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State v Petrus [2022] PGNC 100; N9520 (7 March 2022)

N9520

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1304 OF 2020

THE STATE

V

SAMUEL SIMON PETRUS

Kimbe: Miviri J
2022: 03^rd & 7^th March

CRIMINAL LAW – PRACTICE AND PROCEDURE – Wilful Murder Section 299 CCA – Trial – Gun Discharged – Deceased Passenger in Vehicle robbed – Identification – Alibi No Notice – Record of Interview Not Disclosed – Effect of Weight to – Independent Corroborative Evidence – Circumstantial Evidence Law – No other Reasonable Hypothesis Guilt – Whether Intent to Kill – Not beyond doubt – Alternative Verdicts Section 539 CCA – Guilty of Murder S300 (1)(b) CCA.

Facts
Accused was part of a group of men who were armed with homemade guns and knives who held up a PMV bus with its passengers on the road. In the course of that holdup one of the robbers discharged the homemade gun shooting the deceased in the head from which he died. They had intended to kill the passengers and did kill one of them. Report was made and Police pursued and caught the Accused. One was shot dead the others escaped.

Held
Identification Circumstantial.
No other reasonable hypothesis other that Accused also involved in crime.
Alibi no notice, recent concoction conscious sense of Guilt.
Credibility, State account probable, defence not probable.
Identification established beyond all reasonable doubt.
Intent to Kill not established against Accused
Bush knife wielding assisted and aided murder
Guilty of Murder.

Cases Cited:
Amoko, The State v [1981] PNGLR 373
Beng, The State v [1976] PNGLR 471
Fineko, The State v [1978] PNGLR 262
Hagena v State [2017] PGSC 55; SC1659
Joseph Maino v The State [1977] PNGLR 404.
Jaminan v The State [1983] PNGLR 318
Kandakason v The State [1998] PGSC 20; SC558
Morris, The State v [1981] PNGLR 493
Pawa v The State [1981] PNGLR 498
Saka v The State [2003] PGSC 18; SC719
State v Simon and Koroka [1987] PGNC 4; N600

Counsel:

L. Maru, for the State
D. Kari, for the Defendant

VERDICT

07^th March, 2022

1. MIVIRI J: This is the verdict after the trial of Samuel Simon Petrus of Wamayang, Kubalia, East Sepik Province who was charged with wilful murder pursuant to section 299 (1) of the Criminal Code Act by operation of section 7 of the Criminal Code Act.
   
