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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NOS. 950, 948, 947, 949 & 952 OF 2020
THE STATE
v
TIMOTHY LIVIKA, PETER PETSIA & ESAU KANKAN KABAIWAS, All of Poponovam Village Namatanai New Ireland Province,
AND:
JOSHUA SOMURE KAKEMBUSO, of Morai Village Namatanai New Ireland Province,
AND:
MELENGA SARIMUN of Beko Village Namatanai New Ireland Province
Kavieng: Yagi J
2021: 08th, 09th, 12th, 13th, 14th, 15th, 30th July & 20th August
CRIMINAL LAW – trial - particular offence – 6 counts of wilful murder – Criminal Code, s. 299(1) – alleged killing on a boat at high sea - issue of identification of the perpetrators - alibi evidence raised by the accused persons – principles of identification evidence and alibi considered – prosecution carries the burden of proof – standard of proof in a criminal case is beyond reasonable doubt – if accepted, the evidence of identification is of sufficiently good quality – alibi story found to be reasonably strong – demeanour and credibility of the eye witness – inconsistencies in prosecution evidence - evidence by eye witness not credible and reliable – prosecution case not proven beyond reasonable doubt – benefit of doubt given to the accused – not guilty verdict returned - five accused found not guilty and acquitted.
Cases Cited:
Papua New Guinea Cases
John Beng v The State [1977] PNGLR 115
State v Paul Dimon Asilip (2011) N4191
State v Luther Francis Melo (2015) N6153
John Jaminan v The State (No 2) [1983] PNGLR 318
Overseas Cases
Brown v Dunn (1893) 6 R 67 (HL)
Counsel:
Ms L Jack, for the State
Mr N Motuwe, for all 5 Co-Accused
JUDGMENT ON VERDICT
20th August, 2021
1. YAGI J: This is the verdict in respect to the named 5 co-accused who are jointly tried on 6 counts of wilful murder. They are alleged to have killed 6 people whilst travelling on board a dinghy at sea between Konos on mainland New Ireland and Tabar Group of Islands on 06 July 2019. All have been indicted on six counts under s. 299(1) of the Criminal Code Act (the Code). The State also invoked s. 7(1)(a), (b) and (c) and s. 8 of the Code in prosecuting the case because it is alleged the killings involved each of them acting in a group.
2. Initially the indictment was presented against 7 co-accused including the present 5 co-accused who are the subject of this verdict. Two of them namely Petsia Lalu (CR No 949 of 2020) and Joseph Kakembuso (CR No 971 of 2020) were found not guilty, acquitted and discharged following a no case submission.
General allegations
3. The State alleges that the 6 victims namely Obert Walimba, Dinah Benson, Karen Segilot, Zethro Molonges, Benjamin Pitak and Bodger Monep were travelling on a boat at sea between Konos and the Tabar Group of Islands on 06 July 2019. The boat was on hire by a local company called Simberi Pit Owners Limited (SPOL). The boat was loaded with cargoes, mainly food supplies, at Konos and departed for Simberi Island with the victims.
4. The State further alleges that the 5 accused and a young boy named Diven Gerson got on another boat and followed the SPOL hired boat and caught up with it at sea. They went close to the SPOL boat and drifted side by side.
5. An argument erupted between the passengers on the SPOL boat and the accused persons resulting in the 6 victims being attacked and killed with a bush knife and a wooden paddle. The bodies of the victims were thrown into the sea and the cargoes were transferred onto the boat used by the accused persons.
6. The SPOL boat was towed to a bay at Big Tabar where blood was washed away and later towed away and disposed off.
7. The young boy Diven Gerson subsequently revealed the identity of the accused persons and consequently they were arrested and charged for the crimes.
8. It is therefore the State’s allegation that the 5 accused acted together in company of each other in wilfully murdering the 6 victims, hence contravening s. 299(1) of the Code.
The evidence by the Prosecution
9. The State called 14 witnesses and tendered a host of documents including the record of interview between the police and each of the 5 co-accused and statements of other witnesses. These documents were tendered by consent. They are neatly enumerated and identified in the list of exhibits. No medical report was tendered as the body of the 6 deceased had not been found.
10. The first witness was Elias Watachi. He is an elderly married man from Napakur village on Simberi Island. He owns and operates the SPOL company. The company is sub-contracted to Simberi Gold Mining Company and engages principally in catering services. It employs 54 people.
11. He gave evidence that on 06 July 2019 he hired a boat from a local man to travel to Konos to buy food for the company employees. He did not personally travel, however, engaged the company employees for the trip. These employees were Obert Walimba, Bodger, Benjamin and another whose name he could not recall. He stated that he does not know the other names of the 2 employees: Bodger and Benjamin. However, he identified Bodger as one of the cooks. He gave evidence that the hired boat was to be skippered by Obert Walimba with his 3 company employees on board for the trip. The boat was supposed to return to Simberi Island on the same day (Saturday, 06 July 2019). When the boat failed to return, he was informed about it the following day (Sunday). He then reported the matter to Search and Rescue Division of the mining company for assistance. Sea search was conducted on Monday and Tuesday (08 and 09 July 2019) but was unsuccessful. No debris were found including any signs of human body and cargoes. To date the 4 employees of the company are missing.
12. The second witness is Benson Sialis. He is a married man with 8 children and comes from Lovan village on Simberi Island. He gave evidence that one of his children is Dinah Benson. He stated that his daughter went missing on or about 06 July 2019. His daughter was in company with another girl namely Karen Segilok and both girls went missing at the same time. He said his daughter left Simberi Island and travelled to the mainland where she and Karen Segilot travelled to Konos to get a free ride on the SPOL hired boat back to Simberi Island. However, both girls never arrived at Simberi Island and to date they have not been located.
13. The third witness is Ambrose Segilok. He is from Bulu village and is a teacher at Lasiki Elementary School. He is married with 4 daughters. One of the daughters is Karen Segilok who was aged 19 years in 2019. He testified that on Saturday 06 July 2019 he went to Church. Karen was in the house partly because of a planned trip to Simberi Island with her cousin sister Dinah Benson. He was later informed that Karen and Dinah travelled to Konos that same day to get a ride on a SPOL hired boat to Simberi Island. He contacted Dinah’s uncle (Watachi) on Simberi Island on Sunday and Monday (07 and 08 July 2019) and was informed that the two girls had not arrived on Simberi Island. He said from that date (06 July 2019) to the present time he has not seen Karen again.
14. The fourth witness is Maria Sangal. She is from Matlik village on big Tabar Island. She has 6 children and one of them is Obert Walimba. She told the Court that Obert was born in 1982. He left for Simberi Island and was working as the operator with SPOL.
15. She stated that she was at her village when the SPOL Manager informed her that Obert did not return on the trip to Konos on Saturday 06 July 2019. She said she had not seen Obert since 06 July 2019 and has since been grieving.
16. The fifth witness is Lawrence Bale. He is from Katatar village, Beko community on Tabar Island and is a villager. He previously worked for the Simberi Mining Company as a boat operator. He is married with 4 children.
17. He stated that in the morning between 09.00 and 10.00 o’clock on Saturday, 06 July 2019 he was at Konos. He prepared himself to get on a boat to travel to Simberi. He went and approached Petsia Lalu and was permitted to board his boat. He said another man named Lamis also boarded the boat. When the boat departed for Simberi the people on board were Lamis, a little boy named Diven who was the co-operator of the boat, Petsia Lalu who was the boat owner and operator, a Highlands man and himself. The boat was also loaded with cargoes belonging to Lamis. He described the boat skippered by Petsia as white in colour named N2NAR and powered by a 40hp engine.
