N9681

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 252, 253, 254, 255, 256 & 257 OF 2021 

THE STATE

V

LAWRENCE GERARD, BEN VARURUAI, PHILLIP GERARD, MATHEW PIDILE JUNIOUR, PETER SALEAU AND PIDIK ARULO

Kokopo & Kerevat:  Tusais, AJ
2022:  8th, 9th,10th February, 1st, 2nd, 3rd, 4th, 12th, 17th March, 5th May

CRIMINAL LAW – Trial - Verdict–Wilful Murder section 299 Criminal Code Act- Victim died of knife wounds – Principle offenders – Identification Evidence – Circumstances under which identification made – Dangers of convicting on identification evidence when quality of such evidence affected.

Cases Cited

John Beng -v- The State [1977] PNGLR 115
Porewa Wani v The State [1979] PNGLR 593
R v Tovarula [1973] PNGLR 140
State v Kuanande (1994) N1218
State-v- Daniel [1988-89] PNGLR 580

Counsel

Mr Rangan, for the State
Mr Paisat, for all the Accused

DECISION ON VERDICT
05th May, 2022
1.	TUSAIS, AJ:  On 8th February 2022 the state presented an Indictment against the six accused persons alleging that they, each and severally, on the 12th day of July 2020, at Tunvirua, Livuan-Reimber LLG, Gazelle District, East New Britain Province, wilfully murdered Francis Mamu. All 6 accused pleaded not guilty and a trial was run. This is the court’s decision on verdict.

Facts

2.	On a Sunday 12th July 2020, between 3 and 4 o’clock in the morning, the 6 co-accused persons and others, carried bush-knives and walked to the home of the Late Francis Mamu and his family, situated at Tunvirua block, Kabaira village, near George Brown Theological College on the North Coast Road of the Gazelle Peninsular in East New Britain.

3.	They went to a building that Late Francis Mamu was sleeping in. The men suspected him of practicing sorcery. They broke the door of the house, went inside and cut Francis Mamu with bush-knives, intending to kill him. Late Francis Mamu lost a lot of blood due to various cuts on his body, and as a result he died inside the house. State alleged that the six co-accused persons aided and abetted each other as per s. 7 of the Criminal Code Act.

4.	It is not in dispute that Francis Mamu died on Sunday the 12th of July 2020 from excessive blood loss caused by multiple chop wounds to his body inflicted with bush knives. 

5.	All the accused denied involvement in the attack that resulted in the death of the deceased. They all raised alibi defences. The issue before the court is to decide whether the state witnesses have correctly identified the accused persons. The second issue for the court to determine is whether the state has proven beyond a reasonable doubt that there was intention to cause death.

6.	The prosecution called six witnesses and tendered twenty-two documents by consent. The documents included Post-mortem report, Records of interview and colour photographs. 

STATE CASE

7.	Witness John Nai’i was the main eyewitness. He is the stepson of late Francis Mamu. He lived with Mamu and his uncle Leo Katut at their block. Another person named Augustine Pidik and his family also lived close by. John himself was newly married at the time of the killing and had an infant son with his wife Cathy. 

8.	John gave sworn evidence as follows.  On 12/7/2020 he was asleep at his block at Tungirua with his wife and baby. The child woke up between 3 to 4 am and as he was patting him to put him back to sleep, he saw bright torches approaching his house. That time the moon was shining brightly. 

9.	He heard people gathering around his house. At the same time his wife woke up. One man lifted the window and entered the house. They asked or said “Mamu are you there You kaikai kan na kam autsait. You are a sorcerer.” His wife called out to them and said ‘Mamu is not here’.

10.	The men ran up to Francis Mamu’s house. John saw Pidik kick the door of Mamu’s house and go inside. After ToPidik was Junior. And then Peter Saleau. After Peter Saleau it was Philip. Other people surrounded Mamu’s house. John recognized them because they had flashlights which they were shining to the door. When they kick the door down, they all went inside and cut Francis Mamu. He heard Francis shout and say “inap yupala katim mi pinis” But they did not stop. 

11.	After cutting Francis, they came out and ran off into the cocoa plantation. Two of them, Joe Bula and Junior, chased John’s dog to the front of his house. Junior cut his dog into three pieces using a bush knife. This happened about 2 meters away from where he was watching from inside his house. Junior was identified in court as Mathew Pidile Junior.

