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State v Karl [2022] PGNC 94; N9549 (4 February 2022)

N9549

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1358 OF 2019

BETWEEN:
THE STATE

AND:
JAMES KARL

Angoram: Rei, AJ
2021: 6^th, 12^th & 14^th October
2022: 4^th February

CRIMINAL LAW – PRACTICE & PROCEDURE – wilful murder of two (2) persons – identification and participation no case submission – accused acquitted on lack of evidence.

Cases Cited:

Rex Paliau -v- The State (SC2016)

The State -v- Koget [2017] PGNC60; N6682

Legislation:

Section 299(1) of the Criminal Code Act
Section 7 of the Criminal Code Act

Counsel:

Mr. Solomon Kuku, for the State
Mr. Stanley Parihau, for the Defendant

DECISION ON VERDICT

4^th February, 2022

1. REI, AJ: INTRODUCTION: The State through Mr. Popeu presented an indictment on the 11^th of October 2021 of two counts laid under Section 299(1) of the Criminal Code Act.
   
2. The first count is that:

“James Karl Moim Village Angoram, East Sepik Province stands charged that he, on the 3^rd day of February 2018 at Moim Village Angoram, East Sepik Province in Papua New Guinea wilfully killed one Kaile Mangin.”

3. The second count is that:
   

“James Karl Moim Village Angoram, East Sepik Province stands charged that he, on the 3^rd day of February 2018 at Moim Village Angoram, East Sepik Province in Papua New Guinea, wilfully killed one Alex Mangin.”

4. The trial commenced on the 12^th of October 2021 in which the State tendered by consent the Record of Interview conducted in English dated 24^th July 2019 and marked Ex “A” together with the following:
   
   • (i) Medical Autopsy Report of the deceased Kaile Mangin Ex “B” dated 3^rd February 2018
   • (ii) Medical Autopsy Report of the deceased Alex Mangin Ex “C” dated 3^rd February 2018
   • (iii) Photographs of the Crime Scene (x2) Ex “D1”, “D2” and “D3

5. The accused denied the charges on the basis that he did not participate in committing the offence and that he was at the scene of the crime to stop the deceased persons who where then drunk having consumed illicit drug in the nature of home brew the whole night from Friday 2^nd February 2018 to Saturday 3^rd February 2018.
   
6. The State called one witness whose name is Michael Angham who is the current Ward Councilor for Moim Village.
   
7. In his evidence, he stated that two people were killed on the 3^rd of February 2018 whose names are Kaile Mangin and Alex Mangin who are brothers. Kaile Mangin was killed by Nato Koni. Alex Mangin was killed by Neville Karl.
   
8. He also stated in evidence that the accused aided and abetted in the killing of the two (2) deceased persons.
   
9. The defence called one (1) witness, the accused.
   
10. The accused gave evidence that he is the former Ward Councilor for Moim Village and that he has been involved in the maintenance of peace and good order in Moim Village as a former Ward Member and a villager.
    
11. On the night of 2^nd February 2018, he noticed both deceased persons and others consuming home brew liquor in their house and went across to stop them as this was village community.
    
12. They however continued to drink until the next morning and, according to his evidence, both deceased persons went to the market in Moim Village and were harassing the market people.
    
13. He was tending his banana garden when he heard a commotion in the market place and he came out from the banana garden behind his house and went to the market with the intention of quelling the commotion.
    
14. He was holding onto two bush knives which he used to clean his banana garden.
    
15. He said he did not see the State witness Michael Angham in the scene but did notice both deceased persons and a mob of people walking past the house belonging to the witness.
    
16. The accused stated that upon noticing the deceased persons approaching the State witness, he (the State witness) ran into the house.
    
17. The accused was in the market standing in the midst of the commotion helping to appease the people when he noticed the deceased Kaile Mangin retreat to his house and re-emerge with a gardening spade.
    
18. The critical point of his evidence is that when the deceased returned with the gardening spade, he tried to hit the accused on the head, but he shielded himself by holding onto the brother of the deceased, a Tom Mangin.
    
