State v Josh [2019] PGNC 190; N7915 (16 May 2019)

	Home \| Databases \| WorldLII \| Search \| Feedback National Court of Papua New Guinea

Madang: Cannings J
2017: 11, 12, 20, 21 September, 9, 27 October,
28 December,
2018: 8 January
Ramu: 14, 15, 16 May 2018
Madang: 14 June, 6, 20, 24 July, 7, 11 December 2018,
2019: 16 May

CRIMINAL LAW – wilful murder – Criminal Code, Section 299(1) – trial- two accused charged with ten counts of wilful murder – whether either accused killed any of the deceased – whether killing unlawful – whether accused intended to cause death – whether either accused guilty of wilful murder of persons they did not kill – Criminal Code, Section 7 – whether either accused enabled or aided others in committing offences – Criminal Code, Section 8 – whether either accused was criminally liable for deaths due to being member of group that prosecuted unlawful purpose.

Two accused were each indicted on ten counts of wilful murder under Section 299(1) of the Criminal Code following an attack on a public highway by members of a tribe upon members of another tribe who were marching along the highway, ten of whom were killed. The State alleged that each accused directly killed one member of the tribe which was attacked, intending to cause his death, and that each accused aided and assisted each other and other members of their tribe who killed other members of the tribe which was attacked (making each accused guilty of wilful murder of the nine deceased that he did not directly kill, under Section 7 of the Criminal Code) and that they were each members of a group that formed a common intention to prosecute an unlawful purpose (to attack and kill members of the tribe which was attacked) and in the prosecution of that purpose, offences were committed of such a nature that commission of the offences was a probable consequence of the prosecution of that unlawful purpose (making each accused guilty of wilful murder of the nine deceased that he did not directly kill, under Section 8 of the Criminal Code). Eleven witnesses gave oral evidence for the State, three of whom gave identification evidence against the first accused (that he directly killed by shooting with a gun the deceased the subject of count 7 on the indictment), and four of whom gave identification evidence against the second accused (that he directly killed by stabbing and cutting the deceased the subject of count 1 on the indictment). Each accused gave sworn evidence denying involvement in the incident and raising an alibi, supported by the evidence of three witnesses. The Court identified four fundamental issues for determination: (1) did the first accused commit the offence of wilful murder by directly killing the deceased the subject of count 7? (2) did the second accused commit the offence of wilful murder by directly killing the deceased the subject of count 1? (3) has the State proven beyond reasonable doubt that either accused is guilty of any of the offences by virtue of Section 7(1) of the Criminal Code? (4) has the State proven beyond reasonable doubt that either accused is guilty of any of the offences by virtue of Section 8 of the Criminal Code?

CID – Criminal Investigations Division
Const – Constable
CR – criminal file reference
Det – Detective
DFC – Detective First Constable
DSC – Detective Senior Constable
Insp – Inspector
km – kilometre
N – National Court judgment
No – number
Ors – Others
PNG – Papua New Guinea
PNGLR – Papua New Guinea Law Reports
PPC – Provincial Police Commander
PSC – Police Station Commander
RPNGC – Royal Papua New Guinea Constabulary
SC – Supreme Court judgment
SDA – Seventh-Day Adventist
Sgt – Sergeant
Snr – senior
Supt – Superintendent
v – versus

The events referred to in this judgment occurred in 2016 unless otherwise indicated.

People
Alex Peawi – Doctor, State witness #5
Allan Loloea – Snr Sgt, State witness #4
Amari tribe – deceased persons’ tribe
Atzera tribe – accused persons’ tribe
Chris George Josh – 1^st accused, defence witness #1
Douglas Minja – First Constable, State witness #11
Dudu Damap – the deceased, the subject of count 9
Gideon Sasu – defence witness #8
Hicks Paranis – State witness #1
Iragin Baiwan – the deceased, the subject of count 5
Joshua Ratu – State witness #2
Kennedy Wai – Pastor, defence witness #3
Kerry Kiwisi – State witness #3
Kipikia Sabanga – the deceased, the subject of count 2
Kisia Kitum – the deceased, the subject of count 10
Kitum Dabin – State witness #8
Livai Solomon – 2^nd accused, defence witness #2
Luke Simpur – defence witness #6
Magia Wans – the deceased, the subject of count 8
Mathew Elisha – State witness #7
Mathew Nelson – another name for Mathew Wai
Mathew Wai – defence witness #4
Matia Rabang – the deceased, the subject of count 1
Ngari Iza – defence witness #5
Peter Muruai – the deceased, the subject of count 7
Puma Afing – State witness #9
Rabang Anang – the deceased, the subject of count 3
Richard Nandi – Snr Const, State witness #11
Timothy Bayang – State witness #6
Walter Wakim – the deceased, the subject of count 4
William Iruba – the deceased, the subject of count 6
Zizi Waikisa – defence witness #7

14-Mile – place, outside Lae
Angau Memorial Hospital – hospital, Lae
Antiragen – village in Markham District, Livai Solomon’s village
Atzunas – village, Markham
Glen Rowan Funeral Home – funeral home, Lae
Goroka – capital, Eastern Highlands Province
Kaiapit – place, Markham
Lae – capital, Morobe Province
Markham – District, place of incident
Mutzing – government station, Markham
Naruzaniang – village, Markham
Ragiampung – village, Markham
Raginam – village, Markham
Ragizumang – village, Markham
Ramu – town on Lae-Madang Highway
Two Mile – place in Lae, headquarters of SDA Church
Umi – place, Markham
Wankun – village, Markham
Wariziang – village, Markham of deceased William Iruba
Watarais – place, Markham
Wau – town, Morobe Province
Yonki – place, Kainantu District
Zumim 1 – village, Markham
Zumim 2 – village, Markham, Chris George Josh’s village

1. CANNINGS J: This is the verdict on two accused men, Chris George Josh and Livai Solomon, who have each been indicted on ten counts of wilful murder under Section 299(1) of the Criminal Code. They pleaded not guilty and a joint trial was conducted. The charges relate to the deaths of ten men, all members of the Amari tribe, on the Okuk Highway between the villages of Antiragen and Zumim 1 in Markham District of Morobe Province on the morning of Thursday 28 April 2016.

2. The State alleges that the two accused were members of the Atzera tribe who attacked members of the Amari tribe who were marching along the highway, heading towards Zumim to air their grievances over tribal conflicts that had occurred in the previous two days.

3. The State alleges that the first accused, Chris George Josh (commonly known as Chris George), shot with a gun and unlawfully killed Peter Muruai, the deceased the subject of count 7 on the indictment, intending to cause his death; and that the second accused, Livai Solomon, stabbed and cut with a bushknife and unlawfully killed Matia Rabang, the deceased the subject of count 1 on the indictment, intending to cause his death.