12.	 Junior and Joe ran back toward Mamu’s house after killing the dog. Joe Bulo ran past Mamu’s house and went away but Junior went back into the house and cut or slashed Mamu for the last time. Francis Mamu called out to John and Leo Katut. Junior went out of the house and ran away. After seeing that John went up to Mamu’s house. He went inside the house and saw that his step father was badly injured. He ran to his uncle Leo to get him to help Mamu.

13.	Witness Cathy Tony is the wife of the first witness John Nai’i. She gave the following evidence. 

“…… those boys who were standing outside Mamu’s house ran up to his house. They went to Mamu’s house. Some ran to the door. Others to the window. They started banging on the door and broke it. They broke the door down and went in. They were so many of them. Some went in, others came out. Going in and out.

14.	I don’t know what happened inside the house. But I could hear hm call out and say “inap now yupla katim mi pinis. After he call out like that some men ran into the cocoa patch. Junior plus Joe Bulo ran down to our house. At that time our dog was barking. Then they cut our dog in front of our door. Junior cut the dog while Joe Bulo stood and watch. He cut the dog and then ran back to Francis Mamu’s house. He went in, came out and then he left.

15.	My husband and I came out of the house. We went up and saw Francis Mamu laying down with blood shooting out from his neck. My husband told me to stay with him while he went to look for a vehicle. We stayed there. He spoke and asked for water, He asked me to fan him. Then he called the names of his 3grand children and he said he would leave them. That is when he died.

16.	Witness Leo Katut lived in the house next to the one Francis Mamu was killed in. He is married to Mamu’s cousin sister. That night he was asleep inside his house and woke up when he heard loud noise. He went out to see what the disturbance was. As he stood between two tanks that separate his house from Mamu’s, he saw a lot of men. He recognised three of them and called their names as Junior, Ben Waruruvai and Pidik Arulo. He saw them as they walked past his kitchen and went to Mamu’s house just next to his. He was able to see them from bright torch light coming from headlamps or torches attached to their heads. The distance he marked as about 3 meters between where he stood and where they walked past. He then feared for his life and went into his house and only came out after the attackers left and Mamu was calling his name. He met up with John Nai’i and they both went to see Mamu. This witness correctly pointed out Mathew Pidile Junior and Ben Varuruai inside the court room but said he did not see Pidik even though he said he knew him well. I will mention this aspect of his evidence later on in this judgment. 

17.	Witness Richard Bauram is a young boy of around 12 to 14 years. He was asked several questions and based on his responses I determined that he understood the nature of the oath and allowed him to give sworn evidence. He stated that on Saturday afternoon he saw people drinking alcohol at Ben Varuruai’s residence. Then he went to sleep at a house near John Nai’i’ s house adjacent to where Mamu was attacked. In the early hours of Sunday morning he was woken up when people hit the wall of the house he was sleeping in. He went out to the veranda and saw Junior also known as Jux running here and there and cutting branches of a guava tree standing next to the house. He clearly identified Junior from moonlight that was shining at the time. He did not identify any one else because he was frightened and went back to his bed.

18.	In court, witness Richard correctly pointed out Mathew Pidile Junior as the man he named as Junior or Jux. He also named the following persons as those who had drunk alcohol with Ben Waruruvoi on Saturday afternoon. They were Lawrence, Phillip, Peter, Junior, Maibi, Joe and Pidik. The witness correctly pointed out Ben Varuruai, Lawrence Gerard, Phillip Gerard, Peter Saleau, Mathew Pidile Junior and Pidik Arulo. He knew all of them well. Ben Varuruvoi was born of his sister so he called him nephew. Junior was married to his sister so he called him inlaw. Others he also knew well.

19.	Witnesses Augustine Pidik and his wife Frieda Augustine gave similar evidence. They live a bit further away from Mamu’s house than Leo Katut and John Nai’i. Augustine said that he heard banging at Mamu’s house in the early hours of 12th July 2020 and he went with his wife through the cocoa garden where they stood and saw torch light around Mamu’s area. Then the two went back to where the church was and stood  under a mango tree. As they stood they saw a lot of men emerge from the cocoa garden onto the road. Out of them they were only able to recognise Pidik Arulo and Jonathan Gerard who has not been arrested for this trouble. 