2. The relevant facts on arraignment were that a PMV bus named Sweat Blessing Piru was travelling from Malilimi Division 1 to Kimbe Town. It was about 6.00am to 7.00am in the morning and there were about sixteen passengers including children onboard. The passengers were mostly workers of the New Britain Palm Oil Limited (NBPOL) and few block holders from Malilimi Division 1. Along the way at a section of the road there was a bend, the driver slowed down and also there was a log across the road. He stopped and as he did, the Accused and nine (9) Accomplices masked and armed with bush knives, Stapler Guns and homemade guns ran up to the bus. They held up the driver with the passengers by putting the guns to their heads and got cash and assorted items including bilums and bags belonging to them.
3. After they got the cash and assorted items from the Driver and the passengers, one of the accomplices of the accused armed with a homemade gun walked to the front of the bus, pointed the gun at the offsider of the bus, and fired at him at close range, but he ducked avoiding the bullet. It missed him and got Morris Yagu who was sitting between the offsider and the driver of the bus. The bullet penetrated him through the left side of his face just near the left ear. It blew out both his eye socket and instantly killed him.
4. The Accused and Accomplices fled into the bushes nearby. The matter was reported to the Police at Buvussi who pursued immediately resulting in the capture of the Accused soon after. But his accomplices escaped and are at large. They had intended to kill the deceased and did cause his death. The State invoked section 7 of the Criminal Code in that the Accused and his accomplices aided and abetted each other in the commission of the offence.
5. The State had twenty-two (22) witnesses named in the schedule of witnesses on the Indictment that was presented. Nineteen (19) of whom had their statements tendered by consent into evidence, the Statements originally obtained in Pidgin and the English translation, Exhibit P1 to P19 were tendered of the following witnesses. Relevant excerpts of their evidence I set out here.
6. Paulus Mongop Statement dated 29^th June 2020 Exhibit P1; he was the driver of the bus on that day 27^th June 2020 at about 7.45am along the Malilimi Division 1 main road along the way to Kimbe Town. He loaded his passengers at Malilimi Division 1 Compound and wanted to go to Kimbe Town. He was travelling along the road at the boundary of Forestry where there is a junction, he slowed down and wanted to veer to the left, at the same time he saw a log across the road blocking. And he saw the raskols pointing their guns at him and coming.
7. Five came from the front and three came from the driver’s side and two went to the boss crew side. The three that came to my side, one of them was armed with a gun and two had bush knives. They opened the door of the bus and the man with the gun pointed it straight at my forehead and the two with the bush knives put it on my legs and demanded, money ikam.
8. And when they did that to me, I cried and sat down on the floor of the bus where the accelerator, brake and clutch are and said to them, “Ol Pikinini yupela noken katim mi o bagarapim mi, moni stap long Bilum ya K 700.00 stap insait yupela kisim.” And they took it with the money and class 6 driving licence, PMV permit licence, two save card (BSP) and ID card of the block. All were inside the bilum that they took. At the same time, the two that went to the boss crew side I heard gunshot and saw smoke from the cartridge fired inside the bus. When the gun fired the three men who were with me moved away and I turned and looked to the boss crew side. I saw the door was open and the man who sat in the middle a passenger fell outside onto the road.
9. When I saw this, I jumped to the boss crew side and went out and ran up away and stood away and looked back at the bus. And I saw the raskolman left the bus after they got everything from us and walked following the road up to the short cut road to Buvussi Section 1 and 2. When they had left the passengers opened their door and came out of the bus. I went back and told them to wait with the deceased passenger. And they were standing there crying. So, I told some boys who were passengers to push the bus to start it. They did and I drove back to the Compound to tell them what had happened. I did and they all got on and we came back and started to follow the road that the raskols followed. And I got the passengers with Minor injuries to Buvussi Hospital where they were treated and I also reported to the Police.
10. The next evidence tendered by Consent was the affidavit of Doctor Lawrence Warangi sworn of the 13^th August 2020, Exhibit P2, that he is a registered medical practitioner attached to the Kimbe General Hospital. His qualification are Bachelor of Medicine and Surgery and Master of Medicine in Surgery from the University of Papua New Guinea. He compiled a report on the 18^th July 2020 after receipt of an order for Post-mortem Examination to him from the Kimbe Coroners Court of the 01^st July 2020. And he compiled a report of Death to the Coroner on the deceased Morris Yagai. Who was 35 years old from Kaintiba in the Gulf Province. He was self-employed. He was shot dead by armed robbers and was brought in by Paulus Mongop. His cause of death was Anoxia severe head injuries which in the Doctor’s opinion was incompatible with life.
11. Attached to this evidence were three photographs depicting the entry of the bullet in a large hole at the side of the left ear showing the sockets of the eye but did not depict any exit of the bullets.