19. He was however struck by the deceased Kaile Mangin on the forehead and the rib cage and was bleeding profusely resulting in him becoming unconscious for about 10-15 minutes.
    
20. By the time he regained consciousness, he heard that the deceased Kaile Mangin had died whose body was some 50 or 60 meters away from the scene where he was struck by Kaile Mangin.
    
21. At the end of the evidence, I asked the accused as to who may have killed Kaile Mangin, the accused stated quite clearly that it was Nato Koni who killed him. This evidence was also given by the State witness Michael Angham.
    
22. The question of fact is whether the accused aided and abetted in the killing of Kaile Mangin and Alex Mangin resulting in their instant deaths.
    
23. Weighing the evidence of the State and the defence, I am not convinced that the accused ever struck the deceased Kaile Mangin and/or Alex Mangin resulting in their death.
    
24. Kaile Mangin was still alive at the time he hit the accused on the forehead and the rib cage areas and ran or walked some 50 meters away where he must have been struck by someone else resulting in his death. The accused was in the meantime unconscious.
    
25. I do not therefore believe the evidence given by Michael Angham for reasons that he was not there all the time these incidents happened.
    
26. He made up his evidence to make an impression on the village community that he is the leader and was involved in peace processes.
    
27. No evidence was led and adduced by the State as to any reason why the accused may have done what has been alleged against him.
    
28. According to the submissions made by both Counsels, the entire case hinges onto the issue whether the accused aided and abetted in the killing of the two (2) deceased persons.
    
29. There is no question that the accused was present at the scene of the crime.
    
30. There is also no dispute that the accused did not actually participate in the murder of the two (2) deceased persons by swinging any offensive or dangerous weapon to harm to cause death.
    
31. He was there to stop the commotion and to bring peace and good order to the community. He stated this clearly in evidence.
    
32. In the case of The State -v- Koget [2017] PGNC 60; N6682, His Honour Cannings J. when considering s.7 of the Criminal Code Act cited Supreme Court case of Rex Paliau -v- The State (SC2016) and said that “[the] presence of an accused person at a violent incident involving death, does not by itself result in the conclusion that the accused participated in the incident or commission of the crime.”
    
33. Oral testimony must be adduced in open Court suggesting that the accused did actively participate in the commission of the crime by uttering words or using sign language to others to participate in the commission of crime.
    
34. Such evidence must be clear and unambiguous so as to avoid conviction of innocent bystanders or people involved in dispersing others to maintain peace.
    
35. The accused in this case said that he was stopping the two (2) deceased persons and when he was seen by his sister Cathy Karl hiding or shielding himself in the body of Tom Mangin, his sister called out for help. It was not the accused who called for help, which the State describes as re-enforcement.
    
36. No oral evidence was adduced in Court that the accused encouraged aided or abetted in the commission of both crimes.
    
37. The actions of the accused do not fall within the general meaning of Section 7 of the Criminal Code.
    
38. Mr. S. Kuku strongly urged in his submissions that I find the accused an untruthful witness. If I do so, I should also find the State witness a liar in that he lied that the accused did lay a hand on either of the deceased persons. I say this because what is clear is that both the State witness and the accused said in witness box that the accused did not lay a hand on either of the deceased persons nor did he encourage or urge others to do so such that the blood of the two (2) deceased persons be upon his head.
    
39. I find that the State has not proven beyond reasonable doubt that the accused aided and abetted or that the accused acted in concert with others to kill the deceased persons.
    
40. The evidence is that the relatives retaliated upon seeing the accused being in danger upon the encouragement of Cathy Karl and not the accused himself. There is also evidence that Kaile Mangin was found dead some 50 meters away from where the accused was, who may have been killed by Nato Koni and Alex Mangin being killed by Neville Karl.
    
41. I therefore find that the accused is not guilty of the crimes as charged and should be discharged forthwith.
    
42. The orders are that:
    
    • (i) the accused is acquitted and
    • (ii) be discharged accordingly
      

________________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendants