N9415

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1070 OF 2020, CR 1071 OF 2020, CR NO 1072 OF 2020, CR 1073 OF 2020, CR NO 1074 OF 2020, CR NO 1075 OF 2020, CR 1076 OF 2020, CR 1077 OF 2020, CR 1078 AND CR NO 1079 OF 2020

BETWEEN:
THE STATE

AND:
GRAHAM FLOYD PETER

Lorengau: Narokobi J
2021: 20th, 21st and 22nd October
2022: 4th February

CRIMINAL LAW – Wilful murder – Criminal Code, Division V.3 – Section 299, –Circumstantial evidence – whether guilt of the accused the only reasonable inference- Hearsay Rule – Exceptions to - Confessions – considerations – whether free and voluntary confession to a person not in authority.

The State alleges that in the early hours of 22 September 2017, Graham Floyd Peter, in the company of some accomplices broke into a shop in Lorengau, Splendid Star, stole an undisclosed sum of money and set the building alight, killing 10 Chinese nationals. There is no direct evidence of the accused involvement, except that he confessed to the crime to three witnesses, who were his close relatives. The State has charged him for wilful murder under s 299(1) of the Criminal Code to which he pleaded not guilty. The accused called no evidence and exercised his right to remain silent.

Held:

(1)	There is no direct evidence of the accused involvement and so this case is to be proven on circumstantial evidence.

(2)	The test for circumstantial evidence is the State to prove beyond reasonable doubt that the guilt of the accused is the only reasonable inference from all the evidence tendered into court (Paulus Pawa v The State [1981] PNGLR 498).

(3)	Confession evidence is an exception to the rule that hearsay evidence is inadmissible.

(4)	A trial judge must carefully examine the nature and extent of the confession and the circumstances in which it was made to exclude any reasonable doubt that it is a false or unreliable confession. In this case from the totality of the evidence, all reasonable doubt about its reliability has been excluded (Nara v State (2007) SC 1314).

(5)	The confession of the three State witnesses were made voluntarily and without any intimation, coercion, duress or promise of a favour, and accordingly attracts much weight to its probative value.

(6)	Taking into account all the circumstances of the case, the only reasonable inference from the evidence was the guilt of the accused and a verdict of guilt is returned. 

Cases Cited:

The following cases are cited in the judgment:

Papua New Guinea Cases

Gaio v The Queen [1964] PNGLR 263
Nara v State (2007) SC1314
Paulus Pawa v The State [1981] PNGLR 498
The State v Willie Orki Briza [1976] PNGLR 517

Overseas Cases

Ibrahim v R [1914] AC 599

Legislation Cited:

Criminal Code Act, Ch 262

Texts Cited:

Peter Murphy, Murphy on Evidence, 5th Edn, Blackstone Press Limited, 1995, London.
Counsel:

Ms. L. Maru, for the State
Mr. K. Pokiton, for the Accused

JUDGMENT ON VERDICT

4th February, 2022

1.	NAROKOBI J:  The accused Graham Floyd Peter of Likum Village stands charged that on 22 September 2017 at, Lorengau, in Papua New Guinea wilfully murdered:

i)	Yan Xiamei, Chinese female;
ii)	Weng Yun, Chinese female;
iii)	Yang Minghui, Chinese male;
iv)	Shi Yun, Chinese male;
v)	Chen Shi Yi, Chinese male;
vi)	Li Na, Chinese female;
vii)	Chen Qinghua, Chinese male;
viii)	Yan Chenxia, Chinese female;
ix)	Yan Xin, Chinese male; and
x)	Wu Fenghua, Chinese female.

2.	Graham Floyd Peter’s co-accused Robillo Micah and Nathan Boas were discharged after the State presented a nolle prosequi notice for both of them.

3.	The facts which the State sought to prove against the accused was that on 22 September 2017, the accused and some accomplice broke and entered a shop in Lorengau town, Manus Province, Splendid Star Ltd, stole an undisclosed amount of money and set on fire the store, which resulted in the deaths of 10 Chinese nationals, the subject of the charge.

4.	The following is a description of the building from the Investigation Report of the Papua New Guinea Fire Service dated 27 October 2017 that was tendered into evidence without contest (Exhibit AAF).

5.	Splendid Star Ltd or Splendid Star is located along the Lorengau Road, measuring approximately 67m x 27m in area. It is a double story building, built in the 1980s by Lae Builders Steel Company. Originally it was owned by Steamships Company, then White Lee to Best Buy. Best Buy had part of the building burnt in a fire. The structure was rebuilt and a Shao took ownership, before passing on to Splendid Star Limited.

6.	Splendid Star has two floors. On the ground floor, there is a supermarket, a kai bar, bakery, department store, wholesale, warehouse, bottle shop and an office. The first floor had a large warehouse, accommodation in the centre and a small warehouse or storage.

7.	At the time of the fire, the property was guarded by private security of the shop – Robillo Micah and Julius John.  

Elements of the Charge of Wilful Murder

8.	The accused was indicted with one count of Wilful Murder pursuant to Section 299(1) of the Criminal Code. Section 299(1) is states:

“s.299 –  Wilful murder .

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

(2) A person who commits wilful murder shall be liable to be sentenced to death.”