18. He said as the boat sailed through the passage, they met up with a 60hp boat coming from Simberi Island. Both boats stopped side by side. Whilst the passengers on both boats sat and waited the skipper of the 60hp boat and Petsia Lalu engaged in some conversation. A bunch of bettelnut was supplied from the 60hp boat to the 40hp boat. The witness said he was seated at the end of the 40hp boat and when he looked down into the 60hp boat he saw a knife at the side of the boat. He said he saw Livika and Kankan sitting as passengers on the 60hp boat. There was also a female on that boat. He was able to recognize Livika and Kankan but does not know their other names. The boats drifted side by side for about 10 minutes before departing for their respective destinations.
19. Those on board the 60hp boat were Peter Petsia, the skipper, who is a son of Petsia Lalu. There were also other passengers on board the 60hp boat, however, he does not know them. During the 10 minutes stop-over he heard Petsia Lalu telling Peter Petsia to keep an eye out for Livika who is on a bus travelling to Konos from Kavieng on that day.
20. The 40hp boat went on and dropped off Lamis and his cargo at Savanot, Tatau passage. It then travelled on to Mission on Simberi Island and dropped the witness (Lawrence Bale). He was dropped off around 12.00 noon.
21. The seventh State witness is Frank Igua Junior. He is born to a mix parentage of New Ireland and Central Provinces. His father is from Tabar. He once worked for St Barbara – the mine operator on Simberi Island.
22. He told the Court that he was at Konos beach early morning between 07.00 – 08.00 o’clock on Saturday, 06 July 2019. He went there to collect money from a boat operator travelling from Tabar. After receiving his money, he walked up from the beach and met Walimba, the operator of a boat. He knows Walimba by his first name only. However, Walimba is a relative to him and he previously also worked with Walimba for the SPOL company.
23. He said Walimba asked for his assistance to carry cargoes from Soho store to the beach. He offered his assistance, and the cargoes were transported in a motor vehicle to the beach and loaded onto the SPOL boat. The cargoes included bags of flour, 10kg and 20kg bags of rice, cartons of Ox & Palm and cartons of tinned fish. In addition to the cargoes there were 6 persons on board. These were Walimba – the skipper, Jethro, Benjamin, a man identified as SPOL cook and 2 girls – one of which is Benson’s daughter. The SPOL boat was skippered by Walimba and it departed Konos beach at about 1.00 o’clock in the afternoon.
24. He said whilst at the beach he saw many boats there. Amongst the boats was a boat operated by the name of Petsia Lalu. The boat operated by Petsia Lalu was travelling out with passengers on board. This was around 12.00 midday. Among others he recognized 2 of the passengers. They were Lawrence Bale and Lamis.
25. He also gave evidence as to the weather. His evidence is that the weather was fine until about 1.00 o’clock in the afternoon when dark clouds were forming. It followed by heavy rain, but the rain lasted for only a short while possibly about 45 minutes and it cleared off with sun light resuming.
26. The eight State witness is Salamiet Balat. She is an unmarried woman and comes from Simberi Island. Her evidence is that she was at Kemadan Health Centre with an old man named Ranran. In the morning on Saturday 06 July 2019 both travelled to Konos to catch a boat to their village on Simberi Island. When they arrived at the beach, they waited for some time. Later she saw the boat owned by Peter Petsia. She approached Peter Petsia and asked for a ride to Simberi Island and was given a positive response. However, she and Ranran did not get on the boat because they were afraid of the looming weather. She described the weather as rain and wind. She said the storm started sometime after midday and lasted for only a short time. She stated that she was still at the beach when she saw Peter Petsia’s boat depart Konos beach between 01.00 and 02.00 o’clock in the afternoon. She said due to strong winds and the storm she decided to cancel her trip.
27. After the storm ended that afternoon, she went back to her home and slept. The next day (07 July 2019) she was transported early to Konos beach where she got on a boat named Leongfu and travelled to Simberi Island. Whilst at Konos beach she also saw Peter Petsia’s boat.
28. The ninth State witness is Tina Tek Yapuk. She is young woman of mix parentage. Her father is from the Morobe Province and the mother is from Tabar Island. She completed grade 10 in 2016 and is living with her parents at Konos. The family have a block of land and they reside there.
29. She gave evidence that she was at the family house at Konos on Saturday, 06 July 2019 when the two accused Livika Kambawais and Joshua Somure Kakembuso plus 2 female and a newborn baby disembarked from a PMV bus travelling from Kavieng to Namatanai. She knows Livika and Somure quite well as she is closely related to both through her mother’s side. She calls Livika and Somure as brothers. As for the two females she knows only one of them, namely Michaelyne as both are former pupils at Malamala Primary School. Tina recently came to know the other female, namely, Bungulu after being introduced by Michaelyne.
30. Tina told the Court that when the 4 jumped off the PMV bus they went down to her house. Michaelyne and Bungulu and the baby were with her at the house whilst Livika and Somure went to the passage at the beach. Livika and Somure were drinking alcohol. Before they left for the beach Tina asked Livika for a favour to buy her a tin of Ox & Palm corned beef.
31. Tina said she stayed with Michaelyne and Bungulu at the house. After waiting for some time, she went in search for Livika to follow up on her request. She walked down to the passage where the boats berth to drop-off or pick-up passengers commuting between Konos and Tabar Islands. When she arrived at the beach, she saw Livika, Somure and Kankan drinking with the employees of SPOL. The group were busy indulging in alcohol consumption that they were oblivious of her presence. She went and stood under a tree about 4 – 5 meters away. Whilst standing there she heard Livika called out to Walimba in local Tabar dialect words to the effect “go and buy a carton of beer”. When Walimba returned with a carton of beer he offered it to Livika. However, Livika refused to accept it and he told Walimba to take it to his boat so they could drink it out at sea. Livika then turned to Somure and Kankan and uttered words to the effect “Let him have it, he will be dead out at sea.”
32. Tina then returned to her house where she was informed about a pitpit stealing incident, so she went back to the beach. As she ran towards the beach, she saw the SPOL boat leaving the beach. At that time Tina said there was a big storm with rain and as she watched the departure of the SPOL boat she felt sad seeing the SPOL boat sailing out during bad weather.
33. Tina then returned to her house and stayed there until her parents arrived in the afternoon. She was with her parents in the house for a while before seeing the 2 accused - Kankan and Melenga anchoring the 60hp boat at the family beach front sea wall. She said this was between 6.00 and 7.00 o’clock in the evening when the place was getting dark. After anchoring the boat, the 2 accused came ashore to the beach and to her house and then went away.
34. The next day (Sunday, 07 July 2019), Livika was drunk, and Tina’s mother asked if she could hold onto Livika’s bilum (string bag).
35. Tina also said it was early Sunday morning, probably about 5.00 or 06.00 am that Michaelyne and Bungulu left the house and travelled back to Tabar Island.
36. Tina said later Livika returned to the house and was greeted by her father to which Livika responded saying he travelled by 60hp out and returned by 40hp just to retrieve his bilum because his wife was complaining.
