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State v Ambuk [2021] PGNC 619; N9610 (25 June 2021)

N9610

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 15 OF 2017
CR NO. 16 OF 2017
CR NO. 17 OF 2017

THE STATE

V

JASON AMBUK
STILSON JOHN
BELDEN YAMBAN

Kokopo: Kassman, J
2019: 26^th & 27^th August, 19^th September
2021: 20^th May, 25^th June

CRIMINAL LAW – Criminal Code Section 299 – wilful murder – trial – accused persons remained silent – direct and circumstantial evidence – guilty

CRIMINAL LAW – Criminal Code Section 7 – accused persons enabled and aided each other in the attack on the deceased

CONSTITUTION – section 37(4) and (10) – right to full protection of the law and right to remain silent – accused persons remained silent during police record of interview

CRIMINAL LAW – EVIDENCE – positive identification of accused persons at crime scene immediately before and at the time of the attack on the deceased and deceased’s nephew – identification by nephew of deceased – attacks on deceased by accused persons in retaliation to actions of deceased amid ongoing arguments and confrontations between deceased and another in company of accused persons during the night and early hours of morning and immediately before physical and violent confrontation – at sunrise – adequate lighting – distance of seven meters at time of identification – accused persons known to nephew of deceased and state witnesses all living in and around town for many years – evidence of deceased nephew corroborated by two other State witnesses

CRIMINAL LAW – EVIDENCE – circumstantial evidence – in totality – accused persons positively identified during initial attack on deceased and nephew of deceased – deceased then chased by three accused persons – post-mortem report describes in detail nature and extent of injuries as multiple and vicious exhibiting a clear intention to kill – consistent with use of weapons held by accused persons in earlier attack and in retaliation for earlier actions of deceased

Cases Cited:

Fred Bukoya v The State (2007) SC887, [2007] PGSC 16
Paulus Pawa v The state [1981] PNGLR 498
The State v Alphonse Aia Mohavila (2006) N3385
Paulus Pawa v The State [1981] 498
Barca v. The Queen [1975] HCA 42; (1975) 133 CLR 82
The State v. Tom Morris [1981] PNGLR 493
Denden Tom and others v The State (2008) SC967
Garitau Bonu and Rosanna Bonu v The State (1997) SC528
The State v Koivi Ipai (2010) N3972.
Vaii Rocky Maury v The State (2001) SC688

Legislation cited:

Constitution s. 37(1) and 10
Criminal Code Act Sections 7 and 299

Counsel:

Lukara Rangan, for the State
Jean-Marie Ainui, for the Accused

VERDICT

25^th June, 2021

1. KASSMAN J: The State presented an indictment that Jason Ambuk (“Jason”), Stilson John (“Stilson) and Belden Yamban (“Belden”) (together “the three co-accused”) wilfully murdered Jeffery Pasi (“the deceased”) on 14 August 2016 at Rabaul town. The charge was laid pursuant to section 299 of the Criminal Code. The State also alleged the three co-accused enabled and aided each other in killing the deceased and the State invoked section 7 of the Criminal Code. The three co-accused denied the charges of the State and a full trial was conducted.
   

The law on wilful murder and the elements of the offence

2. Section 299(1) of the Criminal Code states, “Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of another person, is guilty of wilful murder.” The elements of the offence, to be proven beyond reasonable doubt, are (a) a person, (b) unlawfully, (c) kills another person, (d) intending to cause his death or that of another person. To convict the three co-accused, this court must be satisfied, beyond reasonable doubt, that (a) the three co-accused, (b) killed the deceased, (c) without lawful excuse; and (d) it was the intention of the three co-accused to kill the deceased.
   
3. The following facts are not in dispute. Jason is from Parimbe Village, East Sepik Province, Stilson is from Suir Village, Tinputz, Autonomous Region of Bougainville and Belden is from Jimangu Village, Wewak, East Sepik Province. The Deceased was from Belmo Village, Yangoru District, East Sepik Province and his younger sister Janet Pasi was married to Raymond Huasi (“Raymond”). The Deceased and Raymond and their respective families were all resident in Rabaul for many years. The deceased’s home was located along Malaguna Road and Raymond’s home was located along Namanula Street, a short distance from the junction with Mango Avenue. Malaguna Road and Namanula Street are connected by Mango Avenue. Rabaul Travelodge is located off Mango Avenue about 100 meters before the junction of Mango Avenue and Namanula Street. The deceased was the owner of a Toyota land cruiser station wagon commonly referred to as a “five door” (“the vehicle”).
   
4. The following facts were also not in dispute. At the relevant time, the deceased was driving the vehicle along Mango Avenue heading towards Rabaul Travelodge when he bumped Raymond and then ran into a power pole some ten meters away. The power pole was located on the island between the main roads for traffic heading in opposite directions along Mango Avenue. These collisions occurred about fifty meters before Rabaul Travelodge. After bumping the power pole, the vehicle did not move any further. The deceased exited the vehicle and was immediately engaged in a violent confrontation with certain people. The body of the deceased was later found lying face down with multiple bruises and abrasions and multiple knife wounds to his head, his body and his lower limbs about 150 meters away from the power pole mid-way along Wirraway Street. During the visit to the scene of the crime, I noticed a small concrete monument marking the location where the body of the deceased was found, and this was affirmed by the three co-accused during the visit to the scene on 20 May 2021.
   
5. From my general knowledge, prior to the eruption of the Mt. Tavurvur volcano on 19 September 1994, Rabaul was a semi-urban thriving town. The town of Rabaul is about 2km from Mt Tavurvur. It would have had a population of about 80,000 people with indigenous people from the area in and around Rabaul, people from other parts of East New Britain Province and Papua New Guinea and people from Australia, New Zealand and many Asian countries including a large population of people of mixed parentage both PNG and foreign. The eruption of the volcano on Mt Tavurvur destroyed most of Rabaul. Amazingly, there were no fatalities recorded. Most of the people fled and took shelter in surrounding areas. Most government offices and services and businesses operations have relocated to Kokopo which is now the provincial capital of the East New Britain Province. Many locals directly affected by the volcano have been relocated with assistance from government to areas around Kokopo namely Gelagela and Warongoi. Many other people including locals and foreigners and long-time residents of Rabaul have moved to other towns in PNG and countries overseas such as Australia.
   