9.	The elements for the offence of wilful murder are:

(a) A person.

(b) Kills another person

(c) The killing is unlawful.

(d) There is an intention by the accused to cause the death of the deceased.

10.	For the charge of wilful murder to be sustained, there must be evidence to prove to the Court that the accused had the intention to kill or to cause the death of the deceased.

State’s Evidence

11.	The State tendered several documents into evidence without objection. The table contains a description of the document and or item tendered, its exhibit number and a short summary of what the evidence contained.

No	Date 	Document/item tendered	Exhibit No	Brief Description of Document 	
1		5 November 2019.	Record Of Interview (ROI) of Graham Floyd Peter – Pidgin version, dated 5 November 2019.	“A”	ROI conducted between Chief Sergeant Abraham Hualupmomi and the accused, Graham Floyd Peter at the Criminal Investigation Division office at Lorengau Police Station on Tuesday 5 November 2019.	
2			ROI of Graham Floyd Peter – English version, dated 5 November 2019.	“A1”	The English translation of the accused’s response to the questions from the police interviewer.	
3			Statement of Moses Pain	“B”	A Sergeant in the Police, a forensic examiner, he conducted the examination of the building and provides his report and sketch plan of the report. 	
4		6.11.19	Statement of Agnes Sive	“C”	She is a policewoman, senior sergeant employed as a Police photographer at the National; Forensic Science Center in Port Moresby. She provides a description of the photographs she took of the burnt building and the human remains in the building.	
5			Photographs  1 – 113	“C1”	Photographs of the burnt building and that of the charred human remains.	
6			Photographs 1 – 12	“C2”	Photographs of the burnt building and that of the charred human remains.	
7			Photographs 1 – 100	“C3”	Photographs of the burnt building and that of the charred human remains.	
8		12.11.17	Statement of Markson Gamui	“D”	He is a policeman at Lorengau. When he received information about the fire at Splendid Star he went over to see the building. He then instructed his officers to cordon of the area as it was a crime scene. He also recalls taking the security guards of Splendid Star in for questioning.	
9		12.10.17	Statement of Hilda Leo	“E”	She is a police prosecutor. She recalls just after 3am, she saw black smoke coming from the area of Splendid Star. Later she goes to the area and see people looting the container next to the shop. 	
10		9.10.17	Statement of Lesley Peni	“F”	He is a policeman, he recalls alerting the police at the barracks regarding the fire.	
11		8.10.17	Statement of Channel Yagom	“G”	He is a probationary constable with the Criminal Investigation Division. He recalls being dispatched to the area to guard the crime scene.	
12		13.10.17	Statement of Timothy Pomminis	“H”	He is a police officer.  He was at Splendid Star at about 1.30am on Friday 22 September 2017. He bought items from one of the Security Guard’s wife who sold things there. He left them about 1.45am, and there was no fire at that time. 	
13		8.10.17	Statement of Ted Teaga	“I”	He is a police officer, aged 25 years old. He recalls going to see the fire in the morning of 22 September 2017 and witnessing the looting going on at a container next to the Splendid Star building.	
14		7.9.17	Statement of Holland Onjiga	“J”	He is a police officer, and he was involved in guarding the crime scene on 22 September 2017, after the Splendid Star fire.	
15		9.9.17	Statement of Opa Nelson	“K”	He is a police officer, and he was involved in guarding the crime scene on 22 September 2017, after the Splendid Star fire.	
16		6.10.17	Statement of Tuka Pake	“L”	He is a police officer, and he was involved in guarding the crime scene on 22 September 2017, after the Splendid Star fire.	
17		10.10.17	Statement of Michael Kepi Minai	“M”	He is a police officer, and he was involved in guarding the crime scene on 22 September 2017, after the Splendid Star fire.	
18		11.10.17	Statement of Jeffrey Lanza	“N”	He is a police officer, and he was involved in guarding the crime scene on 22 September 2017, after the Splendid Star fire.	
19		8.10.17	Statement of Eric Richard	“O”	He is a police officer, and he was involved in guarding the crime scene on 22 September 2017, after the Splendid Star fire.	
20		10.10.17	Statement of Ralwin Lamu	“P”	He is a police officer, and he was involved in guarding the crime scene on 22 September 2017, after the Splendid Star fire.	
21		Undated	Statement of Daniel Watah	“Q”	He is a police officer, and he witnessed the fire of Splendid Star and they got some salt water to prevent the fire going on to the nearby building.	
22		13.10.17	Statement of Peter Palaua	“R”	He is a police officer, and he was involved in guarding the crime scene on 22 September 2017, after the Splendid Star fire.	