4. The State alleges that each accused aided and assisted each other and other members of the Atzera tribe who killed other members of the Amari tribe, making each accused guilty of wilful murder of the nine deceased in respect of whom there was no evidence he directly killed, under Section 7 of the Criminal Code.

5. The State alleges that each accused was a member of the Atzera tribe that formed a common intention to prosecute an unlawful purpose (to attack and kill members of the Amari tribe) and in the prosecution of that purpose, offences were committed of such a nature that commission of the offences was a probable consequence of the prosecution of that unlawful purpose, making each accused guilty of wilful murder of the nine deceased in respect of whom there was no evidence he directly killed, under Section 8 of the Criminal Code.

6. Eleven witnesses gave oral evidence for the State, three of whom gave identification evidence against Chris George (that he directly killed by shooting with a gun, Peter Muruai), and four of whom gave identification evidence against Livai Solomon (that he directly killed by stabbing and cutting Matia Rabang).

7. Each accused gave sworn evidence denying involvement in the incident and raising an alibi, which was supported by the evidence of three witnesses each.

8. A number of undisputed facts emerged in the trial. On Tuesday 26 April 2016 there was an incident at Mutzing station in which some students from the nearby Markham Secondary School took a can of Pepsi soft drink from a vendor without paying for it. A fight started because of this, which led to a conflict between members of the Amari tribe and members of the Atzera tribe.

9. On Wednesday 27 April the fighting continued and classes at the secondary school were disrupted and some Amari students were assaulted and prevented from going to school.

10. Early on the morning of Thursday 28 April Amari tribesmen gathered at Umi market and started to march along the Okuk Highway, in the direction of Lae, to Zumim 1 and Zumim 2, where members of the Atzera tribe lived, to protest about ill-treatment of the Amari students.

11. There were 500 to 600 men in the Amari group, some of them armed with weapons such as spears, sticks and bush knives.

12. Between 7.00 and 9.00 am, as the Amari group was between Antiragen and Zumim 1, they were ambushed by a group of Atzera tribesmen who had been waiting from them.

13. Shots were fired from firearms into the Amari group, and ten Amari men were killed, death being inflicted by gunshot and/or knife wounds. Those killed were:

14. It appears that one member of the Atzera group was killed in the incident. However, the circumstances of his death are unclear.

15. A police investigation commenced three days later, which led to the arrest on 18 May of the first accused, Chris George, in a police roadblock at Zumim. When he was arrested he had two hand grenades in his possession. He was charged with offences under the Summary Offences Act, convicted after pleading guilty in the Ramu District Court and sentenced to a term of imprisonment. An appeal to the National Court against sentence was upheld and the sentence was reduced. He has served that sentence at Beon Correctional Institution, Madang Province, and remains in custody. The second accused, Livai Solomon, was arrested on 15 June 2016 at Umi market and has been in custody since then.

16. Both accused are members of the Atzera tribe. Chris George is from Zumim 2 village and unmarried and is aged in his early 20s. Livai Solomon is from Antiragen village and is married with one child and is aged in his early 30s.

(3) Has the State proven beyond reasonable doubt that either accused is guilty of any of the offences by virtue of Section 7(1) of the Criminal Code?

(4) Has the State proven beyond reasonable doubt that either accused is guilty of any of the offences by virtue of Section 8 of the Criminal Code?

