State v Moap [2021] PGNC 401; N9082 (22 July 2021)

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PRACTICE AND PROCEDURE – Criminal Law – Wilful Murder. Section 299 of Criminal Code Act – Lack of Evidence - defendants acquitted

1. REI AJ: The hearing of this matter commenced on 20^th June 2021 at Aitape, West Sepik Province.

2. Indictment for each accused person was read together with the Statement(s) of Facts. Each was asked to say if they understood. Even before I finished the sentence, they all said in unison that they denied the charge and the facts.

3. I asked Mr. Moses whether he had explained to his clients the purpose of the proceedings and the procedures attending thereto. He said he did.

4. When I asked the accused persons again as to whether they understood the charge and the facts, they still responded they denied.

5. I expressed my concern to Counsel that he had not explained these matters to his clients in the last two (2) years or so as such the Court has serious difficulty to proceed with the matter.

6. Counsel asked that the matter be adjourned for 15 minutes. I responded that he is given the whole afternoon to seek instructions and the matter proceeds tomorrow 21^stJune 2021.

8. On the 21^stof June 2021, the matter returned in which the Indictment was read together with the Statement of Facts again.

9. When each accused person was asked whether they understood the charge as laid under Section 299(1) and that Section 7 (a) and (b) of the Criminal Code Act are being invoked, they each said they did.

10. The accused persons were then asked to plead to the charge as laid. They did as follow:

CR. NO.	NAME	PLEA
898 of 2019	Simon Moap	Not Guilty
899 of 2019	David Simon Moap	Not Guilty
900 of 2019	Peter Simon Moap	Not Guilty
901 of 2019	Luke Simon Moap	Not Guilty
902 of 2019	Francis Simon Moap	Not Guilty
903 of 2019	Rolland Simon Moap	Not Guilty
905 of 2019	Pais Salkai	Not Guilty

11. Mr. Moses was asked to indicate whether pleas as taken were consistent with his instructions. He said the pleas were consistent with his instructions.

12. The following documents were then tendered by consent as Exhibits in the matter:

15. This witness stated that on the 19^th of November 2019 at Tales Village Malol, Aitape District, a dispute or argument arose between John Sarim on the one part and Casper and Roger Aro because John Sarim allegedly picked up some garden goods from the gardens belonging to Casper Aro and Roger Aro without their knowledge.

16. As a result of that argument altercations took place in Tales Village involving Casper Aro and Bernard Aro on the one part and Richard Sarim, Bonnie Sarim and their other siblings.

17. The witness stated that Simon Moap and his children ran out from the house belonging to Casper Aro and Roger Aro towards the place where the commotion was and calling “fight them and kill them.”

18. She did not describe how they ran out from the house and who uttered the words “fight them and kill them”. She only stated she heard them without specifically stating who amongst Simon Moap the father or any of his children call out “fight them and kill them.” She was in fact evasive in her answers to questions dealing with this very important fact.

19. The witness then stated that Casper Aro chased the deceased who fell, and Bernard Aro cut him on his back while she was standing 3 meters or so away from the place Bernard Aro cut Bonnie Sarim.

20. She also stated that she saw Simon Moap and his children (whom she identified in court as David Moap, Francis Moap, Pais Airupi and Rolland Kantomer) were all standing about 6 to 7 metres away from the position at which Bernard Aro cut Bonnie Sarim. She did not give any evidence whether these people said anything nor whether they participated in striking or hitting Bonnie Richard Sarim.

21. She was asked to identify these men in the court room, and she said they were seated in the following manner/order:

22. She stated she knows them personally because they come from the same village Tales, Malol, Aitape, West Sepik Province. She and these people had lived in that village the whole of their lives.

23. After seeing Bonnie Richard Sarim been cut by Bernard Aro, she ran away to the house, Bonnie Richard Aro was later brought to the house by Brendon Sarim and Anton Sellie, and she noticed that Bonnie had already died.