23		11.2.20	Affidavit of Dr Otto Numan	“S”	Dr Numan is a registered medical doctor at the Manus Provincial Hospital. He has been doing post- mortem reports for 31 years now. He did a post-mortem report dated 6/11/17 on the remains of the bodies from the Splendid Star fire incident in Lorengau Town.	
24		6.11.17	Autopsy Report of Dr Otto Numan 	“S1”	Dr Numan was asked to go and identify whether there were human remains at the burnt building. He could identify seven bodies but says there could be more. One of the remains, he says, it may have been slashed by a sharp object at the head of the femur and looked suspicious but needs to be confirmed by a pathologist.	
25		3.2.20	Statement of Dr Seth Fose	“T”	Dr Seth Fose is a medical doctor and has a Masters in Pathology and a Bachelor of Law. He is employed by the National Health Department as the Chief Pathologist and is also honorary consultant pathologist with the Port Moresby General Hospital. He provides a medical report on the cause of death of the deceased 10 Chinese nationals – Yan Xin (male adult), Chen Qinghya (male adult), Chen Shiyi (male adult), Yan Minghui (male adult), Yan Chenxia (female adult), Lin Na (female adult), Si Yun (female adult), Weng Yun (female adult), Yan Xiamei (female adult) and Wu Fenghua (female adult). He says, “The multiple bone fragments show evidence excessive heat and thermal injuries to body due to exposure of body to excessive heat and temperature due to fire burning down the building.  	
26		11.10.19	Statement of Ian Pasin	“U”	He is unemployed and is from Likum Village. He was apprehended over the burning of Splendid Star but says that he was in his village at the time.	
27		4.10.17	Statement of Frank Guka	“V”	He is a policeman a sergeant. He was on duty at that time. He received report of the burning of Splendid Star at 4.30am from a security guard of Splendid Star.	
28		21.10.19	Statement of Eric Posakei	“W”	He is self-employed and recalls that during the fire, there was looting of the container containing store goods next to Splendid Star and he was very concerned.	
29		12.10.17	Statement of James Emos	“X”	He is 24 years old, a security guard and he recalls that there was a fire at Splendid Star.	
30		24.10.17	Statement of Lawrence Henry	“Y”	He is a security guard employed with Juromo Security Company, he recalls fire starting at 3am going towards 4am, and he alerted his people of the fire.	
31		11.10.17	Statement of Lucy Allan	“Z”	She was with her friend who is from the Philippines, and recalls being told about 2.30am and 3am that Splendid Star was on fire.	
32		24.10.19	Statement of Jaycie Hilarai	“AA”	She is the wife of Gilbert Hilarai. She recalls the fire starting between 3am and 4am. She talked to Esther, who is the wife of Julius, who is a security guard at Splendid Star before she went home and went to bed at about 1.30am.	
33		24.10.19	Statement of Gilbert Hilarai	“AB”	He leaves at the boat shed, at the back of Splendid Star. Between 3am and 4am he was woken by his sister telling him that Splendid Star was on fire. They quickly moved out of their house as they could feel the heat.	
34		28.9.17	Statement of Paul Steven	“AC”	He is 37 years old, a contractor, and did construction work in Splendid Star in 2010. He attached a floor plan of the building.	
35		24.9.17	Statement of Parkop John	“AD”	He is a security guard at the neighbouring shop. He says he attempted to hose down the fire.	
36		23.9.17	Statement of Esther Julius	“AE”	Esther Julius is 22 years old and is the wife of Julius John, the security guard. She says the fire started at about 4.50am. 	
37		23.9.17	Statement of Julius John	“AF”	He is 25 years old, a security guard at the time at Splendid Star. He was on duty at that time. At about 4.50am he says they noticed the fire and radioed their boss, they talked briefly with him, and then they couldn’t hear him anymore.	
38		29.9.17	Statement of Judith Inock	“AG”	She is 35 years old, a shop assistant at Splendid Star. She says there is leakage of the roof. She draws a map of the shop.	
39		28.9.17	Statement of Rita Palaua	“AH”	She is 40 years old, from West New Britain Province, and a shop assistant at Splendid Star, and the wife of a policeman. She is good friends with the Chinese nationals and they talk freely with her.  She gives a description of the shop. She says the staff wake up as early as 3am to prepare for the day. She says the two security guards (Julius John in front and Robilo Micah at the back) have radio contact with either Jack or Tom in the shop. Jack was on holidays. She says there is no clear fire escape, but there is a route that can be taken. 	
40		3.10.17	Statement of Jack Yan	“AI”	Former manager of Splendid Star. He was on leave at the time of the fire. He Confirms the 10 Chinese nationals as former employees of Splendid Star Ltd that perished in the fire.	