37. Tina told the Court that when she was at the beach on 06 July 2019, she saw all accused sitting and drinking alcohol. They were drinking with Walimba, Benjamin, Bodger and others as well.
38. The next witness for the prosecution was Michael Vanariu. He is from Banesa village Big Tabar and is unemployed and married with children. He gave evidence of what he heard from the accused Timothy Livika Kambai was about 10 days after the alleged killing incident.
39. Michael stated that on Monday, 15 July 2019 he travelled with Lasum Tulavis and Lasum’s father to Simberi Island. They were at the Mining site and went down to the beach where they chewed bettelnut. There the accused Timothy Livika Kambai approached them and asked for bettelnut and so he was offered bettelnut where they all chewed together. During this gathering Livika asked Michael and others whether they had any knowledge about the missing boat. When they responded in the negative Livika said the following:
“40 left Konos first and travelled to Simberi. After 60 followed and went and met them side by side out at sea. The passengers from 60hp asked Walimba who skippered 40hp boat and they asked Walimba if possible if some of the passengers on SPOL boat to relocate to the 60hp boat because the SPOL 40hp boat was over loaded. Walimba responded saying the SPOL boat was on hire and his 40hp boat was ok. One of the passengers jumped off the 60hp boat and the 60hp boat returned to Konos.”
40. The next State witness was David Sam. He is from Lakau village on Tautau Island. He gave evidence as to what the accused Peter Petsia told him and others 6 days later about the missing SPOL boat incident.
41. David gave evidence that he and his family members were at Simberi Health Centre and wanted to return to their village on Tautau Island. The members of his family consisted of his wife, his mother-in-law and his last born child. He and his family members and 3 others were talking when the accused Peter Petsia arrived on the boat N2NAR which he skippered. With him on the boat were Timothy Livika, Salin Kabaiwas and Diven Gerson. David approached Peter Petsia and asked for assistance and was given the permission. They were in a hurry because Timothy Luka was going to catch land transport at Konos. As they began their journey the accused Peter Petsia asked David and his family whether they knew of a missing boat. When they responded in the negative Peter Petsia told them about a missing boat loaded with SPOL cargoes. Peter Petsia said on Sunday to Tuesday, the sea was calm. On Saturday there was storm. Peter Petsia asked the skipper of the SPOL boat to share the cargoes, but the request was refused. Peter Petsia saw the storm coming and suggested to those on the SPOL boat to delay their trip, but they did not heed his suggestion and the SPOL boat travelled out into the storm. Peter Petsia waited until later in the afternoon he left Konos and travelled out. When Peter Petsia was travelling to his village darkness fell but he continued until he reached Poponovan village. The following Monday Peter Petsia went to Tovir village and dropped off a man named Pais.
42. David said he was confused when he heard the story from Peter Petsia dropping off Pais at Tautau Island on Monday because that event occurred on the previous day, Sunday.
43. Pius Vaket was the next prosecution witness. He is an elderly man from Napukur village on Simberi Island. He is a Community Worker with Simberi Area Association and a Pastoral Coordinator with the Catholic Church Parish on Tabar known as Mapua Parish.
44. He gave evidence of what other people heard the phrase “King of the Pirates” allegedly uttered publicly by the accused Timothy Livika after the SPOL boat went missing.
45. Nason Kumo was the next prosecution witness. He is a villager from Buka village on Tautau Island. He gave evidence as to the sighting of an unidentified decomposed human body floating at sea close to Tabar Island.
46. The fourteenth and final witness for the prosecution was Diven Gerson. He is a young boy aged 17 years and resides at Poponovan village on Simberi Island. He is the only eyewitness for the State.
47. The details of his evidence can be found in the transcript of the proceeding. However, the essence of his evidence can be summarized as follows. In the morning on Saturday, 06 July 2019 he accompanied Petsia Lalu on a boat trip from Simberi Island to Konos. They travelled on a 40hp boat described as N2NAR (see Exhibit “S2”). The boat was skippered by Petsia Lalu, and he was the crew on the boat. They left Poponovan village at around 08.00 o’clock and travelled to Maragon passage where passengers were collected, and they travelled across the sea to Konos.
48. At Konos the passengers disembarked from the boat. Diven and Petsia remained at Konos beach for some time. They eventually secured 4 passengers for the boat trip back to Simberi Island. The passengers were Jacob Lamis, Lawrence Bale, a young boy from East New Britain and a man from Sepik.
49. They left Konos sometime in the morning and arrived at Tautau where they dropped off Jacob Lamis. They then travelled to Simberi Island. They entered the Simberi passage and dropped off Lawrence Bale and proceeded on to Maragon passage where the boy from East New Britain Province disembarked. From there they travelled to Poponovan village where Diven, Petsia and the Sepik man got off the boat.
50. Diven said he and Petsia remained at Poponovan for some time before travelling back to Konos. There were no other persons on the boat except Petsia and himself on this trip back to Konos. When they arrived at Konos passage they remained there for a while.
51. Whilst at Konos the accused Timothy Livika and Petsia Lalu went to a store and refilled 8 plastics of fuel. These plastics of fuel belonged to Livika which he usually sells back in the village for K35.00 per gallon of fuel. Livika and Petsia returned with the plastic of fuel and loaded them onto the 40hp boat owned and skippered by Petsia. After the plastics of fuel were loaded Petsia instructed Diven to leave the 40hp N2NAR boat and jump onto the 60hp boat skippered by Peter Petsia which was also at Konos beach. Diven does not know the reason why Petisa moved him from the 40hp N2NAR boat to 60hp boat.
52. When Diven jumped onto the 60hp boat, Petsia then travelled alone back to Simberi Island on the 40hp N2NAR boat loaded with the plastics of fuel.
53. Diven said he and others on board the 60hp boat left Konos for Simberi Island shortly after 12.00 o’clock. Those on board with him were the 5 accused - Peter Petsia, Kankan Kabaiwas, Joshua Somure Kakembuso, Melenga Saramum and Timothy Livika.
54. Divan stated that when he and accused persons left for Simberi Island the SPOL boat was still at Konos beach. He recognized some of the passengers on the SPOL boat. Those he recognized were Walimba, a female who is Benson’s daughter and SPOL cook. He said the SPOL boat was loaded with cargoes.
55. Diven later changed his evidence as to the sequence in the departure of the 60hp boat and the SPOL from Konos beach. When prompted by the prosecutor he said the SPOL boat departed Konos ahead of the 60hp boat which he and the accused persons were on.
56. Diven stated that when he and the accused persons departed Konos there was storm and rain. They followed the SPOL boat and when they got close to the SPOL boat the accused Peter Petsia called out to the SPOL boat. The SPOL boat then slowed down and the 60hp boat sailed to its side. The 2 boats were drifting side by side with their engines still running.
57. During this time Diven was sitting at the back near to the engine of the 60hp boat and he saw the accused Melenga Saramun talking to the passengers on the SPOL boat. He saw that Melenga was arguing with Walimba and a black skin man on the SPOL boat. He did not hear what the conversation and argument was about because of the noise from the engine. He was only observing from his position.
58. During the argument he saw Melenga grab a bush knife and cut the left hand of the black skin man. He swung the bush knife again and chopped off the head of the black skin man. The head and body fell into the sea. Melenga then went over to Walimba and using the same bush knife he cut off Walimba’s left hand and neck.