24. It is noted from the Indictment that the names of two people whom she identified as Pais Airupi and Rolland Katomai do not appear, but the names Rolland Richard Moap and Pais Salkai appear. No questions were asked in examination to clarify this anomaly.

25. While she said that Brendon Sarim and Anton Sellie carried Bonnie Sarim to the house, Francis Maki, who gave evidence later said that after Bonnie Sarim was cut by Roger Aro, he carried him to his (Bonnie’s) house which was located somewhere in the bush while mama Antonia’s house is located at the beach. Neither Bernard Sarim nor Anton Sellie was called to testify on this.

26. This witness was cross-examined by the defence Counsel during which she changed her evidence.

27. In cross-examination, the witness stated the accused were all in Simon Moap’s house when the incident happened on the road and when they started running, she said she heard David Simon Moap shout the words “fight them and kill them”. This confirms her answer in examination in chief is not correct. She also said they ran out from Simon Moap’s house whereas in her examination in chief she said they ran out from the house belonging to Casper and Roger Aro.

28. She did not give evidence that all of the other members of the family of Simon Moap uttered those words including Simon Moap himself except David Simon Moap.

29. She restated that when the accused persons arrived, they noticed that Bonnie Aro had already been cut and stood there saying nothing and did not do anything by way of encouraging Richard Aro to cut in order to kill Bonnie Sarim in that prior to their arrival at the scene of the cutting of Bonnie Richard Sarim by Roger Aro, the cutting of Bonnie Richard Sarim had already taken place.

30. During cross examination, questions were put to the witness as to whether any of the accused persons applied force or encouraged Roger Aro to kill, the witness emphatically said that none of them did so but said she did see Roger Aro cut Bonnie Richard Sarim on the back and then she ran towards mama Antonia’s house.

31. The second witness who gave evidence was Senior Sergeant Rodney Malken. This witness stated he carried out an investigation of the crime scene and took photographs of the scene.

32. He said he used a tape measure which he borrowed from Awareh Guest House which he used to measure distances and used his own camera to take photographs.

34. Asked in cross examination who helped him to take those photographs and measurements, he said it was the relatives of the deceased who helped him.

35. He did not mention the names of the relatives who assisted him, and none was called by the State to verify the measurements and photographs of the crime scene. He also said none of the accused accompanied him in his investigation of the crime scene. This attracts doubts as to the credibility of his investigation of the crime scene.

36. The third witness called was Polias Denis Sarim who is a half-brother to the deceased Bonnie Richard Sarim, Louisa Richard Sarim and Nadia Richard Sarim.

37. His account as to the cause of the problem is the same as that of Louisa Richard Sarim. He says some garden crops, beetle nut shoots and greens, were plucked by John Richard Sarim from the garden of Casper and Richard Aro therefore both Casper and Richard went to mama Antonia’s house to enquire.

38. Because of this Louisa and Nadia Richard Sarim went and reported to her brothers who were in the garden who came and tried to solve the problem.

39. While they were at mama Antonia’s house Casper and Roger Aro got bush knives stood on the road jumping up and down in a threatening manner and when Bonnie, Louisa and Nadia Sarim and their other siblings went to solve the problem the situation got off hand resulting in Bonnie Richard Sarim throwing a piece of wood at Casper Aro.

40. Roger Aro then ran into the house owned by himself and Casper Aro and came back with a spear chasing Francis Richard Sarim and Bonnie Richard Sarim when Bonnie Richard Sarim fell. This witness also said he saw Richard Aro cut Bonnie Richard Sarim on the back side when he fell being chased by Casper Aro.

41. While Louisa Richard Sarim stated in her evidence that Bonnie Richard Sarim was carried to mama Antonia’s house after he was cut by Bernard Aro, she did not agree with Francis Maki.

42. This witness account is different and inconsistent to that of Polias Richard Aro who stated that Bonnie Richard Sarim was carried by Brendon Richard Sarim and Francis Maki to mama Antonia’s house.