41		28.10.17	Statement of Jack Yan	“AJ”	In his additional statement he reveals that the accused was a former employee of Splendid Star Ltd and was terminated for stealing and had an argument with his supervisor, “Boss Tom.”	
42		30.9.17	Statement of Dominic Kohai	“AK”	He is a driver at Harbourside Hotel. He recalls seeing Robin at about 4am in the morning. He is a security guard at Splendid Star. He did not mention to him that there was a fire in progress at the moment at Splendid Star. He recalls seeing a white Toyota landcuiser at that time around the area. 	
43		22.10.19	Statement of Bridget Pahun	“AL”	She is self-employed, they live at the back of Splendid Star.  She says she could hear dogs barking around the Splendid Star area.  She recalls going to sleep at 3am or 3.30am but woken up later by her daughter as Splendid was on fire. She recalls seeing fuel around the corner of Splendid Star after the fire that morning and thought that it was strange. 	
44		1.11.19	Statement of Berry Jimson	“AM”	He is unemployed and he lives with Dorcas Barry, the sister of Floyd Peter. He is of mixed parentage as well as from  Likum Village in Manus Province. He recalls drinking with other men an alcoholic beverage called “coffee punch” and they told him they bought it from Robillo (security guard at Splendid Star).	
45		1.11.19	Statement of Joel Kiki	“AN”	He is unemployed and he lives with his Uncle, Graham Floyd Peter at Ward 5, Lorengau, Manus Province. He is of mixed parentage as well as from Likum Village in Manus Province. He recalls drinking with other men an alcoholic beverage called “coffee punch” and they told him they bought it from Robillo (security guard at Splendid Star).	
46		1.11.19	Statement of Danny Kiki	“AO”	He is unemployed and he lives with his Uncle, Graham Floyd Peter at Ward 5, Lorengau, Manus Province. He is of mixed parentage as well as from  Likum Village in Manus Province. He recalls drinking with other men an alcoholic beverage called “coffee punch” and they told him they bought it from Robillo. 	
47		31.10.19	Statement of Alex Miller	“AP”	He is 27 years old, unemployed and from Likum Village, Lorengau, Manus Province. He recalls drinking Coffee punch (alcohol drink) with some relatives after the fire. When asked where they got it from, they said they got it from Nathan Boas.	
48		31.1.19	Statement of Rato Obert	“AQ”	He is 24 years old, unemployed and from Likum Village, Lorengau, Manus Province. He recalls drinking Coffee punch with some relatives after the fire. When asked where they got the drink from, they told him that they got it from Robillo Michah’s wife, who sold it for K25 a bottle.	
49		15.11.19	Coroner’s Report of Josephine Nidue	“AR”	Report of the coroner with the autopsy report of Dr Seth Fose.	
50			Employers Register of Work Permit by Jack Yan	“AS”	Jack Yan is a Manager at Splendid Star (at the time of the fire), and he maintains a register of their foreign employees which includes the deceased Chinese nationals, the subject of this case.	
51		14.5.15	Work Permit of Yan Xin	“AT”	Copy of a work permit.	
52		1.7.14	Work Permit of Chen Shi Yi	“AU”	Copy of a work permit.	
53		13.11.17	Death Certificate of Li Na certified by Dr Seth Fose.	“AV”	Confirms death of Li Na. The cause of death was fire in a building.	
54		13.11.17	Death Certificate of Wu Fengua certified by Dr Seth Fose.	“AW”	Confirms death of Wu Fenghua. The cause of death was fire in a building.	
55		13.11.17	Death Certificate of Shi Yun certified by Dr Seth Fose.	“AX”	Confirms death of Shi Yum. The cause of death was fire in a building.	
56		13.11.17	Death Certificate of Yun Shi certified by Dr Seth Fose.	“AY”	Confirms death of Weng Yun.  The cause of death was fire in a building.	
57		13.11.17	Death Certificate of Chen Shi Yi certified by Dr Seth Fose.	AZ”	Confirms death of Chen Shi Yi. The cause of death was fire in a building.	
58		13.11.17	Death Certificate of Yang Mungui certified by Dr Seth Fose.	“AAA”	Confirms death of Yang Mungui. The cause of death was fire in a building.	
59		13.11.17	Death Certificate of Yan Xiamei certified by Dr Seth Fose.	“AAB”	Confirms death of Yan Xiamei. The cause of death was fire in a building.	
60		13.11.17	Death Certificate of Yan Chenxia certified by Dr Seth Fose.	“AAC”	Confirms death of Yan Chenxia. The cause of death was fire in a building.	
61		13.11.17	Death Certificate of Yan Xin certified by Dr Seth Fose.	“AAD”	Confirms death of Yan Xin. The cause of death was fire in a building.	
62		13.11.17	Death Certificate of Chen Qinghua certified by Dr Seth Fose.	“AAE”	Confirms death of Chen Qinghua. The cause of death was fire in a building.	
63		8.10.21	Fire Report by Bill Roo, Chief Fire Officer	“AAF”	Contains a report of the cause of fire, after an investigation was done at the scene of the remains of the burnt building.	