6. At the time of this incident on 14 August 2016 and to today, the town and district of Rabaul has seen minimal infrastructural development and remains a shadow of its glorious past with a population of around 50,000 people. Rabaul remains the home of the major and thriving shipping port of Rabaul which serves the government, business and the people of the East New Britain Province. The port of Rabaul is in the Simpson Harbour which, I am told, is the deepest harbour in the Southern Hemisphere apparently located in a caldera surrounded by volcanoes above and below the surrounding coastal sea.
   

Evidence for the State

7. The State called five witnesses who gave sworn evidence in pidgin which was translated into English. The State also relied on various statements and documents from the committal court file or police file which were tendered in evidence during the trial with the consent of counsel for the three co-accused.
   

First State Witness – Nathan Seleken

8. The first State witness was Nathan Seleken (“Nathan”). Nathan gave sworn evidence in chief and was cross-examined by counsel for the three co-accused. Nathan is a young man. Nathan is the younger cousin of the deceased. Their mothers are sisters. He recalled the date of the incident 14 August 2016 at around 5:30am. The day prior, he met a friend after work, and they were both drinking beers at the site of the old Anglican church. The deceased picked him up in the vehicle at around midnight and they drove to George Brown Street, where they lived. They had a couple of beers at the house before driving to Rabaul Yacht Club where they continued drinking. That was around 3am. He recalled the car stereo was very loud and he told the deceased to turn the volume down but the deceased disagreed saying it was okay.
   
9. The deceased then drove the vehicle to Namanula Hill and turned back at Matupit Junction and while traveling on the road past Raymond’s house, Raymond walked out on to the road holding two big stones and hit the rear window panel of the vehicle as the vehicle passed by. The deceased then drove up Mango Avenue to the old market and then returned to Raymond’s residence again and met Raymond on the road and the deceased asked Raymond why he stoned the vehicle. Raymond then picked up a big stick and hit the right-hand side rear vision mirror of the vehicle. The deceased then drove up and turned at Islands Shipping Junction and drove back down to where Raymond was standing and the deceased told Raymond “I am going to the police station and I will be back” but the deceased did not go to the police station but instead drove the vehicle to the house where the deceased informed Jeffrey Tokunai about the confrontations he has just had with Raymond.
   
10. After a few minutes, the deceased started the engine of the vehicle and Nathan got back in and they drove back to Kaivuna. The vehicle was travelling at high speed down Mango Avenue. The deceased then noticed Raymond walking on the opposite lane. The deceased then drove the vehicle on to the opposite lane and drove straight towards Raymond and hit Raymond. The vehicle continued travelling forward, after hitting Raymond, and hit a power pole. The deceased then turned the engine off and got out of the vehicle. The deceased was immediately attacked by a group of men. Nathan said he saw and recognised Jason Ambuk, Belden Yamban, Stilson John and Japhet Yamban among the group of men attacking the deceased. Jason was engaged with the deceased in a fist fight while Belden was holding a 3 x 2 piece of timber and Japhet was holding a pocket-knife.
    
11. Nathan said when he saw Japhet trying to stab the deceased, he then took a bush knife from the vehicle and got out of the vehicle yelling to the group of men telling them not to attack the deceased. At that moment, Nathan saw Belden holding a piece of timber which he raised to hit the deceased. Nathan then ran towards Belden with the intention to chase Belden away from the deceased. Jason then got hold of a piece of timber and ran towards Nathan and hit Nathan on the right shoulder. Nathan said his shoulder immediately felt numb. Belden then grabbed the bush knife from Nathan and hit Nathan on the head with the bush knife. Belden then hit Nathan on his hip. After this second hit, Nathan then ran towards the deceased yelling to the deceased to run away. Nathan was then hit with a piece of timber by Jason and Nathan fell unconscious on the road. Nathan regained consciousness when he was in Nonga General Hospital. When Nathan returned home at around 2pm, he was told the deceased had been killed.
    
12. In the vehicle with the deceased and Nathan were two other men Michael and Pontian. When asked by the State lawyer whether it was dark or clear already, Nathan said “It was beginning to dawn. It was about 5:30am or 6am.” When asked if he was able to recognise people on the road as the vehicle was approaching Travelodge, Nathan said “At the time the vehicle was travelling so fast that you cannot see the person outside. When the vehicle came to a stop, I then can notice people outside the road.” Nathan said he recognised Raymond. Nathan said Raymond was married to his older sister. Nathan said when the vehicle was set on fire, he was unconscious and did not see who set it alight.
    
13. When asked by the State lawyer how he was able to recognise the people who were approaching and attacking the deceased when it was 5:30am or 6am, Nathan said “it was not dark. It was like beginning to dawn. People at close range you can visualize them. It was getting clear.” Nathan then said the deceased was standing in front of the vehicle about two meters from the bumper bar, and he was still sitting in the front seat of the vehicle. Nathan said the distance from where he was sitting to where the deceased was standing was about four meters.
    
14. Nathan then pointed to the three co-accused, sitting in the dock in the courtroom, and identified them as Belden, Stilson and Jason. Nathan told the court he was informed that the other attacker Japhet was yet to be arrested by police. Nathan said he recognised the three of them attacking the deceased as he had met them before. Nathan said “Jason, I knew him when I was with my cousin at Bay Road Street, Rabaul Town. He used to come to my cousin’s house so, I came to know Jason there. Belden, I knew him when I went to a birthday party at Kaivuna, which was a birthday party of the daughter of Raymond. Stilson John and Japhet Yamban, I met them at the soccer field at Islands Shipping. When we were playing soccer, I came to know them. They were with a different team, and I was in the other team. We were opponents.
    
15. When asked by the State lawyer, Nathan denied having any problems or grudges with Raymond and the three co-accused. Nathan went on to say that he had heard the deceased had some problems with Raymond, but he did not know the details of the problems.
    
16. When asked to give an estimate of the distance from where he was sitting in the vehicle to where the three co-accused were when he recognised them, Nathan said they were “6 or 7 meters away from where I was sitting when they approached Jeffrey. That is where I recognised their faces.” Nathan then went on to say, “after they got the bush knife and hit me with the bush knife, I ran towards the vehicle where Jeffrey was standing. He was still there standing. So, I called him to run.” Nathan then went on to say, “Raymond was lying unconscious at the location where he was hit by the vehicle. From where he was hit on the side of the road, Raymond was about 7 meters from the vehicle.”
    
17. In cross-examination, Nathan confirmed he only saw Jason fighting or punching the deceased and he exited the vehicle when he saw Belden trying to hit the deceased with the 3x2 timber. Nathan reaffirmed he knew the three co-accused, he had met them previously and knew them also by name. When asked to explain the length of time he was drinking the night before the incident, Nathan said he was working on some construction job along George Brown Street until 6pm when he went to the Anglican Church where he cooked and had his dinner and then he started drinking beer at around 10pm. He confirmed he was then picked up by the deceased at midnight and they had more beers at the Yatch Club until around 5am when they drove up to Namanula Hill. When he was asked if it was dark at 5am, Nathan said “It was not dark, very dark. The people close by we can easily recognize.”
    
18. It was then put to Nathan that it was dark, he was drunk, and he was not able to see who attacked the deceased to which Nathan replied “At that time, it was clear. The sun had not rose yet, but it was clear. And I saw the faces of the accused.” It was then suggested that the Travelodge had a club operating and people would have been walking in and out and it was one of those people who frequent the club who attacked the deceased to which Nathan replied “I actually saw these three with Japhet in the crime scene when the incident happened.” When the same line of questioning continued, Nathan said, “I saw Jason throwing hands with Jeffrey. Then Japhet was with a pocketknife. When I came out of the vehicle Belden was running with a 3x2 timber to hit Jeffrey. That is when I turned my focus to Belden, to chase him away.”
    
19. In re-examination, Nathan said while they were at the Yatch Club, he did not drink much as the deceased had told him he should not drink as he would be taking the vehicle to a pastor to use for the church service in the morning.
    

Second State Witness – Michael Rodney

20. The second State witness was Michael Rodney (“Michael”). Michael gave sworn evidence in chief and was cross-examined by counsel for the three co-accused. Michael said he was in the back seat of the vehicle with Pontian. The deceased was the driver, Nathan was in the front left seat, Pontian was in the seat behind the deceased and he was in the seat behind Nathan. Michael said he was asleep in the back and woke up when the vehicle hit Raymond. After the vehicle hit the power pole, Michael said he got out of the vehicle and ran to the side of the road. He saw people running towards the vehicle throwing sticks and stones on the vehicle. Some ran straight to the deceased and they started fighting. Michael said it was around 6am to 7am and the place was clear.
    
21. Michael said the person holding the piece of timber hit the head of the deceased with the piece of timber. He also saw the same person holding the piece of timber ran with others to attack Nathan. Michael identified the person holding the piece of timber as Belden. Michael said after Belden hit the deceased’s head with the piece of timber, he saw the deceased run up the street opposite Travelodge. Michael estimated the distance from the place where they were fighting to where the deceased body was found to be about 150 meters. Michael also said he was standing about 20 meters away from where they were fighting. He said some of the group of boys chased Pontian and some were fighting Nathan. He saw Nathan running with the bush knife to defend the deceased. He said the distance from where he was standing to where Nathan had fallen down was about 15 meters. Michael said the same youths who were fighting the deceased were the same persons who fought with Nathan.
    
22. In cross-examination, Michael said he was not drinking with the deceased, Nathan and Pontian but he saw the boys fighting or chasing the deceased, Nathan and Pontian. It was put to Michael that he was not there when the boys attacked the deceased, Nathan and Pontian because he had run away, he was hiding and was afraid to which Michael said, “I was afraid, they were holding sticks and throwing stones, “I stood there and watched”.
    

Third State Witness – Richard Billy

23. The third State witness was Richard Billy (“Richard”). Richard gave sworn evidence in chief and was cross-examined by counsel for the three co-accused. Richard said at around 5:30am that morning, he was still in bed when he heard the loud sound of the vehicle bumping into the power pole. He ran out of his house to where the incident occurred, and he saw Raymond lying on the ground on the road with blood all over his face. He also saw Nathan lying on the ground unconscious. A motor vehicle arrived, and he helped others put Raymond and Nathan in that motor vehicle and they were rushed to Nonga Hospital. He said the distance from his house to the site of the incident was about 100 meters. Richard said it was no longer dark, it was clear. There were many people at the scene, some were screaming and shouting. He also saw the daughter of Raymond holding Raymond and crying. When he arrived, he did not see anyone holding sticks and stones and the vehicle was already burnt. He did not hear anything about the deceased. In cross-examination Richard again stated he did not see anyone fighting when he arrived at the scene, and he said he did not see Michael or Pontian just Nathan and Raymond lying unconscious on the ground.
    

Fourth State Witness – John Kewok

24. The fourth State witness was John Kewok (“John”). John gave sworn evidence in chief and was cross-examined by counsel for the three co-accused. John said he had woken up from the sound of a vehicle travelling at high speed on the road in the direction of Kaivuna Hotel. He went to the road and was standing with other people near a big tree which he described as a “Pikus Tree”. John said, “the vehicle passed us and went and crashed. We ran to the scene of the crash and saw Raymond and Nathan lying nearby on the ground. A provincial government vehicle arrived in which Jeffery Tokunai was driving and he helped others put Raymond and Nathan in and they were taken to Nonga Hospital.” John said, he did not see the deceased at the crime scene. Neither did he hear anything about the deceased when he was at the scene of the incident. He put the time at 6:30am going up to 7am. At around 9am or 10am, people from Malaguna came and burnt our house. That was when he heard people talking about the death of the deceased. In cross-examination, John said he did not see Pontian or Michael at the scene when he got there.
    

Fifth State Witness – Jerem Blake

25. The fifth State witness was Jerem Blake (“Jerem”). Jerem gave sworn evidence in chief, was cross-examined by counsel for the three co-accused and was re-examined. Jerem was cross-examined again by counsel for the three co-accused with the consent of counsel for the State. Jerem said he was on the road when the vehicle came speeding by. He was with his father John Kewok and his younger uncle Samuel Yamban. They all moved to the side of the road as the vehicle drove by at high speed. We then heard the sound of the vehicle bumping something. They ran down to the scene of the crash, and he saw Raymond and Nathan lying on the ground and he assisted put them in a motor vehicle which rushed them to Nonga Hospital.
    
26. In cross-examination Jerem said when he arrived at the scene, the fight was already over. Initially when asked, Jerem said he did not recall giving a statement to police about the incident but when Counsel for the three co-accused asked him if he recalled being taken to the police station, he confirmed he had signed a written statement. Jerem was then shown his Statement dated 23 August 2016 and he confirmed his signature at the bottom of the second page. Jerem then looked at the statement and read its contents. Counsel for the three co-accused then asked Jerem “Your Statement in the police file is different from what you gave to the police. Which statement would be the truth, the one you gave to court now or the one that is in the police file?” and Jerem held up the written statement he was holding and said, “this statement”. Counsel for the three co-accused then asked, “Is it because this happened 3 years ago that you have forgotten?” to which Jerem replied. saying “yes”. Counsel for the three co-accused then tendered the two-page statement of Jerem Blake dated 23 August 2016, with the consent of counsel for the State, which was then marked as exhibit “D.1”.
    
27. I set out below the main parts of the statement of Jerem Blake dated 23 August 2016:
    

“My name is Jerem Blake, I'm married with two children and resides at Islands Salvage compound at Ward seven. I can recall back to Sunday the 14th day of August 2016, in between 5:00am and 6:00am in the morning, I was in the house with my family.

I got up and went to the toilet and came back and make fire and boiled water for tea and was cutting vegetables and heard insulting words coming from the road. I went into the house, wore my shorts and came out to the road. (Mango Avenue Road).

I looked up towards Hamamas hotel way and saw a Five door land cruiser, grey in color turned and came back and went down towards Kaivuna way. At the same time, I saw Raymond, Belden, Tekiteki (Jack), Jason Amuk and Kewasi (Richie) were walking up towards Hamamas hotel way. Jeffery Pasi drove towards them and Raymond the youths jumped to the side and he missed them, went turned around and drove back and almost bumped Raymond and missed the pole and drove up and stopped where uncle Samuel was standing near the pikus tree. Uncle Samuel told him not to do that because he might end up in an accident. Jeffery Pasi got up and said he will go and come back and drove off towards Hamamas hotel and drove up Malaguna Road.

Raymond and his colleagues came approached Samuel and I were telling stories and they went back towards Travel Lodge looking for Raymond's phone where jumped off the road when the vehicle missed him.

Samuel and I walked back and sat under the pikus tree and my father John and Albert Koni came and met us and heard the noise of the vehicle coming back. We shouted at uncle Raymond and his colleagues to get off the road. I saw the vehicle came at the junction and turn towards Kaivuna way, drove past Hamamas hotel and then past us drove straight down. Raymond's colleagues jumped off the road to both sides. I saw uncle Raymond holding an iron stool and was coming on the lane heading up Hamamas hotel. Jeffery drove on the left lane, then turned to the right lane where Raymond was walking and bumped him (Raymond) then hit the power pole and the vehicle stopped next to the Travel Lodge.

The power pole was about to fall but the power lines from the two other poles supported it so uncle Samuel and I went there first and saw Nathan chasing Belden with a bush knife up and we called out to Belden not to run and stand. I got scared and got the stone from the side and threw it at Nathan to stop him with the bush knife. And Nathan reverse back to where the accident occurred, there I saw Raymond lying on the ground. I was busy trying to remove the bush knife from Nathan's hand and the boys chased Nathan Jeffery was standing on the side of the vehicle with a stone in his hand but did not throw that stone. Pontian got off the vehicle from the back and did not do anything to stop boys. I was confused to see a policeman there and did nothing to stop the boys and Samuel argued with Pontian for stopping the boys and hit Pontian with short timber and he ran away. That time I did not see Jeffery Pasi near that vehicle and thought he had ran away. Jack David pulled the bush knife from Nathan and attacked Nathan and Japhet was holding a Rambo type knife and cut Nathan’s back whilst he was lying on the ground. I heard him scream and tried to get up and I was scared because all of them were drunk and uncle Samuel stopped them.

Not long Jeffery Tokunai arrived and uncle Samuel asked him for assistance and we assisted Raymond and Nathan onto the vehicle and he took them to the hospital. We were standing there and James Kopex arrived, at that time the vehicle was not set on fire yet.

When Kopex drove in, Kewasi (Richie) got a newspaper from inside that vehicle and lit it and set fire to the seat of that vehicle (Toyota Five door).

Later Kewasi told us that if his father died then that person is dead and if we don't believe him then we go and see. When Kewasi say that, my father John told us that it's another problem so we left and went to the house.

We stood on the side of the road to arrange for a vehicle for my small uncle to go and see father (Raymond) at the hospital when Stanley came and told us that Jeffery is dead and he's on his way to get the police.

I don't know where Jeffery went but his uncle Kewasi must have go and saw him and came back and told the bystanders at the scene.”

28. In re-examination, counsel for the State referred Jerem to his statement where he mentions the names “Belden” and “Jason Amuk” and asked Jerem to tell the court the whereabouts of Jason Ambuk and Jason and Jerem pointed to both Jason Ambuk and Belden Yamban sitting in the dock. Jerem went further to identify each one individually by pointing to them separately. Then at the invitation of the court, counsel for the three co-accused asked Jerem a few more questions. “Jerem from your statement you said you saw Jason Ambuk and Belden Yamban at the scene. Did you see them at one time assaulting the deceased, Jeffrey Pasi?” and Jerem replied “No, your honour.” And “It was just Nathan that was assaulted?” and Jerem replied, “Yes your honour”.
    

Documents tendered as exhibits for the State.

29. The first four exhibits were Exhibit “P.1”, a Statement by Johnny Korong dated 15 August 2016, Exhibit “P.2”, a Statement of Ukies Kibale dated 21 September 2016, Exhibit “P.3”, a Statement of Ukies Kibale dated 6 September 2016, and Exhibit “P.4”, a Statement of Ukies Kibale dated 21 September 2016. In submissions on verdict, the State informed the court that Exhibits “P.1”, “P.2”, “P.3” and “P.4” were erroneously tendered by the State. Those documents all relate to a co-accused who is a juvenile and is awaiting trial before another judge. The court accepts the State’s submission that the four exhibits cannot be used against the three co-accused now before this court.
    