59. This was followed by the accused Kankan Kabaiwas using a sharp pointed wooden paddle in attacking Benson’s daughter. Kankan hit her on the head and she fell into the boat and died instantly.
60. After witnessing the murder of the 3 people on the SPOL boat Diven was directed to go under a canvass at the front of the 60hp boat. He remained under the canvass for some time until the 60hp boat arrived at a beach in a bay on Big Tabar Island (see Exhibit “S3”). Whilst under the canvass he heard noises of persons falling into the sea. He also felt the 60hp boat rocking from side to side.
61. When Diven came out of the canvas he saw cargoes on the 60hp boat. He said these cargoes were on the SPOL boat and moved onto the 60hp boat. He also saw the SPOL boat on the beach minus its 40hp engine and the passengers. He also saw blood on the SPOL boat. At the beach all the accused persons were washing off the blood on the SPOL boat whilst Diven was sitting on a mangrove tree branch.
62. After the blood was washed off the SPOL boat was tied to the back of the 60hp boat and towed away towards the back of big Tabar Island. The two accused - Peter Petsia and Kankan Kabaiwas were on the 60hp boat that towed the SPOL boat away. This happened towards the evening on 06 July 2019. It took some time before the 60hp boat returned to the beach minus the SPOL boat. The other accused and Diven then jumped onto the 60hp boat and they all travelled onto Morai village. The accused Joshua Somure Kakembuso belonged to Morai village.
63. When they arrived at Morai village Vincent Kakembuso and one of his grandchildren came to the beach to greet and meet them. When Vincent Kakembuso saw the cargoes on the boat he asked what they were up to, however, the accused Kankan told him to fetch people to come and carry the cargoes away.
64. When the cargoes were carried away Diven went to and sat at Kakembuso’s house and observed that the cargoes were carried to Vincent Kakembuso’s house. After all the cargoes were taken away the accused Joshua Somure Kakembuso, Peter Petsia, Timothy Livika and Essau Kankan Kabasiwas joined Diven before Joshua Somure Kakembuso left for his house. Whilst they were sitting in the house Peter Petsia asked Melenga Saramun to go and anchor the boat. This was when the place was getting dark.
65. Diven said the accused Kankan Kabaiwas, Melenga Saramun and Timothy Livika later went to Kakembuso’s house. Diven slept alone in the house boy that night.
66. Diven was woken up very early about 05.00 o’clock the following morning (Sunday, 07 July 2019) by the accused Peter Petsia and told that they were travelling to Konos to pick up passengers. The people on the 60hp boat that travelled from Morai village to Konos that morning were the accused Peter Petsia, Joshua Somure Kakembuso, Essau Kankan Kabaiwas, Melenga Saramun and Diven.
67. When they travelled to Konos Diven was instructed by the accused Peter Petsia to get under the canvass when the boat is about to reach Konos passage. Diven was also told that when the boat reached the beach, he is not to sit on the form but to go under the canvass and hide. Diven complied with the instructions.
68. When the 60hp boat reached the beach Diven was already under the canvass. They remained there for a while. Some passengers boarded the boat. He did not see the passengers, but he could tell because the cargoes were placed by the accused Kankan Kabaiwas under the canvas next to Diven. After the passengers got on the boat, the boat left Konos and travelled to Tabar and the final destination was Poponovan village. When the boat was returning to Poponovan village the canvass was removed from Diven by the accused Essau Kankan Kabaiwas.
69. At Poponovan village the accused Peter Petsia approached his father (Petsia Lalu) and obtained the 40hp N2NAR boat and returned to Konos with the other accused Melenga Saramun, Timothy Livika and Joshua Somure Kakembuso. Diven and the accused Essau Kankan Kabaiwas stayed back at Poponovan village.
Evidence for the Defence
70. As for the defence witnesses all the 5 accused gave their evidence on oath after being advised of the 3 options. The defence also called 2 other witnesses to support their alibi. They are Josephine Langasi Bungulu and Joel Lutut.
71. The accused Joshua Somure Kakembuso gave evidence that he was in Kavieng Town on Saturday, 06 July 2019. At about 01.00 or 02.00 o’clock in the afternoon that day he travelled by a late PMV bus from Kavieng to Konos. He was accompanied by Josephine Bungulu, Michaelyne Langasi with her new born baby and the accused Timothy Livika. They arrived in Konos between 3.30 and 4.00 o’clock in the afternoon.
72. Upon arrival at Konos he went to the beach. There he met Joel Lutut, Peter Petsia, Kankan Kabaiwas, Melenga Saramun and other passengers. He did not see Diven Gerson at the beach. Except for the CHL 60hp boat skippered by Peter Petsia there was no other boat at the beach at Konos. Furthermore, he did not see Walimba or the SPOL boat at the beach. The weather was bad, so a decision was made by the skipper of 60hp boat not to travel that day and for them to sleep overnight. The boat was taken to Tek Yapuk’s place and anchored there. He slept at the chambers during the night. Early next morning (Sunday, 07 July 2019) about 06.30 am the boat was taken from Tek Yapuk’s place and brought to the beach where he and others got onto the boat and travelled to Tabar. They departed about 07.00 o’clock in the morning. The weather was fine when they travelled. Those that travelled on the 60hp boat that morning were Josephine Bungulu, Michaelyne Bungulu and her newborn baby, Melenga Saramun, Timothy Livika, Peter Petsia, Essau Kankan Kabaiwas and some employees of Simberi Mining company. The boat was full when it left Konos. He said Diven Gerson was not at the beach and did not travel on the boat.
73. Along the trip they dropped off a medical officer at Tatau. Then they travelled to Simberi passage where another passenger was dropped off. The next stop was at Maragon passage where they dropped off Josephine Bungulu, Michaelyne Bungulu and the baby and finally the journey ended at Poponovan village where the rest of them disembarked.
74. Whilst at Poponovan village he went and collected his documents from his young brother (Jeremiah Kakembuso). Later he jumped on a 40hp boat skippered by Peter Petsia and returned to Konos. Peter Petsia wanted to pick up the remaining passengers at Konos. Those on the boat during that trip were Peter Petsia, Timothy Livika, Melenga Saramun and himself. When they arrived at Konos he remained at Konos whilst the group returned to Simberi Island with the passengers.
75. He also gave evidence of what he claims to be a framed allegation based on a “glassman” myth. He named that person as George Toalet from Likas village in the Namatanai District. He said George identified him by the name Stephen and his little brother as Sylvester Orim as the murders named in a warrant used by the Police during the initial investigations to which George was paid for his service with a 16x seater bus owned by his family.
76. The accused Peter Petsia gave evidence that in the morning on Saturday, 06 July 2019 he skippered the 60hp boat from Simberi Island to Konos. His crew on the trip was Kankan Kabaiwas. They had 2 passengers with them – Magdalene and Steven. They arrived at Konos at 09.00 o’clock in the morning.
77. As they reached Konos passage they met up with 40hp N2NAR boat skippered by his father (Petsia Lalu). The passengers on board his father’s boat were Jacob Lamis, Bale, Diven Gerson and Wilfred. His father told him that Timothy Livika was still in Kavieng Town.
78. When they reached the beach, they pulled the boat up offshore and waited. He met Joel Lutut and were together at the beach.
