies to court. Asked why Moses and Rex would tell lies to court the witness said they were trying to shift blame onto him. He also denied that the place where fighting took place was on the same route to his place. Witness Canasius Joachim admitted that alibi witnesses Benny Awikiak and Aireen Joachim were his family members: his brother and sister.

When questioned why Alibi witnesses Benny Awikiak and Aireen Joachim were not recorded in his record of interview the witness said he only told police about the persons who followed him and not Awikiak and Aireen.

12. Benny Awikiak: (Married with 5 children and comes from Mikau village in South Wosera LLG Area). Alibi witness- Notice given on 19 September 2017.

He testified of being alone in his house on 15 December 2014 when Canasius came and joined him. No other person was with them. He said they remained in the house and did not go anywhere else that day. He only heard about the fight late in the afternoon when Canasius came with his child and stayed with him.

13. In cross examination the witness admitted that Canasius was his brother and admitted when he was taken in for questioning. When asked if he ever approached Sgt Jacob Maya to plead with him that Canasius was innocent as he was with him on the day of the fight the witness said he did not do that.

When question if he paid K10, 000.00 to Wapeti tribe as bel kol money, he answered Yes. When further asked if K10, 000.00 was paid because his brother Canasius was involved in a fight between the Nindiko, he answered Yes.

14. Camilus Wambukoru: (35 years old, married with 6 children and comes from Mikau village in South Wosera LLG Area).

He gave testimony of practising with his band members (Paulson Govi, Charles Govi and Steven Mark) in the morning on 15 December 2014 and later returned to his garden to get some bananas to cook and eat around 3 pm. He said Malcom and Paschalis were not with them at the time.

Camilus said at that time Philimon Wapeti and his brothers Moses Wapeti, Makis Wapeti and Benedict Wapeti arrived at his place, all armed with bamboo spears, sticks, bush knives and other sling weapons. He said they hurled abusive words at them and said they would kill anyone from Mikau village if found on the road or in their gardens.

He said he was sorry when told by Philimon Wapeti that Canasius had abducted his niece from him. Philimon then ordered his brothers to kill him and so they engaged in a spear exchange fight. He said Makis Wapeti tried to spear him but missed as he weaved and ducked their attacks.

Camilus said by now the three brothers had positioned themselves behind Philimon who was jumping up and down and at the same time trying to spear him. He said a spear aimed at him struck Philimon on his right side of the abdomen. The witness said he then called out to Moses that he has speared Philimon. He said his three witnesses also called out to Moses and told him that he had speared Philimon.

15. In cross examination the witness agreed that Philimon and his brothers walked about 1 km to his garden and fought with him. He agreed that during the fighting none of the three band members were attacked as they stood by and watched. When put to the witness to tell court why he was assaulted instead of Canasius because he was the one who abducted his daughter the witness said all men from Mikau were targeted.

Q & A: So why didn’t they kill them (the three band members from Mikau), the witness said they did not talk to Philimon only him.

Q & A: Did the three band members try to help you during the fight?

A: Nogat.

Q. Where you hurt at all?

A. Yes.

Q: Why didn’t band members not assist you?

A. Nothing to fight with. Only a small knife used by Steven Malcom to cut banana.

Q. When Philimon was stabbed where were you?

A. I was facing Philimon.

When suggested to the witness that since their arrest and detention on 3 January 2015 to the date of trial both men had ample opportunity to manufacture their respective evidence, the witness said that was not correct and he was telling the truth to Court.

Submissions - Defence

16. Mr Javapro in his oral submissions submitted that the only issue before the court was whose evidence was to be believed as credible and believable? He submitted that the accused were not at the crime scene as intimated by State witnesses and such evidence ought not to be believed. Canasius was at home at the time of the incident whilst Camilus ought to be given the benefit of doubt and not be bound by operation of Section 7 of the Criminal Code. Defence evidence was more credible than the prosecution and submitted for the accused to be acquitted. However should the Court find both men guilty and alternative count of manslaughter sought to be considered in view of the fact that any intention to cause the death of the victim was absent?

Submissions - Prosecution

17. Mr, Tusais counter argued that prosecution evidence was more credible and believable. Both Rex and Moses gave direct eye witness accounts of seeing both accused abduct Rhonda and seen at the crime scene. Mr Tusais submitted that witness Rex Yandu was an independent witness and out to be believed. Canasius’ alibi evidence was not successfully made out and must fail. He argued that should the Court find that there was an absence of intention to kill, the Court was entitled to consider an alternate verdict of murder, by operation of Section 539 of the Criminal Code. In this case grievous bodily harm was occasioned.

18. Court findings of evidence

1. Rex Yandu, an independent eye witness saw Camilus Wambukoru, his son Pascal Camilus, Malcom Wanjapeti, David Allen and Robin Allen all accompany Canasius Joachim and abducted Canasius’s daughter Rhonda at Nindigo village on 15 December 2014 around 10 am in the morning.

2. Canasius and his group of men descended on Rex Yandu’s area on their way to abduct Rhonda. At Rhonda’s abode he saw Rex Yandu, Moses Wapeti and Benedict Wapeti, Philimon was away in his garden at the time.

3. Rex Yandu saw all six men including others at the crime scene in Camilus Wambokuru’s cocoa garden. He gave detailed accounts of what each of them did at the time Philimon was speared.

4. Moses Wapeti also saw all the men at the crime scene and gave detailed accounts of what each of them did at the time Philimon was speared.