30. The remaining exhibits were considered by the court. Exhibit “P.5” was a Statement of Ukies Kibale dated 8 September 2016. Exhibit “P.6” was a Statement of Bonnio Paul dated 12 September 2015. Exhibit “P.7(a)” was the “Police Record of Interview of Jason Ambuk dated 21 September 2016 (pigin language) [signed by questioner, accused and corroborator]. Exhibit “P.7(b)” was the Police Record of Interview of Jason Ambuk dated 21 September 2016 (English translation) [signed by questioner, not signed by accused and corroborator]. Exhibit “P.8(a)” was the Police Record of Interview of Stilson John dated 6 September 2016 (pigin language) [signed by questioner, accused and corroborator]. Exhibit “P.8(b)” was the Police Record of Interview of Stilson John dated 6 September 2016 (English translation) [signed by questioner, not signed by accused and corroborator]. Exhibit “P.9(a)” was the Police Record of Interview of Belden Yamban dated 20 September 2016 (pigin language) [signed by questioner, accused and corroborator] and Exhibit “P.9(b)” was the Police Record of Interview of Belden Yamban dated 20 September 2016 (English translation) [signed by questioner, not signed by accused and corroborator]. These all arose from the formal records of interview by police investigators of each of the three co-accused. The three co-accused remained silent throughout their respective interviews.
    
31. Exhibit “P.10” was the Post-Mortem Examination Report by Dr. Tommy Walters, Medical Officer, Accident & Emergency Department, Nonga General Hospital dated 29 August 2016 and Exhibit “P.11” was the Affidavit of Dr. Tommy Walters, Medical Officer, Accident & Emergency Department, Nonga General Hospital dated 4 November 2016. The doctor reports the deceased was rushed to Nonga General Hospital and was pronounced dead on arrival at the emergency department on 14 August 2016. The post-mortem examination was conducted on 29 August 2016, fifteen days after the death of the deceased. The report is dated 29 August 2016.
    
32. The doctor describes his findings in detail. Firstly, the head – external examination – penetrating scalp laceration, extending into the skull bone with blood oozing out and – internal examination – penetrating posterior scalp laceration, extending into the skull bone with blood oozing out, massive sub-galial hematoma, widespread patchy extra-meningeal haemorrhage, moderate sub-arachnoid haemorrhage, minimal cerebral haemorrhage, collection of blood in the base of the skull. My understanding of these findings is that the deceased’s head sustained deep cuts or blows that penetrated the skull and smashed most parts of the head also causing major loss of blood within and from the head. The description of the injuries to the deceased’s head tell me the deceased’s head was repeatedly struck by a bush knife and, or solid weapons such as a piece of timber or steel bar or similar life-threatening weapons. The nature and extent of these injuries to the head demonstrate extremely serious and ferocious force was used with concerted determination to kill the deceased.
    
33. Secondly, the upper limbs – external examination – right shoulder bruise / abrasion, right posterior forearm bruise, left elbow bruise / abrasion. The description of the bruises and abrasions to the right shoulder, forearm and elbow tell me the deceased was punched heavily and repeatedly and, or, pounded or hit heavily and repeatedly with solid blunt objects such as a piece of timber or steel bar. The deceased may also have been dragged on the rough surface of the road immediately before or after he was killed or when he was actually killed. This was further evidence that the attackers intended to kill the deceased.
    
34. Thirdly, the lower limbs – external examination – right posterior thigh linear bruise approximately 12 cm long extending from the distal to the proximal aspect of the thigh, right calf bruise / abrasion measuring 8cm x 5cm, right knee bruise / abrasion and the lower limbs – internal examination – right lateral foot laceration measuring 4cm x 1cm x 1.5cm, left posterior deep distal thigh laceration measuring 12cm x 4cm x 8cm, left posterior ankle laceration measuring 8cm x 3cm x 6cm. The description of the injuries to the lower limbs were obviously caused by a bush knife or similar weapon. These multiple cuts to the thigh, knee, calf, ankle and feet of the deceased tell me there was serious determination to prevent the deceased from running or crawling away for help and to escape his impending fate. The multiple bush knife wounds were also intended to cause massive loss of blood leaving the deceased with no chance of survival. This is further evidence that the attackers had a clear intention and determination to kill the deceased.
    
35. In the concluding paragraphs, it is reported “Cause of death – The deceased died of cardiorespiratory arrest from multiple bush knife wounds with severe head injury after he was physically assaulted by known suspects. Opinion – The late Jeffery Pasi died of multiple bush knife wounds to his legs with associated severe head injury after he was physically assaulted by known suspects.” This is conclusive evidence that the deceased was brutally attacked by one or more persons, each one using knives and other sharp and solid objects such as pieces of timber or iron bars. The deceased did not sustain those injuries from some innocent and accidental fall or from being hit by a moving motor vehicle. The doctor does not suggest the injuries were sustained when the deceased was driving his vehicle, seated in the driver’s seat, when his vehicle bumped Raymond and, or, when his vehicle collided with the power pole. I must add, this was not asserted or suggested by counsel for the three co-accused during the trial.
    
36. Exhibit “P.12” was a colour copy on A4 paper of 6 x photographs of scene of the crime. The visit to the crime scene greatly assisted the court understand the oral evidence of witnesses for the State and these photographs accurately capture the location where the body of the deceased was found. The small cement monument, which I observed during the crime scene visit, is not captured in the photographs. The cement monument must have been installed after the photographs were taken.
    
37. Exhibit “P.13” was a colour copy on A4 paper of 6 x photographs of knife wounds to the legs of the deceased. Exhibit “P.14” colour copy on A4 paper of 3 x photographs of head of deceased “Blood clot on outer part of skull” and “Blood clot on inner skin of head”. I assume the photographs were taken during the post-mortem examination. These photographs of the cuts to the lower limbs of the deceased confirm the doctor’s description following examination during the post-mortem examination. The photographs of the deceased’s head cut open during the post-mortem examination also confirm the doctor’s internal findings.
    
38. Exhibit “P.13” was a colour copy on A4 paper of 6 x photographs of the motor vehicle, Toyota Land Cruiser five door owned and driven by deceased at time of incident, which shows it was burnt completely. These photographs confirm the oral evidence of the State witnesses that the deceased’s motor vehicle was deliberately set on fire in immediate retaliation to the deceased driving his motor vehicle which bumped Raymond. The photographs capture the deceased’s vehicle entirely burnt and destroyed beyond repair. The remains of the vehicle appear to be worthless even as scrap metal which suggest the fire was very intense possibly with the addition of an accelerant such as petrol. The destruction of the deceased’s vehicle was further evidence of a determined and deliberate act of serious violence. My observations in this regard are made from perusal of these photographs.
    