12. The other evidence Exhibits P 3 from Rodney Rimis dated the 29^th June 2020, he was the passenger seated next to the deceased who had his eye on the trigger finger of the robber who fired killing the deceased. As his finger pressed, he slept down on the front of the dashboard of the bus, avoiding the bullet which went and killed Morris Yagai seated next to him.
13. Exhibit P4 was of the witness Jerry Willie of the 29^th June 2020. He was the boss crew of the bus. And he was shot at by one of the robbers, but he jumped and fell over a mother with her child. The homemade gun did not fire. He also recounted the details stated by Paulus Mongop the driver set out above with the others who were inside the bus.
14. Exhibit P5 was the Statement of witness Angela Sammy dated the 23^rd September 2020, originally from Kundiawa, Simbu Province. She was in the first row of the Bus and confirms that the bus was travelling after picking them about 6.00am to 7.00am. She was accompanied by her 10-year-old child and also her 9 months old baby. When the robbers were angry, she lay low on her seat and was covered by Jerry the boss crew. She gave her bilum to the Robbers that contained market money K200.00 and clothes change for the baby to the value of K20.00. When she saw that the robbers had left, she came out of the bus and jumped over the deceased and ran to the compound where the workers there assisted and police were called. She did not receive any injuries but was very frightened for herself and children.
15. Exhibit P6 was the statement dated 26^th August 2020 of one Micah Bandi, originally from Maprik, East Sepik Province occupied as a driver with Malilimi Division 1. He was also on that PMV at 06.00am Sweat Blessing Piru going to Kimbe. Morris Yagai had come earlier that morning to him, and both walked to the bus stop where they caught in together. He was from Morobe and lived at Bubu village oil Palm settlement. And knew him well because he worked at Division 1 plantation but resigned from work and was living on the block. He describes the sitting arrangements in the bus and corresponds the account given by Jerry the boss crew. Which included the description of the robbers and the arms that they carried liken to the other witness’s description. The bus door was locked inside and the boss crew lowed himself. He heard a gunshot after which they started to break the windows and get the bilums of the passengers. After which they escaped into the bushes. He did not know the deceased had been shot but when the door to the bus was opened the deceased fell out. And they all got out and went to the Compound for help. He was shocked and sat down thinking and was very afraid. He only saved his save card from the bank but his basket was stolen with his wallet, drivers licence valued at K 80.00, a Huawei Mobile phone valued at K100.00 a kitchen knife valued at K 3.00 and bunch of keys.
16. Exhibit P7 was the statement of the witness Lois Herman of Maprik East Sepik Province dated the 26^th August 2020. She recounted similar details as the other witnesses but stated that her bilum with K300.00 inside valued at K50.00 was also given when a barrel of the gun was pushed against her head. She knew it was a robbery and so pulled her son down to her legs. She is afraid now and when children pop empty packets, she recalls the deceased and is very afraid.
17. Exhibit P8 is the statement of the witness Anitha Solo originally from Kaintiba Gulf Province a loose fruit picker at Malilimi division 1, who also apart from the tender of her statement was called on oath and gave evidence identifying one of the bilum admitted as Exhibit P24 as hers which was stolen in the armed robbery after the shooting of the deceased. And her bilum was retrieved by Police off at the scene where the accused was arrested and one of the accomplices shot dead with the others escaping. She testified on oath in Court that her bilum was red, black, and white bilum. She identified it when the police brought it to the Compound on the Thursday 20^th August 2020. And in court when shown it, Exhibit P24 which comprised two Bilums she identified as hers. Which was about a month and half later after the robbery. It was one of the two bilums police retrieved at scene.
18. The other comprising Exhibit P24 as both were wrapped together with paper and then sticky taped, was taken off the body of the accused with four live Buckshot, with red cylinder casing bronze top and cartridges in it Exhibit P24 (1). It was identified in Court by Detective First Constable Wayne Isako. It is green coloured at the top and green also at the bottom in half triangles diagonal across encircling the entire bilum. In the middle is green blue threaded in a shape of a half triangle cut in the middle on one side. The opposite side is similar coloured and threaded but at the bottom is coloured black and brown also in a half triangle thread. It has strings decorative dropping on both sides encircling around the entire bilum. This was carried by the accused and taken off him and searched by the Policeman Wayne Isaka, to contain the exhibits that were taken out in open court from the sticky taped covering after the bilum was cut with a scissors supplied by counsel for the State. Inside as testified on oath were a black cap that the Accused wore when apprehended and also a bible inside in the bilum examined by the Court. There were two bilums covered and wrapped together. It would appear that this was the first time in open court that both Exhibit P24 was opened exposing within the four live shotgun buckshot, a pocket bible and the black cap examined.
19. Accused was struggling with First Constable Wayne Isako and no doubt drew one Constable Joshua who was with the former to try to shoot the Accused who called out, “Uncle Joshua noken sutim mi.” He had the subject bilum one of whom described above comprising Exhibit P24. I will examine in the course of the Judgment this evidence.
    