5. Rex Yandu and Moses Wapeti saw Camilus hold down Philimon’s hand to his side when his son Paschalis Camilus came from behind and speared Philimon on his left abdomen.

6. Camilus Wambukoru conveniently distanced or deliberately left out Rex Yandu in his evidence as Rex’s evidence was damming on him: Rex placed Camilus at the crime scene holding down Philimon’s hands on his sides when Paschalis speared him.

7. Camillus’s attempts to shift or put blame on the spearing incident to Moses Wapeti began to crumble around him when his cleverly concocted evidence lacked credibility, coherence, common sense and logic. Camilus weaved a hate story around Nindiko’s quest for Mikau’s blood if found on the road or in their gardens. The three Mikau men whom he said were his witness and who saw the killing of Philimon, were already at the crime scene. Ironically none of them were harmed or attacked by the Wapeti boys according to Camilus. None of them were called to give evidence in support nor any explanation given for their non-availability to testify for Camilus. It follows that Camilus’s evidence as a whole cannot be believed and was riddled with falsehood. He is not a witness of truth.

8. Canasius and Camilus launched into testifying that none of the men named in the indictment accompanied them.

9. Camilus likewise gave testimony that Malcom and Pascall were not with him and his band members on that day. He deliberately left out Canasius from the crime scene.

10. The alibi evidence of Benny Awikiak quickly disintegrated upon his admissions that Canasius Joachim was his brother and that his family paid a sum of K10, 000, 00 to the Nindiko’s as a result of his brothers involvement in the fight and death of Philimon.

11. Defence elected not to call the second alibi evidence Aireen Joachim, Canasius’ sister when Benney Awikiak gave evidence that only he and Canasius were alone in the house and no other. This has left Canasius Joachim’s evidence high and dry. He said he was with his brother and sister at home at the time of the fighting. It follows that Canasius’s evidence as a whole cannot be believed as it is riddled with lies and falsehood. To my mind he was not a witness of truth.

12. It defies common sense and logic for a family member to sit back these past three years and allow his brother to wile away in prison and prosecuted when you have credible alibi evidence on hand. Anyone in his right mind would approach the authorities at the first available opportunity to save apprehension and interrogation of an accused person. Inferentially therefore the defence of alibi lacks credibility and must fail.

13. Hypothetically the “pulling of the little girl, Rhonda” is akin to an act of abduction. Her natural father Canasius Joachim has been estranged from her natural mother Vero for some 2 years. Canasius has now decided to abduct Rhonda. He is venturing into hostile territory and must arm himself and be surrounded by able bodied friends. That is what he did on that day. To say that he expected no resistance during the act in my view is a fallacy and not believable.

The Wapeti brothers on the other hand were caught off guard and outnumbered and did not put any resistance. Canasius and his men were fully armed. Any form of resistance put up at that time would be suicidal in my view. They then marched to the Mikau area to get Rhonda back but were caught in an ambush, resulting in the death of Philimon. This scenario in my view is more plausible.

Issues

1. Identification.

19. The accused Canasius Joachim asserts that he was not at the crime scene when Philimon was speared. He only heard about it in the afternoon.

Prosecution witnesses Rex and Moses saw him abduct his daughter Rhonda at Rhonda’s abode at Nindiko, accompanied by his five friends. Moses saw him at the crime scene, standing at a distance. They both gave detailed accounts of what each of the men did or did not do at the crime scene.

Canasius also gave evidence of seeing all four Wapati’s brothers, Rex Yandu included when he went to get Rhonda.

Inferentially therefore since he was the instigator and leader of commandeering his daughter’s abduction, he and his friends would be on the look-out for retaliation from Wapeti tribesmen. Although he maintained that there would be no trouble.

The accused Camilus Wambukoru was present at the crime scene but maintained a passive non-committal role.

Therefore the identities of both accused seen abducting Rhonda and seen with their friends at the crime scene successfully made out and not discredited.

Whether or not the accused killed the deceased?

20. The accused Camilus Wambukoru asserts that Philimon was accidently speared to death by his own brother Moses Wapeti. Although he named three men to be his witnesses, the men were not called to corroborate his story. His three band members whom he said were with him at the time again were not called to corroborate his evidence. His carefully concocted testimony failed to find corroboration and lacked credibility on all fronts and fell before his own eyes.

Rex and Moses saw him holding Philimon’s hand on his side as his son Paschal approached from behind him and thrust the bamboo spear into his left abdomen.

Camilus therefore aided and abetted or contributed to Philimon’s wilful murder.

On his part Canasius, being the instigator of the cause of Philimon’s death by abducting his daughter from Philimon’s abode was also present during the fight and did little to stop the fighting escalating into death. His alibi witness however was of little help to him. He was put squarely at the crime scene and not with his alibi witness at his house.

Intention to kill?

21. Notwithstanding the gross abdominal wound inflicted, manifesting an intention to kill, both accused still remain secondary perpetrators by operation of Section 7 of the Criminal Code. It follows in my view that a finding of guilt other than wilful murder be considered.

22. Section 7 of The Criminal Code provides that it is possible for those who are not the main perpetrators to be also be 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 Sections 7 or 8. I find here that there is evidence that the accused and their friends did some of those things. 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 must as a matter of law be lawfully convicted. Wilful murder indictment is substituted with alternate verdict of murder.

Verdict:

23. Accordingly, I return a verdict of guilty against the two of you and have you convicted accordingly on the alternative count of Murder under section 300 Criminal Code instead of Wilful Murder under Section 299 Criminal Code.
Verdict: Guilty Each and Severally.

__________________________________________________________________

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