12.	The first state witness was Joe Dasi. He is 48 years old. He is from Likum Village, Lorengau, in Manus Province. He works as a security guard at the National Court precincts for nine years now. He recalls 22 September 2017. He was at the Court premises on duty in the early hours of the morning. He recalls what happened between 2am and 4am that morning. He says between 2am and 3am, he stood at the front of the gate of the Court house. He heard noise and looked on and saw fire coming from Splendid Star and ran towards the razed building. There was no one there, and he returned to the courthouse. He was concerned about the safety of the courthouse. He was the only one at work. At about 4.30am, a crowd of people gathered at a container at the side of the shop. They broke the container and took out food. By then it was daybreak, the sun had lighted up the place and it was clear.

13.	At the time of the incident, he did not know who started the fire at Splendid Star. But he recalls a statement he made to the police in 2018 regarding the fire at Splendid Star. He made the statement to the police because Graham (that is the accused) told him some stories about Splendid Star. This is Graham Peter. Graham told him that – “They burned Splendid Star and killed 10 Chinese.” Graham told him this story on 7 August 2018. Graham told him about burning Splendid Star and killing the Chinese nationals twice. The second time was on 16 September 2018. The conversation occurred at the Courthouse where he comes to charge his mobile phone.

14.	He is related to the accused. His father and the father of the accused are brothers – they are first cousins. They are both from Likum Village.

15.	Joe Dasi identifies Graham Peter as the accused. He points to the accused sitting in the dock.

16.	When Joe Dasi was told a second time, he went to see his Pastor, Timothy Sandau, a Seventh Day Adventist pastor. The Pastor told him, that he should report what the accused told him to the police. Following his Pastor’s advice, he went and reported the matter to the police.

17.	When the accused told him about his involvement with the burning of Splendid Star, he did not tell him, who else was involved in the incident.

18.	At cross examination, it was put to him, the accused was joking with him.

19.	It was also put to him that he couldn’t remember the dates he had the conversation. He had a note with him, that note had dates on it.

20.	It was emphasised that he never saw what happened.

21.	Upon re-examination, he was asked what he didn’t see. He said he saw the fire.

22.	He reiterates that he recalls the conversation with the accused about what he said regarding the burning of Splendid Star and killing of the Chinese nationals.

23.	The next witness called was Hosea Dasi. He is 49 years old and is from Likum Village. He is employed at Lomai Hotel as a carpenter, working for two years. He is married and has five children. He recalls making a statement to the Police in October 2019. On 13 April 2019 he was cleaning his home when Graham came and fought him. He came with two other persons – Barry Kiki and Daniel Kiki. They fought over a parcel of land on which he had his property on it. The accused threatened him – “You know me, I burnt Splendid and killed people.” He was concerned about it and reported the matter to the police. He said the accused told him “I killed people, stole money and threw them in the fire”. He said the place was “Splendid Star.” He knows him well as their fathers are brothers. He points to the accused in the dock.

24.	There was no cross examination of this witness.

25.	The State’s third witness called was Chief Sergeant Abraham Hualupmomi. He is a police officer, serving 37 years, and attached to Criminal Investigation Division for 35 years. He was the team leader of the “Splendid Star investigations.” He did the record of interview (ROI) with the accused in the pidgin language and the interview was corroborated by Rhoda Peter a policewoman. He says the accused was given his constitutional rights, before he signed it. The ROI is tendered through him. The pidgin original is dated 5 November 2019 and identified as exhibit A and the English translation is identified as exhibit A1.

26.	The State’s fourth witness was Timothy Sandau. In 2017 he was serving as an Seventh Day Adventist Pastor in Manus; he is now retired. In October 2019, he made a report to the Police. He says Joe Dasi came and made a story to him. He met him at the Ward 3 market in Lorengau. He told him, that Graham (the accused) told him, that he was involved in the Splendid Star burning. He met him twice on different dates to tell him the story. It was a week apart. On both occasions he told him to bring the matter to the police. The witness was not cross-examined.

27.	The State’s fifth and final witness before it closed its case was Margaret Dasi. She is 45 years old. She is from Likum Village in Manus. She provided a Statement to the Police in October 2019. That story was about a fight between Hosea Dasi and Graham Peter. The fight took place in 2019, about a small area that belongs to Hosea Dasi. She had intervened to stop the fight. Graham told her not to come into the area. He said, “Don’t come here, don’t you know, I burnt Splendid and killed the people.” She identifies the accused in the dock as the person who made this statement. When the statement was made, she didn’t feel well. By that she meant that she was concerned for herself in the village.

28.	When the shop was burnt, she was in the village. She did not respond positively to questions on what happened after the shop was burnt.

29.	At cross-examination it was put to her that due to a land dispute concerning Graham, she wants him to go to jail. She said “No,” to that question. It was put to her that she was here to give evidence because of the land dispute.

30.	In re-examination, she said Police went to the village to get her to give her story.

Defence Evidence 

31.	 The Defence did not call any evidence and the accused chose to remain silent.

State’s Submissions 

32.	The State submits that it has tendered sufficient evidence to prove all the elements of the offence of wilful murder under s 299(1) of the Criminal Code. 

33.	The State submitted that the accused had the motive to kill as he was terminated from employment as a security guard, (refer statement of Jack Yan, exhibit AJ) as he was terminated for stealing, and had an argument with his boss, called “Boss Tom.”

34.	The cause of death of the deceased is proven by the medical reports of Dr Otto Numan and Dr Seth Fose. They say they all perished in the fire at Splendid Star.

35.	Jack Yan’s statement says all the deceased were killed in a fire and he provides all their names.

36.	Agnes Sive’s evidence were photographs of the burnt building and the charred remains of the deceased. 

37.	Page six of Bill Roo’s statement, says that the fire was caused not by electrical wiring but human intervention. 

38.	Answers to the questions in the record of interviews especially answers to questions 12 and 18, reveal that the accused was at Ward five in Lorengau at the time of the burning. This is within walking distance from Splendid Star.

39.	The State also submits that the confession to Joe Dasi, Hosea Dasi and Margaret Dasi, were voluntary and not induced in anyway and should be accepted. It was a serious admission and not a joke. The fact that Joe Dasi went to the police should be equated as a confession to a police officer.