79. Between 12.00 midday and 01.00 o’clock in the afternoon there was a storm which lasted for about 1 to 1½ hours and it continued. The storm reached out to the sea and the Tabar Islands were not visible from Konos. The weather remained static until about 03.00 or 04.00 o’clock in the afternoon when his passengers arrived. His passengers were Timothy Livika, Joshua Kakembuso, July – a Safety Officer at Simberi Gold Mining company, a medical officer of Tatau Aid Post, Rodish a man from Madang who works at Simberi and Joel Lutut. They were together at the beach when he told these passengers that the weather was not fine so they will have to sleep as he took into consideration there was a newborn baby amongst them. The decision he took was supported by the medical officer and the Safety Officer.
80. At the time the decision not to travel was made there was no other boat at the beach. The only boat there was the 60hp boat that he skippered.
81. They therefore did not travel out to the Tabar Islands that afternoon or during the night. They slept at the President’s place at Konos. Josephine Bungulu and Michaelyne Bungulu and her baby slept at Tek Yapuk’s house.
82. The next morning (Sunday, 07 July 2019) the 2 accused Melenga Saramun and Essau Kankan Kabaiwas went to Tek Yapuk’s place at about 06.00 o’clock and brought the 60hp boat to the pickup point at the beach where all his passengers got on and they departed Konos at 07.00 o’clock. The passengers he named were Joshua Kakembuso, Timothy Livika, Melenga Saramun, Rodish, July – the Safety Officer, the medical officer at Tatau, Samson, Nicko, Josephine Bungulu and Michaelyne Bungulu with her baby.
83. He said that time Diven Gerson was not with them and he did not know where Diven was.
84. The journey on that Sunday morning took them to Tatau Island where the medical officer was the first to be dropped off. They then travelled to Simberi passage and dropped off Nicko. Then to Maragon passage where Josephine, Michaelyne and the baby were dropped off. The rest of the passengers got off the boat at Poponovan village where they jumped onto vehicles and went to their respective residences. They arrived at Simberi at 09.00 o’clock that morning.
85. He remained there for a while and at 10.00 o’clock that morning he went to his father (Petsia Lalu) and secured the use of the 40hp N2NAR boat to travel back to Konos to pickup the remaining passengers. On this trip he was accompanied by the three accused Joshua Kakembuso, Timothy Livika and Melenga Saramun.
86. The accused Joshua Kakembuso remained at Konos whilst he travelled back to Simberi with the two accused Timothy Livika and Melenga Saramun. Melenga was on that trip as a crew on the boat. They collected four additional passengers at Konos and these are Spako, Lamza Bongu from Tatau and 2 women. They departed Konos at about 01.00 o’clock in the afternoon and arrived at Simberi at 3.00 o’clock in the afternoon.
87. The accused Timothy Livika gave evidence that he was in Kavieng Town on Saturday, 06 July 2019. He had been in Kavieng to process his loan application with NASFUND. He travelled to Konos between 01.00 and 02.00 o’clock on that day on a late PMV bus with Joshua Kakembuso, Bungulu Langasi, Michaelyne Langasi and her newborn baby. They arrived in Konos between 03.30 and 04.00 o’clock that afternoon.
88. Upon arrival at Konos he and Joshua walked down to the beach and met up with Joel Lutut, Peter Petsia, Melenga Saramun, Essau Kabaiwas, a medical officer and a Safety Officer who works at Simberi and some other passengers. There was no other boats at the beach that time. The only boat there was the 60hp boat. Diven Gerson was not at the beach. At that time there was big storm with rain and the place was dark. The skipper of the 60hp boat (Peter Petsia) informed him and others to sleep due to the weather for the safety of the passengers including the newborn baby and the 2 females Bungulu and Michaelyne.
89. He and the passengers therefore slept at the President’s passenger house at Konos. Bungulu and Michaelyne and the baby slept at Tek Yapuk’s house. In the evening the 60hp boat was taken away and anchored at Tek Yapuk’s place.
90. At 07.00 o’clock the next morning (Sunday, 07 July 2019), he and others got on the 60hp boat and left Konos. The persons that jumped on the boat were himself, Joshua Kakembuso, Bungulu, Michaelyne and baby, Melenga Saramun, Essau Kankan Kabaiwas, the skipper (Peter Petsia), the medical officer, the safety officer as well as some other passengers. There were other passengers that were left behind.
91. The trip took them first to Tatau Island, then to Simberi passage, then to Maragon passage and finally to Poponovan village. They arrived at Poponovan at 09.00 o’clock in the morning. He remained there for a while and travelled back to Konos with Peter Petsia on the 40hp boat. He returned to Konos to collect his bilum (string bag) at Tek Yapuk’s house. The boat arrived at Konos at 12.00 midday.
92. The fourth accused Essau Kankan Kabaiwas gave evidence very similar to the accused Peter Petsia. He said that in the morning on Saturday, 06 July 2019 he travelled from Simberi to Konos as a crew on 60hp boat skippered by the accused Peter Petsia. With them on the boat were 2 passengers. They left Simberi at 07.00 o’clock and arrived at Konos at 09.00 o’clock.
93. He stated that there were no passengers, so they waited. From 12.00 midday to 01.00 and 02.00 o’clock the weather was not fine. There was rain and wind. Between 03.00 to 04.00 o’clock in the afternoon the passengers started to arrive. The passengers that arrived included Joshua Kakembuso, Timothy Livika, Michaelyne Langasi and baby, Bungulu Langasi, Rodish – an employee of Simberi Mining company, July – a Safety Officer at Simberi Mining company, Samson, Nicko and a medical officer at Tatau. Samson and Nicko are also employees of Simberi Mining company.
94. He said from 03.00 to 04.00 o’clock in the afternoon the weather did not improve as there was still wind and rain. He realized that time was against them so he notified the passengers that because of their safety they will sleep.
95. At about 05.00 o’clock he and Melenga Saramun pulled the 60hp boat to Tek Yapuk’s place and left it there at the beach and they returned to Konos where they met up with the other passengers and they went and slept at the President’s (Graham Lali) passenger house at Konos beach. He said those that slept in the same house with him were the medical officer from Tatau, Melenga Saramun, Joel Lutut, Nicko, Samson as well as some others. They all slept there until the next morning (Sunday, 07 July 2019).
96. At about 06.30 am next morning he woke up and went and pulled the boat at Tek Yapuk’s area and brought it back to the beach at Konos where they loaded passengers and they departed at around 07.00 o’clock in the morning. Those on board the boat were Joshua Kakembuso, Melenga Saramun, Timothy Livika, Michaelyne Langasi with her baby, Bungulu Langasi, Nicko, Rodish, July, Samson, John and a medical officer from Tatau.
97. They first travelled to Tatau and dropped off the medical officer. The next stop was at Simberi passage where Nicko was dropped off. Then another stop at Maragon passage where Bungulu, Michaelyne and the baby were dropped off. From there they travelled direct to Poponovan village with the remaining passengers. The boat ride ended there, and all passengers disembarked. He remained at Poponovan village and did not travelled back to Konos on that day.
98. Kankan told the Court that on that day (Saturday, 06 July 2019) Diven Gerson was not with them. Diven was also not on the 60hp boat with them when they left Konos on Sunday, 07 July 2019 right throughout the journey to the time when the boat arrived at Poponovan village. He did not know where Diven Gerson was on that day. On Saturday, 06 July 2019 he saw Diven Gerson who was on the 40hp boat with Petsia Lalu, Lawrence Bale, Jacob Lamis and Wilfred when they passed them at Konos passage. He said after Diven and Petsia travelled to Simberi they did not come back to Konos on 06 July 2019.