No	Witness	Description
1	Hicks Paranis	Watarais villager, Amari tribe member
He went to Umi market on the morning of 28 April to join with other Amari men to walk to Zumim to sort out the problems at the school regarding Amari students – he was near the front of the group of about 500 men of all ages walking along the highway when between Antiragen and Zumim shots were fired from the bushes on both sides of the highway, into the Amari group – the Amari group was chased back to Umi – ten of them were killed – he saw three of his Amari colleagues felled by gunfire: Matia Rabang (from Ragiampung), William Iruba (from Wariziang) and Peter Muruai (from Ragizumang) – he did not see who fired the shots – he did not see how the other Amari men were killed. He identified the second accused, Livai Solomon, as the person who came out of the bushes after Matia Rabang was shot, and cut Matia Rabang with a bushknife while Matia was lying on the road – he knows Livai Solomon as he is a well-known person in the district, he is from Antiragen and was the boss-crew on the Wara Muli PMV bus, a well-known bus that travels up and down the highway – he identified him in the courtroom as the second accused. In cross-examination he stated that there were many gunshots and he and the others were scared and retreated to Umi – defence counsel put it to him that he had little time to observe what was happening or who was involved in the attack: he did not see everything that happened, and he could not recognise others in the group that attacked his group from a distance of 50 metres, but he could identify Livai Solomon as he knew who he was.
2	Joshua Ratu	Ragiampung villager, Amari tribe member
He was at the front of the Amari group, which covered the road as they walked ahead – he joined the group as one of his sons was a student affected by the fighting at the school on the previous day – he saw Matia Rabang shot and fall on to the left side of the road – Matia was one of five men from his village who were killed – he did not see who fired the shots – he estimated eight shots were fired – he saw Livai Solomon come out of the bush and cut Matia Rabang with a long Tramontina bushknife, from his legs to his head – he was 35 metres away when he saw that happen – the group then moved back through Antiragen to Naruzaniang He knows Livai Solomon as he is a well-known person in the district – he played sport with him – Livai Solomon was the boss-crew on the Wara Muli PMV bus – he identified him in the courtroom as the second accused. In cross-examination he stated that he was on the right side of the road, whereas Hicks Paranis was on the left side – he knew Livai Solomon well from involvement in Seventh-Day Adventist Church and sporting activities – Livai Solomon used to attend the SDA Church in Ragiampung – Livai Solomon’s wife is from an Amari village – it was put to the witness that Livai Solomon was not present as he was in Lae on the morning of 28 April: though he was scared, he saw with his own eyes Livai Solomon cut Matia Rabang – he knows Livai Solomon personally.
3	Kerry Kiwisi	Atzunas villager, Amari tribe member
He was in the Amari group, behind the leaders, walking along the highway when between Antiragen and Zumim the Amari group was fired on from both sides of the highway – Matia Rabang was the first to fall – the Amari group reversed about 40 metres – then he saw Livai Solomon jump out and cut Matia Rabang from leg to head – he saw this from a distance of 60 metres – he did not see what type of knife it was. He knows Livai Solomon as they used to play soccer together in tournaments at Zumim – he identified him in the courtroom as the second accused. In cross-examination he agreed that some members of the Amari group were armed with knives, sticks and stones – he had a stick – but there was no fight – he maintained that, although he was scared, and there were lots of people there, he recognised Livai Solomon when he cut Matia Rabang – he gave his statement to the police in June 2016 when the police came and took him, Hicks Paranis and Joshua Ratu to Ramu.
4	Snr Sgt Allan Loloea	Police forensic photographer
He took photographs of the ten deceased persons when the post-mortem examinations were conducted by Dr Peawi at the Glen Rowan Funeral Home, 14 Mile, near Lae – the photographs and his accompanying verifying statements were admitted into evidence through him as exhibits P7, P8, P11, P14, P17, P20, P23, P26, P29 and P32 – his evidence was uncontentious.
5	Dr Alex Peawi	Post-mortem examiner
He conducted the post-mortem examinations at the Glen Rowan Funeral Home – each deceased died due to gunshot and/or knife wounds – some deceased had both types of injuries – the injuries were brutal and inhuman as evident from the fact that the deceased had incurred multiple wounds – the prosecutor asked the doctor to compare the contents of the post-mortem report for Matia Rabang (which did not mention gunshot wounds) with photographs of the deceased’s body (which appeared to show a bullet wound on the left thigh) and a description of such a wound in Snr Sgt Loloea’s statement: Snr Sgt Loloea is correct – he (Dr Peawi) may have omitted this detail.
6	Timothy Bayang	Ragiampung villager, Amari tribe member
He was in the Amari group walking along the highway, in the front line, on the right side of the road, when between Antiragen and Zumim he saw the first accused, Chris George, shoot Peter Muruai, 20 metres away on the left side of the road, with a gun – Chris George had painted his body with black ashes but his face was clear – he did not see what type of gun it was – he was 20 metres from Chris George when he fired the shot – after he shot Peter Muruai, Chris George ran away – Peter Muruai was, like four other men killed that morning (Matia Rabang, Kipikia Sabanga, Rabang Anang and Iragin Baiwan) from his (the witness’s) village, Ragiampung. He knows Chris George as he used to play in the same Umi soccer team as him – he identified him in the courtroom as the first accused. In cross-examination he denied that the Amari group was armed and wanted to retaliate for the assaults on Amari students – though he was in a big group of 600 to 700 Amari and there was lots of noise he could clearly see what happened when Peter Muruai was shot, as he (the witness) was in the front line – he saw Peter Muruai when he was shot – he believes Peter Muruai was targeted as he was a leader – those that were shot were leaders, the Atzera were probably thinking that if they shot the Amari leaders the rest would fall back – he did not see Matia Rabang being shot – he does not know Hicks Paranis (State witness #1) or Kerry Kiwisi (State witness No 3) – he knows Joshua Ratu (State witness #2) but did not see him – it was put to him that he might have just come up with the name of Chris George as he wanted to pin the blame for the death on his brother-in-law Peter Muruai on someone and it was well known that Chris George had been arrested for being in possession of a “bomb”: though he was scared by the gunshots and feared for his life, he recognised Chris George (as he is a popular figure and has played soccer with him) and saw him shoot Peter Muruai.