43. While that was happening, he looked and saw a group of men running towards the place where Brendon Richard Sarim and Francis Maki carried Bonnie Richard Sarim to mama Antonia’s house. He recalls seeing Peter Simon Moap, Luke Simon Moap, Spencer Willie Aro, Brunker Ainini and Hosea Ainini. They were carrying weapons including bush knives and bows and arrows.

45. This witness did not say that the mob of people running towards the injured Bonnie Richard Sarim shouted saying “fight them and kill them” as he only stated they shouted saying Bonnie Richard Sarim had been cut. This evidence is also inconsistent with that of Louisa Richard Sarim.

46. Both in examination in chief and cross examination this witness stated very clearly and in agreement with Louisa Richard Sarim that none of the accused said anything or applied force to support Roger Aro when he cut Bonnie Richard Sarim. They stood 7 meters away from the position taken by Roger Aro when he cut Bonnie Richard Sarim on the back.

47. Indeed, it can be deduced from the evidence given by both Louisa Richard Sarim and Polias Richard Sarim that none of the accused persons took part or played any active or meaningful role in the cutting of Bonnie Richard Sarim by Roger Aro.

48. The last witness called by the State is Francis Maki, a cousin brother of the Sarim siblings.

49. He also said in evidence in chief and cross examination that he was present at the scene of the incident and saw all that happened.

50. He stated in examination in chief and cross examination that after Bonnie Richard Sarim was hit by Roger Aro on the back and fell, he carried him to his house located in the bush. He also said that while he was carrying him, Bonnie Richard Sarim told him that he would die so he laid him on the ground and told people to arrange a dinghy to take him to Raihu District Hospital. While this was happening, he saw Simon Moap and his co-accused children around the area. He said he heard Simon Moap telling his children not to do anything. He then noticed Casper Aro coming from behind and cutting Bernard Richard Sarim on the hand.

51. He also stated that while Bonnie Richard Sarim was being cut by Roger Aro, Simon Moap, who is a Village Court Magistrate of Tales Village, Malol, Aitape District and the father of all the accused persons except Pais Salkai, was present stopping the group of men including his children. He did not give evidence whether they swung any dangerous weapons, or uttered words encouraging Richard Aro to cut Bonnie Richard Sarim.

52. This, evidence is inconsistent with the evidence given by both Louisa Richard Sarim and Polias Denis Sarim who stated they stood 6 – 7 metres away from the spot where Bonnie Sarim was being cut with a bush knife on the back by Roger Aro.

53. It is absolutely clear from the evidence given by the three witnesses for the State that:

54. Both Louisa Richard Sarim and Polias Denis Sarim gave inconsistent evidence as to whether all of the accused called out saying fight them and kill them as both changed their story and said that only David Simon Moap uttered those words.

55. While Louisa Richard Sarim told the Court that Simon Moap and his children ran out from the house belonging to Casper and Bernard Aro, Polias Denis Sarim said he saw them running out from the house belonging to Simon Moap holding weapons, which house according to their evidence, was quite far about 20 meters away from the house belonging to Caspar and Bernard Aro.

INTENTION TO KILL / PRE-PLANNING BY ARO BROTHERS AND SIMON MOAP AND HIS CHILDREN

56. From the evidence given by Louisa Richard Sarim and Polias Denis Sarim, it is clear that there was a quarrel between the Aro brothers and Sarim brothers about the ‘unlawful’ plucking of certain crops from the garden of Casper Aro and Bernard Aro by John Richard Sarim.

57. This dispute or quarrel took place on the 19^th day of July 2019 between the latter part of the morning and 4 pm to 5 pm when the cutting of Bonnie Richard Sarim occurred resulting in his death.

58. The dispute or quarrel was not between the Sarim brothers and Simon Moap and his children who are his co-accused.

59. No evidence was adduced and given by any of the State witnesses on any disputes or quarrels which existed prior to the incident or on the day of the incident showing that Simon Moap and his co-accused had any differences with the Aro brothers.

60. Also, no evidence was given by the State witnesses whether at the time of the incident, Simon Moap and his children who are his co-accused on the one part and the Aro brothers of the other held meetings and agreed to fight the Sarim brothers on the day of the incident or on any previous occasion. No witnesses were called to give any evidence on this.