99. The fifth accused Melenga Saramun stated in evidence that he is also known as Joram Joseph. On Saturday, 06 July 2019 he travelled on Coral Sea boat from Simberi Island to Konos arriving early in the morning. After getting off the boat he went to Konos Station to do his shopping. He returned to the beach between 08.00 and 09.00 o’clock. Whilst at the beach he saw the 60hp CHL boat skippered by Peter Petsia sail to the beach and drop off passengers and unloading the passenger cargoes. After the unloading Melenga approached the skipper and crew of the 60hp CHL boat if he could jump on the boat on the return leg to Simberi Island. His request was accepted and by than it was going up to 11.00 o’clock and passengers were still travelling from Kavieng to Konos.
100. Whilst waiting the weather started to develop into a storm between 12.00 midday to 01.00 o’clock in the afternoon. The place was getting dark due to dark clouds. A storm was formed with lighting strikes and the sea was rough. After the passengers boarded the 60hp boat the skipper (Peter Petsia) and the crew (Kankan Kabaiwas) told the passengers to consider their safety first so they did not travel and had to stay back and sleep at Konos.
101. The off-loaded passenger were Bungulu, Michaelye and her baby, a male medical officer from Tatau Aid Post, Rodish, John, Nicko, Joshua Kakembuso, Timothy Livika, Samson, the crew (Essau Kankan Kabaiwas) and the skipper (Peter Petsia). Whilst they were there Joel Lutut joined them.
102. He denied that Diven Gerson was with them on Saturday, 06 July 2019 and that they travelled out from Konos following the SPOL boat in the afternoon of that day.
103. The second last defence witness was Josephine Langasi Bungulu. Her evidence is that she was with Michaelyne and her baby staying with her uncle at Rawal in Kavieng Town. On Saturday, 06 July 2019 she jumped on a PMV bus at Kavieng with Michaelyne Langasi, Joshua Kakembuso and Timothy Livika and they travelled together to Konos. They arrived at Konos between 3.30 and 04.00 o’clock in the afternoon. When they arrived, there was no other boats except the 60hp boat skippered by Peter Petsia, They did not travel because of strong winds and heavy rain. So they all slept in Konos. Michaelyne, herself and the baby slept with Tina at Tek Yapuk’s house. The other passengers including Joel Lutut and the 5 accused slept at the house boy within the President’s area. The next morning (Sunday, 07 July 2019) at 07.00 o’clock all of the passengers travelled on the 60hp boat to Tatau and arriving there at 09.00 o’clock. They then travelled to Simberi and then proceeded to Maragon where herself, Michaelyne and the baby disembarked. The boat then travelled onto Poponovan.
104. The final defence witness was Joel Lutut. He gave evidence that he was at Konos for a few days and was trying to catch a boat to Simberi on Saturday, 06 July 2019. He then went to the beach and met up with Kankan Kabaiwas and the operator of the 60hp boat (Peter Petsia). Whilst there Obert Walimba, the skipper of the SPOL boat was with them. At that time cargoes were loaded onto the SPOL boat. Obert Walimba asked Joel to jump on the SPOL boat for the trip to Simberi, however, Joel declined the offer. His reasons were firstly that the boat was overloaded and secondly Obert Walimba and his passengers were quite drunk. He told the Court that the SPOL boat departed Konos between 01.00 and 02.00 o’clock in the afternoon.
105. He said after the SPOL boat left Konos he remained at the beach with Kankan and the operator of the 60hp boat (Peter Petsia). Between 03.30 and 04.00 o’clock in the afternoon the accused Joshua Kakembuso and Timothy Livika arrived in a PVM bus. They all stayed in the house boy at Konos until morning at 07.00 o’clock on Sunday, 07 July 2019 when they travelled to Simberi. He did not travel with them.
Submission by the Defence
106. Counsel for the defence submits the issue in the trial is one of identification on the basis of the alibi raised by each of the accused.
107. As regards the law on identification evidence it is submitted evidence of recognition is more reliable than identification of a stranger. In this case, the evidence of the star witness for the State – Diven Gerson, is evidence of recognition. However, it is submitted the reliability and accuracy of such evidence has to be assessed against all other evidence including facts or circumstances independently proven. Counsel relied on State v Kobale Rau (1997) N1509 and Papalamnan v Nuakona (1973) PGSC 75 in support of the submissions made.
108. With regards to the evidence the defence counsel heighted the inconsistencies and contradictions between the evidence of Diven Gerson and other witnesses in Part 8 (pp 8 – 10) of his written submission. The inconsistencies include the following –
109. Counsel for the defence submits having regard to the state of the evidence particularly the inconsistencies and contradictions with respect to the evidence of the star prosecution witness (Diven Gerson) these inconsistencies cast doubt as to the credibility and reliability as to Diven’s evidence of identification, hence there is reasonable doubt that should lead the Court to give the benefit of doubt in favour of the 5 accused.
Submission by the Prosecution
110. The State submits the prosecution witnesses are honest and truthful and hence are credible and reliable witnesses. This is particularly so in respect to its eyewitness (Diven Gerson) whose evidence is consistent with and corroborated by other witnesses including that of the accused persons.
111. There are three reasons why the prosecution submits for the acceptance of the version of the story by its witnesses. The first is based on the rule in Brown v Dunn (1893) 6 R 67 (HL). The prosecution says the case for the defence in terms of the alibi story by each of the accused was not put to the State witnesses for comment or response. The second is based on the demeanour and credibility of the accused persons and their witnesses. It is submitted the demeanour of the accused persons seemed to be shifty and indirect and they were also defensive and evasive whilst under cross examination. The third reason is that the alibi story given by the accused persons is weak, unconvincing and fabricated.
112. For these primary reasons it is submitted the evidence of identification is credible and reliable for the Court to act upon. The State has adduced evidence proving all the elements of the offence. In that regard the State had discharged the onus of proof on the required standard, that is, beyond reasonable doubt. Accordingly, the Court should return a guilty verdict in its favour against each of the 5 accused.
Issues for determination
113. The central issue for determination is whether each of the accused persons are guilty of committing wilful murder under s. 299 of the Code.
114. To determine that key issue, in my view, the Court must also determine whether the evidence adduced by the State is credible and reliable and is sufficient to establish all the elements of the offence beyond reasonable doubt.
Analysis, considerations and conclusion
115. This Court has been well assisted by both counsel in terms of the submissions both in written and oral formats. The State filed a comprehensive written submission comprising 29 pages. The defence filed 12 pages of written submission. In that regard I record my gratitude to counsel involved in the trial. The submissions covered in detail the evidence and the relevant laws. I have read these submissions. I also heard oral submissions. It is not necessary for me to traverse these matters in my judgment.
116. In my analysis of the whole of the evidence from the prosecution and the defence the material dispute lies in the evidence of the prosecution eyewitness (Diven Gerson) and the alibi story offered by the 5 accused.
117. For the purposes of the judgment I find the following material facts not in dispute:
118. The material facts in dispute are -
119. From these important material facts (in dispute and not in dispute) the critical considerations are time and place. Diven Gerson said the killing took place on high seas between Konos and Tabar Group of Islands in the afternoon on Saturday, 06 July 2019. All the accused say they never departed Konos beach in the afternoon on Saturday, 06 July 2019. They have raised the issue of alibi.