7	Mathew Elisha	Wankun villager, Amari tribe member
He was in the Amari group walking along the highway from Umi, where they had gathered, heading to Zumim – there are about 11 villages occupied by the Amari tribe – he was just behind the front line – they came to a corner past Antiragen and in front of them on the road a crowd had gathered and from this crowd sticks and stones were thrown at them – then he heard gunshots and those in the front line moved back and suddenly he was in the front line – he saw Chris George point a gun at Peter Muruai and fire a shot – Peter fell and then the Amari group started to move back – he was on the left side of the road, the same as Peter Muruai, while Chris George was on the right side – he was 25 metres from Chris George when he saw him shoot Peter Muruai – Chris George was not wearing a shirt. He knows Chris George as he used to play in the same soccer team as him, for the squad representing the district, Kaiapit District Soccer Club – also, Chris George’s aunt, from Zumim, is married to a man from Raginam village, close to his (the witness’s) village, and Chris George visits her occasionally – he identified him in the courtroom as the first accused. In cross-examination he stated that some of the Amari group were armed with sticks, stones and knives – they had gathered in relation to a fight that had been going on and weapons might be needed in self-defence – the witness maintained that, though he was scared when he heard the gunshots and was worried about how he would save himself, and there was lots of noise and plenty of men between him and the gunmen, he recognised Chris George, he had a clear line of sight, he knows him through soccer, and he saw him shoot Peter Muruai – after he fired the shot, Chris George went into the bush – he does not know Hicks Paranis but he knows Joshua Ratu and Kerry Kiwisi and Timothy Bayang – he knows Kerry and Timothy were in the Amari group but does not know exactly where they were.
8	Kitum Dabin	Raginam villager, Amari tribe member
He is 21 years old – he was in the Amari group, in the second group, on the right side, walking along the highway – between Antiragen and Zumim they were shot at with guns and some of their leaders fell – Matia Rabang was the first to fall – as he tried to reverse he saw Livai Solomon come out with a long Tramontina bush-knife and cut Matia Rabang – ten Amari men were killed – the Amari did not know that the other side had guns – he observed Livai Solomon cut Matia Rabang from a distance of 25 metres – he also assisted a fellow villager, Eddy, who was shot on the hand and helped Eddy get back to Umi. He knows Livai Solomon as he is boss-crew on the Wara Muli bus and is married to a woman from Ragiampung, which is close to his village – he identified him in the courtroom as the second accused. In cross-examination he conceded that he was armed with a knife, that he was scared, that his group had to move back quickly, that there were plenty of men in his group, that there was a lot of noise – but maintained that he could see what was happening, Livai Solomon was present, he knows him, recognised him and saw him cut Matia Rabang.
9	Puma Afing	Wariziang villager, Amari tribe member
He was in the Amari group walking along the highway, on the right side of the road, one row behind the front line – the Amari group was armed with sticks and stones, not knives – after they left Antiragen he saw Chris George step out from the bush from the right-hand side with a shotgun and shoot to the left side of the Amari group – Chris George shot Peter Muruai who was on the left side and Peter Muruai fell to the road – other members of the Amari group went back – Peter Muruai was six to seven metres away from him (the witness) when he was shot – he observed Chris George from a distance of 25 metres – of the ten men killed, two were from his village, William Iruba and Dudu Damap. He knows Chris George as they have played soccer together, in different teams, in tournaments at Umi – he has seen him plenty of times – he identified him in the courtroom as the first accused. In cross-examination he agreed that he was very afraid when the shooting started – his group had sticks and stones – he can’t remember the number of shots – he maintained that Chris George was present, he was bare-chested and painted his skin with black ashes – he knows Chris George, recognised him and saw him shoot Peter Muruai.
10	DFC Douglas Minja	Police investigating officer
He is based at Yonki Police Station – the PPC Morobe had asked the Eastern Highlands command to provide an investigation team and he was appointed to the team and they went to Mutzing to commence the investigation on 1 May – he arrested Livai Solomon at Umi market on 15 June after asking him for his crew permit, which confirmed that he was in fact Livai Solomon – he did not conduct an identification parade but there were a number of witnesses who identified him Livai Solomon as involved in the murder of their tribesmen. In cross-examination it was put to him that Livai Solomon had been arrested by mistake and that the police were actually given information about another suspect by the name of Abel Moses: yes, that was the name of a suspect, but it was the State witnesses who identified Livai Solomon once they saw him – he had been given the name “Livai Solomon” as a suspect and once he confirmed from Livai Solomon’s PMV crew permit that he had the right person, he took him into custody – Livai Solomon was taken to Ramu police station, and detained there – State witnesses were also taken to Ramu and confirmed the identification of Livai Solomon.
11	DSC Richard Nandi	Police investigating officer
He is based at Goroka Police Station – he was a member of the investigation team from the start of the investigation on 1 May – he was the arresting officer for Chris George, who was originally charged with being in possession of two hand grenades – initially both sides were uncooperative and the situation was tense – later the Amari witnesses identified Chris George as one of the murderers. In cross-examination he was asked why it took so long for Chris George to be charged: in the early stages the situation was tense and it was difficult to get witnesses to identify suspects – once the situation settled, witnesses came forward with names – Chris George was arrested on 18 May at a road-block at Zumim in regard to the hand grenades charge – the witnesses identified him as a murder suspect on 29 June at Ramu police station – the formal police interview was conducted on 4 July.

21. The following exhibits were tendered by the State and admitted into evidence by consent:

No	Description	Content
P1A, P1B	Record of interview, Chris George Josh, 4 Jul 16	He heard about the incident of 28 April the next day when he was hiding in the bush – he was not involved in the incident – he was afraid of the Amari group and had hid in the bush – he did not have a gun and did not shoot Peter Muruai or any of the other men killed in the incident – it is true that on 18 May he and others were arrested and charged after the vehicle he was in had “two bombs” hidden in it – but he does not know why the bombs were in the vehicle.
P2	Statement of interviewing officer, DSC R Nandi, 4 Jul 16	He was the arresting officer for Chris George and conducted the interview on 4 July.
P3	Statement of corroborator, FC D Minja, 4 Jul 16	He was the corroborator of the interview of the first accused, who was duly cautioned and answered questions of his own free will.
P4A, P4B	Record of interview, Livai Solomon, 17 Jun 16	On 28 April he was at his brother Pastor Kennedy Wai’s place at Two Mile, Lae – he was not involved in the incident on 28 April – he went at 4.00 am on 28 April in the Wari Muli bus to Lae – they had heard that the Amari were coming to fight and destroy property and they were concerned about the bus as it was still under a bank loan.
P5	Statement of Snr Sgt A Loloea, 16 May 16	He attended the post-mortem examination of the ten deceased persons conducted by Dr Peawi at Glen Rowan Funeral Home on 15 May 16 and took photographs of the body of the deceased Matia Rabang (annexed to the statement) depicting various wounds.
P6	Affidavit of Dr A Peawi, 15 May 16	He conducted the post-mortem examination of the deceased Matia Rabang on 15 May 16 and prepared a post-mortem report.
P7	Post-mortem report re Matia Rabang	External examination revealed that the deceased (male aged 50 years, weight 80 kg) had a slash wound across right neck and multiple bushknife wounds on the chest and back and lower limbs – cause of death: hypovolaemic shock from multiple bushknife wounds.
P8	Statement of Snr Sgt A Loloea, 16 May 16	He attended the post-mortem examination of the ten deceased persons conducted by Dr Peawi at Glen Rowan Funeral Home on 15 May 16 and took photographs of the body of the deceased Kipikia Sabanga (annexed to the statement) depicting various wounds.
P9	Affidavit of Dr A Peawi, 15 May 16	He conducted the post-mortem examination of the deceased Kipikia Sabanga on 15 May 16 and prepared a post-mortem report.
P10	Post-mortem report re Kipikia Sabanga	External examination revealed that the deceased (male aged 39 years, weight 68 kg) had a deep wound on left face extending to right parietal and multiple bushknife wounds on the upper and lower limbs and left radius and ulna fracture and open fractures of both legs and compound fracture of left temporal parietal, breached dura and meninges and subdural haematoma – cause of death: severe head injuries due to multiple knife wounds to head and hypovolaemic shock from multiple bushknife wounds.
P11	Statement of Snr Sgt A Loloea, 16 May 16	He attended the post-mortem examination of the ten deceased persons conducted by Dr Peawi at Glen Rowan Funeral Home on 15 May 16 and took photographs of the body of the deceased Rabang Anang (annexed to the statement) depicting various wounds.
P12	Affidavit of Dr A Peawi, 15 May 16	He conducted the post-mortem examination of the deceased Rabang Anang on 15 May 16 and prepared a post-mortem report.
P13	Post-mortem report re Rabang Anang	External examination revealed that the deceased (male aged 50 years, weight 75 kg) had a sternum bullet wound across right neck and a blood clot 3 litres in right pleural space – cause of death: penetrating chest trauma from gunshot wound.
P14	Statement of Snr Sgt A Loloea, 16 May 16	He attended the post-mortem examination of the ten deceased persons conducted by Dr Peawi at Glen Rowan Funeral Home on 15 May 16 and took photographs of the body of the deceased Walter Wakim (annexed to the statement) depicting various wounds.
P15	Affidavit of Dr A Peawi, 15 May 16	He conducted the post-mortem examination of the deceased Walter Wakim on 15 May 16 and prepared a post-mortem report.
P16	Post-mortem report re Walter Wakim	External examination revealed that the deceased (male aged 25 years, weight 70 kg) had a slash wound on back of neck and slashed left shoulder and stab wound on right chest and multiple bushknife wounds on the back and a breached outer table of occipital scalp and blood clots of 1 litre in right pleural cavity – cause of death: hypovolaemic shock from multiple bushknife wounds and penetrating chest trauma.
P17	Statement of Snr Sgt A Loloea, 16 May 16	He attended the post-mortem examination of the ten deceased persons conducted by Dr Peawi at Glen Rowan Funeral Home on 15 May 16 and took photographs of the body of the deceased Iragin Baiwan (annexed to the statement) depicting various wounds.
P18	Affidavit of Dr A Peawi, 15 May 16	He conducted the post-mortem examination of the deceased Iragin Baiwan on 15 May 16 and prepared a post-mortem report.
P19	Post-mortem report re Iragin Baiwan	External examination revealed that the deceased (male aged 50 years, weight 70 kg) had a slash wound on left neck and multiple knife wounds and multiple bushknife wounds on upper and lower limbs – cause of death: hypovolaemic shock from multiple bushknife wounds.
P20	Statement of Snr Sgt A Loloea, 16 May 16	He attended the post-mortem examination of the ten deceased persons conducted by Dr Peawi at Glen Rowan Funeral Home on 15 May 16 and took photographs of the body of the deceased Peter Muruai (annexed to the statement) depicting various wounds.
P21	Affidavit of Dr A Peawi, 15 May 16	He conducted the post-mortem examination of the deceased Peter Muruai on 15 May 16 and prepared a post-mortem report.
P22	Post-mortem report re Peter Muruai	External examination revealed that the deceased (male aged 50 years, weight 80 kg) had a right groin pellet wound and right-hand pellet wound and severed mesenteric vessels – cause of death: hypovolaemic shock from penetrating abdominal wound from gunshot.
P23	Statement of Snr Sgt A Loloea, 16 May 16	He attended the post-mortem examination of the ten deceased persons conducted by Dr Peawi at Glen Rowan Funeral Home on 15 May 16 and took photographs of the body of the deceased William Iruba (annexed to the statement) depicting various wounds.
P24	Affidavit of Dr A Peawi, 15 May 16	He conducted the post-mortem examination of the deceased William Iruba on 15 May 16 and prepared a post-mortem report.
P25	Post-mortem report re William Iruba	External examination revealed that the deceased (male aged 48 years, weight 80 kg) had a slash wound across neck, fractured skull occipital bone and severed meninges and dura and multiple subdural haematoma and left temporal chest fracture and multiple slash wounds on the back and multiple knife wounds on upper and lower limbs – cause of death: severe head injury and hypovolaemic shock secondary to multiple bushknife wounds.
P26	Statement of Snr Sgt A Loloea, 16 May 16	He attended the post-mortem examination of the ten deceased persons conducted by Dr Peawi at Glen Rowan Funeral Home on 15 May 16 and took photographs of the body of the deceased Magia Wans (annexed to the statement) depicting various wounds.
P27	Affidavit of Dr A Peawi, 15 May 16	He conducted the post-mortem examination of the deceased Magia Wans on 15 May 16 and prepared a post-mortem report.
P28	Post-mortem report re Magia Wans	External examination revealed that the deceased (male aged 25 years, weight 70 kg) had a partial decapitation, multiple skull wounds and parietal fracture and extradural haematoma and multiple lacerations to the chest and back, a left humeral wound and amputated left leg and bushknife wounds on upper and lower limbs – cause of death: severe head injury and hypovolaemic shock secondary to multiple bushknife wounds.
P29	Statement of Snr Sgt A Loloea, 16 May 16	He attended the post-mortem examination of the ten deceased persons conducted by Dr Peawi at Glen Rowan Funeral Home on 15 May 16 and took photographs of the body of the deceased Dudu Damap (annexed to the statement) depicting various wounds.
P30	Affidavit of Dr A Peawi, 15 May 16	He conducted the post-mortem examination of the deceased Dudu Damap on 15 May 16 and prepared a post-mortem report.
P31	Post-mortem report re Dudu Damap	External examination revealed that the deceased (male aged 50 years, weight 70 kg) had gunshot wounds to left flank, back of left chest and right thigh and hemoperitoneum and blood clot in left pleural cavity – cause of death: hypovolaemic shock from multiple bushknife wounds and penetrating chest and abdominal trauma from multiple gunshot wounds.
P32	Statement of Snr Sgt A Loloea, 16 May 16	He attended the post-mortem examination of the ten deceased persons conducted by Dr Peawi at Glen Rowan Funeral Home on 15 May 16 and took photographs of the body of the deceased Kisia Kitum (annexed to the statement) depicting various wounds.
P33	Affidavit of Dr A Peawi, 15 May 16	He conducted the post-mortem examination of the deceased Kisia Kitum on 15 May 16 and prepared a post-mortem report.
P34	Post-mortem report re Kisia Kitum	External examination revealed that the deceased (male aged 50 years, weight 80 kg) had a left flank gunshot wound and hemoperitoneum – cause of death: hypovolaemic shock due to gunshot wounds.