40.	In the record of interview, he says he was asleep at the time but does not call evidence to support this claim.   

41.	The State submits that words spoken as a confession are admissible, and no hearsay rule arises to render it inadmissible. Evidence of the admission of the accused, is evidence of direct involvement and not against any hearsay rule. The accused made a voluntary admission of his involvement, and it is direct damning evidence. He admitted four times to three different people under three different circumstances. He was not intoxicated, not under duress, and he had a motive to commit the crime. The admission should be treated like any other confession to a police officer.

42.	The effect of the evidence, points to the accused, setting the fire shows clear intention to kill and the photographs, medical report and fire report shows the killing of the 10 Chinese nationals was by fire.

43.	If the court finds that the evidence falls short for a charge of wilful murder to be made out, an alternative verdict for murder or manslaughter is available under s 539 of the Criminal Code. 

44.	The State’s submits that there is no direct evidence of the accused but what it has presented is sufficient to return a verdict of guilt. 

Defence Submission 

45.	The Defence submits from the statement of Bridget Pahun (Exhibit AL) that she looks up and saw a Chinese lady screaming “Help, help.” They were alive at the time.

46.	The Defence submits that the evidence of State witnesses is not relevant to the issue of who committed the crime. 

47.	All the State provides are circumstantial evidence.

48.	None of the State witness were there at the time the crime was committed.

49.	The State’s case is based on what the accused said to others, and there is no evidence of his role and what he did to commit the offence.

50.	Accused does not admit to the crime in the record of interview.

51.	The State’s case is based on circumstantial evidence and there are other causes that can explain the fire and the death of the deceased.

52.	Dr Otto Numan does not say deceased were murdered by the accused.

53.	Dr Seth Fose says the deaths were as a result of the fire, and not foul play.

54.	The Defence does not take issue that the words were said but little weight should be given to the evidence of Joe Dasi, Margaret Dasi and Hosea Dasi as it is not a record of interview, and without direct evidence amounts to little weight. 

55.	The Defence submits that this case is to be distinguished from State v Willie Orki Briza [1976] PNGLR 517, which admitted into evidence the evidence of a deceased person as it was spontaneous and discounted the possibility that it was fabricated or concocted. This is a permissible exception to the hearsay rule. Here the admissions happened months later.

56.	In the Defence submission, there is no evidence of intention, no evidence of actual killing, and the only key evidence is the conversation with the accused by three witnesses some time after the offence was committed.

57.	The State has failed to prove how deceased person were killed and it is safe to say that there some were alive at the time, and it was the fire that killed them, and no evidence, to say that the accused set the building on fire.

Analysis of the Evidence and the Law

58.	There is no direct evidence of the accused involvement. I agree with the Defence Counsel that this is a case that will be proven on circumstantial evidence. The test that is to be applied in a case such as this is for the State to prove beyond reasonable doubt that the guilt of the accused is the only reasonable inference from all the evidence tendered into court. See Paulus Pawa v The State [1981] PNGLR 498. This is the test I apply here. 

59.	It is not disputed that there was a fire on 22 September 2017, and it gutted the building known as Splendid Star. The photographs of Agnes Sive in the statement tendered into evidence as exhibit C1, C2 and C3 confirms this. Joe Dasi in his oral evidence puts the time of the fire between 2am and 4am. There is no suggestion from the Defence that the fire razed the building at some other date and time.

60.	It is also not disputed that there were 10 Chinese nationals whose names appear in the indictment that were killed in the building. It was submitted by the Defence, that one of them was alive at the time of the fire from the statement of Bridget Pahun (Exhibit AL) and she was calling out “Help, help.” The uncontested evidence of the autopsy report of the two doctors, Dr Otto Numan and Dr Seth Fose confirms that the 10 Chinese nationals were killed in a burning building.

61.	Bill Roo, the Chief Fire Officer provides to the police in a letter dated 8 October 2019,  a Fire Report, dated 8 October 2019 prepared by Inspector Pasingan Token that was tendered without objection. He is of the professional opinion that the cause of fire is undetermined, but he cannot conclusively rule out human intervention as the cause of the fire. 

62.	On its own, this suggestion from Bill Roo is inconsequential. But as part of a series of events, it is a significant piece of the overall fabric of design of the evidentiary material.

63.	Bill Roo’s report should be read together with that of Moses Pain. Moses Pain’s statement was tendered into evidence without objection as exhibit B. Moses Pain is 54 years old. He is a police officer with the Papua New Guinea Royal Constabulary. He holds the rank of Sargent and he is the office in charge of the Crime Scene Section in the National Forensic Science Centre, Gordons, in the National Capital District. He has been working as a Crime Scene and Arson Examiner for 29 years since he completed a one -year course in Crime Scene Examination in the State Forensic Science Laboratory in Melbourne, Australia. On 24 September 2017 to 12 October 2017, he attended and conducted an examination of Splendid Star in Lorengau. I quote relevant parts of his findings:

“Our examinations showed that the fire appeared to have started from the interior side to the main door area of the retail supermarket part of the building in the early hours between 0300am and 4.00am on Friday the 22nd of September 2017…

This area was on the front and mid part on the Western side of the building. The evidence were the burnt iron roofing and the snapped iron thick structural metals and other burnt items.
There was no evidence to suggest a break and enter of the whole building as well that two security guards fully alert the whole night of 21st to early 22nd September 2017, and 10 people believed alive in separate rooms inside, all geared with radio, also reports none.