61. It is therefore clear that Simon Moap and his co-accused did not have a common purpose to take the life of Bonnie Richard Sarim or anyone of his siblings.

63. The conclusion that can then be safely drawn is that there was no prior planning.

64. The actions taken by Casper Aro and Bernard Aro were in complete isolation of the allegations that they aided or abetted.

65. The element of intention to cause grievous bodily harm by either Simon Moap or any of his children who are his co-accused has not been proven.

66. The critical point in this evidence is that in all the records of interview of all the accused persons no questions were asked of any of the accused as to whether they each or severally uttered the words fight them and kill them at any stage of the incident.

68. I am therefore not convinced beyond reasonable doubt that these words were ever uttered or at all.

69. Furthermore, no real evidence of the dangerous weapons alleged to have been in the possessions of the co-accused persons nor any photographs were produced in Court to substantiate the evidence given by Louise Richard Sarim and Polias Richard Sarim that they were in possession of dangerous weapons as alleged.

70. The end result of all this is that I am not convinced beyond reasonable doubt of the truthfulness of the evidence they gave in Court.

(1)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 in committing the offence.

73. The State laid the charge of wilful murder under Section 299 (1) of the Criminal Code Act and then invoked Section 7 alleging that the accused persons wilfully murdered Bonnie Richard Sarim. It is necessary at this stage to cite the contents of the Indictment which says:

“SIMON MOAP, DAVID SIMON MOAP, PETER SIMON MOAP,LUKE SIMON MOAP, FRANCIS SIMON MOAP, ROLLAND SIMON MOAP ALL OF TALES, AITAPE AND PAIS SALKAI OF WAIPO, AITAPE ALL OF WEST SEPIK PROVINCE stand charged that they on the 19^th day of February 2019 at Tales Village, Malol in Papua New Guinea Wilfully Murdered BONNIE SARIM.”

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

75. According to the evidence adduced in Court, these people were present at the scene when Bernard Aro cut Bonnie Richard Sarim. They may have been present at the scene or were moving towards the scene.

76. The evidence before the Court is that Bernard Aro had already cut the deceased Bonnie Richard Sarim after which the co-accused persons arrived.

77. Their evidence as to their presence is inconsistent. But the nearest I can go to is that they stood 6 – 7 metres away from the spot Bonnie Richard Sarim was cut by Bernard Aro.

78. The evidence is crystal clear that they did not inflict any wounds to the deceased Bonnie Richard Sarim.

79. The issue therefore is whether the presence of the accused persons encouraged the commission of the crime.

80. Again, the evidence is very poor. It does not show whether they uttered any words or used weapons to inflict wounds thereby encouraging Bernard Aro to cut Bonnie Richard Sarim to kill.

81. Both Louisa Richard Sarim and Polias Denis Sarim said in evidence they saw them at the scene but did not go onto to say whether they encouraged in the commission of the crime in anyway.

82. There must be cogent evidence that they wilfully encouraged the commission of the crime: R -v- Tovarula [1973] PNGLR 140.

83. In The State -v- Nataemo Wanu [1977] PNGLR 152, the Court ruled that if the accused person(s) was present at the scene with the intention of encouraging or assisting in the killing of the deceased and did aid in the commission of the offence, the accused person(s) would be deemed to be guilty of wilful murder.

84. In the case of Porewa Wani -v- The State [1979] PNGLR 593 it was said by the Court that by being present when the deceased was murdered and by knowing of the other party’s intention to kill the deceased by saying (in motu) “kill him, kill him”,the accused was encouraging intentionally by words intended to signify approval. The accused was wilfully encouraging and was guilty of wilful murder.