23. Evidence of the eight defence witnesses is summarised in the following table.

No	Witness	Description
1	Chris George Josh	The first accused
He is 21 years old – he was not involved in any of the fighting that took place on 26 or 27 April – he only heard about it – at 4.00 am on 28 April he heard from his uncle, Gideon Sasu, that members of the Amari tribe were coming to Zumim to fight – he was scared so he collected his properties and went to his garden, 5 kilometres into the bush – he and two other families led by his uncle, Gideon Sasu, and his cousin-brother, Luke Simpur, built bush-material shelters – they heard on 29 April that ten people had been killed in the incident of 28 April – he stayed in the bush until 17 May when he went to Mutzing looking for a vehicle to transport Gideon Sasu’s dry cocoa beans for sale, and that is when he was arrested by the police, with two hand grenades in his possession – the hand grenades were in a bag given to him by his cousin-brother, Inchum Saipa. In cross-examination he denied knowledge of being seen at the highway on 28 April and shooting Peter Muruai with a gun – he does not play soccer or any other sport – his main pastime is being a gospel music leader in the Lutheran Church.
2	Livai Solomon	The second accused
On 26 April he was in Madang, working with the Wari Muli bus – he and the driver, Ngari Iza, collected passengers and they went to Lae and stayed there that night – the next day, 27 April, they drove from Lae, with passengers, to Umi market, and that night went to his village, Antiragen – he was not at the place of the incident on 28 April – at 4.00 am on 28 April at Antiragen the SDA Pastor Felix Sabanga rang the bell in the village, as he had got news from his father who lives at Ragiampung that the Amari tribesmen were coming to fight about the incidents that had happened over the previous two days – Pastor Sabanga walked around with the assistance of councillors to each of the houses in the village and raised the alarm – the accused’s big brother, Mathew Nelson, who is the owner of the Wara Muli bus, came to his (the accused’s) house and asked him to take the bus away (as it was still under a loan of K40,000.00) – so he and the driver got in the bus and went to Lae – they went to Two Mile in Lae, which is a three-hour drive, arriving at about 6.00 am (he checked the time on his phone) – he stayed with his brother, Pastor Kennedy Wai, at the SDA compound for two-and-a-half weeks – then they resumed running the normal routes as before – the State witnesses who testified that he was involved in the incident of 28 April and killed one man were lying – on 8 June he was arrested by the police at Umi market when he was trying to pick up passengers – the police asked him if his name was “Abel Moses” but three times he said no – then he was asked to provide his crew permit, which he did, then another policeman told his arresting officer, Douglas Minja, who he was and they should let him go – but Minja decided to arrest him, despite his denials of involvement in the incident of 28 April, and detained him in Ramu Police Lock-up for ten days before taking him to Beon – he does not know why the State witnesses would lie about his involvement – he does not play soccer or any other sport, he is “sport-less” – his wife is from Wankung village and is a member of Amari tribe. In cross-examination he maintained that he was told by his brother, who is the owner of the Wara Muli bus, in consultation with his (the accused’s) father and his wife, to take the bus to Lae – so that is what he and the driver did – he was scared for his life and for the bus – he was afraid of what the Amari tribe would do as they are known to destroy property and have a bad name in the district – it was just him and the driver who took it to Lae – he left his wife and their child with his parents to look after – they left at 4.00 am – he denied leaving after 9.00 am, after he had killed Matia Rabang – they arrived in Lae at daybreak, around 6.00 am.
3	Pastor Kennedy Wai	Brother of second accused
He is a pastor in the Seventh-Day Adventist Church, based at Two Mile in Lae – he comes from Antiragen village and is an elder brother to the second accused, Livai Solomon, and the owner of the Wara Muli bus, Mathew Nelson – on the evening of 28 April, Mathew gave him a call and said that he was sending the bus down to Lae, with the driver and crew, because of the fight at Markham that day in which people had been killed – they arrived at his place at 8.00 pm on 28 April and stayed for two and a half weeks. Note: When this witness was giving evidence-in-chief there was an attempt by the second accused to communicate to the witness the need to amend his evidence, evidently because his evidence as to the timing of the arrival of the bus in Lae was in conflict with the defence case – a warning was duly issued to the second accused and the witness that such communication should not occur – there was no cross-examination of the witness.
4	Mathew Wai	AKA Mathew Nelson, brother of second accused
He is a cousin-brother of the second accused, Livai Solomon – he owns the Wara Muli bus – he lives at Antiragen – at 4.00 am on 28 April news spread in the village that the Amari tribe was coming to fight – the news was spread by an SDA pastor who got the information from his people in the Amari villages and rang the church bell and advised the people at Antiragen to hide their properties – he was concerned mostly about his bus so he approached his driver, Ngari Iza, and boss-crew, Livai Solomon, and told them to take the bus to Lae and keep it at his brother Pastor Kennedy Wai’s place – so they got the bus and left for Lae soon after 4.00 am – he called his brother as soon as the bus drove off – the bus should have arrived in Lae by 8.00 am – the bus stayed in Lae for two and a half weeks – when the situation calmed down he called them to bring back the bus and resume normal operations – he was surprised when he heard that Livai Solomon was arrested on 8 June as, on the day of the incident, Livai was in Lae – he owns three other vehicles, two tractors which he looked after in the village, and a truck that was at Wau-Bulolo – Livai Solomon does not play any sport, he is just a member of the youth group in the SDA Church. In cross-examination he said that Livai Solomon is married with two children and that they stayed with Livai’s parents when Livai went to Lae – when the Amari tribe arrived on 28 April he was not in the village as he took his properties to his bush garden for safekeeping – it was put to him that the bus did not leave for Lae on the morning of 28 April, it left much later that day: no, it left at 4.00 am on 28 April – Livai was not at Antiragen when the Amari tribe arrived.
5	Ngari Iza	Driver of Wara Muli bus
He is from Antiragen – he has been driving buses for ten years – early on the morning of 28 April Pastor Sabanga rang the bell in the village to warn people that the Amari were coming to fight – the owner of the Wara Muli, Mathew Wai, told him and the boss-crew, Livai Solomon, to take the bus to Lae, so that is what they did – they left at 4.00 am and they were in Lae at 8.00 am at Pastor Kennedy Wai’s house at 2 Mile – they stayed there for two-and-a-half weeks then resumed normal operations. He was with Livai Solomon when Livai was arrested – the police stopped the bus and asked three times if the crew was “Abel Moses” – he told them no, he was Livai Solomon, but they arrested him and took him to the police station. In cross-examination the witness denied that on 28 April, they had arrived in Lae at 8.00 pm – he denied telling stories that he had been told by others to tell – the news came from Pastor Sabanga to Mathew Wai that the Amari were coming so Mathew Wai told him (the witness) to get the bus to Lae.
6	Luke Simpur	Cousin-brother of first accused, Chris George
He is 49 years old and lives at Zumim and works for Markham Oil Palm Ltd at Mutzing – on 28 April he was at Zumim – at 4.00 am he heard that the Amari were coming to fight – the news was spread by Pastor Sabanga from Antiragen to Zumim, which are only a kilometre or two apart – he is a community leader and did not want his boys to be involved in the fighting so he told Chris George and other boys to take properties to their garden house in the bush – to they packed up their fridge and store goods and other properties and he and Chris George and a group of other family members went into the bush about 30 minutes’ walk away from the fighting area – they stayed there overnight on 28 April – Chris is his small brother and Chris attends the Lutheran Church and does not play sports. In cross-examination he stated that four houses were built in the bush on 28 April, and 37 families moved there to escape the fighting – the houses were completed by 6.00 am and the families moved into them at 7.00 am – it was put to the witness that he was fabricating his evidence as Chris George had not provided his name to the police in the investigation or mentioned that he was in the bush with 37 families: the story is true and he was in the bush with Chris George when the fighting took place.
7	Zizi Waikisa	Cousin-brother of first accused, Chris George
He is married with six children and lives at Zumim 1 – Chris George lives at Zumim 2 – on 28 April he was at Zumim – between 4.00 and 5.00 am he heard the ringing of the bell at Antiragen SDA Church and news of the impending fight, so he ran away into the bush – his wife and children were in Kainantu at the time so he went by himself – when he got into the bush he met Chris George – they built four houses, one for himself, one for Luke Simpur and two for Gideon Sasu (one for his family, one for his cocoa beans) – he stayed there for two days – the boys who built the houses stayed outside to guard the others – more than 50 people were there in the bush. In cross-examination he stated that the houses were built within a day – they were just rough houses to store the items removed from the village.
8	Gideon Sasu	Uncle of first accused, Chris George
He is married with five children and lives at Zumim 2 – on 28 April he was at Zumim 2 – at 4.00 am the church bell rang at Antiragen and the message reached him that the Amari were coming to fight – Chris George helped him and they carried their cocoa beans into the bush for their own safety and security – they built four houses out of bush materials and canvas, two for himself (one for the family and one for cocoa beans), one for Zizi Waikisa and one for Luke Simpur – he stayed there for almost a year as the situation was tense and there was a police presence and ten Amari had died and the Amari have a bad reputation for having an aggressive attitude. In cross-examination he stated that it took one day to build the houses – they moved the cocoa bags by hand – Chris George and other youths helped him do it in one trip – Chris George was with him at all times and Chris did not go back to the village once they were in the bush – asked how big the houses were, the witness replied that he was a villager and could not estimate the size – Chris George was with him until 17 May when he sent Chris out – he was surprised to hear that Chris was arrested on 18 May for having a bomb in his possession.