Since the lights were allegedly on when the fire had already started conflicts electricity faults. My physical examinations of all available swich boxes and wirings suggested nil electricity short circuits through melting wires etc.

The foresaid suggests that the fire appeared to have been introduced by people from inside of the main entrance door area of the retail supermarket of the building.

The open safe and the cut through of the metal door found in the retail supermarket and liquor shop area suggested burglary. This also supports the suggestion of introducing the fire from inside of the building.

Though the building was too huge and it took more than an hour to burn down, it was strange none of the 10 victims appeared to have attempted an escape, most likely through the balcony or veranda or other means suggested that these people appeared to have been murdered by those responsible for the burglary and arson.

This was also supported by the position of the deceased body locations being four metres (4m) to 7m and furthest being 21m apart from inside the building, mainly the eastern part of the retail supermarket to southern (21m) wholesale area. These positions suggested the question of handicapped to escape by the victims and also confirms being murdered or tied up before setting fire to the building.

It appeared that the perpetrators, more than one or two people appeared to have accessed the main entry and exit door used after hours at the back area (east) to kill the 10 deceased, steal and set fire to the building.

The security guard Robin Micah who was posted at the back area of the building and was working from 6pm on 21st September to 22nd September Friday 2017, 6am appeared to have knowledge of who was responsible for the fire and death of the 10 deceased.”   
    
64.	The next issue I must determine is firstly what weight I must give to the evidence of the three state witnesses. The Defence does not dispute what the witnesses said about the accused. It instead says that there is no direct evidence linking the accused to the crime and the State’s case is entirely built on circumstantial evidence as I highlighted earlier. I should give no weight to their evidence as they were either said in jest or done out of spite.

65.	Let me first deal with the submission of the State that confession by the accused here falls within the exception to the hearsay evidence rule. The Defence did not object to the State witness as being hearsay but let me dwell for a moment on the hearsay rule. Hearsay evidence is a well-known rule of evidence, and it has been described as follows:

“Evidence from any witness which consists of what another person stated (whether verbally, in writing, or by any other method of assertion such as a gesture) on any prior occasion, is inadmissible, if its only relevant purpose is to prove that any fact so stated by that person on that prior occasion is true. Such a statement may, however, be admitted for any relevant purpose other than proving the truth of facts stated in it.” (Peter Murphy, Murphy on Evidence, 5th Edn, Blackstone Press Limited, 1995, London, at 172)  
 
66.	On the face of it, the confession here was hearsay evidence. But there are exceptions to the hearsay rule of evidence. Confessions to the police is readily admitted if they are voluntary, but it is not so common when the confession is made to a victim, a friend or relative. In the pre-independence case of Gaio v The Queen [1964] PNGLR 263, the accused confessed his crime to a patrol officer through an interpreter, and the issue was whether that confession offended the rule on inadmissibility of hearsay evidence. Fullager J who gave the leading opinion of the High Court of Australia stated:

“The objection to Smith’s evidence was put on the ground that it was hearsay evidence. What Smith narrated amounted to a confession by the appellant of the crime with which he was charged, and confessions and admissions constitute, of course, a class of evidence which is excepted from the hearsay rule: such statements are admissible as evidence of the facts stated.”

67.	Lord Sumner in Ibrahim v R [1914] AC 599, also stated at 609:

“It has long been established…that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercise or held out by a person in authority.”
 
68.	I proceed on the basis that this was a case that fell within the exception to the hearsay evidence rule. 

69.	The States submits that what the accused told Joe Dasi, Hosea Dasi and Margaret Dasi was a confession of the crime he committed. It was done voluntarily. There was no threat or intimidation. There was also no promise of a reward. Such confessions are akin to confession to a police officer in a record of interview. There is no law preventing the admissibility of such evidence.

70.	I have had regard to the case of Nara v State (2007) SC1314 where an accused was convicted on account of his confessions to his in-laws. Cannings J who gave the dissenting opinion, made the following observations, which is relevant here:

“The trial judge must carefully examine the nature and extent of the confession and the circumstances in which it was made to exclude any reasonable doubt that it is a false or unreliable confession.”

71.	So, what did the first witness Joe Dasi say the accused told him? He said, “They (meaning the accused and others) burned Splendid Star and killed 10 Chinese.” He said this twice - on 7 August 2018 and 16 September 2018. This is almost 12 months after the incident which occurred on 22 September 2017. The accused voluntarily told Joe Dasi this statement (who was his first cousin) when he went to charge his mobile phone at the courthouse where Joe Dasi works. The fact that Joe Dasi felt troubled enough to go and report it to his SDA pastor, Timothy Sandau, not once, but twice, suggests that what the accused told Joe Dasi, was not a joke, but a confession, so serious that it burdened his conscience. The fire and the death of the Chinese nationals was a crime which attracted much public attention. Timothy Sandau confirms the conversation with Joe Dasi, whom he counselled to go and report the matter to the police. I agree with the State’s submission that Joe Dasi is a reliable witness, he had no motive to report the accused, other than to tell the truth. It was courageous of him to report his own relative, a brother in the Melanesian sense, but a first cousin in modern Western description of kinships. If it was a joke, as the Defence suggested, Joe Dasi would not have reported it. He worked in the courthouse as a security, and he appreciated the significance of what he was doing.