DEFENCE CASE

20.	All the accused persons decided not to give evidence. 

CRIME SCENE VISIT

21.	Before final submissions on verdict, the court conducted a crime scene visit at the request of both lawyers. This was done on Saturday 12th of March. The court went to Tunvirua block located within Kabaira village, Gazelle District and saw the hamlet or block that the deceased had lived in and was attacked. The scene is as depicted in the photographs taken by witness John Nai’i and marked as State exhibit 1. I noted firstly that there was a citrus tree growing in front of the door leading into the small house that the victim was sleeping when attacked. From witness John Nai’s’ house the trunk of the tree blocks the view of the door. The tree is an old one and was there at the time of the killing in 2020, two years ago.

22.	I also noted the distance from witness John Nai’i house to the murder scene. It appeared to be further than the estimated 10 meters. In fact it seemed to be between 30 to 40 meters. The whole length from entry into the block to the last house belonging to witness John’s house is over 100 meters. The victim, Francis Mamus’ house is about half way between the entrance and John Nai’i’s house.

23.	The witness Leo Katut lived less than 5 metres from Francis Mamu. There are two tanks between their houses and that is where he said that he stood between the tanks and saw three men including Ben Varuruai, Junior and Pidik. Mamu’s house previously used as a store is shown as the central house in photos marked state exhibit 1. Two tanks are shown in the photos and Leo Katut’s house is built right next to the tanks.

24.	A final observation of note was that there was a large mango tree growing opposite the little house / trade store that late Francis Mamu was sleeping inside when attacked. When court party visited the scene the time was almost mid day and a large shadow could be seen covering the area including the house that the deceased had been attacked in. More shade was given by the citrus tree growing in front of the doorway of Mamu’s house. This would have also been the situation at night-time when those trees would prevent moonlight from penetrating through the foliage and so even if there was moonlight, that area would have remained dark similarly to the shade cast during sunny days.

25.	The prosecution always bears the burden of proving any offence beyond a reasonable doubt. For wilful murder under section 299 there are three elements. 

1)	The accused (a person)
a)	Unlawfully kills another person
b)	With the intention to kill or cause death.

26.	The main issue in this case is whether the state witnesses correctly identified the accused persons. The court also has to determine from the evidence if there was intention to kill.

Defence Submissions

27.	Mr Paisat made very brief submissions on the evidence. He told the court that he relied on and adopted his submissions made in the no case to answer submissions he made previously. Again, those submissions were very brief. In essence what Mr Paisat submitted was that the state witnesses’ evidence was unreliable and not worthy of belief. Counsel argued that the state witnesses had all conspired and gave false evidence because all of them stated the time to be between 3 to 4 am. He also referred to the failure by witness Leo Katut to point out accused Pidik Arulo in court.

State Submissions

28.	Mr Rangan for the state submitted that the issue was one of identification. He argued that there was good evidence of witnesses recognizing known persons instead of identifying total strangers. He argued that the event happened over a period of time, 5 minutes or more. That there was sufficient light from bright torches carried by the attackers and also from moonlight. Counsel referred to various state witness evidence.

ASSESSMENT OF EVIDENCE

29.	I find all the State witnesses to be honest and mostly believable. Their evidence was not damaged at all during cross examination. There was no suggestion made to any of them about having any motive to give false evidence. 

30.	I refer to the evidence of Leo Katut and the puzzling fact that he was unable to identify Pidik Arulo in court after stating that he knew him very well as a person from his community. I did consider that to be odd until I took careful note of how the accused persons were seated inside Kokopo National court room number 2. Because the dock could only seat two or three if crammed in, the other accused sat outside the dock. Pidik Arulo was the last listed accused and he sat on the bench slightly behind the State prosecutor. When the witness was asked to point out Pidik Arulo, the state prosecutor was still standing. He completely blocked the witness view when looking over from the witness box toward the dock. Other witnesses who came later correctly pointed to Pidik and added that he was seated behind the prosecutor. I find therefore that the witness Leo Katut’s failure to identify Pidik is sufficiently explained.

INTENTION TO KILL

31.	Evidence of intention to kill can often be inferred from the nature of the injuries inflicted. In the case of State v Kuanande (1994) N1218, Injia, AJ (as he then was) said 

… “Intention is a matter which goes to the state of mind of the accused at the time he acted. It may be proven by direct evidence of the accused's expression of intention followed by the act itself or by circumstantial evidence. In either situation it is necessary to examine the course of conduct of the accused prior to, at the time and subsequent to the act constituting the offence”.

32.	There were several severe knife wounds found on the body of the deceased. The examining doctor found the following external injuries.