24. The following exhibits were tendered by the defence and admitted into evidence by consent:

25. That completes the summary of evidence. I now determine the four fundamental issues identified earlier.

(1) DID CHRIS GEORGE COMMIT THE OFFENCE OF WILFUL MURDER AGAINST PETER MURUAI?

26. The offence of wilful murder is created by Section 299(1) of the Criminal Code, which states:

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.

28. Under Section 291 of the Criminal Code a person “kills” another person when he causes the death of the deceased, directly or indirectly, by any means.

29. Having weighed the competing evidence and the submissions of counsel I find for the following reasons that the State has proven beyond reasonable doubt that Chris George directly caused the death of Peter Muruai by shooting him.

30. Three State witnesses (Timothy Bayang, Mathew Elisha and Puma Afing) testified that they were members of the Amari group and saw Chris George, armed with a gun, aim and fire a shot at Peter Muruai. Their evidence was clear and consistent. Their demeanour was sound. They were not shown to have any motive for giving false evidence. Their evidence did not appear to be exaggerated. I assess them as honest witnesses.

31. Mr Morog put to each of the State witnesses who identified the first accused as the person who shot Peter Muruai, that there were too many men on the road and they were too occupied with taking cover from missiles such as sticks and stones, there was too much noise and there were gunshots being fired, and they were being chased; so it is too difficult to believe that they could see who fired the shot at Peter Muruai, let alone identify the person. It was mayhem and they were forced to reverse towards Antiragen and they were too concerned about their personal safety to turn around and see who was involved. And they had only been told that Chris George was one of the shooters because he had a couple of weeks later been caught with hand grenades in his possession. Their evidence was just supposition, not based on what they saw; and though they said they knew Chris George through soccer, this only shows that they were mistaken about who they saw as Chris George is not a soccer player.

32. In light of those arguments, I have considered the principles on identification evidence in the leading Supreme Court cases of John Beng v The State [1977] PNGLR 115, Biwa Geta v The State [1988-89] PNGLR 153 and Jimmy Ono v The State (2002) SC698. I have considered the inherent dangers of relying on the correctness of identification to support a conviction and caution myself, as the tribunal of fact, accordingly. If the quality of the identification evidence is good the matter should proceed to verdict. However, if the quality of the evidence is poor an acquittal should be entered unless there is other evidence that goes to support the correctness of the identification. I remind myself there is always the possibility that an honest witness is mistaken, but still convincing.

33. In this case, I have assessed the three State identification witnesses as being honest witnesses. However, there is still a risk that they were mistaken about who they saw. The court must be satisfied that the witness is both honest and accurate. In assessing the quality of the identification evidence, relevant considerations include: whether the witness is purporting to identify a person who was a stranger or someone he recognised; the length of time that the witness observed the accused (eg a prolonged period or a fleeting glance); the emotional state of the witness at the time of the incident; the prevailing conditions (eg was it broad daylight or at dusk or dawn or inside or outside?); the line of sight (eg did the witness have a clear front-on view or was the line of sight interrupted or did the witness just see the accused from the side?). If there are discrepancies in the identification evidence the court should consider them and assess whether they are explicable in terms other than dishonesty or unreliability.

34. I uphold Mr Popeu’s submission that the identification evidence was of good quality for the following reasons:

35. In light of the above, I conclude that the identification evidence of the State witnesses was honest, accurate and reliable.

36. The first accused’s alibi was that at the critical time, 7 to 9 am on 28 April, he was not at the crime scene. He was in the bush five kilometres away, where he had fled with a number of others to evade the advancing Amari tribe, who he and others at his village had heard, at 4.00 am, were coming to fight. 37. His alibi was supported by the evidence of Luke Simpur, Zizi Waikisa and Gideon Sasu.

38. In considering the alibi I have applied the principles from the leading case John Jaminan v The State (No 2) [1983] PNGLR 318, in particular:

39. I have applied those principles and decided not to accept the alibi of Chris George for the following reasons:

40. The post-mortem report for Peter Muruai (exhibit P22) revealed that the deceased had a right-groin pellet wound and right-hand pellet wound and severed mesenteric vessels; and that his death was caused by hypovolaemic shock due to the penetrating abdominal wound, from a gunshot. This does not by itself implicate Chris George in the death but the evidence is consistent with the evidence of the State witnesses as to how Peter Muruai was killed, which is significant as those witnesses have given convincing evidence that it was Chris George and no one else who shot Peter Muruai.

41. The State has thus proven beyond reasonable doubt that Chris George directly killed Peter Muruai by shooting him with a gun. The first element of the offence of wilful murder is proven.

42. Section 289 of the Criminal Code provides that it is unlawful to kill another person unless the killing is authorised or justified or excused by law.

43. Chris George did not rely on any specific excusatory defence such as accident, compulsion, insanity, provocation or self-defence. His killing of the deceased is therefore not authorised, justified or excused by law and is deemed, by force of Section 289 of the Criminal Code, to have been unlawful. The second element of the offence of wilful murder is proven beyond reasonable doubt.

44. It is the state of mind of the person who killed the deceased at the time that the act of killing was committed that is critical. In assessing the state of mind at that time, evidence of his conduct (a) before, (b) at the time of, and (c) subsequent to, the act of killing, can be considered (Fei Stanley v The State (2006) SC1324, The State v Raphael Kuanande [1994] PNGLR 512). It is particularly relevant to assess the degree of viciousness of an attack, the number of wounds or blows inflicted on the deceased and whether such wounds or blows were directed at vulnerable parts of the deceased’s body.

45. Here, I accept the evidence of the State witnesses that Chris George aimed at Peter Muruai from close range and shot him in a vulnerable part of the body, the abdomen. The only reasonable inference to be drawn is that he discharged she lethal shot from the firearm with the intention of killing the deceased. The State has proven beyond reasonable doubt the third element of the offence of wilful murder: that Chris George intended to kill the deceased.

46. Chris George Josh is guilty of wilful murder under count 7 of the indictment.

(2) DID LIVAI SOLOMON COMMIT THE OFFENCE OF WILFUL MURDER AGAINST MATIA RABANG?

47. I address the three elements of the offence in the same way as for the first accused.

48. Having weighed the competing evidence and the submissions of counsel I find for the following reasons that the State has proven beyond reasonable doubt that Livai Solomon directly caused the death of the deceased by cutting and stabbing him with a bushknife.