20. Exhibit P9 was the statement of the witness Gloria James of the 29^th June 2020. It was similar in all material particulars as to the robbery and the shooting of the deceased. Similarly Exhibit P10 Witness Selita Honi who gave her bilum with K400. 00 cash inside it. She was accompanied by two of her children 7 and 5 years old. And also Exhibit P11 witness Rita Isikel who gave similar account as the other witness in respect of the shooting of the deceased and the robbery. A similar account was given by the witness Angeline Kisa who was accompanied by her one-year-old and 12-year-old girl. Her bilum was taken off her. Also, one Cathy Wake also recounted similar, Exhibit P13 was her statement dated the 26^th August 2020. And similarly Exhibit P14 Statement of Susan Wanpis dated the 21^st September 2020 who gave away her bilum with K150 cash and save card.
21. Exhibit P15 Statement dated the 29^th June 2020 of the witness Lambert Tom employed at Malilimi Division 1 as sprayer had similar details but recounted that one of the robbers had a black woollen cap and the other was a short man. A black wool cap was retrieved with another from the scene Exhibit P 23 where accused was apprehended. This is evident from the sworn evidence of First Constable Wayne Isaka of the Buvussi Criminal Investigations Branch. Another wool cap black is worn by one of the robbers at the scene set out in the Statement Exhibit P8 by Anitha Solo. I will detail this in the Judgment.
22. Exhibit P16 is statement of the witness David Awat dated the 29^th June 2020, employed as a loader with Malilimi Division 1 whose evidence is similar in all material particulars as to the shooting and the robbery. The next evidence is Exhibit P17 statement of the witness Jaytee Noah who recounts similar evidence in respect of the shooting and the robbery. He was robbed off his Bilum that contained K200.00 in cash, lime and betelnut with mustards. Next witness was Clement Ranga Luzar tyre hand of Malilimi Division 1 statement dated the 14^th September 2020, Exhibit P18, he recounts sighting some youth and giving their names but this is without any connection to where the Accused was apprehended. Relevantly his evidence is as to his wife also being in the subject bus that was held up and the deceased shot and killed. And he with others tracking the suspects but not catching any of them despite following foot tracks along the way. But only finding and retrieving the basket of the deceased with its contents minus any money that may have been in the wallet.
23. Exhibit P19 is the statement of Police Constable Augustine Wulgu of the Kimbe Police Station whose evidence is being an investigator of the case. That he took charge of the case after there was arrest of the accused by Buvussi Police who chased after the suspects after they had committed the offence. He arrested and charged him with the offences. And recounts as Wayne Isako that when the suspect was arrested, he was carrying a bilum and in it was 4x live shot gun cartridges Exhibit P24 (1) set out above. He was with others at the time of his apprehension. One was shot dead and the others remaining escaped. And at the scene of the capture of the accused police recovered two homemade stapler guns with 2.72 mm rounds and four bush knives and bilums belonging to the victims robbed. He said that the bilum he carried belonged to the boys who had escaped when Police came to look for them. This included the four cartridges that were in the bilum.
24. Exhibit P20 were photographs of the deceased taken as he lay on the ground with blood covered face by Police Constable Jeremiah Kaumbel. He also gave evidence on oath in Court that the Accused struggled with First Constable Wayne Isako who was trying to arrest him. And the accused was calling out “ Uncle Joshua noken sutim me”. Which the Accused confirmed and explained that he was not with the boys so called out for police not to shoot him. He was innocent of the allegation.
25. Police Constable Jeremiah Kaumbel details his involvement as a policeman who had served five (5) years up to the date of the offence. On the 27^th June 2020 about 6.00am to 8.00am, he was at the Police Station Buvussi house. There was a phone call that there was a Robbery at Malilimi Division 1. He responded and went to the scene attended the robbery and murder. As a young police officer, he had never seen such in his life and was scared of the body as he saw it. But then affirmed himself saying he was sworn to do his duty and he would do it regardless. I must do my job for who did this. And he took the photo on his mobile phone of the deceased at the scene which is Exhibit P20.
26. He testified that they were immediately led by people to the short cuts that the robbers would take and likely come out which were at Section 1 Buvussi. There was criminal history that prompted to drive immediately there. And they drove to Buvussi Section 1 where they got off and went by foot coming upon the scene where Accused was apprehended. He was accompanied by two other policeman including First Constable Wayne Isako. There they heard voices and looked downhill from where they were. He saw about 10 to 11 youths from where he was. First man came up and saw us as did we. They were armed with bush knives, homemade guns, and stapler guns too. The first man we told him to stand where he was as we had cocked our guns and told him not to run. He stood but the others who were behind him coming up jumped back down as it was a mountain. Another armed with a homemade gun pointed at us, so we engaged as it was a threat and he was killed. We fired at them they threw down their bush knives homemade guns and stapler guns and ran. The one in front was apprehended, others ran away, we shot one dead. We collected the bilums they dropped after as evidence for the court. After we got the suspect and the deceased to the morgue.
27. The man we got at meri kalap wara is sitting in the dock and points out the Accused as that person. Two or three bush knives we got and they ran away. He identifies Exhibit P21 as the bush knives he collected at the scene when they apprehended the accused. And Exhibit P22 the homemade stapler guns that they collected at the scene dropped by the others with the accused at the time of the apprehension. He identifies too Exhibit P23 the two wool caps retrieved at the scene of apprehension. He also identifies Exhibit P24 the two bilums that were taken also at the scene. One was on the Accused with four live cartridges and another was retrieved there. The accused did not say anything upon apprehension except that he was pleading that one of the Policeman, Uncle Joshua do not shoot me in pidgin. He described that they looked as if they were in a hurry and running away from the way he saw them. He denied that the Accused had a small bush knife that he had washed in the river and came up when arrested. And that there was no dwelling at the scene of the arrest nor anybody or a garden or gardens.