120. I therefore accept the submission from both the prosecution and the defence that issues of identification and alibi are key considerations in the trial.
121. At this juncture, I think, it is useful and appropriate that I turn to reflect on the applicable law and principles in the case.
Law on identification
122. The law on identification evidence is settled. An authoritative statement of law was pronounced by the Supreme Court judgment in John Beng v The State [1977] PNGLR 115. I cannot do better than cite the principles from that judgment as it appears from the headnotes:
“In proceedings where evidence of identification is relevant, the Court should be mindful of all the inherent dangers, the need for caution before convicting in reliance on the correctness of identification, the possibility that a mistaken witness could be a convincing one and that any number of such witnesses could all be mistaken; the Court should examine closely all the circumstances in which the identification by each witness came to be made bearing in mind that recognition may be more reliable than identification of a stranger, but that even where the witness is purporting to recognize someone he knows mistakes can be made.
When the quality of the identification evidence is good the matter should proceed to a verdict, when the quality of identification evidence is poor, unless there is other evidence which goes to support the correctness of the identification, an acquittal should be entered.”
Principles on alibi evidence
123. As regards the principles relating to alibi evidence, I accept that the leading authority is John Jaminan v The State (No. 2) [1983] PNGLR 318. The principles are succinctly summarized by his Honour Cannings J in a number of cases including State v Paul Simon Asilip (2011) N4191 and The State v Luther Francis Melo (2015) N6153. In the Asilip case (supra), his Honour stated the principles in the following way:
“If an alibi is raised the burden of proof does not shift from the prosecution. The onus is never on the accused to prove an alibi or prove innocence. However, in practical terms, the accused must lead some evidence of an alibi and it must be sufficiently convincing to create a reasonable doubt in the mind of the tribunal of fact. How strong or convincing the alibi evidence must be, depends on the strength of the evidence of the prosecution witnesses. If their evidence is very strong, the alibi evidence needs to be reasonably strong to raise a reasonable doubt in the mind of the judge as to the guilt of the accused. Unlike the defences of self-defence and provocation, there is no rule of law that says that once an alibi is raised it is up to the prosecution to disprove it. If an alibi is rejected it does not necessarily follow that the court should enter a conviction. The court must still be satisfied that the prosecution has proven its case beyond reasonable doubt. An alibi that is determined to be false may, however, depending on the circumstances, amount to corroboration of the State’s case. Great caution should be exercised before drawing an inference adverse to an accused, as a result of the accused’s failure to call a witness that might reasonably be expected to support the accused’s alibi. A belated alibi, not revealed on any earlier occasion prior to trial, should be given less weight than an alibi consistently given over a long period, eg since the beginning of the police investigation, in a record of interview or in committal proceedings. The court should consider whether the alibi evidence contains convincing detail or whether it is vague and short on detail. The court should also consider the demeanour of the alibi witnesses and whether there are any inconsistencies in their evidence.”
124. Having considered the law, I turn to consider the evidence. The evidence given by Diven Gerson is evidence of him identifying people that he has known previously. Diven is not identifying someone who he is a stranger and he is unfamiliar with. He knows 4 of the accused persons very well. The evidence of their close relationship is not disputed by the defence. The 2 accused Timothy Livika and Essau Kankan Kabaiwas are his uncles. Both are biological brothers of Diven’s father. Diven also knows Peter Petsia very well. They live together in Poponovan village. Diven refers to Peter Petsia as an uncle. As for the accused Melenga Saramun, Diven said he knows his village, that is Beko village, but does not know him well.
125. At the time when Diven made the identification he was in the company of the 5 accused. He said they travelled together on the 60hp boat when they caught up with the SPOL boat and were drifting side by side on high sea. There is no suggestion in his evidence that the weather or the daylight was poor when he observed the killing, although he said they travelled into bad weather when they left Konos. There is also no evidence that Diven’s view was obstructed. He was within very close proximity when he saw the killing of 3 persons on board the SPOL boat. It can therefore be said that, if true, the identification made by Diven is of very good quality.
126. That said, I note that each of the accused has presented evidence of alibi which appear to caste some aspersion on the credibility of the identification evidence by Diven Gerson. Their evidence of alibi appear consistent with their statements to the Police contained in their respective record of interview. Two other witnesses supported their alibi and their demeanour and credibility were not seriously challenged in cross examination. This will require a closer examination of 2 important factors in the prosecution case: time and place. It is common knowledge that a person cannot be at two different places at the same time.
127. The evidence does not indicate the exact time when the killings occurred. However, the general evidence is that the killing may have happened sometime between 02.00 and 05.00 o’clock in the afternoon on Saturday, 06 July 2019. The evidence from witnesses indicates the SPOL boat departing Konos beach between 12.00 midday and 02.00 o’clock in the afternoon. Diven gave evidence that it was still daylight when he and the accused persons arrived at the beach in a bay at big Tabar. They remained there for some time whilst the SPOL boat was washed and later towed away. By then it was late evening however, there was still daylight. Later he and the accused persons travelled from the bay at big Tabar to Morai village. There the cargoes that were allegedly transferred from SPOL boat to the 60hp boat were removed and carried to Vincent Kakembuso’s house. The group remained there for some time and when it was getting dark the accused Melenga Saramun went and anchored the 60hp boat. That night the group slept at Morai village and travelled on the 60hp boat back to Konos early morning about 04.00 or 05.00 o’clock the following day (Sunday, 07 July 2019).
128. Diven’s evidence must be assessed against other evidence of both the prosecution and defence witnesses. First, the prosecution witness Lawrence Bale. He said the N2NAR boat with Diven on board left Konos beach on Saturday, 06 July 2019 between 09.00 and 10.00 o’clock in the morning. After about 2 stop-overs Lawrence was dropped off at Simberi Island at 12.00 o’clock midday. Diven said after staying at the village on Simberi Island for some time he and Petsia Lalu made a second boat trip on N2NAR to Konos in the afternoon and then he transferred to the 60hp boat. This would mean that Diven could not have been at Konos beach until after 03.00 o’clock in the afternoon on Saturday, 06 July 2021. Therefore, Diven’s evidence as to what happened at Konos beach between 10.00 o’clock in the morning and 3.00 o’clock in the afternoon on Saturday is questionable and otherwise tantamount to hearsay evidence. In that regard Diven’s evidence as to the time when the SPOL boat departed Konos beach and who was on board and what cargoes on board are based on hearsay.
129. I have also reviewed the evidence and noted, among others, the following inconsistencies and problems in the prosecution case.
Q. When you took off, was there any boat still on the beach?
A. Yes, SPOL boat
Then after a few more Q & A the following transpired:
Q. Which boat left first, SPOL boat or your boat?
A. SPOL boat
Q. Did your boat take off later?
A. Yes
130. The next piece of prosecution evidence that has the effect of changing the whole dimension to Diven Gerson’s evidence is the evidence of Petsia Lalu. His evidence is contained in statements he made to the Police in the record of interview which was tendered into evidence by the State as part of the State’s case. The relevant statements are found in Q & A 27 – 41 as follows (from the English translation version Exhibit “S12”) -
Q.27. Tell me where were you on the 6-7-2019.
A. I left Konos at 9.00 am, for home.
Q.28 Tell me, where there passengers with you?
A. Yes only (4) four passengers.
Q.29 Who are the 4 four men?