“There is a deep cut on the left side of he neck measuring 12cm x 5cm x 6cm and the trachea severed. There is a deep cut to the head and the skull fractured. There is a deep cut to the left arm measuring 9cmx4cmx3cm and a fractured humerus. The left forearm completely severed. There is a deep wound to the right shoulder measuring 14cm x5cmx3cm.there are multiple deep cuts to the back.”

33.	Further summation of the injuries are stated by the doctor as follows.

“INTERNAL EXAMINATION FINDINGS

The trachea severed, and there is a cut to the left humerus bone. There is cut fracturing the skull bone. The left radius and ulnar completely severed.

REPORT SUMMARY

The external examination reveals deep penetrating cuts on the left side of the neck, left arm and severed forearm. There is cut on the head and right shoulder.

Internal examination reveal severed major blood vessels of the neck. The skull fractured and left forearm completely severed.”

34.	The injuries leave very little doubt in my mind that there was intention to kill. Witnesses saw blood shooting out from the very deep cut to the neck which severed the wind pipe or trachea. Other cuts to many other parts of the body also show viciousness and intention to cause death. A person would not be expected to survive after receiving such horrific injuries. I find therefore that there was intention to cause death.

IDENTIFICATION EVIDENCE

35.	The next question is who caused the death of Francis Mamu? The law relating to identification evidence is well settled in PNG. In the case of John Beng -v- The State (1977) PNGLR 115 the Supreme court said:

“In Proceedings where evidence of identification is relevant, the Court should be mindful of all the inherent dangers, the need for caution convicting in reliance on the correctness of identification, the possibility that a mistaken witness could be a convincing one and that any number of such witness could all be mistaken; the Court should examine closely all the circumstances in which the identification by each witness came to be made bearing in mind that recognition may be more reliable than identification of a stranger, but that even where the witness is purporting to recognize someone he knows mistakes can be made.

When the quality of the identification evidence is good the matter should proceed to a verdict, when the quality of identification evidence is poor, unless there is other evidence which goes to support the correctness of the identification, an acquittal should be entered.”

36.	In this case one witness, John Nai’i said he clearly recognised all six accused as the persons who he saw going in and out of Mamu’s house. Other State witnesses only identified 3 accused. Cathy Tony said she saw Junior cutting the dog and heard Pidik call out telling others where Mamu’s house was. Richard Bauram saw Junior cutting guava branch. Leo Katut saw Ben Varuruvoi, Junior and Pidik walk past his kitchen and go to Mamu’s house at a close distance. He saw them from torches they wore on their heads. Finally, Augustine Pidik and his wife gave evidence that they saw Pidik Arulo come out of the cocoa garden with the group of men who had attacked Mamu.

37.	There is overwhelming evidence of identification of accused Mathew Pidile Junior. He was the most aggressive person that night. He went in to Mamu’s house after the others had come out and inflicted the final blows. He was also seen cutting John Nai’s dog into three pieces. Richard Bauram saw him cutting the guava tree. Leo Katut saw him walk past his house from a very close distance. There was sufficient light from torch and moonlight for each of these witnesses to make a clear recognition. I find as a fact that he was at the scene of the crime.

38.	 Accused Pidik Arulo was also identified by several witnesses. John Nai and his wife Cathy heard him call out telling others where Mamu’s house was. Leo Katut saw him walk past him. Finally, Augustine Pidik and his wife Frieda saw him walk out of the cocoa garden with the other men after attacking Mamu. 

39.	Voice identification is good evidence. In the case of State-v- Daniel [1988-89] PNGLR 580.  Doherty AJ (as she then was) stated that evidence of identification through recognition of persons voice was as good as visual identification. The Judge in that case dismissed objections raised by the defence lawyer to the admissibility of the witness’ evidence identifying the defendant through a telephone conversation. In admitting the evidence of voice identification of the defendant, the court said that in voice identifications there are two groups:

a)	First the witness knows the accused voice very well and can easily recognize it. 
b)	Secondly even if the witness has not previously known the accused the recognition of the voice is done because the voice has such distinctive features that it leaves a clear mental impression in the mind of the witness enabling the conclusion to be drawn that they are the same.”

40.	I find that Pidik Arulo was well known to witnesses John Nai’i and Cathy Tony. They gave evidence that they heard him call out telling others where Mamu’s house was. Coupled with visual identification by three other state witnesses Iam satisfied that Pidik Arulo was correctly identified at the scene of the crime. I find therefore that Pidik Arulo was at the scene of the crime.