72.	The next witness was Hosea Dasi, he had a fight with the accused over a piece of land in the village on 13 April 2019. This is almost two years after the incident. He says the accused threatened him, telling him that he burnt Splendid Star, stole money, and killed the Chinese nationals. He was not cross-examined. At submissions the Defence suggested that he told this story as he has a score to settle with the accused over the land dispute. I reject this contention for three reasons. Firstly, Hosea Dasi and the accused fathers are brothers, so there would be some very sinister reason for him to turn on his brother which I have no evidence that he had. Secondly, there is no contrary evidence to suggest that he acted on a vengeful motive from the land dispute. He was not cross-examined, so it was not put to him to get his reaction. It was just an inference from his evidence from the accused fight with Hosea Dasi over a parcel of land. Thirdly, Hosea Dasi’s evidence should be considered in the totality of the evidence tendered. His evidence in a sense corroborates the evidence of Joe Dasi. Both gave their stories independently of each other.

73.	Margaret Dasi was the other witness who gave evidence regarding the accused’s confession. She confirms that there was a fight between Hosea Dasi and the accused. She intervened to stop the fight but was warned by the accused to stay away. The accused said to her that he is a dangerous man, having burnt the Splendid Star shop and killed people. It was put to her by the Defence that she came to give evidence due to the land dispute in the village. But there is no suggestion that she is lying. The difficulty with me accepting this submission, is that there is no evidence to show how she was part of the land dispute between Hosea Dasi and the accused. It was only Hosea Dasi that had the dispute with the accused. I accept that when she came to stop the fight, she heard what was said to her and as a result reported it. Nothing more, nothing less.   

74.	Now what would be the motive for the accused. The statement of Jack Yan dated 28 October 2019 admitted into evidence as exhibit AI provides the motive, as submitted by the State. The accused worked as a security guard. He was terminated in 2016. The Statement says:

“On Monday 28th of October the CID officers from Port Moresby showed me a photograph of a possible suspect which I identified him as Graham Floyd Peter a male adult who is a local from Manus Province. Graham was a former security guard with Splendid Star Supermarket before the stores were burnt in 2017. Graham was terminated by Boss Tom in 2016 for stealing. He had an argument with Boss Tom before he was terminated in 2016.”

75.	The proximity of the accused to where the crime occurred is significant too. The record of interview was tendered through Chief Sargent Andrew Hualopmomi (Exhibit A1 and A2). It was not objected to. In the record of interview, in answer to questions 12, 14 and 15, the accused says that he was living at Ward 5, Lorengau at the time of the incident. 

Q12: Where do you reside at Lorengau?
Ans: At Ward 5 settlement

Q14: Can you recall back on Friday the 22nd of September 2017? Where were you?
Ans: I was with my family in the house.

Q15: Was it the whole day, morning till night?
Ans: The whole day in the morning till night I didn’t come to town.

76.	The distance from his house is within walking distance from Splendid Star, the building that was torched. This is from the accused’s answer to questions 17 and 18 in the ROI that he walked to see the building in the morning when his wife told him that Splendid Star was on fire.

Q17: That’s surprised (sic) how the entire population in Manus heard about the Splendid Star Supermarket was on flame?

Ans: It was on Thursday I slept with my family in the house my wife heard the noise and she woke me up and we went down to see.

Q18: What did you see there?

Ans: Splendid Star was on fire.   

77.	In answer to question 14, as to where he was on the night of 22 September 2017, he said he was with his family. He does not call any alibi evidence to support his statement in the record of interview.

78.	So, the admissible evidence I have, has shown that the accused was living within the vicinity of the crime scene. No alibi has been called to explain where the accused was between 2am and 4am despite suggesting it in his record of interview. There is no dispute that 10 Chinese nationals had died from the fire of the building. It is possible that the fire could have been started from human intervention. The accused was a former employee of Splendid Star having been terminated in 2016. He was terminated for stealing and had an argument with his supervisor. This is the motive. He has confessed the crime to three independent and credible witnesses. To my mind I have been satisfied beyond reasonable doubt that there is no other reasonable inferences, than the guilt of the accused, that he intended to cause the death of the following persons setting the building Splendid Star on fire which killed:

1) Yan Xiamei, Chinese female;
2) Weng Yun, Chinese female;
3)Yang Minghui, Chinese male;
4)Shi Yun, Chinese male;
5)Chen Shi Yi, Chinese male;
6) Li Na, Chinese female;
7)Chen Qinghua, Chinese male;
8)Yan Chenxia, Chinese female;
9)Yan Xin, Chinese male; and
10)Wu Fenghua, Chinese female.

79.	My verdict is that the accused is guilty of wilful murder pursuant to s299(1) of the Criminal Code. 

80.	I will now adjourn for Counsels to address the court on sentence.
________________________________________________________________
Public Prosecutor:	Lawyers for the State
Public Solicitor:	Lawyers for the Accused