49. Four State witnesses (Hicks Paranis, Joshua Ratu, Kerry Kiwisi and Kitum Dabin) testified that they were members of the Amari group and saw that Matia Rabang was shot and felled and that Livai Solomon, armed with a bushknife, arrived on the scene and set upon Matia Rabang as he lay wounded on the road and cut him on multiple occasions with the bushknife, inflicting wounds on various parts of his body. Their evidence was clear and consistent. Their demeanour was sound. They were not shown to have any motive for giving false evidence. Their evidence did not appear to be exaggerated. I assess them as honest witnesses.

50. I also assess State witness DFC Douglas Minja as honest. I am not persuaded by the defence counsel’s suggestion that DFC Minja gave false evidence about the circumstances of Livai Solomon’s arrest or that Livai Solomon was arrested by mistake or that the prime suspect should have been another man, Abel Moses. I accept DFC Minja’s evidence that he arrested Livai Solomon based on the information provided by witnesses who were present at the 28 April incident and on the identification of him by those witnesses at Ramu police station.

51. Mr Morog put to each of the State witnesses who identified Livai Solomon as the person who cut Matia Rabang after he was shot, that there were too many men on the road and there was too much noise for them to see who had cut Matia Rabang. It was mayhem and they were forced to reverse towards Antiragen and they were too concerned about their personal safety to turn around and see who was involved. They might have thought they were seeing Livai Solomon but they must have been mistaken as he was in Lae at the relevant time. Their evidence was just supposition, not based on what they saw; and though two of them (Joshua Ratu and Kerry Kiwisi) said they knew Livai Solomon through soccer, this only shows that they were mistaken about who they saw as Livai Solomon is not a soccer player, he is sport-less.

52. I apply the principles on identification evidence set out above in my findings on the first accused. I uphold Mr Popeu’s submission that the identification evidence was of good quality for the following reasons:

53. In light of the above, I conclude that the identification evidence of the State witnesses was honest, accurate and reliable.

54. Livai Solomon’s alibi was that at the critical time, 7 to 9 am on 28 April, he was not present at the crime scene. He was in Lae, having crewed the Wari Muli bus, which was driven there by Ngari Iza, on instructions from the bus owner, Mathew Wai, leaving Antiragen soon after 4.00 am, arriving in Lae at Pastor Kennedy Wai’s place at Two Mile around 6.00 am. His alibi was supported by the evidence of Mathew Wai and Ngari Iza.

55. In considering that alibi I apply the principles on alibi evidence set out above in relation to the first accused. I reject the alibi of Livai Solomon for the following reasons:

56. The post-mortem report for Matia Rabang (exhibit P7) revealed that the deceased had a slash wound across the right neck and multiple bushknife wounds on the chest and back and lower limbs, and that his death was caused by hypovolaemic shock due to multiple bushknife wounds. The post-mortem examiner, Dr Peawi, conceded that he had omitted from his report a detail included in Snr Sgt Loloea’s summary of the photographs of the deceased’s body: the deceased had a pellet wound on the left thigh. This is consistent with the State’s case: Matia Rabang was shot and felled, then he was set upon by Livai Solomon who inflicted on him the multiple bushknife wounds recorded in the post-mortem report and that those wounds led to hypovolaemic shock (a decreased volume of circulating blood in the body), which was the cause of death.

57. This does not by itself implicate Livai Solomon in the death but the evidence is consistent with the evidence of the State witnesses as to how Matia Rabang was killed, which is significant as those witnesses have given convincing evidence that it was Livai Solomon and no one else who attacked Matia Rabang with a bushknife.

58. The State has thus proven beyond reasonable doubt that Livai Solomon directly killed Matia Rabang by cutting him on multiple occasions with a bushknife. The first element of the offence of wilful murder is proven.

59. Livai Solomon did not rely on any specific excusatory defence. His killing of the deceased is therefore not authorised, justified or excused by law and is deemed unlawful by force of Section 289 of the Criminal Code. The second element is proven beyond reasonable doubt.

60. I find Livai Solomon cut the deceased with such viciousness and intensity, on multiple occasions on vulnerable parts of the body, that the only reasonable conclusion can be that he intended to kill the deceased. I find that the State has proven beyond reasonable doubt the third element of the offence of wilful murder: that Livai Solomon intended to kill the deceased.

(3) HAS THE STATE PROVEN BEYOND REASONABLE DOUBT THAT EITHER ACCUSED IS GUILTY OF ANY OF THE OFFENCES BY VIRTUE OF SECTION 7(1) OF THE CRIMINAL CODE?

62. The criminal liability of the two accused must now be considered in light of Section 7(1) of the Criminal Code:

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

(d) any person who counsels or procures any other person to commit the offence.

63. The State led no direct evidence as to how the eight deceased other than Peter Muruai and Matia Rabang were killed, or who killed them. The State failed to prove that by their participation in their tribe’s activities either of the accused did acts for the purpose of enabling and aiding each other, or those who directly committed the eight other offences, to commit the offences, or aided them in committing the offences; the consequence being that neither of the accused can be convicted under Section 7 of the Criminal Code of any offences other than the offence of which he was by virtue of direct evidence convicted.

(4) HAS THE STATE PROVEN BEYOND REASONABLE DOUBT THAT EITHER ACCUSED IS GUILTY OF ANY OF THE OFFENCES BY VIRTUE OF SECTION 8 OF THE CRIMINAL CODE?

64. The State, having led no direct evidence as to how each of the accused interacted with each other and the members of the tribe who staged the attack on the deceased persons’ tribe, failed to prove beyond reasonable doubt that either of the accused formed a common intention to prosecute an unlawful purpose (to kill members of the tribe marching along the highway) and in the prosecution of that purpose, other offences were committed that were of such a nature (involving death) that commission of those offences was a probable consequence of the prosecution of that unlawful purpose. The consequence is that neither of the accused can be convicted under Section 8 of the Criminal Code of any offences other than the offence of which he was by virtue of direct evidence convicted.

65. Verdicts for Chris George Josh and Livai Solomon, having each been indicted on ten counts of wilful murder under Section 299(1) of the Criminal Code, are entered as follows:

Chris George Josh: guilty of wilful murder of Peter Muruai, being count 7 on the indictment, not guilty of counts 1, 2, 3, 4, 5, 6, 8, 9 and 10;

Livai Solomon: guilty of wilful murder of Matia Rabang, being count 1 on the indictment, not guilty of counts 2, 3, 4, 5, 6, 7, 8, 9 and 10.

Verdicts accordingly.
________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused

No	Description	Content
D1	Crew permit	Permit to act as crew member on PMV, permit No B94657: Livai Solomon, date issued: 07.07.15, date of expiry: 07.07.2018.
D2	Fermentry ID card	Cocoa Board of PNG: Gideon Sasu, owner/manager, Zumim #2 village, Umi-Atzera LLG area, 2015/2016 cocoa year, expiry date: 30/09/16.

National Court of Papua New Guinea

State v Josh [2019] PGNC 190; N7915 (16 May 2019)