28. The next witness on oath was First Constable Wayne Isako of the Buvussi Rural Criminal Investigations branch. He testified that on the 27^th June 2020 at about 6.30am to 9.00am he was preparing for normal duties, but because of the holdup an emergency, so he attended to it. Informant rang and said there was a robbery & murder at Malilimi Division 1. They drove in two vehicles, Zulu the sector patrol vehicle and Rural CID vehicle to the scene. In the former was Jeremiah Kaumbel. The owner of the bus was crying and taking the wounded to the hospital. I took photographs and people at the scene pointed the direction where the criminals had gone and acting on the information, assumed the cut off route, which is which way they would come out from. It took about 15 to 25 minutes from the scene of crime to where suspects would likely come out from. It was an emergency drive and therefore very fast driving. I assumed Section 1 so went and visited the suspects block there was no one to be seen there. It was empty I checked the back there were no youths. I cut off the river side and walked down. There were three of us, First Constable Joshua Anis, Constable Jeremiah Kuambel.
29. Towards the river we came across suspects more than five (5) we did an open fire, the suspect surrendered and we shot one. I went for the suspect and got him, he was afraid of being shot. He knows Constable Joshua and kept on saying in pidgin, Uncle Joshua noken sutim mi. He had a bush knife and I tackled him down. And he was struggling with me. On him were four live cartridges Exhibit P24 (1) in the bilum Exhibit P24 that he had which I took possession from him. And that is the bilum now in court together with the other. Inside it also were stones, a bible, and a black cap. I showed that other bilum Exhibit P24 later on to Anitha Solo who identified as hers stolen in the robbery.
30. We combed the area and got the bush knives, homemade guns and the Stapler guns that were held by the suspects who dropped them there and ran away. There were two bush knives Exhibit P21, and two homemade stapler guns Exhibit P22, 2 rounds of 7.76 mm ammunition, and also the deceased was picked up and transported to the morgue. He was carried with the help of the accused now before the court up the hill.
31. The defence opened its case in addition to the tender of the records of interview Exhibit P25 Pidgin Original version, and Exhibit P26 the English translation. Accused denied the offence and ever taking part in it. But he agreed that Exhibit P24 was the bilum that he carried at that time when he was apprehended. He was with the boys down at the river when the police got them. He denied that the exhibits P21, P22, P23, P24, P24 (1) where his. They were of the boys who escaped. But it did not belong to him. It was of the Deceased who was shot by the police referring to the Bilum in particular with the live 4 buck shots. He did not know them he had gone to the river to wash and there met them. He was innocent and was pounced upon for their troubles for nothing. This is evidence of an accomplice who has shifted blame, which must be corroborated: Hagena v State [2017] PGSC 55; SC1659 (11 December 2017). There is no corroboration of the account of the Accused. The effect is grave to his defence. And in aggregate does not advance his case.
32. He filed no notice of Alibi in accordance with the Criminal Practise Rules Order 4 Division 2. He sought no leave from the Court to adduce but went ahead without that fact and adduced to an extent where he demarcated within a time period to a particular location. The discretion of the Court given will be exercised in the aggregate with all these. Rules are there to ensure there is fairness in the conduct of the trial. As it is the Prosecution has not examined in return the alibi. Its weight will be seriously impaired given that fact. It would not hold fast given that fact.
33. Apart from that the Accused gave sworn evidence in defence that on the 27^th June 2020 before he was taken into custody by the Police between 6.00am and 6.30am he went to his garden to chase birds. Then he wanted to go to the river to wash and passed the garden of a neighbour Otto with his wife Magum. They were digging their peanut garden and when they saw him, they offered him some peanuts that he ate, and some he put in his pocket. He went up and the Police got him.
34. This evidence was never put to the State witnesses and appeared to have been made out in the dock when he gave evidence so that the rule in Brown v Dunn was not satisfied. It differed in material particulars from the record of interview that was tendered. There was simply no opportunity accorded to the State to examine. And it was not put to the state witnesses.
35. Otto Kisan Tambal gave evidence that they were neighbours with the accused. Who he regarded as his own son because he fed and looked after him over a period of 4 to 5 years that he had stayed there. On the 27^th June 2020 he and his wife Magum were working in their peanut garden when they saw the accused. They called him and he said he was going to the river. So, they gave him peanuts which he ate with them and some he put into his pocket and walked to the river where Police got him. He heard the gunshot and estimated 2 to 3 shots that were fired. He was adamant and determined that accused was seen by him at 7.0çlock in the morning even though he had no watch he could feel from the rising heat of the sun. He said it was a big thing and he could not forget it. Even after two and half to three years had lapsed. Therefore, he was adamant and insisting strongly that he saw the accused at 7.00am even though he had no watch he maintained.
36. The evidence of Magum wife of Otto was similar on oath. On that day, the 27^th June 2020 she was at her garden so too her son the Accused. She was digging peanuts whereas he had gone to chase birds on his garden. She saw him coming and calling out to him, asking where he was going? He said he was going down to the river. We gave him some peanuts that he ate and also put in his pocket. About 15 minutes later he went to the river. And then we heard gunshots and we were frightened because we never experience it there. So, we went to the house. I heard Samuel was apprehended by the Police where one was killed. I just gave peanut to him how he went I did not know.