Evidence for the three co-accused

39. The three co-accused Jason, Stilson and Belden chose to remain silent and did not give evidence. They also remained silent during police investigations and during the police record of interview of each of them and during committal court proceedings where they were committed by the District Court to stand trial in this court.
    

An accused person’s right to remain silent

40. A person accused of a crime has the right to remain silent and that right and protection is provided by the Constitution. Section 37(1) provides “Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences”. Section 37(10) provides “No person shall be compelled in the trial of an offence to be a witness against himself”.
    
41. I have had the benefit of reading the text Injia on Practice and Procedure in PNG and the Pacific where the right to silence is discussed at pages 786 and 787 and from which I have taken the following excerpts.
    

“No accused person can be compelled by process of law to admit the offence with which he or she is charged: ‘an accused person is not bound to incriminate himself or herself.” See R v Macfarlane; ex parte O’Flanagan and O’Kelly [1923] HCA 39; (1923) 32 CLR 518, per Isaacs J at 549, [1923] HCA 39 and Scott and another v Scott [1913] AC 417, per Shaw LJ at 469, [1913] UKHL 2.

“The right not to be a witness against oneself is an unqualified right to remain silent and that silence can never be used to assist the prosecution case by an inference of guilty from silence.” See Fred Bukoya v The State (2007) SC887, [2007] PGSC 16; Paulus Pawa v The state [1981] PNGLR 498 and The State v Alphonse Aia Mohavila (2006) N3385.

42. No evidence was offered for the three co-accused and their counsel closed their case relying purely on evidence called and adduced by the State in their submissions on verdict.
    

Court’s visit to the scene of the crime

43. On 20 May 2021, the court visited the scene of the crime. In attendance were the three co-accused and their lawyer Ms Ainui, counsel for the State Mr Rangan and the arresting officer. We all met on Mango Avenue on a footpath outside Hamamas Hotel and then proceeded to the scene of the crime. I have stated my observations from the crime scene visit where appropriate in my discussion above of the evidence.
    

Analysis of the State’s evidence

44. On or about 13 August 2016, there were arguments and problems between the deceased and Raymond. In the night of 13 August 2016 and into the early hours of 14 August 2016, the deceased, Nathan, Michael and Ponitian were together at various times and some were consuming alcohol together at the Deceased’s residence and at locations nearby in Rabaul and near the Rabaul Yatch Club and Travelodge. Raymond was with others at his residence at or around Kaivuna Lodge or locations nearby.
    
45. Seated in the vehicle were the deceased, who was the driver, Nathan seated on the off-side seat or across from the driver, Michael in the second row behind Nathan and Pontian also in the second row seated behind the driver. There were a few incidents or confrontations principally between the deceased and Raymond prior Raymond being bumped by the vehicle. The deceased drove the vehicle at high speed down Mango Avenue and, as he was approaching Rabaul Travelodge, the deceased saw Raymond standing on the road. The deceased then turned the vehicle and continued driving at high speed and heading directly for Raymond. The vehicle hit Raymond and then hit a power pole and stopped.
    
46. The deceased then got out of the vehicle. A group of men were then seen running up to the vehicle. They had obviously seen the vehicle bump Raymond or heard the vehicle colliding with the power pole. The group of men included the three co-accused Jason, Stilson, Belden and another person named Japhet Yamban. Belden was holding a 3x2 timber, Japhet was holding a knife, Stilson was holding a bamboo and others were holding other sticks and stones.
    
47. Nathan saw the group of men attacking the deceased. Nathan saw Jason punching the deceased in the head and body and Japhet was carrying a knife and running towards the deceased. Others were yelling and shouting. In those moments, Nathan was sitting in the vehicle and when he saw Japhet attacking the deceased with a knife, he immediately pulled out a bush knife, from within the vehicle, and ran out shouting to draw the attention of those men attacking the deceased. They then turned their attention to Nathan and started attacking Nathan. As a result of the attack, Nathan fell unconscious.
    
48. The key eyewitness for the State was Nathan. Nathan recognised the three co-accused when they were within six or seven meters from him. As discussed above, the three co-accused were all known to Nathan and his evidence of meeting them previously within and around Rabaul town was not challenged and I accepted that evidence. Nathan maintained the morning sun was up and gave sufficient light for him to see and recognise the three co-accused at a distance of six or seven meters. Nathan had ample time and opportunity to see and recognise the three co-accused when they were all engaged in the attack on the deceased at the front of the vehicle while he sat in the off-side seat. This was not a fleeting glance. I was satisfied with Nathan’s evidence which I find was accurate. I found Nathan to be confident in giving his evidence in court. I also found Nathan to be honest and truthful. I am also satisfied that essential parts of the evidence of Nathan were corroborated by the other State witnesses.
    
49. Michael was in the vehicle and confirmed the vehicle was driven by the deceased, Nathan was seated on the off-side or next to the driver, he was seated in the second row of seats with Pontian. He was seated behind Nathan and Pontian behind the Deceased. Michael said he was asleep in the vehicle but woke up when the vehicle hit the power pole and the deceased was immediately attacked by people at the scene. Michael said he saw Belden hit the deceased on the head with a piece of timber. Michael said he saw Nathan running from the vehicle with a bush knife to defend the deceased who was being attacked. Michael saw that the persons who were fighting the deceased were the same persons fighting Nathan. Michael also said he saw the same persons also chase Pontian away. Michael’s evidence puts Jason and Belden at the scene fighting the deceased while armed with a piece of timber and other weapons. Essential aspects of Nathan’s evidence are corroborated by Michael’s evidence. I was satisfied with Michael’s evidence which I find was accurate and I found Michael to be confident in giving his evidence in court. I also found Michael to be honest and truthful.
    