“The appellant was convicted under s, 7(c) of the Criminal Code of aiding the widow in committing the offence of wilful murder. The appellant did not dispute the facts as found by the learned trial judge. Those facts were:

86. In that case the Supreme Court relied on the case of R. v. Coney (1881 – 1882) 8QBD 534; 141in which it was stated and I quote:

“In my opinion, to constitute an aider and abettor some active steps must be taken by word, or action, with the intent to instigate the principal, or principals. Encouragement does not of necessity amount to aiding and abetting, it may be intentional or unintentional, a man may unwittingly encourage another in fact by his presence, by misinterpreted words, or gestures, or by his silence, or non- interference, or he may encourage intentionally by expressions, gestures, or actions intended to signify approval. In the latter case he aids and abets, in the former he does not.” (The emphasis is ours).

87. The evidence given by Louisa Richard Sarim and Polias Denis Sarim is that only David Simon Moap uttered the words (in tokpisin) “fight them” and “kill them”.

88. These words do not in any way have the same effect as fight him and kill him whilst “fight him” and “kill him” is specific and exclusive the words “fight them” and “kill them” are not so specific. That is whether David Simon Moap meant that Bernard Aro fights Bonnie Richard Sarim and kill him or these words may have been uttered in an unintentional manner. The evidence on this is ambiguous.

89. Unlike in the case of Porewa Wani, where there was a common intention where prior consultation took place and the actions taken were in pursuit of agreements reached, in this case there is no iota of evidence of any prior planning.

90. As I said earlier, the incident happened on the same day. The dispute arose in the morning, the death occurred at between 4 pm and 5 pm.

92. A vital piece of evidence is the sketch plan of the crime scene; the photographs taken by Snr. Sgt. Rodney Malken.

93. During cross examination when asked who assisted him to take the sketch and the photographs, he said it was the relatives of the deceased who did so. He did not give name(s) of those who assisted him. None was called to testify to verify the authenticity of his criminal investigation.

94. He was also asked if any or all of the accused persons were present when he took those diagrams and photographs, he said they were not as they had left the village of Tales, Malol for fear of their lives.

95. These explanations bring serious questions, on the probity of the evidence given by Snr Sgt Rodney Malken in that none of the accused was present when the whole scene was being inspected and none of the relatives of the deceased who assisted him was called to verify his evidence.

96. The sketch or diagram of the scene of a crime form part and parcel of the record of interview as such it is vitally important that accused persons are present when the police take photographs of the scene and draw diagrams.

97. Obviously those exhibits produced are hearsay evidence which require corroboration, which is lacking here.

98. Furthermore, the record of interview for each of the accused persons do not disclose any evidence of questions asked whether the words “fight them” and “kill them” were ever uttered and who uttered them.

99. As far as the evidence is concerned as given by all the State witnesses it is abundantly clear that none of the accused persons inflicted any wounds to the body of the deceased Bonnie Richard Sarim who fell and was cut on the back by Bernard Aro and was carried by Francis Maki to the beach, put on a dinghy and transported to Raihu District Hospital where he later died of the wounds.

100. The net result is that the deceased Bonnie Richard Sarim died from the wounds inflicted by Bernard Aro who cut him on the back and Casper Aro who cut him on his arm and not the accused persons whose names appear in the Indictment.

101. I therefore find that there is no evidence against the accused persons for either aiding and abetting Richard Aro and Casper Aro in the murder of the deceased Bonnie Richard Sarim.

102. The question therefore is whether on the evidence as it stands the co-accused can be lawfully convicted: The State -v- Roka Pep (No.2) [1983] PNGLR 287 and The State -v- John Wanjil (1997) N1516. That is whether the evidence so far adduced by the prosecution supports essential elements of the offence.

103. The evidence so far adduced by the prosecution does not support the essential elements of the offence as I have concluded.

104. There are serious doubts whether the element of intention to inflict grievous bodily harm resulting in death has been proven.

105. The State has in essence not proven on the evidence whether the accused persons aided and abetted in the murder of the deceased.

106. I therefore find that the essential elements of the offence have not been proven beyond reasonable doubt as such this case must stop here.

National Court of Papua New Guinea

State v Moap [2021] PGNC 401; N9082 (22 July 2021)