37. She said she had no watch but said she went to the garden at 6.00am. And Samuel arrived at 7.00am. And I have a mobile so I saw the time there. And working in the garden the bilum was on the other side with the mobile in it. And she was still working in the garden at 9.00am. And at 10.00 clock the gun fired and it was only one shot from the river side. Asked by the Court as to what was her mobile number, she could not give it. She found it difficult to remember it and did not give it to the court.
38. The issue after the evidence of both sides was one of identification. That is who had killed the deceased in the robbery at the roadside Malilimi Division 1?
39. The State case was circumstantial there was no direct evidence of the identity of the person who was one of the robbers who had fired the homemade gun that killed Morris Yagu.
40. Because the evidence was beyond all reasonable doubt that there was an armed robbery executed upon the PMV Bus Sweat Blessings Piru by 10 men who were armed with bush knives, Stapler guns and homemade guns. They were masked and in the course of the robbery, one of them armed with a homemade gun aimed and shot the boss crew who ducked and the deceased who was a passenger next to him was shot in the head and died there. And the robbers escaped into the bushes in the direction of Buvussi Section 1 and 2.
41. In this regard I am mindful of the fact that identification can be made depending on the circumstances, not necessarily of sighting the Accused in the allegation, but the general circumstances in aggregate must be such that there is no other person other than the Accused who is responsible for the allegation levelled: Beng, The State v [1976] PNGLR 471. In other words, it is not necessary that there be an identification parade, or that there cannot be a conviction on the evidence of a sole witness. Because there are mistakes that have been made in identification, and therefore it is the general circumstances that will tell as to the identity of the assailant. I adopt that as relevant and applicable given the circumstances here. Because there is no direct identification of the perpetrators of the robbery and the Homicide. Both profoundly serious offences known to the law. Emotions cannot determine guilt or liability, it is the burden discharged on the evidence that is led. Each case is determined on its own facts and circumstances dictating the fall of the law.
42. This leads me to the law on circumstantial evidence expounded that where the case is circumstantial against the accused, there ought to be an acquittal unless there are no other reasonable hypothesis other than the guilt of the Accused: Pawa v The State [1981] PNGLR 498. It must be the only rational inference that can be drawn given the facts and circumstances prevailing, and that there are no other reasonable hypothesis open on the evidence, other than the guilt of the Accused. In the present, there is no other reasonable hypothesis other than that one of the persons in the group that held up stole and, in the process, shot and killed one of the passengers in that bus, was the Accused. That is the ultimatum that the State’s evidence will have to attain here for the Indictment to be upheld.
43. Relevantly therefore on that day 27^th June 2020 at about 6.00am to 7.00am in the morning there were about sixteen passengers including children onboard the PMV Sweat Blessing Piru which came to a stop at the Junction Malilimi Division 1 on its way to Kimbe. Because there was a log placed across and in the course of which the shooting took place, homicide, and the robbery, and the robbers escaping there in the general direction of Buvussi Section 1 and 2.
44. Police were alerted at about 7.30am and 8.00am that is the evidence from the witnesses set out above. First Constable Wayne Isako says he was preparing for normal duties that day between 6.30am to 9.00am. And Constable Jeremiah Kaumbel testifies that about 6.00am to 8.00am, he was at the Police Station Buvussi house when the telephone came through on the robbery and murder. It is therefore safe to hold that the report was made shortly after 8.00am possibly because the evidence of Paul Mongop puts time at 7.45am as he slowed down at the bend a log across the road the robbers came committing the crime. Given the description of the way the crime was committed it would not have taken more that 10 to 15 minutes at the highest. And therefore, the probability is that by 8.00am the crime had been committed complete and the robbers were already escaping.
45. The estimation by Counsel for the defence is that, from the scene of the Crime would be the same as from Kimbe Court house to Nahavio, a distance of about 6 kilometres. Given that fact these were robbers who had not only robbed but had killed one of the victims. And so, the propensity to escape quickly was there. It may have been not a straight flat geography, but the circumstances would have prompted quick getaway. And this was through terrain obviously worked out prior to the commission of the crime. It can be inferred from that fact of the direction that they took immediately after the commission of the offences. And this is clear from the evidence of Detective First Constable Wayne Isako, that criminal history dictated him to head to where he headed, Buvussi Section 1 and 2. So conversely the robbers would have considered their escape route even before and after the commission of the offence. It was a serious offence known to the law and they would not have taken account those facts for and against. Especially in the light of the facts of this particular offence.
46. That is why when the cut off was made by Police led by Detective Constable Wayne Isako it would fit into the time sphere, he gave of between 6.30 am and 9.00am. It would have been around almost to the hour of 9.00am when he got to the cut off because he was driving at emergency speed so, as he said it took between 15 to 25 minutes from the scene to the cut off at Buvussi Section 1. And his evidence is immediate, he goes to the block where the accused is resident. He checks but the accused is not there and there are also no other youths. So, he follows the track to where he eventually hears the voices and discovers the Accused and other youths about 10 to 11 from where he was, according to the evidence of Police Constable Jeremiah Kaumbel. And all were armed as evident from the Exhibits that have come into Court, Exhibit P21, P22, P23 P24 P24(1). This is clear inference that can be made that this was not a hunting trip for wild pigs, or animals but of a getaway after commission. Because the description that Constable Jeremiah Kaumbel details says it was as if they were in a hurry and running away from something. The evidence here is an armed robbery that turned into homicide also, both profoundly serious offences known to the law prompting the reaction as he saw. The sighting is consistent with the description of Paulus Mongop of the robbers who initially set out to rob him, how many and the weapons that they held.