41.	Ben Varuruai was seen by one witness, Leo Katut, when he walked past his kitchen. Although he was the only witness who saw him that night, he did so from a very close distance. He also saw him clearly illuminated by many bright torches worn by the attackers. I accept Leo Katut as a witness of truth and find that he clearly recognised Ben Varuruai and correctly identified him. I therefore find that Ben Varuruai was present at the scene of the crime.

42.	As for the remaining three accused, Lawrence Gerard, Phillip Gerald and Peter Saleau, the only witness who identified them in the early hours of Sunday 12th July was John Nai’i. He saw them going in and out of Mamu’s house. The distance he saw them was from inside his own house looking through a very small window toward Mamu’s house. He said the distance was 10 meters but I have seen it myself and it is much further, about 30 to 40 meters away. From John Nai’i’s house the view is obstructed by a citrus tree growing in front of the door going into Mamu’s house. Although the leaves or foliage is above the roof, the tree trunk itself is split, a bit like the many trunks of the fikus tree, and quite effectively blocks the view. 

43.	Finally in cross examination John Nai’i was asked if he had stood less than 2 meters away from the 2 men cutting his dog he could be seen by them. He answered that they could not see him because of the fly wire blocking their view. If that fly wire prevented them from looking in, then I infer that it would also hinder the view of someone looking out from inside,

44.	Warning myself on the dangers of identification evidence I ask if the evidence of John Nai’i alone is safe for the court to rely on in the identification of the three accused persons that only he identified. His evidence is not supported by any of the other witnesses who also know the six accused very well as they come from the same area or ward and are related to each other. What I find to be of concern is that his wife Cathy who was also at his location was not able to see and call the names of the three men. I also note that Leo Katut did not see these three men. Finally Augustine Pidik and his wife Frieda although they saw the group of men come out of the cocoa garden, did not see the three named accused among that group of men.

45.	I referred above to my observations of distances and objects including trees growing around or close to Mamu’s house. In my view these factors adversely affected the view that witness John Nai’i might otherwise have had. In those circumstances I have reasonable doubt on the accuracy and satisfactory nature of identification of the three named accused. 

SECTION 7 INVOLVEMENT

46.	All the accused were seen armed with bush knives that night, All of them were seen going in and out of Mamu’s house. If they did not cut the victim their presence encouraged and supported those who actually inflicted the injuries. 

47.	They went with the group and gave their full support. The law on parties to offences is set out in s.7 (1)(2)(3) and (4) of the Criminal Code. For convenience, I set out the above section in full.

(1)	When an offence is committed each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence and may be charged with actually committing it:-

(a)	every person who actually does the act or makes the omission that constitutes the offence, and

(b)	every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and

(c)	every person who aids another person in committing the offence; and

(d)	every person who counsels or procures any other person to commit the offence.

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

(a)	committing the offence; or
(b)	counselling or procuring its commission.

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

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

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

(b)	liable to the same punishment, as if he had done the act or made the omission and may be charged with himself doing the act or making the omission".

48.	To be caught under s.7 of the Code, the State must prove that the presence of an accused is willed or intended and not accidental. Sometimes, a person may be present on the scene purposely and where he had not offered any dissent to the commission of an offence, it has been said that such inaction may afford cogent evidence that an accused willfully encouraged the commission of an offence: R v Tovarula [1973] PNGLR 140.

49.	The second aspect of the above is that to constitute an aider or abettor, some active and physical words or action with the intention to instigate a principal or principals. In Porewa Wani v The State [1979] PNGLR 593  the Supreme Court said at 597:

"It is well established that mere presence at the scene of a crime is not enough to constitute aiding. However, presence and wilful encouragement are enough.”

50.	I therefore find that section 7 of the Criminal Code is applicable and incriminates all the persons who went to attack Francis Mamu that night.

VERDICT

51.	I find accused Ben Varuruai, Mathew Pidile Junior and Pidik Arulo guilty of wilful murder and convict them accordingly.

52.	I find the accused Lawrence Gerard, Phillip Gerard and Peter Saleau not guilty and acquit them. Unless they have further charges pending against them or are serving sentences, they are to be discharged forthwith from Kerevat jail.

Verdict accordingly.
________________________________________________________________
Office of the Public Prosecutor:  Lawyer for the State
Paisat Lawyers:  Lawyer for the Accuseds