50. Richard was at home nearby and in bed when he heard the sound of the vehicle bumping the power pole and that was around 5:30am. By the time he got to the scene, the vehicle was already burnt, and he saw Raymond lying on the ground with blood all over his face and also Nathan lying on the ground unconscious. Richard’s evidence confirms Nathan’s evidence that Nathan was attacked and left unconscious at the scene. I find Richard’s evidence accurate and I also found Richard to be honest and truthful.
    
51. John was also at home nearby and in bed when he heard the sound of the vehicle bumping the power pole and that was around 6:30am. John said he also ran to the scene and he saw Raymond lying on the ground injured and also Nathan lying on the ground unconscious. Richard’s evidence confirms Nathan’s evidence that Nathan was attacked and left unconscious at the scene. I find John’s evidence accurate and I also found John to be honest and truthful.
    
52. Jerem was also at home nearby and in bed when he heard the sound of the vehicle bumping the power pole and that was around 5am to 6am. Jerem said he heard people shouting. Jerem positively identified Jason and Belden along with Raymond and two others at the scene when he arrived. Jerem said he saw the vehicle, driven by the deceased, hit Raymond and the power pole. Jerem recounted exactly what Nathan described as the vehicle being driven by the deceased at high speed and changed lanes on Mango Avenue and continued at high speed and bumped Rayment head-on and into the power pole. Jerem also saw Nathan holding a bush knife and chasing Belden. Jerem saw Raymond lying on the ground. Jerem saw Pontian get out of the vehicle and was also attacked and chased by the same people who attacked Nathan. Jerem positively identified Jason and Belden at the scene and attacking Nathan. I found Jerem’s evidence, particularly his sworn statement to be accurate despite him forgetting he had signed that statement when the matter was being investigated by police. His explanation that he forgot about his statement I accepted as I also found Jerem be honest and truthful in his recollection of the events of that early morning.
    
53. The State did not adduce any eyewitness evidence as to any further attacks on the deceased. The State did establish that the body of the deceased was found a few hours later, about one hundred and fifty meters away from where the vehicle stopped, lying face down with multiple serious injuries to his head, upper body and limbs which were described in detail in the post-mortem report.
    
54. The State submits the evidence in its totality has established that the three co-accused continued their attack on the deceased and they were responsible for the further injuries inflicted on the deceased which ultimately led to the demise of the deceased.
    
55. It is not disputed the killing of the deceased Jeffrey Pasi was not lawful. The State did not adduce direct evidence identifying the person or persons who attacked the deceased after the confrontations that were seen by the witnesses for the State particularly Nathan. The State relied on circumstantial evidence in seeking to establish that it was the three co-accused together or with other persons in their company who attacked and killed the deceased. The State also relied on circumstantial evidence in seeking to establish that the three co-accused together or with other persons in their company intended to and did kill the deceased.
    
56. As stated above the evidence adduced by the State was in the form of documents tendered by consent and the oral evidence of the witnesses for the State given under oath.
    

Circumstantial evidence

57. The Supreme Court in Paulus Pawa v The State [1981] 498 said in its headnote “When a case against an accused person rests substantially upon circumstantial evidence there should be an acquittal unless all the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilty of the accused.” Barca v. The Queen [1975] HCA 42; (1975) 133 CLR 82 at p. 104; [1975] HCA 42; 50 ALJR 108 at p. 117 adopted and applied. The State v. Tom Morris [1981] PNGLR 493 affirmed.
    
58. In that same case, the Supreme Court said “Where an accused person fails to give evidence or to call witnesses to support his case the court may draw inferences which properly flow from the evidence and reach its conclusion without being deterred by the incomplete state of the evidence or by speculation as to what the accused might have said had he testified. Justice Andrew, with whom Kearney DCJ agreed, went on to adopt the conclusions of Professor O’Regan in his article “Adverse Inferences from Failure of an Accused Person to Testify” 1965 Crm. L.R. 711 that:
    
59. Where an accused fails to give evidence or to call witnesses to support his case, any inferences to be drawn and the weight to be attached thereto must be determined by common sense having in mind that:
    
    • (1) The failure of an accused is not an admission of guilty and no inference of guilty may be drawn therefrom;
    • (2) Failure to testify may, however, tell against an accused person in that it may strengthen the State case by leaving it uncontradicted or unexplained on vital matters;
    • (3) Failure to testify only becomes a relevant consideration when the state has established a prima facie case;
    • (4) The weight to be attached to failure to testify depends on the circumstances of the case. Significant circumstances include:
      • (a) Whether the truth is not easily ascertainable by the State but probably well known to the accused;
      • (b) Whether the evidence implicating the accused is direct or circumstantial;
      • (c) Whether the accused is legally represented;
      • (d) Whether the accused has before trial given an explanation which the State has adduced in evidence.
        
60. I have also had the benefit of reading the text Injia on Evidence in PNG and the Pacific where the law of circumstantial evidence is discussed from pages 32 to 40 and from which I have taken the following excerpts:
    

“The law allows for a conviction on ‘circumstantial evidence’ even where there is no direct evidence. “See Denden Tom and others v The State (2008) SC967; Garitau Bonu and Rosanna Bonu v The State (1997) SC528 and The State v Koivi Ipai (2010) N3972.

“It has been said that ‘circumstantial evidence’ is very often the ‘best evidence.” See R v Taylor, Weaver and Donovan (1928) 21 Cr App R 20, per Hewart LCJ at 21.

“The strength of ‘circumstantial evidence’ lies in its ability to show that according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonable by supposed.” See Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367, per Dixon J at 375, [1936] HCA 23.

“A case based on ‘circumstantial evidence’ can prove the intention of an accused person.” See The State v Raphael Kunande [1994] PNGLR 512 at 514 and The State v Titus Aiko and others (2008) N3324.

“Motive is ‘circumstantial evidence’ and may be used as a factual basis for an inference of guilt.” See Chamberlain v R (No. 2) (1984) 153 CLR 521 (1984) 51 ALR 225, [1984] HCA 7.

61. The Supreme Court in Vaii Rocky Maury v The State (2001) SC688 said “whether an accused person should be found guilty or acquitted of the charge based entirely on circumstantial evidence is a matter of common-sense approach. In other words, the court is entitled to draw reasonable inferences as common sense may dictate as to the guilt or innocence of an accused person. The question in the present case is, did the facts support an inference of guilt against the appellant beyond reasonable doubt and that was the only inference open to the learned trial judge.”
    