47. Which is safe to infer because why else would 10 to 11 youths be armed as they were, amongst whom was the Accused who is supposed to have retired long home from the evidence he led of Otto and wife Magum. Why else would he be lingering there having come back from his garden duties there complete with indication to go to the river bath and go back home. Even then the home checked out by Detective First Constable Wayne Isako did not evidence that the Accused was home let alone any other youth. And suddenly all were cramped together with arms as if there was a war in one area coming as if they were running away from something. This evidence is drawn out from the scene of the robbery at Malilimi on the road leading in a blood hound trail to where the Accused with the others are from and the bilum of the witnesses, in particular of Anitha Solo Exhibit P24 the half triangle woven described above. Common sense dictates that the Accused with the Accomplices where at the robbery and the homicide, which is why the bilum of Anitha Solo was with them. They had stolen it from her when she was a passenger in that bus, Sweat Blessings Piru robbed. It left her possession in an armed robbery that morning. It was not coincidence that the Accused was in that group heavily armed. He was carrying a bilum with four (4) live buck shots with stones, a bible, and a black cap. And had a bush knife that he was holding. It was not the small bush knife described by his evidence together with his two witnesses. It has been produced in court exhibits set out above. It did not make sense that one would carry such when the owner was there. Because it was the subject of an armed robbery with all other bilums that were taken in the robbery as depicted by the witness’s statements set out above.
48. The element of surprise up the hill succeeded in the apprehension of the Accused who was leading holding a bush knife in the front. The others were back and coming up that incline so, jumped and escaped. One resisted pointing the home-made gun engaging and hence his death in the exchange. The Accused gave his name as Kilol Manasi, and the other standing with him at the time of the apprehension as Justin David Petrus. No doubt such come because of prior association and acquittance. He was obviously known by himself given and so it was not a case of good guess work but prior acquaintances and association. And given what has happened here accomplices in serious offences committed together and running away from it. And this inference is backed materially in that the accused was carrying the Bilum Exhibit P24 with Exhibit P24 (1) four (4) live buckshot. And he blanketly denied that the items that the Police combed and collected at the scene after the shooting and confrontation with those he was with of 2 stapler homemade pistols, 4 buck shots, 2x 7.76 calibre cartridges, 4x bush knives of which 2 have been produced in Court, 2 wool cap mask were theirs. He had nothing to do with them. If this was the truth in his favour, why did he fight and resist apprehension by Detective First Constable Wayne Isako. In fact, he risked being shot by Police when he was calling out, Uncle Joshua noken sutim mi. For an innocent man he was prepared to struggle and fight with the policeman. It did not par that he was not part of that group confronted by the Police. It was as if he was part of the group and he naturally resisted police not to take him into custody for the offences, as was the case of the others who escaped. He did not simply reason as he did in Court with Otto and Magum his parents there and then of the alibi he had corroborated by them. But allowed this wait since that day 27^th June 2020 up today Friday 04^th March 2022. To tell a story that he never volunteered to Police on the day he was taken in, or even at the record of Interview on the 1^st July 2020.
49. He was not prepared to file a Notice of alibi by the Criminal Practise Rules to substantiate and fight out his innocence at the first given opportunity when he was initially taken in by Police on the date of the offence 27^th June 2020. His supposed parents Otto Kisan Tambal and Magum Otto if genuinely concerned about the innocence of the son living next door who they fed cared for as their own son, did not volunteer their evidence to Police of his innocence. That he could not have committed the offence at 6.00am to 7.00am because he was with them. He had just come back from his corn garden chasing the birds there. They gave him peanuts they were harvesting and he was on his way to wash at the river and then go home. He could not have been at two places one and at the same time. Especially important evidence not disclosed by the Accused and his supposed parents.
50. Otto Kisan Tambal insisted vehemently that despite being without a watch he was adamant that his son the accused was with him at 7.00 am when he handed him the peanuts. He could tell from the heat of the sun. Yet in the given same period he could not tell with exactness how many gun shots were fired, maybe two or three. But even after two and half years going onto three, he was adamant and confirmed that it was 7.00am when his son was with him. The supposed mother Magum Otto was certain of the time because She had seen it on the mobile phone she had. That was 27^th June 2020 she could not tell what that mobile number was in the present the 04^th March 2022. It raised whether indeed she had a mobile telephone to see the time or was it a convenient alibi concocted to avoid what was due to the Accused their son. Constant use of that mobile telephone would have made it secondary to give the number. Here that was not forth coming from the owner of that mobile telephone tucked in the bilum at the other side of the garden as she worked. If indeed she had a mobile phone then and up to the present its number would have been straight out from her lips. It did not despite the wait in court.