A. Lamis, Pastor blong RFI, Bale and Wilfred with a small boy Diven.
Q.30 At 9.00 am when you travelled out, was Diven with you or you left him back?
A. Diven also came with me.
Q.31 Tell me, in middle of the sea, did you meet Peter Petsia and them?
A, At the passage front.
Q.32 Tell me, who was with Peter Petsia?
A. Peter Petsia, bosscrew Kankan, and 3 others I don’t know of.
Q.33 Tell me, did you tell Peter something?
A. Yes, that Peter to wait for 2x women from Kavieng Hospital and Livika Timothy, with Joshua Kakembuso.
Q34. Tell me, after you dropped off at Tautau, Simberi and where did you go after that?
A. I went and stay at home.
Q.35 Tell me, at the time, you skeepered (skippered) 60hp N2NAR X RIURIU, is that correct?
A. No, that is 40hp that is named N2NAR RIURIU.
Q.36 Tell me, so you were skeepering (skippering) the 40hp N2NAR X RIURIU and not 60hp, is that right?
A. Yes
Q.37 Tell me, in that afternoon you left for Konos?
A. No, weather was bad.
Q.38 Tell me, on that day, where did you sleep?
A. I slept in my house.
Q.39 Tell me, you travelled back to Konos and purchase fuel for your trip back home, at Soho Enterprice, Konos, what do you say?
A. That is not true.
Q40. Tell me, you refeulled 8x 5gallon zoom at Soho Enterprice, what do you say?
A. Not True.
Q.41 Tell me, that day (6-7-2019) you left alone with 8x 5gallon zoom, and you left your passengers at Konos, what do you say?
A. My run back was at 9.00 am, I had no other runs back.
131. The above evidence meant that when Diven Gerson travelled with Petsia Lalu from Konos to Simberi Island after dropping off passengers Jacob Lamis, Lawrence Bale and others Diven never returned to Konos later that day (06 July 2019). Diven’s evidence that he and Petsia Lalu returned to Konos to collect loose fruit passengers is inconsistent with the evidence of Petsia Lalu. One of them is not telling the truth. Petsia’s evidence appears to be consistent with the evidence of the 5 accused.
132. Petsia Lalu denied purchasing 8x 5gallons of zoom from Soho Enterprise at Konos and ferrying the fuel to Simberi Island in the afternoon on 06 July 2019. Petsia Lalu’s evidence is consistent with the evidence of Timothy Livika. Diven said the fuel belonged to Timothy Livika which Timothy Livika denied purchasing any fuel and loading onto Petsia Lalu’s boat. According to Petsia Lalu he never returned to Konos the second time on 06 July 2019. Petsia Lalu and Diven Gerson left Konos at 09.00 o’clock in the morning on 06 July 2019 when the two accused Joshua Kakembuso and Timothy Livika were still in Kavieng. This is another major inconsistency and contradiction in the prosecution case. It affects the credibility and reliability of the evidence given by Diven Gerson. I have also observed Diven giving evidence in Court. I find his demeanour less impressive. He at times suffers from memory loss and struggled to respond in a coherent manner.
133. I accept that there are inconsistencies in the defence evidence, however, in my view, these are minor and do not affect the overall thrust of their alibi story. I find the alibi story sufficiently strong and reasonably convincing. The alibi story has been presented with convincing detail and is not vague and short of detail.
134. The State’s case against the 5 accused rested entirely on the evidence of Diven Gerson. Diven’s evidence is the only direct evidence linking each of the accused to the killing and disappearance of the 6 victims alleged in the indictment. There are, of course, evidence of circumstantial nature, however, either on their own or taken together would not, in my view, prove the allegation beyond reasonable doubt.
135. It is trite principle of law that the prosecution carries a very heavy burden in proving an allegation in a criminal trial. The prosecution must prove its case beyond reasonable doubt. There must not be any lingering doubt in the mind of a trial judge as to the guilt of an accused.
136. Given the numerous inconsistencies and contradictions and the obvious cracks in the evidence of Diven Gerson I find the evidence of Diven Gerson not to be rock solid and watertight. In my view Diven’s evidence cannot be accepted by a reasonable tribunal of fact to be credible and reliable. The prosecution evidence is not consistent and coherent. The result is that it creates reasonable doubt as to whether evidence adduced and relied upon by the prosecution, in particular Diven Gerson’s evidence, is safe and satisfactory to be acted upon. I therefore accept the submission by the defence counsel that where there is doubt the benefit should be given to the accused.
137. I agree with the prosecutor in her submissions on the rule in Brown v Dunn (supra). Clearly, the rule was not applied by the defence counsel during the trial. However, the failure, in my view, would not improve the quality and credibility of the evidence for the State as noted. This is not a case where the failure would be the only reason for the Court to find against the State. In any case, it cannot be said that the alibi story by the 5 accused was a total or complete surprise to the State. All accused gave the same alibi story to the Police during their record of interview at the very outset.
138. I bear in mind that the State has the onus of proving its case on a very high standard in criminal cases, that is, beyond reasonable doubt. Where there is reasonable doubt in the evidence the Court must give the benefit to the accused. I have considered these legal principles including those others submitted by counsel. In the end after reviewing and evaluating whole of the evidence I am not satisfied that the State has proven its case beyond reasonable doubt. I find in favour of the defence, and I return a not guilty verdict in favour of all 5 accused in respect to all 6 counts.
Verdict:
COUNT 1
Timothy Livika - Not Guilty & Acquitted
Peter Petsia - Not Guilty & Acquitted
Essau Kankan Kabaiwas - Not Guilty & Acquitted
Joshua Somure Kakembuso - Not Guilty & Acquitted
Melenga Saramun - Not Guilty & Acquitted
COUNT 2
Timothy Livika - Not Guilty & Acquitted
Peter Petsia - Not Guilty & Acquitted
Essau Kankan Kabaiwas - Not Guilty & Acquitted
Joshua Somure Kakembuso - Not Guilty & Acquitted
Melenga Saramun - Not Guilty & Acquitted
COUNT 3
Timothy Livika - Not Guilty & Acquitted
Peter Petsia - Not Guilty & Acquitted
Essau Kankan Kabaiwas - Not Guilty & Acquitted
Joshua Somure Kakembuso - Not Guilty & Acquitted
Melenga Saramun - Not Guilty & Acquitted
COUNT 4
Timothy Livika - Not Guilty & Acquitted
Peter Petsia - Not Guilty & Acquitted
Essau Kankan Kabaiwas - Not Guilty & Acquitted
Joshua Somure Kakembuso - Not Guilty & Acquitted
Melenga Saramun - Not Guilty & Acquitted
COUNT 5
Timothy Livika - Not Guilty & Acquitted
Peter Petsia - Not Guilty & Acquitted
Essau Kankan Kabaiwas - Not Guilty & Acquitted
Joshua Somure Kakembuso - Not Guilty & Acquitted
Melenga Saramun - Not Guilty & Acquitted
COUNT 6
Timothy Livika - Not Guilty & Acquitted
Peter Petsia - Not Guilty & Acquitted
Essau Kankan Kabaiwas - Not Guilty & Acquitted
Joshua Somure Kakembuso - Not Guilty & Acquitted
Melenga Saramun - Not Guilty & Acquitted
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Public Prosecutor: Lawyer for the State
Motuwe Lawyers: Lawyer for the five Accused
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