62. In this case, as in Garitau Bonu & Rosonna Bonu v The State (1997) SC528, the three co-accused accused made no admissions and failed to provide an explanation at the time of their arrest and during their record of interview. At trial, they declined to give evidence.
    

The facts established by the State’s evidence.

63. In my analysis of the evidence of witnesses for the State, I am conscious of the danger inherent in eyewitness identification of the three co-accused at early hours of the morning but I am satisfied they were all positively identified. I am satisfied that there is conclusive evidence that Jason, Stilson and Belden were all at the scene immediately before and at the time of the attack and killing of the deceased. They were all armed with offensive weapons as described in evidence and stated above. They were all together with Raymond and saw Raymond being bumped by the vehicle driven by the deceased. The vehicle was driven at high speed and turned off its own lane into the opposite lane and continued at high speed directly towards Raymond.
    
64. That would have angered or incensed them greatly causing them to retaliate immediately with brutal force. It is possible they were together with Raymond most of the evening and into the early hours of the day of the incident. It is also highly likely Raymond had disclosed to them his problems with the deceased. It is also highly likely they were in the company of Raymond when he was engaged in the confrontations with the deceased within the half an hour or so prior to Raymond being bumped by the vehicle. They were certainly seen walking up Mango Avenue with Raymond when they all scattered off the road as the vehicle driven by the deceased sped by earlier. They were seen by Nathan attacking the deceased as described above. Nathan’s evidence in this regard was corroborated by the evidence of Michael and Jerem.
    
65. There was no evidence of anyone else within the vicinity of the scene when the three co-accused and their accomplices were attacking the deceased and Nathan. Neither was there any evidence or suggestion that some other person or persons with grudges against the deceased was in the vicinity at the time of the incident. I am convinced beyond reasonable doubt the circumstances show that, after they had knocked Nathan unconscious, they then turned their attention back to the deceased and proceeded to attack the deceased with the weapons in their possession including the bush knife they had retrieved from Nathan. I also believe the three co-accused and their accomplices assumed Raymond had died instantly after being hit by the vehicle driven by the deceased. Amazingly, Raymond survived that horrific experience.
    
66. As stated above, the injuries sustained to the deceased’s head, body and limbs are consistent with injuries inflicted from the use of a bush knife and sharp knives and solid objects such as the 3x2 piece of timber and other sticks and rocks or stones that were observed to be held or in the possession of the three co-accused and their accomplices.
    
67. As stated above, from my analysis of the post-mortem report, that was conclusive evidence that the deceased was brutally attacked by one or more individual’s using knives and other sharp and solid objects such as pieces of timber or iron bars. The deceased did not sustain those injuries from some innocent and accidental fall or from being hit by a moving motor vehicle.
    
68. I also repeat my analysis of the report that the injuries to the lower limbs were obviously caused by a bush knife or similar weapon. These multiple cuts to the thigh, knee, calf, ankle and feet of the deceased demonstrate there was serious determination to prevent the deceased from running or crawling away for help and to escape his impending fate. The multiple bush knife wounds were also intended to cause massive loss of blood leaving the deceased with no chance of survival. This all showed a clear intention to kill the deceased.
    

Criminal Code Section 7. Principal offenders

69. Section 7 of the Criminal Code provides as follows:
    

“(1) When an offence is committed, each of the following persons shall be deemed to have taken part in 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
(c) every person who aids another person in committing the offence; and
(d) any person who counsels or procures any other person to commit the offence.

(2) In subsection (1)(d), the person may be charged with –

(a) committing the offence; or

(b) counselling or procuring its commission

(3) A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as conviction of committing the offence.

(4) Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, it would have constituted an offence on his part, is

(a) guilty of an offence of the same kind; and

(b) liable to the same punishment.

as if he had done the act or made the omission and may be charged with himself doing the act or making the omission.”

70. In the headnote of the judgement of Chief Justice Minogue in the Supreme Court in Regine v William Taupa Tovarula and Others [1973] PNGLR 140 at page 142 stated:
    

“Although the terminology differs, s.7 of the Criminal Code substantially reproduces the common law on principals in the first and second degree. A principal in the second degree is one who intentionally encourages the commission of a crime by word, action or by his mere presence. If presence at the commission of the crime is relied on, as distinct from any act of words of assistance, the presence must be willed not accidental and with the intention of encouraging or assisting in the commission of the crime charged.

In some circumstances the fact that a person was voluntarily and purposely present at the commission of a crime and offered no opposition to it, although he might reasonably be expected to do so or at least to express his dissent, might afford cogent evidence that he wilfully encouraged the commission of the crime.”

71. The abovementioned passage was cited with approval at page 140 in Criminal Law and Practice of PNG, Chalmers Weisbrot Injia Andrew 3^rd edition where the authors say “When several persons together attack the same man at the same time, using similar weapons or directing similar blows with the common intention to injure, and that man dies as a result of injuries so inflicted, each of the attackers is guilty of wilful murder, murder or manslaughter, according to the intent proved, because each of those several persons is acting in concert with the others at the time, each did the acting constituting the offence under s.7(1)(a), and aided the others under s.7(1)(c).”
    
72. To complete their heinous acts, the three co-accused and their accomplices then returned to the deceased’s motor vehicle and deliberately set it on fire in immediate retaliation to the deceased driving the motor vehicle at high speed directly towards Raymond and bumping Raymond head on. The photographs capture the deceased’s vehicle burnt and destroyed beyond repair. The remains of the vehicle appear to be worthless even as scrap metal which suggest the fire must have been very intense possibly with the addition of an accelerant such as petrol. The destruction of the deceased’s vehicle was a determined and deliberate act of serious violence. That act of burning the deceased’s vehicle completed their lust in retaliation and revenge for the deceased’s actions in bumping Raymond.
    
73. I am satisfied beyond reasonable doubt that the three co-accused killed the deceased, that they each enabled and aided each other in killing the deceased, that they had no lawful excuse to kill the deceased and it was the intention of the three co-accused individually and together to kill the deceased.
    
74. I find Jason Ambuk, Stilson John and Belden Yamban guilty of the wilful murder of Jeffrey Pasi as indicted by the State.
    

Judgment accordingly:
________________________________________________________________
Office of Public Prosecutor: Lawyer for the State
Office of Public Solicitor: Lawyer for the co-accused