51. What is more than probable is that this is an alibi that has been concocted or made out at the eleventh hour, the last minute appreciating the gravity of the actions that the Accused is facing to avoid what is due on the evidence led. It is deliberate and calculated because Accused was caught with the others who ran away, and one was shot when he put up resistance. The aggregate of the evidence is grave for the accused. He appreciates and did not volunteer the alibi at the outset not formally by way of a notice to that effect in accordance with the Criminal Practise Rules. State has been taken by surprise of the alibi and has had no opportunity to rebut either in the witnesses that have been called, or in calling rebuttal. And it is gravely dismantled and shattered by the lies of his own witnesses his supposed parents set out in the particulars that I have pointed out above. They have natural tendency by the tone of their evidence to side with their son. He being out of the whims of the law is material to them. And that is set out by the way their evidence has been tailored. The effect of which is that it has strengthened the evidence of the State on the identity of the accused as a principal offender in the robbery and murder committed at Malilimi Division 1 junction on the 27^th June 2020. The trial is for wilful murder not robbery as that is not allowed in law. So, the identity of the defendant as a participant in the crime of homicide is strengthened.
52. Its lateness means the Accused has two versions in his defence, in the first tendered in the record of interview he was with the boys after he had gone down to wash. And in the second he had gone to his garden returned and saw the couple Otto and his wife Magum, and he was given peanut by them and he went to wash in the river when the police got him detained. The veracity of his evidence is not consistent and credible given. When it is lined with the State evidence the ring of truth runs in the fibre of the evidence led by the State. Which is not so of his defence given. He in my view has told lies in the face of truth that is facing him, he was one of the robbers involved and was escaping that is why he put up a fight with the Policeman Wayne Isako but succumbed as he would have been shot as his accomplice. It means that the State evidence has been corroborated in its veracity by his lies, following Jaminan v The State [1983] PNGLR 318 where lies told out of a conscious sense of guilt amounted to corroboration of the account given by the Prosecution. I accept the credibility of the State witnesses in this regard and reject the defence witnesses. I view that identification of the defendant as a principal of the murder has been made out beyond all reasonable doubt as there is no ring of truth in his case: Kandakason v The State [1998] PGSC 20; SC558 (7 July 1998). His credibility with his witnesses leaves a lot to be desired.
53. This is a situation likened to Saka v The State [2003] PGSC 18; SC719 (2 October 2003) that he was seen amongst the accomplice and so his guilt followed suit. It is borne out by his overt behaviour leading to his apprehension enticed creamed out by his false alibi. He is an accomplice within the observation in Fineko, The State v [1978] PNGLR 262. There is no corroboration of the accusation he makes against his co accomplices including the deceased. As in State v Simon and Koroka [1987] PGNC 4; N600 (14 July 1987) he has tried to explain his out of court behaviour belatedly that has corroborated the account of the State rather than exonerate and has tilted the balance in favour of the assertions of the state against him on the Indictment laid.
54. Given all these in line with the observation made in Morris, The State v [1981] PNGLR 493, I pose, are there any other reasonable hypothesis open on the evidence as it is led, is there any other explanation open other than guilt, appreciating that the burden is always on the Prosecution and not on the defence to prove its innocence. I determine that there is indeed a killing which is gruesome, horrific, and inhuman. That whoever intended his death meant at the time that he discharged that weapon. It does not mean without specific evidence emanating from the scene that all who were there are therefore by the conduct of the shooter guilty of wilful murder. This Accused may have been one of the persons with the bush knife, because when apprehended he still had in his possession the bush knife. And in this regard the evidence of Paulus Mongop is relevant as to the role the two men with the bush knife played against him. In my view the Accused was one of the persons armed with the bush knife in the crime. It is doubtful whether he intended what was in the mind of the shooter of the homemade gun that killed Morris Yagi who went to the front of the bus and aimed and fired at the offsider.
55. Given these facts I am not satisfied that it would be safe to return a guilty verdict on the Indictment of wilful murder against the defendant. I am not satisfied that intent to kill has been proved on his part. But I am satisfied and I determine that it is safe to hold that Samuel Simon Petrus was one of the robbers, and he was armed with a bush knife at the scene which was used. That is depicted out by the evidence of Paulus Mongop. Because examination of the evidence of the other victims do not detail the role played by the assailants with bush knives except this witness. And accused was apprehended by Police still with a bush knife and four live buck shots in his bilum Exhibit P24 and P24(1). Accordingly, I am not swayed by the belated alibi he has raised. I determine that his credibility is not on par with State evidence and witnesses. I reject his alibi as being false and corroborative of the State evidence and case. I find as a fact that he was one of the person armed with the bush knife and did use it on the victim Paulus Mongop.
56. Accordingly, I return a verdict of guilty of Murder pursuant to section 300 (1) (b) of the Code, as I am not satisfied beyond all reasonable doubt of his intent. In so doing I am minded upon section 539 (1) of the Criminal Code to deliver the conviction of Murder. Because I am satisfied beyond all reasonable doubt that he assisted in the homicide by the way he acted with the bush knife. It was in the prosecution of an unlawful purpose an armed robbery in the course of which the gun was fired killing the deceased: Joseph Maino v The State [1977] PNGLR 404. He was there when the gun was discharged with a bush knife. He aided and abetted the offence by section 7 of the Criminal Code: Amoko, The State v [1981] PNGLR 373.
57. Verdict: Guilty of Murder under section 300 (1) (b) Criminal Code Act.

Orders Accordingly

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Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant